The Union Of India The. G.M. ... vs Jagganath Shankarrao Pise And Anr
2017 Latest Caselaw 3861 Bom

                                                                                                             fa-j 337-10 .odt
                                                                1


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

                                 FIRST APPEAL NO. 337 OF 2010

              The Union of India
              General Manager 
              Central Railway 
              Mumbai CST.                                              ....... APPELLANT.
                                                                               (Ori. Defendant)
                          ...V E R S U S...

 1]           Shri. Jagganath Shankarrao Piske
              Aged about 70 years, Occ.: Labour

 2]           Smt. Rukshmanibai Jagganath Piske
              Aged about 65 years, Occ.: Household
              R/o Talmod, Taluka Umarga
              District Usmanabad.                   .......RESPONDENTS.
                                                           (Ori. Applicants)
 -------------------------------------------------------------------------------------------
          Shri. N. P. Lambat, Advocate for Appellant.
          Shri. S. K. Sable, Advocate for Respondents.  
 -------------------------------------------------------------------------------------------

              CORAM:  DR. (SMT.) SHALINI PHANSALKAR-JOSHI, J.

DATE : 1 st JULY, 2017.

ORAL JUDGMENT

This appeal is preferred under Section 23 of the

Railway Claims Tribunal Act, 1987 for quashing and setting aside

the order passed by the Railway Claims Tribunal, Nagpur Bench in

Claim Application No. 51/OA-II/RCT/NGP/2007 dated 30.9.2009,

thereby awarding compensation of Rs.4,00,000/- to the

respondents-applicants.

fa-j 337-10 .odt

2] Brief facts of the appeal can be stated as follows:-

Deceased Kiran was the son of respondent nos. 1 and

2. He was working as teacher in the school at Aurangabad. On

1.10.2006 he had gone to Bhusawal to meet his friend for his

persons work and then after purchasing the ticket from Bhusawal

Railway station, he was returning to Nashik by train No. 1382 UP.

During the course of journey due to sudden jerk, Kiran fell down

at Km. No. 420/2-24 between Bhadli and Jalgaon railway station.

He sustained severe injuries and died on the spot. His ticket

however, got lost in the accident. The respondents, therefore,

claimed compensation of Rs.4,00,000/- on account of the loss

suffered by them due to his untimely death.

3] The appellant herein resisted the said application by

raising the contention that the alleged incident was not an

'untoward incident' within the meaning of Section 123(c)(2) of

the Railways Act. It was submitted that the cause of accident was

the self-inflicted injury on the part of deceased as he was careless

and negligent in crossing the railway track and hence, he was run

over. It was therefore, submitted that railway authorities are not

fa-j 337-10 .odt

at all liable to compensate the respondents, especially when

deceased was not a bona fide passenger and cause of accident was

also not 'untoward incident' within the meaning of Section 123(c)

(2) of the Railways Act.

4] In support of their claim, respondent no.1 examined

himself whereas on behalf of appellant one witness by name S.

Narayan was examined. Both the parties relied upon documentary

evidence and on appreciation of said evidence, the learned trial

Tribunal was pleased to hold that the cause of death was

'untoward incident', as deceased has fallen from the running train

and hence, railway administration was liable to pay compensation

of Rs.4,00,000/- to the respondents.

5] This finding of the Tribunal is the subject matter of

this appeal. According to learned counsel for appellant, the

Tribunal has committed a grave error in not appreciating the

evidence on record properly. It is submitted that sans any

evidence on record proving that deceased has purchased the ticket

and therefore, was the bona fide passenger and further in absence

of evidence proving that he was travelling in the train, the

fa-j 337-10 .odt

Tribunal has held the Railway administration responsible for his

death. According to learned counsel for appellant, the evidence of

Loco Pilot, S. Narayan clearly goes to prove that deceased

suddenly came in front of engine, as a result, he was run over by

the train. Thus, according to learned counsel for the appellant,

when there is no cross-examination of this witness and his

evidence has remained unchallenged on record, the Tribunal

could not have held the railway administration responsible for the

accident that has occurred.

6] Per contra, counsel learned for resppondnts has

supported the impugnd judgment of the Tribunal by submitting

that evidence on record sufficiently proves that deceased was

travelling in the said train and as a result of accidental fall from

the train, his death has occurred.

