Bombay High Court
Smt. Gopika Champatrao Gandhare ... vs Union Of India Through The General ... on 18 April, 2017
Bench: N.W. Sambre
1 fa 111.17 judg,.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
First Appeal No.111 of 2017
1] Smt. Gopika Champatrao Gandhare,
aged about 43 years, Occ.- Household,
2] Ku. Priyanka Champatrao Gandhare,
aged about 21 years, Occ.- Nil,
3] Ku. Pratiksha Champtrao Gandhare,
aged about 19 years, Occ.-Nil,
All R/o.- Yenapur, Tah. Chamorshi,
District Gadchiroli (M.S.). .... Appellants.
(Org. Applicant On R.A.)
-Versus-
Union of India,
through the General Manager,
Central Railway, Mumbai (CST) .... Respondent.
(On R.A.)
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Shri I.G. Meshram Adv. for appellants.
Shri N.P. Lambat, Adv. for respondent.
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Coram : N.W. Sambre, J.
th
Dated : 18
April, 2017.
J U D G M E N T
2 fa 111.17 judg,.odt
This appeal is by the claimants under the provisions of
the Railway Claims Tribunal Act, 1987, questioning the
legality and validity of the judgment and order delivered by
the Nagpur Bench of the Railway Claims Tribunal in Claim
Application No.OA(iiu)/NGP/2012/0326, wherein the claim for
award of compensation of Rs. 4 Lakhs has been rejected by
the Tribunal.
2] The facts which are relevant for deciding the present
appeal are as under :-
Claimant no.1-Gopika is widow of late Champatrao,
whereas claimant nos. 2 and 3 are the minor daughters.
The application under Section 16 of the Railway Claims
Tribunal Act, seeking compensation of Rs. 4 Lakhs came to
be moved as Champatrao, died after having fallen down from
the moving train bearing no.12723 A.P. Express. He tried to
alight from the moving train at Ajni Railway Station where
there was no scheduled halt. The incident claimed to have
taken place on 14-12- 2010, in which the death of deceased
occurred on the sport.
3] While claiming the compensation, it is also stated that,
deceased Champatrao is a bona fide passenger of the train
3 fa 111.17 judg,.odt
and though he died while alighting from the train as such the
said incident is covered under Section 123 of the Railways
Act, 1989 as an "untoward incident". The claimants then
alleged that looking to the nature of earning they are entitled
for the compensation of Rs. 4 Lakhs.
4] Per contra, the learned Counsel for the respondent-
Railway would urge that the deceased was not a bona fide
passenger as no ticket was found in his body about his travel.
He would then argued that there was a criminal act on the
part of the deceased as he ought not to have alighted from
the moving train when there was no scheduled halt at Ajani
Railway Station.
5] In addition, Shri Lambat, the learned Counsel for the
respondent-Railway would urge that the denial of
compensation is based on the cogent reason particularly; he
was found to be not in possession of ticket and as such
sought dismissal of the appeal.
6] The learned Counsel for the respondent submits that
as per impugned judgment and order dated 22-04-2015
tribunal dismiss the claim of the claimants, as the claimants
have failed to prove the death of the deceased as an "untoward
4 fa 111.17 judg,.odt
incident" which has occurred while alighting from train and
who was travelling without valid journey ticket.
7] In the aforesaid background of the submissions made
by the respective Counsels, it is required to be appreciated
that, in addition to the documentary evidence claimant no.1 is
examined in support of the Claim Application, whereas other
documentary evidence were placed on record. The
respondent-Railway examined Guard of the train as
(RW-1) and exhibited Guard Memo Book as (Exhibit-RW-1/1)
so as to prove that there was no accident occurred.
8] On 10-04-2017, this Court directed the Police Authorities
to produce on record the investigation papers in relation to
the accident in question and has also appointed learned
Advocate Shri Mishra to assist this Court in the matter.
9] The investigation papers and report depict that Police
Constable B.C. No.659-Devidas while on duty submitted
the written memo to Dy.S.S. on 14-12-2011 stating that "at
Railway Station Ajani a person is run over by A.P. Express
no.12723 when he was alighting from a moving train".
Thereafter, Merg No.139/11 under Section 174 of the Code of
Criminal Procedure was registered. Police Constable B.C.
5 fa 111.17 judg,.odt
No.461-Surendra sent the body of the deceased for post
mortem. There was an enquiry as to whether the accident in
question was untoward incident pursuant to the provisions of
the Railway Passenger (Manner of Investigation of Untoward
Incidents) Amendment Rules, 2003, initiated. Wherein, it is
opined that, there was no railway ticket noticed on the body
of the deceased and the train passed through Ajani Railway
Station without hindrance. It is also stated in the said enquiry
that in addition to the statement of guard that the train passed
through Ajani Railway Station smoothly certain documentary
evidence inter se between the department of Railway and
the Investigating Officers depict of happening of the railway
accident (untoward incident). It is then to be noted that the
Inspector in-charge of Railway Protection Force Thana Ajani
Railway has noticed that Head Constable S.J. Singh has
witnessed the death of the victim when victim tried to alight
from the moving train. Once the investigation papers which
referred to above speak of the accident, in my opinion, the
happening of the incident is very much proved which has to
be treated as "untoward incident". Once it is proved that
there was an "untoward incident" in which deceased has lost
6 fa 111.17 judg,.odt
his life whether he was entitled for a compensation in
absence of having noticed that he was not holding any
railway pass or railway ticket for travel, Shri Mishra, the
learned Counsel appointed by the Court has rightly invited
the attention of the Court in the judgment of learned Single
Judge of this Court in First Appeal No.473 of 2010 delivered
in the Union of India Vs. Bimala Tudu and others on
28-02-2012. According to him, if the ticket was not found
that cannot be a ground for denial of the compensation.
