Anil S/O Prabhakar Bhalerao vs Union Of India, Through The ...
2017 Latest Caselaw 5825 Bom

fa.76.12.jud                          1


  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
            NAGPUR BENCH, NAGPUR

                       FIRST APPEAL NO.250 OF 2011

Anil s/o Prabhakar Bhalerao,
Aged 50 years, Occ. Service,
R/o Sadguru Nagar, Near Samartha Wadi,
Badnera Road, Amraoti, Dist. Amraoti                                 .... Appellant

       -- Versus -

Union of India,
Through the General Manager,
Western Railway, Churchgate,
Mumbai - 400 020.                                                .... Respondent

Shri S.K. Sable, Advocate for the Appellant.
Mrs. H.S. Dhande, Adv. h/f Shri N.P. Lambat, Adv. for the Respondent.

                                          with
                        FIRST APPEAL NO.76 OF 2012

The Union of India,
General Manager,
Western Railway Churchgate,
Mumbai, CST.                                                         .... Appellant

       -- Versus -

Anil s/o Prabhakar Bhalerao,
Age 49 years, Occ. Service,
R/o Sadguru Nagar,
Near Samartha Wadi, Badnera Road,
Dist. Amravati.                                                  .... Respondent

Mrs. H.S. Dhande, Adv. h/f Shri N.P. Lambat, Adv. for the Appellant.
Shri S.K. Sable, Advocate for the Respondent.

                 CORAM          : KUM. INDIRA JAIN, J.

                 DATE           : AUGUST 10, 2017.








COMMON JUDGMENT :-

Both these appeals take an exception to the judgment

and order dated 29/09/2010 passed by the Railway Claims

Tribunal, Nagpur (hereinafter referred to as 'Tribunal' for short) in

Claim Application No. O.A.(IIu)/NGP/2010/0010. By the said

judgment and order, application for compensation came to be

partly allowed and Railway is directed to pay Rs.78,000/- along

with interest at the rate of 6% per annum from the date of filing

of application i.e. 11/01/2010 till the date of decision within two

months failing which to pay compensation with interest @ 7%

p.a. from the date of order till its realization.

02] The facts giving rise to these appeals may be stated

in nutshell as under :

i. On 21/01/2009, applicant-Anil Bhalerao was travelling

from Jalgaon to Nandurbar by Navjeevan Express. As

general bogie of the train was crowded and there was

no space, he boarded in ladies compartment of the

train. Navjeevan Express stopped at Takarkheda

Railway Station as Ahmedabad-Howrah Express Train

was passing over. That time, Guard on duty of

Navjeevan Express asked male passengers to alight

from ladies bogie. Applicant and other passengers

requested the Guard to allow them to get down at the

platform of Railway Station. As Guard refused for the

same, applicant and other passengers got down from

Navjeevan Express in open space.

ii. By that time, Ahmedabad-Howrah Express Train

arrived at the spot and due to dash given by said

Train to handbag of applicant, he fell down and

sustained injuries on the toe of his left leg, right arm

and right hand. He was admitted to Rural Hospital,

Amalner. On the next day, applicant was discharged

from Rural Hospital, Amalner. He got himself admitted

to Suyash Hospital, Amravati, where he underwent

surgeries on 24/01/2009 and 27/01/2009. Applicant

then filed an application for compensation and

claimed amount of Rs.2.50 lacs for the injuries

sustained by him.

iii. Written Statement was filed and application was

strongly objected. It was submitted that applicant did

not suffer any injury in an untoward incident. The

submission is that applicant boarded in ladies

compartment and, therefore, he was asked to alight

from the ladies bogie. It is submitted that applicant

sustained self inflicted injuries and Railways can not

be held liable in such circumstances.

iv. To substantiate his case, applicant examined himself

as AW-1. He also relied upon several documents

including the medical papers. Respondent-Railway

did not examine any witness. Considering the

evidence of applicant and the documents relied upon,

Tribunal came to the conclusion that the injuries

suffered by applicant were not covered as per the

notification and he would be entitled to Rs.78,000/- on

pro rata basis. Accordingly, compensation of

Rs.78,000/- with interest thereon was awarded to

applicant. Having found the compensation awarded as

inadequate, applicant has challenged the judgment

and award passed by Tribunal in First Appeal

No.250/2011.

v. First Appeal No.76/2012 is by the Railways and the

challenge is on the ground that application was not

maintainable as alleged incident did not fall within the

purview of Section 123(C)(2) read with Section 124-A

of the Railways Act, 1989. It is contended that

applicant was not a bona fide passenger and he was

travelling without ticket. It is submitted that the

Tribunal has failed to consider the evidence in proper

perspective and came to wrong conclusion that

applicant is entitled to compensation.

vi. The submission of applicant/injured is that he was a

bona fide passenger and purchased ticket to travel by

Navjeevan Express. It is submitted that injuries

sustained by applicant were covered as per the

Schedule and though applicant was entitled to

compensation of Rs.2.50 lacs, Tribunal awarded

compensation on too lower side and, therefore,

impugned order being bad in law needs to be set

aside.

