Pushpa Wd/O. Gautam Kamble And ... vs Union Of India, Through The ...
2017 Latest Caselaw 5954 Bom

        J-fa147.17.odt                                                                                                 1/10   


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


                                      FIRST APPEAL No.147 OF 2017


        1.    Pushpa wd/o. Gautam Kamble,
               Age 42 years,
               Occupation : Labour.

        2.    Suyog s/o. Gautam Kamble,
               Age 28 years, Occupation : Labour.

               Both R/o. Gautam Nagar
               (Janavarancha Davakhana), Talab Kata,
               Parli, Tah. Parli, District Beed.                                    :      APPELLANTS

                           ...VERSUS...

        Union of India,
        through the General Manager,
        South - Central Railway, 
        Secunderabad.                                                               :      RESPONDENT


        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
        Shri R.G. Bagul, Advocate for the Appellants.
        Shri N.P. Lambat, Advocate for the Respondent.
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-


                                                      CORAM  :   S.B. SHUKRE, J.

th DATE : 16 AUGUST, 2017.

ORAL JUDGMENT :

1. Heard.

2. Admit. Heard finally in terms of the order passed on 22 nd

February, 2017.

J-fa147.17.odt 2/10

3. This appeal challenges the legality and correctness of the

judgment and order dated 8.12.2015, passed by the Railway Claims

Tribunal, Nagpur, in case No. OA(IIu)/NGP/2012/0298. By this

judgment and order, a claim made by the respondent with South Central

Railway Secunderabad for receiving compensation of Rs.8,00,000/-

along with interest at the rate of 12%, on account of death of the

husband and father of appellant Nos.1 and 2 respectively in a railway

accident resulting from an untoward incident was rejected. The accident

had occurred at about 12.30 hours of 21.1.2012 at Railway Station Latur

Road when the deceased Gautam had fallen off a running train bearing

train No. 57548. It was the case of the appellants that deceased Gautam

was a bona fide passenger holding a valid ticket to travel on the train and

that he had fallen down from a running train, while it was the case of the

respondent that the deceased was a hawker and that he had tried to

board a running train when it had already gathered momentum and thus

it was not a case of untoward incident but a case of criminal negligence

as well as self inflicted injury.

4. Learned counsel for the appellants submits that there is

ample evidence available on record which would show that deceased

Gautam was a bona fide passenger and he had fallen off a running train

and not at the time when he was trying to board a running train which

had gathered momentum. He, however, does not dispute the claim of

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the respondent that deceased Gautam was a hawker selling some

eatables on train. But, according to the learned counsel for the

appellants, the hawker's business was carried out by the deceased not at

Latur Road Railway Station but at some different place.

5. Shri NP. Lambat, learned counsel for the respondent submits

that the evidence available on record shows that the stand taken by the

Railway has been duly proved and, therefore, there is no reason for

making any interference with the impugned judgment and order.

6. In view of the argument advanced across the bar, following

point arises for my determination :

Whether the deceased died in a railway accident on account of untoward incident ?

7. The evidence available on record, on its perusal, does show

that whatever has been submitted by the learned counsel for the

respondent is having substance in it and there is no merit in the

argument of learned counsel for the appellants.

8. Although, it is case of the appellants that the deceased had

fallen off a running train while he was already travelling on board the

train, the evidence of Shri Ramesh Kumar (RW 1), Assistant Station

Master, examined by respondent shows the case to be otherwise, he

being an eye witness to the entire incident and, therefore, his evidence

has assumed importance in the present case. This is not so with the

J-fa147.17.odt 4/10

evidence of two witnesses of the appellant, namely, AW 1 Pushpa and

AW 2 Rasika as admittedly both of them were not eye witnesses to the

incident.