10] Shri Lambat, the learned Counsel for the respondent-
Railway has raised the said issue very effectively. However,
it has to be noticed from the record that if the railway ticket or
the railway pass was not noticed on the person of the
deceased, it cannot be presupposes or presumed that the
deceased was travelling without ticket and as such is not
entitled for compensation. To draw such inference, the
claimants herein cannot be asked to prove which is
something impossible. Admittedly, the claimants are not the
eye witnesses to the incident in question and as such it is
really difficult for them to prove that the deceased at the
relevant time was holding a valid ticket.
7 fa 111.17 judg,.odt
11] Be that as it may, in view of the written memo submitted
by Head Constable S.J. Singh, who claims to be the eye
witness of the incident of the untoward accident, the fact
remains that the deceased was travelling on the train for
about last three hours before the accident and it is really
difficult to presume that for three hours the train was not
checked. Paragraph 13 of the judgment in the case of the
Union of India cited supra is worth referring to :-
"13] Now, the question that crops for
consideration is whether failure of the
claimant/passenger to produce valid ticket would
lead to a presumption that the passenger met
with untoward incident and died was not an
authorized passenger or was not holding a valid
pass or ticket. To draw such inference, would
be to expect from the dependents of the
deceased to prove impossible. It is known fact
that in such a long journey which consumes
more than 15-16 hours, passengers are checked
by ticket checkers and certainly more than
once. In such circumstance, the fact that the
deceased was not detected as passenger
travelling without ticket, would give rise to an
inference that he was travelling with valid ticket.
Whether the deceased had purchased a valid
ticket and what happened to that was a fact
within his personal knowledge. Having regard to
8 fa 111.17 judg,.odt
the fact that the provision for compensation in
the Railways Act is a beneficial piece of
legislation it should received a liberal and wider
interpretation and not a narrow and technical
one. This has been observed by their Lordships
in case of Union of India..vs.. Prabhakaran
Vijaya Kumar, cited supra."
Apart from above, Shri Mishra, the learned Counsel
(appointed) has rightly invited the attention of this Court to
the fact that even if the deceased was enquired, that cannot
be a ground for denying the compensation. The investigation
papers as are produced and other material cannot take this
Court to come to the conclusion particularly in the backdrop
of the submissions canvassed by Shri Lambat, the learned
Counsel for the respondent-Railway that there was any
malice or intention on the part of the deceased to commit
any criminal act. At least no such material is placed on
record to infer that there was a criminal intention on the part
of the deceased to commit any criminal act.
12] In addition to above, the fact remains that to prove the
case that deceased was alighted from moving train and the
said fact dis-entitled him for claiming compensation could
9 fa 111.17 judg,.odt
have been effectively proved by examining Head Constable
Shri S.J.Singh who claims to be an eye witness to the
incident as this Court noticed from the investigation papers.
In the case in hand, neither the said eye witness was
proved the written memo nor the evidence of Guard (RW-1)
has been read down to me that the deceased was
responsible for the accident in question.
13] In the aforesaid background, in my opinion, the
judgment denying the claim for compensation is not
sustainable and is required to be set aside.
14] It is then to be noted that the claimants in the Claim
Application alleged that deceased Champatrao at the time
of death was aged about 46 years and was doing labour
work. It is also claimed in the Claim Application that the
deceased was travelling with railway ticket and the said ticket
was lost in an untoward incident. It is then claimed that the
income of the deceased at the relevant time which prompts
the claimants to be Rs. 4 lakhs.
15] The claimants by producing on record the relevant
documentary evidence have already proved relationship as
regards the untoward incident. In the aforesaid background,
10 fa 111.17 judg,.odt
in my opinion, considering the earning capacity of deceased
to be Rs.1,500/- per day on the date of the incident and his
age i.e. 45 years it will be appropriate to award compensation
of Rs.2,25,000/- to the deceased. As such the appeal
stands allowed in above terms.
16] The judgment and order dismissing the Claim
Application No.OA(iiu)/NGP/2012/0326 on 22-04-2015 is
hereby set aside and it is directed that the claimants will be
entitled for the compensation of Rs.2,25,000/- i.e.
Rs. 75,000/- for each of the claimants to be deposited by the
respondent in this Court within period of three months from
today along with interest at the rate of 7 % per annum from
the date of lodging of the claim.
17] With above observations, the First Appeal stands
allowed.
JUDGE
Deshmukh