7] In the light of these rival submissions advanced

before me, two issues that arise for my determination are to the

effect, whether it is proved that deceased has died in an 'untoward

incident' and secondly whether at the time of accident he was a

bona fide passenger?

fa-j 337-10 .odt

Section 123(c) of the Railways Act, 1989 defines

'untoward incident' as follows:

Section 123(c) "untoward incident" means-

(1)(i) the commission of a terrorist act within the meaning of sub-section (1) of section 3 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 1987); or

(ii) the making of a violent attack or the commission of robbery or dacoity; or

(iii) the indulging in rioting, shoot-out or arson, by any person in or on any train carrying passengers, or in a waiting hall, cloak room or reservation or booking office or on any platform or in any other place within the precincts of a railway station; or

(2) the accidental falling of any passenger from a train carrying passengers,

Whereas Section 124-A defines the liability of railway

administration to pay compensation in case of such 'untoward

incident'. This section along with proviso lays down as follows:

124A... Compensation on account of untoward incident:-

When in the course of working a railway an untoward incident occurs, then whether or not there has been any wrongful act, neglect or default on the part of the railway administration such as would entitle a passenger who has been injured or the dependant of a passenger who has been killed to maintain an action and recover damages in respect thereof, the railway administration shall, notwithstanding anything contained in any other law, be liable to pay compensation to such extent as may be prescribed and to that extent only for loss occasioned by the death of, or injury to, a passenger as a result of such untoward incident.

fa-j 337-10 .odt

Provided that no compensation shall be payable under this section by the railway administration if the passenger dies or suffers injury due to-

(a) suicide or attempted suicide by him;

(b) self-inflicted injury;

(c) his own criminal act;

(d) any act committed by him in a state of intoxication or insanity;

(e) any natural cause or disease or medical or surgical treatment unless such treatment becomes necessary due to injury caused by the said untoward incident.

Explanation.- For the purposes of this section, "passenger" includes-

(i) a railway servant on duty; and

(ii) a person who has purchased a valid ticket for traveling, by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident.]

Therefore, if respondents succeed in proving that the

death of deceased was on account of accidental fall from the train,

then it will amount to an 'untoward incident'. The burden will be

then shifted on the appellant, to bring its case within any of the

five Exceptions provided in (a) to (e) of section 124-A of the

Railways Act. The burden will be again on the appellant-railway

administration to prove that deceased was travelling without valid

ticket.

fa-j 337-10 .odt

8] Here, in the case, the defence of railway

administration is specific that deceased was not at all travelling in

the said train and while he was crossing the railway track, he was

run over. Now, coming to the evidence of respondent no.1 herein,

he has deposed that deceased Kiran was his son and he had gone

to Bhusawal from Aurangabad to meet his friend. Since he could

not meet his friend at Bhusawal, he decided to go to Nashik to

meet his another friend. Hence, after purchasing ticket from

Bhusawal Railway station for Nashik, his son informed on phone

to his brother Umesh that by train no. 1382 Up he is going from

Bhusawal to Nashik. However, due to unexpected and sudden

jerk, his son fell down from running train between Bhadli and

Jalgaon Railway stations and sustained injuries.

9] In his cross-examination he has admitted that Kiran

had told his elder brother Umesh on phone that as he wanted to

gather money for his bail, he was going to meet his friend at

Nashik. Further he has admitted that he has not witnessed the

incident. He even does not know as to whether Kiran has

purchased the railway ticket. He has denied the suggestion that

Kiran committed suicide or his death was on account of being 'run

fa-j 337-10 .odt

over' by the railway.

10] Thus, if his evidence is considered, then it is clear that

he was neither an eye-witness to the deceased purchasing ticket or

even to the incident which has resulted into the death of

deceased. Whatever knowledge he had about the deceased going

from Bhusawal to Nashik, it was derived from his son Umesh.

According to him, deceased had made phone call to Umesh.

However, respondents have not examined Umesh to prove that

deceased had boarded the train to Nashik from Bhusawal and he

has purchased the ticket. There is no other oral or documentary

evidence adduced on record by the respondent on this aspect.

11] The documentary evidence on which the reliance is

placed is the memo sent by Dy. Station Superintendent, Jalgaon,

which is produced on record at AW-1/1. It is of the same date of

the incident and in the said memo it is categorically stated that he

had information in respect of one unknown person being run over

by the train. The said memo nowhere shows that the said person

has fallen from the train, so that it can be called as an 'untoward

incident'.

fa-j 337-10 .odt

12] Another document which is produced on record is the

report submitted by Jalgaon Railway police and produced at

AW-2. It is of the next date of the incident and it is also to the

effect that one person was 'run over' under the running train and,

therefore, accidental death be registered under Section 174 of the

Code of Criminal Procedure. Even in the letter sent along with

dead body for post mortem, there is mention that the deceased

was 'run over' under the running train. The contents of inquest

panchnama are also to the similar effect that cause of death was

found to be deceased being run over by the train. The contents of

spot panchnama are also to the effect that the information was

about one person being 'run over' by the train.

