The Union Of India, General ... vs Dhrupatabai W/O Kondiba Gomsale ...
2017 Latest Caselaw 3864 Bom

                                                                                                           fa-j 305-10.odt
                                                            1


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

                              FIRST APPEAL NO. 305 OF 2010

           The Union of India
           General Manager
           South Central Railway
           Secunderabad.                                                        .......   APPELLANT
                                                                                        (Ori. Defendant)

           ...V E R S U S...

 1]        Dhurpatabai w/o Kondiba Gomsale
           Age 50 years, Occ.: Housewife

 2]        Radha d/o Kondiba Gomsawale
           Age 12 years, Occ.: Nil 
           Under the guardianship of Real 
           Mother Dhurpatabai Kondiba 
           Gomsale
          Both R/o C/o P. V. Nandedkar
          New Mondha, Nanded,
          Taluka and District-Nanded. ....... RESPONDENTS
                                                             (Ori. Applicant)
 -------------------------------------------------------------------------------------------
          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 directed against the Judgment and

Order dated 8.5.2009 passed by the Railway Claims Tribunal,

Nagpur Bench, Nagpur in Claim Petition No.

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47/AO-II/RCT/NGP/2006 thereby awarding the compensation of

Rs.4,00,000/- along with interest at the rate of 7% per annum

from the date of the order till realization, to respondents-

claimants.

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

Respondent no.1 is the mother and respondent no.2

is younger sister of the deceased Suryakant. At the time of

accident he was 18 years of age and was doing the work of selling

milk-sachets, pepsy etc. in the trains. On 31.5.2005 he was

travelling from Basmat to Nandpur by Train No. 582 selling these

various articles. During the course of travel, he fell down from the

running train due to jerk at KM Pole 890/7-8 in Nandpur Shivar.

Due to the injuries sustained on account of fall from the train, he

succumbed to death on the spot itself. Hence, respondents were

constrained to approach the Railway Tribunal for compensation

on account of his untimely death. The application was filed by the

respondents under Section 16 of the Railway Claims Tribunal Act.

3] This application came to be resisted by the appellant

herein submitting that the alleged accident took place due to own

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criminal act of the deceased. It was submitted that it was a self-

inflicted injury as the deceased has sustained dash of the train

while he was trespassing on the railway track. The railway

administration is therefore, not liable for the said accident and

hence, the amount of compensation cannot be awarded to the

respondents-claimants as the alleged accident is not an 'untoward

incident' as covered under Section 123(c) or section 124-A of the

Railways Act.

4] On these respective pleadings of the parties, the

Tribunal framed necessary issues for its determination. In support

of her case, respondent no.1 examined herself, whereas on behalf

of respondents, the driver of the concerned Train, namely, Syed

Pasha Syed Bashir Ali was examined.

5] On appreciation of their oral evidence and the other

documentary evidence produced on record by the parties, the

Tribunal was pleased to hold that cause for death of the deceased

was accidental fall from the running train. Accordingly, the

Tribunal held the railway administration liable to pay the

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

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6] This judgment and order of the Tribunal is challenged

in the present appeal by learned counsel for the appellant, by

submitting that the Tribunal has committed an error in awarding

compensation to the respondents, sans any evidence proving that

deceased was a bona fide passenger of the train, having purchased

the ticket for travel. It is submitted that respondent no.1, the

mother of the deceased has admitted that she had not personally

witnessed the deceased while purchasing the ticket. According to

her, her neighbour Prakash has witnessed the deceased while

purchasing the ticket. Prakash, however, has not been examined.

Thus, it is submitted that if the deceased is not proved to be a

bona fide passenger having purchased the ticket for travel, Railway

administration cannot be held liable to compensate the

respondents.

7] Secondly, it is submitted that respondents have not

adduced the evidence of any eyewitness to show that the deceased

has fallen from the running railway; conversely the evidence of

the witness examined by the appellant, namely the driver of the

Train Shri Syed Pasha, shows that no such incident has happened

in the said train. Thus, according to learned counsel for the

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appellant, the impugned order passed by the Tribunal holding the

appellant responsible for the cause of accident is totally against

the evidence on record. No Railway ticket was found on the

person of deceased at the time of spot panchnama or seizure

panchnama of the articles found with him and hence, the

necessary inference should have been drawn that the accident

took place while deceased was crossing the railway track; hence, it

was a self-inflicted act. Thus, appellant needs to be exonerated

from the liability of paying the compensation.

8] In the light of these rival submissions advanced by

learned counsel for appellant and respondent, two points which

necessarily arise for my determination, first is, whether it is

proved that deceased has died on account of 'untoward incident'?

As a corollary to this issue, another issue arising for consideration

is, whether it is proved that deceased has purchased a valid ticket

for travelling by train carrying passengers and therefore, was a

bona fide passenger?

9] What amounts to an "untoward incident" is defined in

section 123(c) of the Railways Act, 1989. It reads as follows:

2[(c) "untoward incident" means-

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(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.

