Union Of India Thr. The Gen. ... vs Sitabai W/O Rama Bele And Anr
2016 Latest Caselaw 6718 Bom

            J-fa866.10.odt                                                                                               1/8      


                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                                             
                                               NAGPUR BENCH, NAGPUR




                                                                              
                                          FIRST APPEAL No.866 OF 2010


            Union of India,




                                                                             
            Through the General Manager,
            South Central Railway,
            Secunderabad.                                                                :      APPELLANT

                               ...VERSUS...




                                                          
            1.    Sitabai w/o. Rama Bele,
                                 
                   Aged about 45 years,
                   Occupation : Household.

            2.    Shri Rama s/o. Ratan Bele,
                                
                   Aged about 50 years,
                   Occupation : Labour.

                   Both R/o. C/o. P.V. Nandedkar,
      

                   New Monda, Nanded,
                   Taluka and Distt. Nanded.                                              :      RESPONDENTS
   



            =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
            Shri Nitin Lambat, Advocate for the Appellant.
            Shri Sable, Advocate for the Respondents.





            =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-


                                                          CORAM  :   S.B. SHUKRE, J.

th DATE : 28 NOVEMBER, 2016.

ORAL JUDGMENT :

1. This is an appeal preferred against the judgment and order

dated 15.2.2010 delivered by the Member, Railway Claims Appellate

J-fa866.10.odt 2/8

Tribunal in Claim Petition No.136/2006 thereby allowing an application

filed under Section 124-A of the Railways Act 1989 awarding

compensation of Rs.4,00,000/- for the loss suffered on account of death

of Suresh, son of the original applicants, who are the respondents in this

case in an untoward incident.

2. The facts leading to filing of this appeal are stated in brief as

under :

On 18.6.2006, deceased Suresh, son of the respondents, was

traveling by train No.319 from Rapalie to Secunderabad. He had

purchased a valid railway ticket for such travel. As the train reached at

the distance measuring stone, KM 40/14-25, lying in between railway

station Ramanpeth and Veligunda, the deceased who had gone to the

end of bogie for using the toilet, accidentally fell off the train as the door

of the train was left open and the bogie had suffered from jerks resulting

in causing imbalance to the deceased. Some time thereafter, one

Gangman or the Keyman of the railway by name Lingaya discovered a

dead body of a unknown man lying about 5 meters away from the

railway track. He reported the incident to the Station master, who

reported the incident to GRP. An accidental case was registered and

necessary inquiry was carried out by the Police and inquest panchanama

was drawn out. After noticing the fact that there were signs of rolling

over near the spot where the dead body was lying and the scratch marks

J-fa866.10.odt 3/8

present over the legs of the dead body, it was thought that there was

possibility of the dead body being rolled over the surface near the railway

track. Later on, it was identified to be of Suresh, son of the respondents.

Considering these reports, respondents felt that their son died only

because of accidental fall from the running passenger train No.319 and,

therefore, they filed a claim application for compensation under Section

124-A of the Railways Act.

On merits of the case, learned Member of the tribunal found

the claim to be having substance in it and therefore, allowed the claim

application and granted compensation of Rs.4,00,000/- to the

respondents together with interest at the rate of 7% p.a. by judgment and

order dated 15.2.2010. It is the same judgment and order, which are

under challenge in the present appeal.

3. I have heard Shri Nitin Lambat, learned counsel for the

appellant and Shri Sable, learned counsel for the respondents. I have

carefully gone through the record of the case including the impugned

judgment and order.

4. The following points arise for my determination are :

i) Whether the deceased Suresh was the passenger travelling by passenger train ?

ii) Whether he was the victim of untoward incident ?

5. It is the contention of the learned counsel for the appellant

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that essential ingredients of the entitlement to receive compensation

under Section 124-A of the Railways Act have not been proved in any

manner in this case by the respondents and, therefore, a grave error of

fact and law has been committed by the learned Member of the Tribunal

in passing the impugned judgment and order. On the other hand,

learned counsel for the respondents states that there is a categorical

finding recorded by the learned Member in the impugned judgment and

order to the effect that the deceased Suresh was travelling by train

No.319 as a passenger and that he met with an accidental death due to

his sudden fall from this running train and that this finding, he further

submits, is based upon the evidence available on record. He also submits

that the railway i.e. the appellant failed to bring on record any other

probability which might have been responsible for bringing about death

of Suresh. Therefore, he further submits, there is no need to make any

interference with the impugned judgment and order.

6. Upon careful consideration of the evidence available on

record, I am of the view that there is great substance in the argument of

learned counsel for the appellant and no merits in the argument of

learned counsel for the respondents. The reasons for this conclusion are

stated in forgoing paragraphs.

