Shri Ravichand vs Union Of India
2013 Latest Caselaw 157 Bom

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    IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                        
                     NAGPUR BENCH, NAGPUR.




                                                
                      First Appeal No.478 of 2012




                                               
    Shri Ravichand S/o Narayan Khurchankar,
    Aged about 26 years,
    Occupation Student,
    R/o Nehru Putala,
    Telipura, Itwari,




                                     
    Nagpur.                            ..... Appellant.
                          ig   :: versus ::

    Union of India,
                        
    Through General Manager,
    South Eastern Railway
    Garden Reach, Kolcutta.                   ..... Respondent.

    =====================================
      


                 Shri Vilas Deshpande, counsel for the Appellant.
                 Shri N.P.Lambat, counsel for the Respondent.
   



    =====================================





                          CORAM : A. P. BHANGALE, J.

DATE : 18th NOVEMBER, 2013

ORAL JUDGMENT.

1. The appellant challenges the judgment and award

dated 24.9.2004, passed by the learned Member

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(Technical), Railway Claims Tribunal, Nagpur Bench, in

Claim Application No.13/0A-II/RCT/NGP/2003, whereby

the claim application was dismissed by the learned

Member of the Tribunal.

2. Appellant - Shri Ravichand, aged about 26-years,

student by occupation, resident of Itwari, Nagpur, was

travelling by Howrah-Ahmedabad Express Train No.8034

from Gondia to Nagpur, on 7.7.2002. It is the case of the

appellant that there was a crowd in the compartment in

which he was travelling and, therefore, he was standing

near the door of the train. All of a sudden, there was a

strong/forceful push from inside the compartment and he

fell down therefrom and lost both of his legs which were

amputed due to the untoward incident. The injured

claimant was shifted to the Mayo Hospital, Nagpur. It is

the case of the claimant that he had purchased ticket

No.10474185 on 7.7.2002.

3. The Railway Administration had disputed its liability

on the ground that the victim claimant was negligent and

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he was standing near the door of the train. It is not in

dispute that the claimant was a bona fide passenger on

the date of untoward incident. The facts on record

revealed that the claimant along with his friend was a

bona fide passenger. This was also pleaded in the claim

application. The record indicates that except giving

suggestion to deny the liability, no material was elicited

from the claimant to indicate that there was no crowd in

the compartment, in which the claimant was travelling or

to indicate that the claimant was negligent in standing

near the door of the compartment. Under these

circumstances, the claimant cannot be blamed for

standing near door when compartment is crowded. The

victim/claimant was standing near the door of the

compartment, which was crowded and he was bona fide

passenger. The Tribunal observed in paragraph No.8,

thus :

"From the said scheme of law it is crystal clear that each compartment of every description of carriage the Railway Administration has fixed the maximum number of passengers which may be carried by it and that the numbers so fixed

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are exhibited in a conspicuous manner inside or outside, but, inspite of that the

Applicant did not bother to observe the same and made his entry in the compartment knowing well that there was

heavy rush."

Thus, the Tribunal without any basis in evidence led tried

to fix the liability upon the victim claimant himself for

travelling by the train in question. The ground reality in

this regard cannot be ignored that many passengers to

whom the valid tickets are issued by the Railway

Administration, due to the limited numbers of train, are

compelled to travell even in crowded compartments.

Unless the Railway Administration prevented any

passenger from entering into the compartment at the

starting station itself, it cannot disown its liability to pay

the compensation, which is statutorily fixed in the sum of

Rs.4,00,000/-. When seat is not available in the crowded

compartment, passenger may be required to stand in the

passages of the compartment. Railway must prevent

this at starting station if it wants to disown liability on

this count. Under such circumstances, if due to jerks

caused, as a result of sudden application of breaks by

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driver of the train or for the reason that due to heavy

rush of the people in the compartment, there may be a

mishap which can result into untoward incident within

the meaning of the Railways Act, 1989 which covers an

accidental falling of any passengers. Therefore, the

claim is maintainable by passenger claimant for the

injury caused due to accidental falling from the train.

4. The

learned counsel for the appellant rightly

submitted that if Railyway Administration wants to

escape from liability to pay statutory compensation in

this case in the sum of Rs.4,00,000/-, it ought to have

pleaded exception provided under Section 124-A of the

Railways Act, 1989. The material must be elicited from

the witnesses concerned to bring the case within

exception provided for under Section 124-A of the

Railways Act. It is true that if the passenger commits any

criminal act or travel in a state of intoxication or

attempted to suicide or responsible for self inflicted

injury, Railway Administration in an exceptional case,

where exception is pleaded and proved, can escape from

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         liability to pay statutory compensation.           In the present




                                                                           

case, no such exception was pleaded or proved so as to

exonerate the railway from payment of compensation in

the sum of Rs.4,00,000/-, payable in facts and

circumstances of the present case.

5. The learned counsel for the respondent/Union of

India wants to rely upon the evidence of Prakash Thakur,

Senior Assistant Station Master, Itwari Railway Station,

who gave evidence before the Tribunal regarding receipt

of memo of the accident in question. Shri Thakur

deposed that he received memo from the Guard Shri Deo

stating that one person tried to get down and fell down

from the bogie. It is also contended that since the

claimant was resident of Itwari, he must have tried to get

down at Itwari Station and met with an accident.

However, the evidence of Shri Thakur cannot be

considered as reliable particularly when Shri Deo is from

the Railway and is interested witness who is

uncorroborated. It was obligatory on the part of the

Railway Administration to lead best available evidence of

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the guard, who gave report that the person tried to get

down and fell down from the bogie. The defence,

therefore, for want of reliable and acceptable evidence in

this respect appears to be baseless particularly when had

it been a case that the victim claimant tried to get down

at Itwari Railway Station, without any scheduled stop,

such a person could have been prosecuted but in fact he

was not prosecuted. If that being so, the benefit of

exception under Section 124-A of the Railways Act

cannot be given to the Railway Administration.

6. The claimant in the present case has lost his both

legs due to the untoward incident and as a result,

amputation occurred. The compensation in the sum of

Rs.4,00,000/- is provided in Schedule with reference to

Rule 3 of the Railway Accidents and Untoward Incidents

(Compensation) Rules, 1990. For double amputation

through leg or thigh on one side and loss of other foot,

compensation is provided in the sum of Rs.4,00,000/-.

Section 124-A prescribes the compensation to the

prescribed limited extent only as given in the Schedule.

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Hence, the Railway Claims Tribunal ought to have

awarded a sum of Rs.4,00,000/- as compensation,

payable in the present case, looking to the facts and

circumstances of the case and the evidence led in the

present case.

Hence, for the reasons stated above, the appeal

deserves to be allowed.

The impugned judgment and award is set aside. The

claim application is allowed. The Railway Administration

is liable to pay a sum of Rs.4,00,000/- to the appellant

claimant along with interest at the rate of 9% (Nine

Percent) per annum from the date of claim petition.

JUDGE

!! wankhede !!

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