03] Heard Shri S.K. Sable, learned Counsel for applicant/

injured and Mrs. H.S. Dhande, learned Counsel for Railways. The

first and foremost question that arises for consideration is

whether applicant suffered injuries in an untoward incident.

Statement of applicant was recorded before police. He also

examined himself before the Tribunal. The evidence of applicant

is through out consistent and clearly indicates that before

boarding the train he purchased a ticket. The said ticket is

produced on record. It is not in dispute that applicant due to

heavy rush in general compartment, boarded ladies bogie and

he and other male passengers were asked to alight from the

ladies bogie. It is an admitted fact that Navjeevan Express

stopped at Takarkheda as another train was to pass through.

That time, applicant was asked by the Guard to alight in the

open space. After applicant got down from the train, another

train passing over hit the bag of applicant. So applicant fell

down and sustained injuries. It is crystal clear from the evidence

of applicant that he suffered injuries in an untoward incident. It

is further established that he was a bona fide passenger and

travelled in Navjeevan Express after purchasing a valid ticket. So

far as the injuries are concerned, applicant has filed discharge

card of Suyash Hospital. It shows that there were fractures of

humerus shaft with radial nerve palsy (R) with fracture of shaft

2nd and 3rd M.J. (Lt.) foot. The discharge-card shows that

applicant was indoor patient from 22/01/2009 to 29/01/2009. It

can be seen from the medical papers that initially applicant was

admitted to Rural Hospital, Amalner. Spot-panchnama,

statement of applicant recorded by police, medical papers and

disability certificate issued by General Hospital, Amravati

showing 30% disability, fully substantiates the case of applicant

that he sustained injuries in Railway accident. This

overwhelming evidence negatives the contention of Railways

that applicant suffered self-inflicting injuries.

04] The next question then arises is regarding quantum of

compensation. In this connection, learned Counsel for applicant

placed reliance on the judgments of the Hon'ble Apex Court in

Rathi Menon vs. Union of India - [2001 ACJ 721] and of

Calcutta High Court in Bandana Mishra vs. Union of India

[II(2017) ACC 484 (DB)(Cal.)] and submitted that applicant

would be entitled to compensation as per amended Rules.

Learned Counsel referring to the Gazette Notification dated

22/12/2016, which came into force from 01/01/2017 and based

on Items 28 and 31, submitted that compensation awarded by

Tribunal was not as contemplated in the Schedule. Item 28

relates to loss of all toes of one foot through the metatarso-

phelangeal joint and Item 31 is regarding fracture of major bone

humerus radius both limbs. Amount of compensation prescribed

for injury as per Item 28 is Rs.1,60,000/- and for fracture as per

Item 31 is Rs.1,20,000/-. Learned Counsel submitted that

compensation needs to be awarded as per the amendment in

the Schedule.

05] In the case on hand, it is evident from the medical

papers that there was no loss of all toes of one foot of applicant.

As per discharge-card of Suyash Hospital, one toe of left foot was

injured. Applicant stated in his evidence that his left foot has

lost all the functions and, therefore, on a pro rata basis, for

fracture of shaft 2nd and 3rd M.J. (Lt.) foot joint, compensation

came to be awarded to applicant. Similarly, Item 31 is regarding

fracture of major bone humerus radius both limbs. In the

present case, injury was not to both the limbs but to one and,

therefore, compensation was awarded on pro rata basis.

06] It can be seen from the reasons recorded by the

Tribunal, quantum of compensation arrived at is based on oral

and documentary evidence brought on record. Tribunal, on

proper and legal appreciation of evidence and documents,

assessed the quantum of compensation. The same is just and

reasonable. As such, no fault can be found with the same.

Applicant could not show that the injuries were covered by any

of the Items of the Schedule. At the same time, Railway has

failed to establish that applicant was not entitled to

compensation and the quantum of compensation awarded was

exorbitant.

07] In the above premise, both the appeals being devoid

of substance and merits deserve to be dismissed. Hence, the

following order :

ORDER

I. First Appeal Nos.250/2011 and 76/2012 stand

dismissed.

            II.     No order as to costs.



                                            (Kum. Indira Jain, J)

At this stage, learned Counsel for appellant-injured

submits that Railway has deposited entire amount with the

registry of this Court and injured be permitted to withdraw the

same.

Permission to withdraw the amount for compensation,

if so deposited, is granted to injured.

*sdw                                        (Kum. Indira Jain, J)