Mahadeo Laxman Kumare And Anr. vs Union Of India (Uoi)
2004 Latest Caselaw 689 Bom

JUDGMENT

Anoop V. Mohta, J.

1. Heard learned counsel appearing on behalf of the appellants. In spite of the service no-one is appearing in this matter, on behalf of the respondent, at any point of time.

This appeal has been preferred by the original applicants against the original non-applicant/respondent herein, and thereby, challenged the judgment dated 4th August, 1988 passed by the Civil Judge Senior Division, Wardha, in Original Railway Claims No. 16 of 1986, whereby, their application for compensation was dismissed in toto.

2. One Hemraj Mahadeo Kumare, aged 20 years, was travelling in 385 down Bhusawal-Nagpur Passenger on 5th September, 1986, which met with an accident near Pulgaon, as it hit by the derailed wagons, died in the said accident on the spot. Accordingly, Panchnama was also recorded and prepared. The said deceased Hemraj was the only son of the appellants and was a student of R. S. Bidkar College, Hinganghat, studying in Part-I of the B.Com. Course. The appellants are belonging to Scheduled Tribe. The appellants contended that Hemraj was the only earning member of their family and was providing them near about Rs. 225/- per month. The said Hemraj could have earn salary of more than Rs. 1,500/- per month and considering his age he would have lived atleast 70 years, therefore, the applicants had claimed Rs. 3 Lacs towards the total compensation.

3. The Railway Authorities/respondent, however, by its written statement Exh.9 resisted the said claim, but, not led any evidence in support of their defence. The appellants had led evidence in support of their claims.

4. The whole premise based on which the application of the appellants was rejected that the deceased Hemraj was not the bona fide passenger, at the relevant time of the accident. Therefore, on this basic foundation, without considering the above merits of the matter, the application was rejected. The learned Judge also rejected the case of the applicants that he was the only earning member, doing part-time job, earning Rs. 250/- and providing Rs. 225/- per month to the applicants. There is no dispute about the receipt of the ex-gratia payment of Rs. 5,000/- by the applicants.

5. The learned Advocate appearing for the appellants basically relied on the two judgments reported in 2003(1) ACC 130 (DB) A.P., Union of India v. Baburao Koddekar and 2003(1) ACC 423, Agam Shanthamma v. Union of India, (A.P.), thereby, it is held that the burden of proof lies on the railway authority that the deceased was not bona fide passenger with a valid ticket. The learned Advocate appearing for the appellants read reasoning as well as, evidence led by the parties apart from the written statement filed by the Non-applicant/respondent. I find that there is no averments made in the written statement as observed in impugned order, that the said deceased was not bona fide passenger with a valid ticket, except simple denial to para No. 3 of the application filed by the applicants. The appellants have specifically mentioned and asserted as follows :

"The deceased was a bona fide passenger holding IInd Class passenger ticket bearing number 17747 dated 5-9-1986 issued from Akola to Hinganghat via Pulgaon-Wardha."

Except the above denial there was no material placed on the record and admittedly, no evidence was led by the respondents. No additional pleas or submissions raised accordingly. The appellants, however, led evidence and specifically placed on record Exh.15 a ticket which was found in the clothes of deceased Hemraj. The said ticket was of a journey from Akola to Hinganghat. The said ticket was placed on the record and proved accordingly, apart from the additional evidence led on the record. The learned Judge, however, relied on the Panchanama, wherein, there is no mention about such railway ticket and on this sole ground the claim of the appellants was rejected. It is surprise to note that there was no specific contention raised by the respondent in its written statement to the effect that the deceased was not holding this ticket, although above observations in para 12 and 15 were made. The police panchnama by that itself cannot be the reason to disbelieve the positive case made by the appellants, supported with the material on record and specially the ticket at Exh.15, with positive assertion to the effect.

6. The judgments cited by the learned Advocate appearing for the appellants support his arguments based on the provisions of Section 124-A of Railways Act, 1989 (for short new Act). It may be noted here that the relevant sections were Sections 82-A and 82-C of the Railways Act, 1890, which have been now replaced by the new Act. The present case is definitely governed by the provisions of the old Act. However, the principle as laid down in these two cases cited by the appellant cannot be overruled. In this regard, it is held by the A.P. High Court in the case of Agam Shanthamma as under :

"Learned Counsel for the appellant submits that the burden of proof that the deceased was not a bona fide passenger lies on the Railways and that burden has not been discharged by the Railways and, therefore, the Tribunal erred in holding that the deceased was not a bona fide passenger. In support of this contention, learned Counsel relied on the Division Bench decision of this Court in Union of India v. B. Doddekar, (DB). On the other hand learned Standing Counsel for the Railways submits that no case is made out by the appellant to interfere with the impugned order passed by the Tribunal and, therefore, the appeal is liable to be dismissed."

Another judgment Union of India v. Baburao Koddekar (supra) deals with this aspect. Those provisions cannot be interpreted differently to shift the burden on the claimants in the facts and circumstances of this case also. The relevant observations are as under :

"Therefore what is deducible from the above pronouncement of the Division Bench of the Madhya Pradesh High Court is that the burden does not lie on the dependants of the deceased to prove that the deceased was a bona fide passenger and the burden is on the railway administration to prove that the deceased was a ticketless traveller or was not a bona fide passenger. We entirely agree with this view of the Madhya Pradesh High Court. We may also say this view of the Madhya Pradesh High Court is prior to the amendment brought to Section 123 of the Railways Act. Now, as a result of the amendment brought to sections 123 and 124 of the Act, the burden is on the Railways to prove that the deceased is not a bona fide passenger with a valid ticket and the nature of death falls within any of the Exceptions to Section 124 of the Act."

7. The Tribunal relied on the AIR 1984 All H.C. 127, Sunderi v. Union of India. The facts are distinguishable in the present case there is positive assertion, as well as, evidence placed on the record by the claimants. Whereas, the respondents failed to lead any evidence or rebut the same. As observed above there was no averments made in the written statement to that effect. In this background it cannot be said that the appellants failed to discharge their burden to prove their claims. The respondent failed to rebut the evidence led by the appellants. In view of this, I am of the view that the deceased Hemraj was the bona fide passenger at the time of accident with the valid ticket.

8. In view of the above findings what required is the actual compensation and/or the rate of compensation which should be awarded to the applicants. In the present case the accident took place on 5th September, 1986 and at that time the applicant No. 1 was of 57 years and No. 2 was of 40 years. There is no point in remanding the matter for fresh trial. Therefore, in the interest of justice, to avoid further delay I am considering to pass order of awarding compensation in this first appeal itself.

9. Without going further into the details as on the face of the record, the said deceased Hemraj was providing them Rs. 225/- per month, if multiplied by 12 (months) it comes to Rs. 2,700/-. Even if that money is taken into consideration, looking to the age of the deceased at the relevant time, which reported to be of 20 years, he could have earn the money as prayed atleast. The loss of only son cannot be overlooked. There is no-one else to support the applicants.

In view of this, I am of the view that maximum amount as per Section 82(2) of the Indian Railways Act, should be awarded towards the compensation to the applicants, even though the compensation was claimed for Rs. 3 Lacs. I am also of the view that the appellants are entitled for interest on this amount which according to me, should be @ 6% per annum from the date of application i.e. 4-12-1986.

With these observations the order and judgment dated 4th August, 1988 is quashed and set aside.

The appeal is allowed accordingly.

No order as to costs.

The respondent is hereby directed to make payment within three months from the receipt of copy of the order.