Bombay High Court
Union Of India Thru. Gen. Manager vs Balaji Kishan Bhosle And 2 Ors on 5 April, 2016
Bench: A.S. Chandurkar
fa304.07n305.07.odt 1/8
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
FIRST APPEAL NO.304 OF 2007
APPELLANT: Union of India, Central Railway,
Through its General Manager, CST
Ori. Respondent
Campus, Mumbai.
(On R.A.)
-VERSUS-
RESPONDENT: 1. Balaji S/o Kishan Bhosle, aged about 40
years, Occ: Nil, Estate, Civil Lines,
Ori. Applicants ig Nagpur.
(On R.A.)
Appeal abates against 2. Tulshiram @ Ashroba S/o Yeluba Bhole.
respondent No.2.
3. Sou. Geetabai W/o Tulshiram @
Ashroba Bhosle, aged about 60 years,
Occ: Household,
All R/o Lohgaon (Thakurche), Taluka &
Distt. Parbhani.
Shri N. P. Lambat, Advocate for the appellant.
Shri A. R. Bambal, Advocate for the respondent Nos.1 & 3.
WITH
FIRST APPEAL NO.305 OF 2007
APPELLANT: Union of India, Central Railway,
Through its General Manager, CST
Ori. Respondent
Campus, Mumbai.
(On R.A.)
-VERSUS-
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fa304.07n305.07.odt 2/8
RESPONDENT: 1. Balaji S/o Kishan Bhosle, aged about 40
years, Occ: Nil, Estate, Civil Lines,
Ori. Applicants
Nagpur.
(On R.A.)
Appeal abates against 2. Tulshiram @ Ashroba S/o Yeluba Bhole.
respondent No.2.
3. Sou. Geetabai W/o Tulshiram @
Ashroba Bhosle, aged about 60 years,
Occ: Household,
All R/o Lohgaon (Thakurche), Taluka &
Distt. Parbhani.
Shri N. P. Lambat, Advocate for the appellant.
Shri A. R. Bambal, Advocate for the respondent Nos.1 & 3.
CORAM: A.S. CHANDURKAR, J.
DATED: 5
th APRIL, 2016.
ORAL JUDGMENT :
1. Since both these appeals arise out of the same accident
and the parties to the proceedings are common, they are being
decided by this common judgment.
2. The facts relevant for adjudicating the appeals are that
one Balaji Bhosle alongwith his wife Krishnabai and minor son
Vilas, after purchasing railway ticket at Manmad Railway Station,
boarded Train No.7384 for going to Kopargaon. According to said
Balaji, the tickets were in the custody of his wife Krishnabai. The
parents of said Krishnabai joined them at Yeola Railway Station for
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travelling to Kopargaon. While alighting from the train at
Kopargaon Railway Station, said Krishnabai and her minor son fell
down. They sustained injuries and thereafter succumbed to the
same.
3. The respondent No.1 in both the appeals filed two
claim applications under Section 16 of the Railway Claims
Tribunal Act, 1987. Claim Application No.119/2004 was in respect
of compensation on account of death of the minor son Vilas while
Claim Application No.120/2004 was on account of death of his
wife Krishnabai. After the parties led evidence, the Claims Tribunal
by judgment dated 22-9-2006 allowed both the applications and
granted compensation of Rs.4,00,000/- each in both the
applications. Being aggrieved, the appellants have preferred the
present appeal.
4. Shri N. P. Lambat, learned Counsel for the appellant
submitted that both Krishnabai as well as Vilas were not bonafide
passengers and, therefore, no claim for compensation could have
been granted by the Claims Tribunal. It was submitted that both
the said passengers did not have any valid railway ticket and the
evidence on record clearly indicated that the deceased were
travelling without ticket. He submitted that the evidence of the
Guard of the train as well as that of Station Master who were
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examined by the appellant clearly indicated that said passengers
were not having any railway ticket. He referred to the diary of the
Station Master in which an endorsement was made that both the
passengers were travelling without ticket. He then submitted that
Balaji in his cross-examination had admitted that Krishnabai was
not his wife and Vilas was not his son. According to the learned
Counsel, both the said parties could not be treated as dependent
under Section 123 of the Railways Act, 1989. It was, therefore,
submitted that the Claims Tribunal without considering all this
material on record was not justified in allowing the claim
applications and awarding compensation. He, therefore, submitted
that the impugned judgments were liable to be set aside.