9. While AW 1 Pushpa does not know anything about the

incident or going of her deceased husband to Latur Road Railway Station

for catching a train, AW 2 Rasika, sister in law of the deceased, knows

something which is related to the occurrence of the incident, if not the

incident proper. She states that she had been to Latur Road Railway

Station in order to see off her deceased brother in law and that she had

indeed purchased a railway ticket for her deceased brother in law in

order to enable him to travel on a train for going to Udgir. In this

regard, I do not see any difficulty in accepting the evidence of AW 2

Rasika as there is nothing in her entire evidence to entertain any doubt

about her seeing off her deceased brother in law at Latur Road Railway

Station and also purchasing a railway ticket for him. But, she also admits

that so far as the occurrence of the accident was concerned, she was not

aware of it and that her knowledge regarding falling down from the train

of her brother in law was based upon what was told to her by other

persons. She also admits that personally she did not witness the

accident. Here, we are concerned with the manner in which the accident

occurred as the defence of the criminal negligence and self inflicted

injury has been taken by the respondent. Therefore, the evidence of that

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person who had an occasion to witness the incident would assume

importance and that is why I have found that evidence of RW 1 Ramesh

Kumar is the evidence which holds key to resolution of the dispute

involved in the present case.

10. RW 1 Ramesh Kumar in his evidence has clearly said that the

deceased Gautam was a hawker and that he witnessed the entire

incident. He has stated that he had given a green signal to Train

No.57548 Purna-Hyderabad Passenger after which the train started

rolling down the platform. He has further stated that as the train had

started leaving Latur-Road Railway Station, a man i.e hawker, selling

puffed rice in the train, tried to get on to the train, but fell down and was

caught in the gap between the train and the platform, due to which he

was run over by the train and met with an unfortunate death on the spot

itself. He has also stated that thereafter he signalled the guard of the

train, stopped the train and passed a message to all the concerned

officials using the control system. He has further stated that he issued a

memo to RPF Sub Inspector and GRC Sub Inspector Parli and also

informed the RPF on duty at Latur Road Railway Station in order that

further action was taken by them.

11. Such evidence of RW 1 has gone completely unchallenged

when one looks at his cross-examination taken on behalf of the

appellants. In the cross-examination, it appears, only two questions were

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put to this witness and they were answered by him in terms "Police has

recorded my statement. I agree with the facts." This is all about the

whole cross-examination of RW 1 Ramesh Kumar. There is nothing

further in the cross-examination. The inference will be inevitable. It

would be that the appellants accept whatever RW 1 Ramesh Kumar has

stated regarding the deceased being a hawker, the deceased selling

puffed rice on the trains including the train in question and not the other

trains as the appellants submit and the deceased falling down the train at

the time when he made an unsuccessful attempt to get on to the train

while it was running. As if, such admissions are not enough, the

documentary evidence adduced by the Railway through the evidence of

RW 1 Ramesh Kumar stamp a further seal of approval to the inference

that inevitably arises from considering the evidence of RW 1 Ramesh

Kumar. The memo issued by RW 1 Ramesh Kumar at Page A-106 of the

record of the trial Court, serves to lend an assurance to the Court that

RW 1 Ramesh Kumar indeed witnessed the incident and it occurred the

way he deposed before the Court. In this memo dated 21.1.2012 issued

at 12.30 hours, 11 minutes after the occurrence of the accident or in

other words immediately after the incident also refers to the status of the

deceased as a hawker and the fact of falling down of the deceased from

the train which had started to roll down on the tracks.

12. Learned counsel for the appellants at this stage has invited

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my attention to the statement of the Ramesh Kumar, Assistant Station

Master, recorded by the Station Master on 1.3.2012, which is at

Page A-81 of the record of the trial Court. He submits that the story

narrated in this statement by Ramesh Kumar is somewhat different. He

points out from this statement that according to Rameshkumar, the

deceased had fallen down from a running train. He submits that this

statement nowhere mentions the fact that deceased Gautam had tried to

catch a running train and in that process, he fell down from the train.