7. In order to prove the entitlement to receive the compensation

under Section 124-A of the Railways Act, it is necessary for the claimant

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to prove two essential ingredients of such an entitlement and they are, i)

the person receiving injury or dying must have been the passenger on

board the passenger train, and ii) the injury or the death must have been

the result of an untoward incident. The explanation to section 124-A of

the Railways Act clarifies that for the purposes of this Section

"passenger", inter-alia, include a person who has purchased a valid ticket

for travelling by a train carrying passengers and become a victim of an

untoward incident. Under Section 123(c) "untoward incident" interalia

means the accidental falling of any passenger from a train carrying

passengers. So, the first requirement for a person claiming compensation

under Section 124-A of the Railways Act is to prove the fact that the

person suffering injury or dying, was a passenger on board a train

carrying passengers. The second requirement would be that the claimant

brings on record sufficient evidence to enable the Tribunal to record a

finding that such injury or death was the result of an accidental fall of the

passenger from a train carrying passengers.

8. Upon carefully considering the evidence available on record,

I find that the very first requirement of a claim case under Section 124-A

of the Railways Act has not been fulfilled in this case. In support of

claim, the respondents examined Sitabai i.e. the respondent No.1 vide

Exh.-AW 1 and closed their evidence. Admittedly, as seen from the

admissions given by AW 1 Sitabai, she had no personal knowledge about

J-fa866.10.odt 6/8

deceased Suresh purchasing railway ticket. In her examination-in-chief

also, she has not stated any such thing as to enable the Court to term her

being a witness to the pre-accident events. She has not stated that her

son left home on 18.6.2006 or prior to that or at so and so time and that

while leaving the house, her son told her that he was going to some place

by some train. She has only stated that on 18.6.2006, her son purchased

a railway ticket from Rapalie Railway Station and then was travelling

from Rapalie to Secunderabad by train No.319. She has not disclosed in

any manner the source of her such information. On the contrary, in her

cross-examination, she admits that she did not have any personal

knowledge about her son buying ticket for going to Secunderabad by

boarding train No.319. AW 1 Sitabai also does not say that she was told

by her son that he was intending to travel by train No.319 on the fateful

day. No other circumstances have been brought on record in order to

accept the case of the respondents by the rule of preponderance of

probabilities that deceased Suresh had purchased a train ticket and on

this ticket, he was travelling on board train No.319.

9. It is an admitted fact that no train ticket was recovered from

either the person of deceased Suresh or from the spot where his dead

body was found. Absence of railway ticket does not always mean that a

person is not a passenger within the meaning of Section 124-A. It is only

one of the factors which would go against the claimant. But, it is not

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such a factor as would push the claimant straight away out of the Court.

The claimants can still prove this fact by bringing on record other facts

and circumstances. However, in the instant case, the claimants have

utterly failed to do so and I have already pointed out this lacuna

previously.

10. Then, there is also a doubt about deceased Suresh's such

falling from the train No.319. The reason being that admittedly, as seen

from the evidence of RW 2 Shivaji, Train No.319 had crossed railway

station Valigonda at 5.09 hours of 18.6.2006 and whereas, dead body of

Suresh was discovered as lying near the railway track on the same day

about 11 hours thereafter i.e. at about 16.10 hour. RW 2 Shivaji states

that, on that day 9 up-trains and 5 down-trains passed through the

railway station Valigonda and yet neither the Locopilot nor guard nor

any passenger of any of these trains reported the incident of a dead body

lying near the railway track. This evidence would bring on record several

other probabilities and in the absence of any other evidence being

brought on record by the respondents, the probability of deceased Suresh

accidentally falling from train No.319 becomes of very weak character

and therefore, it has to be said that respondents could not prove their

claim that deceased Suresh accidentally fell from train No.319.

11. The result of the aforesaid discussion would be that the

respondents could not prove, even by the principle of preponderance of

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probability that their son, deceased Suresh was a passenger on board the

train No.319 and that he was the victim of an untoward incident. All

these facts and circumstances which give rise to the aforestated

conclusion, I must say, have not been considered at all by the learned

Member of the Railway Claims Tribunal. They are material in nature and

change the whole tenor of the claim. Non-consideration of the material

aspects is the illegality committed by the learned Member of the Railway

Claims Tribunal in appreciating the evidence on record. Therefore, the

findings recorded in respect of all issues are incorrect and illegal. The

impugned judgment and order cannot be sustained in law and needs to

be quashed and set aside. Both the points are answered accordingly.

12. The appeal is allowed.

13. The impugned judgment and order are quashed and set

aside.

14. The claim application stands dismissed.

15. The parties to bear their own costs throughout.

16. The amount deposited in this Court be refunded to the

appellant with accrued interest, if any, within four weeks.

JUDGE okMksns