Vimalbai Ganesh Chitte And Others vs Union Of India Thr G.M., South ...
2016 Latest Caselaw 6575 Bom

                                           1                                   FA 168.16



             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   BENCH AT AURANGABAD




                                                                          
                               FIRST APPEAL NO. 168 OF 2016




                                                 
    1.      Smt Vilalbai w/o Ganesh Chitte,
            Age: 53 years, Occu: Household,
            R/o Bembar, Tq. Bhokar, Dist. Nanded.




                                                
    2.      Shivraj w/o Ganesh Chitte,
            Age: 25 years, Occu: Nil,
            As above.




                                        
    3.      Vishnukant w/o Ganesh Chitte,
            Age: 21 years, Occu: Nil,


    4.
            As above.
                             
            Santosh s/o Ganesh Chitte,
            Age: 18 years, Occu: Nil,
                            
            As above.

    5.      Swaroop d/o Ganesh Chitte,
            Age: 13 years, Occu: Nil,
      

            As above.
   



    6.      Sarika d/o Ganesh Chitte,
            Age: 13 years, Occu: Nil,
            As above.
            (Applicant no. 4 to 6 minor u/g
            of their Mother Appellant No.1)               ...     Appellants





                     Vs.

          Union of India,
          Through General Manager,





          South Central Railways,
          Secunderabad (Andhra Pradesh)            ...              Respondent
                                     .....
    Mr. P.S. Agrawal, Advocate for the appellants.
    Mr. M.N. Navandar, Advocate for the respondent.
                                     .....

                                               CORAM     :      P.R. BORA, J.

    DATE OF RESERVING THE JUDGMENT   : 14-09-2016.
    DATE OF PRONOUNCING THE JUDGMENT : 21-11-2016.




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                                           2                                    FA 168.16



    JUDGMENT:

1. The appellants have filed the present appeal against the

judgment and order passed by the Railway Claims Tribunal

(hereinafter referred to as the Tribunal) at Nagpur in OA (IIU)

/NGP/2013/0037 decided on 06.11.2015. The aforesaid application

was filed by the appellants seeking compensation on account of the

death of Ganesh Chitte in an accident happened on 16.11.2012 at

Bhokar Railway Station. According to the appellants, deceased

Ganesh was traveling as a bonafide passenger from Bhokar to

Nanded and fell down after receiving a jerk immediately after the

train started from Bhokar Railway Station. Deceased was stated to

be traveling by Adilabad-Nanded Intercity Express i.e. train no.

17409. The tribunal has held that the appellants have failed in

proving that deceased Ganesh was a bonafide passenger. The

tribunal has further held that the alleged incident happened

because of the negligence of deceased Ganesh. On the aforesaid

grounds the tribunal has dismissed the claim petition.

2. Shri P.S. Agrawal, the learned counsel appearing for the

appellants has assailed the impugned judgment on various grounds.

Learned counsel submitted that relying upon the hearsay evidence

of the witness examined by the railway administration the tribunal

has held that alleged accident happened because of the negligence

of deceased Ganesh himself. The learned counsel submitted that,

3 FA 168.16

the witness so examined by the railway administration has admitted

in his cross-examination that he did not eye witness the alleged

incident. In the circumstances, according to the learned counsel no

such conclusion could have been recorded by the tribunal that the

untoward incident happened because of the own negligence of

deceased Ganesh. In order to support his said contention the

learned counsel relied upon the judgment of the Hon'ble Apex Court

in the case of Jameela and Ors. Vs. Union of India reported in

AIR 2010 SC 3705.

3. The learned counsel further submitted that, the tribunal

has also committed erred in arriving at a conclusion that the

deceased Ganesh was not a bonafide passenger. Learned counsel

further submitted that, in his testimony before the court one of the

appellant namely Shivraj Ganesh Chitte has specifically deposed

that brother of the deceased namely Bhujangarao Dattram had

purchased a ticket for the deceased and had handed over it to the

to his deceased. Learned counsel further submitted that, during the

course of investigation also statement of said Bhujangarao Dattram

was recorded. Learned counsel further submitted that in absence

of any contrary evidence, there was no reason for the tribunal to

disbelieve the aforesaid fact stated by the AW1 Shivraj and the

statement of Bhujangarao Dattram, recorded during the course of

investigation. The learned counsel further submitted that, merely

4 FA 168.16

because said Bhujangarao Dattram has not been examined before

the tribunal no such inference could have been drawn that deceased

Ganesh was not a bonafide passenger. The learned counsel,

therefore, prayed for setting aside the impugned judgment and

consequently to allow the claim application filed by the appellants.