10] At this stage, Section 124A of the Railways Act which

deals with the liability of payment of compensation on the part of

railway on account of untoward incident also needs to be

considered. Section 124A reads 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 305-10.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.

11] Thus, as per this section, the liability of Railways to

pay compensation to the relatives of the victim who has died by

"untoward incident" is absolute, irrespective of any wrongful act,

neglect or default on the part of the railway administration. The

proviso to said section exempts the railway administration from

the liability to pay the compensation only in case of five

eventualities which are described in (a) to (e). Therefore, once it

is proved that the passenger has died on account of suicide or

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attempted suicide or by self-inflicted injury or his own criminal act

or any act committed by him in a state of intoxication or insanity

or any natural cause or disease or medical reason, then in any of

these five situations, the railway administration cannot be liable to

pay compensation.

12] Therefore, the initial burden of proving that the

deceased has died in "untoward incident" which includes the

accidental falling from the train carrying passengers lies on the

claimant. However, subsequent burden of proving that the death

of person was on account of any of these five eventualities so as to

bring the case within one of the exceptions lies on the railway

administration.

13] Now to prove that at the time of accident deceased

was travelling in the train and his death has occurred on account

of accidental falling from train, respondent no.1 has examined

herself. According to her evidence, deceased Suryakant was her

son, who was working as hawker and selling eatable articles like

milk sachets and Pepsi in the trains. On the date of incident, he

was travelling in the train from Purna to Ajmer. It is deposed by

her that he had purchased the ticket from Basmat to Nandapur

fa-j 305-10.odt

and he fell down from the running train due to jerk. This

information was given to her by one Prakash Gajmal. Thus,

admittedly, she is not an eye-witness to the incident or even to the

purchase of railway ticket by the deceased. She has admitted this

fact categorically in her cross-examination also. Further though

she has deposed that her neighbour Prakash has witnessed the

deceased purchasing the ticket and falling from the train, she has

not adduced his evidence. Therefore, so far as respondentno.1-

claimant is concerned, there is no oral evidence to prove that

deceased had purchased the ticket; hence, he was a bona fide

passenger and his death was on account of accidental fall from the

running train.

14] Appellant herein has also then examined the witness

by name Sayed Pasha Sayed Bashir who was the driver of the

concerned train. According to him, no accident has taken place in

between Basmat to Nandapur station on the said passenger train.

He has produced on record the copy of the driver's book dated

31.5.2005 to prove it. However, in his cross-examination he has

admitted that being a driver of the train, he was required to see

the front side and therefore, he cannot be aware if any passenger

fa-j 305-10.odt

falls down from the running train on the track. Therefore, his

evidence is also not much of help, either to applicant-claimant or

the railway administration to prove the occurrence of the incident

as such.

15] In the absence of this oral and direct evidence on

record, one has to rely upon the documentary evidence which is in

the form of written information about the incident given by

Station Master of Nandapur Railway Station, Madhav Punjaji. The

copy of said information is produced at Exh.AW-1/1. This

information is given by Station Master to Police Inspector of

Kalmanuri Police Station and in this information he has clearly

stated that on that day one boy aged 18 of years has fallen down

from the running train No. 582 of Purna to Ajmer and his dead

body was found near the railway track at KM No. 890/7-8.

16] No doubt this information given by the Station Master

to Police Inspector of Kalmanuri police station is based on the

information given to him by the Gangman Jon Salna. Learned

counsel for appellant has relied upon the statement of Jon Salna

recorded on 1.7.2006 to submit that in the said statement he has

nowhere stated that he saw any person falling from the running

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train and his statement is merely to the effect that he saw the

dead body of one person lying near that particular Pole No.

890/7-8 and accordingly, he has informed the Station Master of

Nandapur. The submission learned counsel for appellant is that if

Jon Salna is stating that he has not seen any person falling from

the running train, the information given by the Station Master on

the basis of statement of Jon Salna is not correct. It is not

explained by Station Master as to how he has stated that one

person has fallen from the running train and succumbed to death.

17] Though this submission of learned counsel for

appellant appears to be persuasive, however on closely scrutiny it

cannot be accepted for the two reasons; the first being, this

Gangman Jon Salna is not examined by the appellant. To prove

his statement of which was recorded on 1.7.2006, it was necessary

for appellant to examine him. As he is not examined, the said

statement is not proved on record and therefore, cannot be

admitted or read in evidence. Secondly and most importantly, this

statement is recorded about one year after the incident. The

incident taken place on 31.5.2005, whereas the statement of

Gangman Jon Salna recorded on 1.7.2006. As against this, the

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information given by Station Master to the police on the basis of

information received by him from this witness Jon Salna, is

immediately on the same day i.e. 31.5.2005. Therefore, the said

information which gives the immediate version of the accident

and is therefore the contemporaneous document of the incident

needs to be relied upon than the statement of Jon Salna, which is

recorded after more than one year and that too when it is not

proved for reading it in evidence.