He submits that this is the own document of the Railways and, therefore,

would have to be accepted as giving a correct picture about the manner

in which the accident occurred. Shri N.P. Lambat, learned counsel for

the respondent disputes this. He submits that what was produced before

the Lower Court was a copy of the alleged statement dated 1.3.2012,

which was issued by P.S.I. Railway Station Parli-Vajnath as true copy of

the statement. He further submits that the original statement was not

tendered in evidence. Therefore, according to him, it was the duty of the

learned counsel for the appellants, to have invited attention of RW 1

Ramesh Kumar specifically to this statement when he was subjected to

cross-examination by him and if he had done so, the explanation of RW 1

Ramesh Kumar in this regard would have appeared on record and since

that was not done, no reliance can be placed upon this statement. I think

learned counsel for the respondent is right in his such submission.

J-fa147.17.odt 8/10

Attention of RW 1 Ramesh Kumar ought to have been invited to this

statement and if it had been done, something useful for doing justice in

the present case would have appeared on record. But, unfortunately that

is not the case. On the contrary, the evidence of RW 1 Ramesh Kumar

has been accepted by the appellant as correct and not even a whisper of

protest has been made by the appellant about whatever has been

deposed before the Court by RW 1 Ramesh Kumar. If the suggestions in

the nature of simple denial had been put to this witness, one could have

said that the evidence of RW 1 Ramesh Kumar was not accepted to be

true and correct by the appellant. But no such suggestions of denial were

ever put to this witness. Therefore, the only conclusion that can be made

in the instant case is that the appellants themselves have admitted the

crucial facts relating to the manner in which accident occurred. These

crucial facts are already discussed by me and, therefore, they are not

reproduced here. In such a case, the latest statement of RW 1 Ramesh

Kumar dated 1.3.2012, on which reliance has been placed by the

appellant at this stage, cannot be read in evidence. That apart, the

memo issued by RW 1 Ramesh Kumar was almost immediately after the

accident and the contents of this memo broadly corroborate the evidence

of RW 1 Ramesh Kumar. Therefore, the evidence of RW 1 Ramesh

Kumar before the Court would have to be taken as trustworthy whereas

copy of his statement dated 1.3.2012 cannot be read in evidence.

J-fa147.17.odt 9/10

13. So, accepting the evidence of RW 1 Ramesh Kumar what

emerges on record are the facts that deceased Gautam was a hawker and

on the fateful day he had tried to board a running train but could not

succeed in his attempt and fell down the train only to be caught in the

gap between the train and the railway platform and thus dying

instantaneously of the injuries that he suffered in the process.

14. Such an attempt by a hawker has been viewed by the trial

Court as something amounting to criminal negligence on his part and

also an effort to inflict injuries to himself. The trial Court reasoned that

if the deceased had to sell his goods by boarding a train, he should have

ensured to do so only when it was quite safe for him to get on to the

train or otherwise he could have avoided catching the train and waited

for another train to come. It also hinted that there was absolutely no

compulsion or hurry for the deceased in the present case to make an

attempt to somehow or the other board the train while it was gathering

speed. For such conclusions, the Tribunal has relied upon the cases of

the superior Courts including that of Hon'ble Supreme Court which is of

Jameela and others vs. Union of India, reported in (2010) 12 SCC

443, wherein the Hon'ble Supreme Court held that when the negligence

is not an ordinary negligence but a criminal negligence, the deceased

only would have to be held as responsible for his own death and

compensation could not be granted. The trial Court found that facts of

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the instant case also disclosed that this was not a case of ordinary

negligence but a case of criminal negligence as well as injuries being self

inflicted. I do not think that any fault in this reasoning, which is based

entirely upon the facts established on record, can be found. If it is found,

which in fact has been found in the present case, that the deceased was a

hawker who was trying to board a running train, one would have to say

that the deceased, in his wisdom, could have let go the train and waited

for another train to come by so that he could carry on his trade as usual,

there being neither any compulsion on his part to catch this particular

train only nor there being any urgency for him to board this train only.

Therefore, I am of the view that the findings recorded by the Tribunal in

this regard cannot be said to be illegal or perverse. The Tribunal has

rightly held that the accidental fall of the deceased did not amount to

untoward incident as defined under Section 123 (C)(2) of the Railways

Act and therefore, the appellants are not entitled to receive any

compensation in the present case. The point is answered accordingly.

15. The appeal stands dismissed.

16. The parties to bear their own costs.

JUDGE okMksns