4. Shri M.A. Navandar, learned counsel appearing for the

respondent supported the impugned judgment. The learned

counsel submitted that, the tribunal has thoroughly assessed

evidence on record and has recorded the right conclusions.

Learned counsel submitted that, deceased Ganesh slipped while

boarding the train from off side. The learned counsel submitted

that, to board a train from off side is impermissible. The learned

counsel submitted that, the alleged accident has, thus, happened

because of the own negligence of deceased Ganesh and the Railway

Administration is, therefore, not liable to pay any compensation to

the legal heirs of deceased Ganesh. The learned counsel further

submitted that, the appellants have also failed in proving that

deceased Ganesh was a bonafide passenger. The learned counsel

submitted that, nothing was recovered from the person of deceased

Ganesh. The learned counsel submitted that even nothing was

recovered and more particularly no railway ticket was recovered

from the spot where the alleged accident had happened. The

learned counsel further submitted that, had it been the fact that the

5 FA 168.16

railway ticket was kept by deceased in his pocket as has been

deposed by AW1 Shivraj, the said ticket ought to have been seised

from the clothes of the deceased or must have been found on the

spot if it is presumed that the same was likely to be thrown

somewhere from the pocket when deceased slipped while boarding

the train. Learned counsel submitted that, since the ticket was not

found in the clothes of deceased Ganesh or on the spot, only

inference which emerges is that deceased was not having any ticket

with him and he was not a bonafide passenger. The learned counsel

submitted that, the tribunal has passed a well reasoned order while

rejecting the claim application and no interference is required in the

judgment and order so passed. The learned counsel, therefore,

prayed for dismissal of the appeal.

5. I have carefully considered the submissions made on

behalf of the learned counsel appearing for the respective parties. I

have also perused the impugned judgment, evidence adduced in

the matter and the other material placed on record. It is not in

dispute that the alleged accident happened within the precincts of

Bhokar Railway Station. According to the railway administration

deceased Ganesh was attempting to board the train from off side.

The tribunal has relied on the said contention having regard to the

statement of the guard of the concerned train and certain other

witnesses whose statements are recorded during the investigation

6 FA 168.16

carried out in respect of the accidental death of deceased Ganesh.

The tribunal, placing its reliance on the judgment of Karnataka High

Court, has held that the act of the deceased to board a running

train and that too from off side, amounts to self-inflicted injury and,

as such, the railway administration cannot be held liable to pay

compensation in such case.

6. Material on record shows that in order to substantiate

the defence raised by the railway administration in its written

statement, Shri Yogesh Kumar who was working as station master

at Bhokar Railway Station at the relevant time was examined as a

witness. In the cross examination said Yogesh Kumar has admitted

that he did not eye witness the alleged accident and visited the spot

after happening of the accident. On careful perusal of his testimony,

it is revealed that, whatever was said by him in his examination in

chief about the occurrence of the alleged incident was based on the

information received to him from the guard of the said train.

Admittedly, the guard of the said train has not been examined

before the tribunal. In the circumstances, it is difficult to draw any

concrete inference that deceased fell down in an attempt to board

the train from off-side merely on the basis hearsay of the evidence

of said Yogesh Kumar.

7. In the case of Jameela and Others Vs. Union of

India cited (supra) in the similar circumstances Lucknow Bench

7 FA 168.16

of the Allahabad High Court had upheld the contention of the

railway administration that the accident in the said case had taken

place because of the negligence of the deceased in the said matter,

though, no eye witness was examined by the railway administration

so as to prove that the deceased was standing at the open door of a

train compartment in a negligent manner from where he fell down.

The Hon'ble Apex Court in an appeal preferred against the

judgment of the High Court disapproved the conclusion drawn by

the High Court with the following observations.

5. We are of the considered view that the High Court

gravely erred in holding that the applicants were not entitled to any compensation under section 124A of the Act, because the deceased had died by falling down from the train because of his own negligence. First, the case of the Railway that the deceased M. Hafeez was

standing at the open door of the train compartment in a negligent manner form where is fell down is entirely

based on speculation. There is admittedly no eyewitness of the fall of the deceased from the train and, therefore, there is absolutely no evidence to support the case of the railway that the accident took place in the manner

suggested by it.

8. In the instant case in absence of any concrete evidence

showing that, the deceased fell down while attempting to board a

running train from off-side, the conclusion recorded by the tribunal

cannot be sustained. From the material which is available on record

fall of deceased Ganesh from the train has to be held as accidental

fall of a passenger from a train carrying passengers.