5. Shri A. R. Bambal, learned Counsel for the respondents
on the other hand supported the impugned judgments. He
submitted that Balaji was the husband of Krishnabai and Vilas was
their son. He submitted that considering the entire material on
record, including the voters card, it was obvious that the statement
in the cross-examination of Balaji as regards his relationship with
Krishnabai and Vilas had been wrongly recorded. He submitted
that in the affidavit filed by Balaji it had been specifically stated
that after the tickets were purchased, they were kept with
Krishnabai. There was no cross-examination to that portion of the
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affidavit. He also referred to the affidavit filed on behalf of
Tulshiram, the father of Krishnabai. It was then submitted that the
Guard who was examined on behalf of the appellant had merely
made a statement on the basis of information given by the
Government Railway Police and no details thereof were placed on
record. Similarly, the perusal of the diary of the Station Master
indicated that the words "without ticket" appeared to have been
specifically inserted. It was submitted that the Claims Tribunal
rightly discarded the said entry and was justified in granting
compensation to the respondents. It was, therefore, submitted that
the appeals deserve to be dismissed.
6. With the assistance of the learned Counsel for the
parties, I have gone through the records of the case and I have also
perused the impugned judgments.
7. The following point arises for consideration:
Whether any case is made out to interfere with the
judgments of the Claims Tribunal?
8. In support of the claim for compensation, Balaji had
filed his affidavit dated 12-10-2004. In para 2 thereof, it was
specifically stated that Krishnabai purchased the railway tickets in
his presence from Manmad Railway Station and had kept them
with her. In his cross-examination, there is no suggestion given to
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the aforesaid statement that the tickets were kept with Krishnabai.
Similar statement made by Tulshiram who was the father of
Krishnabai that the tickets were in custody of his daughter has not
been seriously challenged in his cross-examination. The witness
examined on behalf of the appellant is Shri V. B. Auti who was the
Guard on the train. In his cross-examination, he stated that he had
not enquired from the Ticket Checker whether Krishnabai was
having a ticket or not. He stated that it was possible that the ticket
was lost after the accident. The other witness examined by the
appellant was the Station Master. He has stated that he was
informed by the Government Railway Police that the injured
passenger was not having a ticket. It is, however, to be noted that
no person from the Government Railway Police has been examined
in that regard nor has the name of any personnel disclosed who
had so stated this fact to the witness.
In so far as the diary of the Station Master is
concerned, perusal of the said document indicates that the words
"without ticket" appear to be in different hand which can be seen
by its bare perusal. The Claims Tribunal while considering all the
aforesaid evidence has recorded a finding in para 11 of the
judgment that the appellant had failed to discharge the burden
that the deceased was not a bonafide passenger in the train.
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Considering the overall evidence available on record, it cannot be
said that this finding recorded in para 11 of the impugned
judgment is either perverse or is a finding which is based on no
evidence. It is well settled that the burden of proving the fact that
a claimant was not a bonafide passenger is upon the Railways and
the reliance placed by the learned Counsel for the respondents on
the judgment of the learned Single Judge in Mehar Parveen & Anr.
vs. Union of India and ors (2008) I ACC 422 is justified.
ig In so far as the relationship of Balaji with said
Krishnabai and Vilas is concerned, it is to be noted that Balaji had
specifically stated about the said relationship in his affidavit. A
certified copy of the voters list at Exhibit AW1/A showing the
names of Balaji and Krishnabai was placed on record. Similarly,
the father of Krishnabai - Tulshiram was also examined in that
regard. The finding recorded by the Claims Tribunal as regards the
relationship of the parties in view of provisions of Section 123(b)
(i) of the Railways Act, 1989 is, therefore, in accordance with law.
The aspect that Krishnabai and the minor son received injury while
getting down from the train has been stated by the Guard Shri V.B.
Auti in his affidavit. Said fact is also stated by the Station Master
Shri Ashutosh Bawiskar. As held in Jameela and others v Union of
India 2010 ACJ 2453, the injury sustained while alighting from
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train could be called a negligent act, but the same would not be a
criminal act so as to disentitle the claim for compensation.
10. In view of aforesaid, it cannot be said that the Claims
Tribunal committed any error in allowing the applications for
grant of compensation. The point as framed is answered by
holding that there is no case made out to interfere with the
impugned judgment.
11. In view of aforesaid, the judgments of the Claims
Tribunal dated 22-9-2006 in Claim Application No.119/OA-
II/RCT/NGP/2004 and 120/OA-II/RCT/NGP/2004 are confirmed.
The appeals are dismissed with no order as to costs.
12. The respondent No.1 would be entitled to receive the
balance amount of compensation that has been deposited by the
appellant with accrued interest.
JUDGE
//MULEY//