13] Thus, the contemptorous documents which are

produced on record clearly give the immediate version of the

incident as the deceased being run over by the train. None of

these doucments contain a whisper that deceased has fallen from

running train and thereafter, run over by the train.

14] The affidavit evidence of S. Narayan who was the

fa-j 337-10 .odt

Loco Pilot on the concerned train also goes to show that when the

train was passing from home signal at KM 420/22-24 where the

accident took place, he was continuously blowing horns as one

person suddenly came in front of the engine and as a result, the

said person was run over by the train. He has immediately applied

the air brakes. At that time, the speed of his train was 70 to 80

KMPH. He immediately informed the said fact to the duty Station

Master, Jalgaon on walky-talky, then he stopped his train at

Jalgaon, made a diary entry of the said incident in Driver's Memo

Book which is also produced on record as Annexure-R-1. He has

also stated that due to dash of said unknown person, the CBC

Operating Engine Handle was bent. Therefore, he was advised to

take assistance of Traction Loco Controller, Bhusawal for

attendance of mechanical stafff at Manmad Station. Accordingly,

the mechanical staff has attended the train engine at Manmad

Railway Stationand repaired the handle.

15] In his further oral evidence he has also deposed that

when the train was progressing on track towards Jalgaon railway

station, one person was going by the side of the track, he suddenly

came in between the tracks. He saw that person from the distance

fa-j 337-10 .odt

of 50 meter. He continuously blew whistle of the trian but said

person failed to remove himself from the track; as a result the

incident has occurred. He has informed about the same on walki-

talki.

16] It is pertinent to note that this witness is not cross-

examined on behalf of respondents. As a result, his evidence has

remained unchallenged on record and as stated above, it is also

supported with contemporous documents which are maintained in

the official public record by the police and railway administration

in the coure of duty. Therefore, there is no reason to disbelieve

this documentary evidence which sufficiently proves that the

cause of death was deceased himself coming on the track and

despite blowing of whistle by the Loco Pilot S. Narayan, deceased

has failed to remove himself; as a result, he was dashed by the

train. In such situation, his death comes within exception (b), as

provided in the Proviso to Section 124-A as self-inflicted injury. In

case of such self-inflicted injury, which in this case can also be a

case of suicide, the railway administration cannot be held liable

and needs to be exhonerated from the liability of paying any

compensation to the respondents.

fa-j 337-10 .odt

17] The perusal of the judgment of Tribunal reveals that

the Tribunal has not at all considered these aspects of the case

and discarded evidence of Loco Pilot S. Narayan, siplicitor on the

ground that in the Driver Memo Book it is not specifically

mentioned that the said person has committed suicide in front of

his train engine. In my considred opinion, when the evidence of

this witness has remained unchallenged on record and it is also

supported with immediate version of the incident as given by

Station Master to the police, then there was no reason for the

Tribunal to disbelieve the said evidence. Especially when there is

no eye-witness to the incident examined by the respondents, the

evidence of the Loco Pilot who was an only eye-witness to incident

and who was not cross-examined by bringing any material

controverting his testimony, there was no reason to disbelieve

him. It is coupled with the fact that no evidence was adduced to

prove that the deceased has boarded the train and allegedly made

a phone call to his brother. There is no evidence that he has

purchased ticket of the railway. Even if said ticket was lost or not

found, if he has really purchased, the entry would have been

definitely made in the register of the railway as the staff who has

fa-j 337-10 .odt

sold the ticket must maintain such entry. Respondents could have

called for such evidence, by issuing summons to the railway

administration. However, no such evidence was made available.

Hence, the Tribunal has committed a grave error in rejecting the

case of appellant that cause of accident was the own act of the

deceased who came on the railway track, all of a sudden and

committed suicide.

18] As a result, the impugned judgment and order of the

Tribunal cannot stand on scrunity of both legal and factual

aspects. As it is not based on the evidence on record. Hence, it is

liable to be quashed and set aside.

The appeal therefore, needs to be allowed, and is

accordingly allowed with no order as to costs.

The impugned judgment and order of the Railway

Tribunal is quashed and set aside.

As a result, the application filed by the respondents-

applicant for compensation stands dismissed.

JUDGE

RGIngole