9. The learned counsel for the appellants has relied upon

8 FA 168.16

one more judgment of the Hon'ble Apex Court in the case of Union

of India Vs. Prabhakaran Vijaya Kumar and Ors. reported in

AIR 2009 SCC 383. Having regard to the facts involved in the

present case, I find it appropriate to reproduce herein-below the

observations made by the Hon'ble Apex Court in paragraph nos. 1o

to 12 of the said judgment, which are thus:

10. We are of the opinion that it will not legally make any difference whether the deceased was actually inside

the train when she fell down or whether she was only trying to get into the train when she fell down. In our

opinion in either case it amounts to an 'accidental falling of a passenger form a train carrying passengers'. Hence, it is an 'untoward accident' as defined in Section 123(c)

of the Railways Act.

11. No doubt, it is possible that two interpretations can be given to the expression 'accidental falling of a passenger from a train carrying passengers', the first being that it only applies when a person has actually got

inside the train and thereafter falls down from the train, while the second being that it includes a situation where

a person is trying to board the train and falls down while trying to do so. Since the provision for compensation in the Railways Act is a beneficial piece of legislation, in our opinion, it should receive a liberal and wider

interpretation and not a narrow and technical one. Hence in our opinion the latter of the abovementioned two interpretations i.e. the one which advances the object of the statute and serves its purpose should be preferred vide Kunal Singh vs. Union of India, (2003) 4 SCC 524

(para 9); B. D. Shetty vs. CEAT Ltd., (2002) 1 SCC 193 (para 12); Transport Corporation of India vs. ESI Corporation, (2000) 1 SCC 332 etc.

12. It is well settled that if the words used in a beneficial or welfare statute are capable of two constructions, the one which is more in consonance with the object of the Act and for the benefit of the person for whom the Act was made should be preferred. In other words, beneficial or welfare statutes should be given a liberal and not literal or strict interpretation vide Alembic

9 FA 168.16

Chemical Works Co. Ltd. Vs. The Workmen, AIR 1961 Sc 647 (para 7); Jeewanlal Ltd. Vs. Appellate Authority, AIR 1984 SC 1842 (para 11); Lalappa Lingappa and others

vs. Laxmi Vishnu Textile Mills Ltd. AIR 1981 SC 852 ( para 13), S.M. Nilakjar vs. Telecom Distt. Manager

(2003) 4 SCC (para 12).

10. In view of the observations made and the conclusions

recorded by the Hon'ble Apex Court as aforesaid, the finding

recorded by the tribunal that deceased Ganesh fell down as a result

of his own negligence cannot be subscribed. I reiterate that in

absence of any concrete evidence brought on record by the railway

administration the fall of deceased Ganesh from the train has to be

held as accidental fall of a passenger from a train carrying

passengers.

11. The next question arises whether deceased Ganesh was

a bonafide passenger. Admittedly, the train ticket has not been

produced on record by the appellants. It is also true that railway

ticket was not recovered from the person of deceased Ganesh or

from the spot of occurrence. AW1 Shivraj, in his testimony before

the tribunal has, however, positively deposed that the brother of the

deceased namely Bhujangarao Dattram had purchased the railway

ticket for the deceased and had handed it over to deceased Ganesh.

It is true that the appellants have not examined said Bhujangarao

Dattram as their witness but his statement recorded by the railway

authorities during the course of investigation is very well existing on

10 FA 168.16

record. I do not see any reason to disbelieve the said statement.

The possibility that when deceased fell down from the train, the

ticket either kept in his pocket or carried by him in his hand would

have been thrown and could not be noticed thereafter cannot be

ruled out. In absence of any contrary evidence it may not be proper

to record a negative finding that deceased Ganesh was traveling

without any valid ticket.

12. After having considered the entire material on record, I

have no hesitation in holding that the appellants have sufficiently

proved that deceased Ganesh was traveling as a bonafide

passenger and suffered death in an untoward incident. The

appellants are, therefore, entitled to the compensation as claimed

by them. In the result the following order:

ORDER

i) The order passed by the tribunal in OA (IIU)/NGP/2013/

0037 on 06.11.2015 stands quashed and set aside.

            ii)      The claim application is allowed.





            iii)     The respondent shall pay Rupees Four Lakhs to the

appellants by way of compensation within six months

from the date of this order.

iv) The appeal stands allowed in the aforesaid terms.

    mub                                                       (P.R. BORA, J.)