18] Moreover, this information given by Station Master to

Police Inspector, of Kalamnuri P.S. gets support and corroboration

from the spot panchnama, in which there is averment that

deceased has fallen from the running train and hence succumbed

to the injury. Post mortem report also gives the same history of

deceased falling form the running train and sustaining injuries to

which he succumbed. Therefore, the documents produced on

record by the railway administration themselves prove that the

cause of death was the deceased accidentally falling from the

running train. The case put up by railway administration, in its

written statement filed to the claim petition, in para-5(ii) that

deceased was hit by the train while trespassing on the railway

fa-j 305-10.odt

track is not at all proved by the railway administration. Even the

evidence of driver Syed Pasha shows that as a driver though he

was required to see front side, he has not seen any person crossing

the railway track and, therefore, being hit by the train. In such

circumstances, the inference drawn by the Tribunal which is also

based on the evidence on record is inevitable that the death of

deceased was on account of accidental falling from running train.

Hence it is covered within the meaning of 'untoward incident', as

defined in Section 123(c)(2) of the Railways Act. Moreover, it also

does not fall in any of the exceptions provided in Clause (a) to (e)

of Section 124A of the Railways Act.

19] Now the next question posed for my consideration is

whether deceased was a bona fide passenger? Explanation(ii) of

Section 124 defines passenger to mean a person who has

purchased a valid ticket for travelling, by a train carrying

passengers, on any date or a valid platform ticket and becomes a

victim of an untoward incident. On this aspect, admittedly there is

no evidence on record because respondent no.1 who is the mother

of the deceased, has admitted that she has not witnessed the

deceased purchasing the ticket. She has relied upon the

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information given by Prakash, however, he is not examined. The

other circumstantial evidence on record is the fact that deceased

was a hawker and selling eatables in the train. It is, therefore,

submitted by learned counsel for the appellant that it is not

possible to presume or accept that deceased has purchased the

ticket. Therefore, it has to be held that he was travelling without

ticket. It is also urged that as per the spot panchnama, articles like

Pepsi and sachets were found near his dead body. However,

railway ticket was not found therein. Hence, it is submitted that,

in the absence of any evidence proving that deceased has

purchased or was having a valid railway ticket, he cannot be

called as a bona fide passenger.

20] Per contra, by relying upon the judgment of

Rajasthan High Court in the case of Union of India Vs Hari

Narayan Gupta and another, 2008 ACJ 822, it is submitted by

learned counsel for respondents, that merely because the ticket

was not found, it cannot be said that deceased was travelling

without valid ticket. In this judgment it was held that the normal

presumption is that a passenger in a railway holds a valid ticket.

Hence, the burden is upon the railway administration to prove

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that he was not having a valid ticket. It was held that when a

person dies in an accident by falling from running train, it is not

possible for the legal representatives to produce the ticket. Hence,

in absence of production of ticket also it can be held that deceased

was a bona fide passenger. Thus, once evidence on record proves

that deceased had accidentally fallen from the train which

resulted into his death, then the presumption will follow that he

was travelling with valid ticket. Naturally the burden stands

shifted on the railway administration to prove otherwise.

21] In the present case evidence on record had proved

that the cause of death was accidental fall from the running train

and therefore, presumption is that deceased was a bona fide

passenger having a valid ticket. The burden was then shifted on

the railway administration to prove that deceased was travelling

without ticket. The railway administration has not led any

evidence to rebut that presumption. As observed by the Tribunal

in this respect, there is ticket checking staff and railway police to

apprehend the persons who are travelling without ticket. The

evidence of such staff has not been led. Merely because deceased

was a hawker selling articles in the train, it would not be proper

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to infer that he was travelling without ticket. When the burden is

on the party to prove a particular fact, the burden is to be

discharged by the party by adducing evidence. Hence, merely on

the assumption and presumption, it cannot be said that deceased

was not a bona fide passenger.

22] In the circumstances, the judgment and order of the

Tribunal holding the appellant responsible for payment of

compensation to the respondents needs to be upheld.

23] At this stage, learned counsel for respondent-

claimants submitted that the Tribunal has awarded the

compensation of Rs.4,00,000/- as per the rates prevailing at the

time of its judgment. However, in view of Notification issued by

the Ministry of Railways (Railway Board) dated 22.12.2016, in

the case of death, the compensation now is enhanced to

Rs.8,00,000/- w.e.f. 1.1.2017. Hence, according to learned

counsel for respondents, this Court should enhance the

compensation amount, which is awarded by the Tribunal at

Rs.4,00,000/- to Rs.8,00,000/-.

24] Learned counsel for the appellant has strongly

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resisted this submission by pointing out that, in this case as the

appeal is not preferred by the claimant, hence there is no question

of enhancing the amount of compensation. Further he has

submitted that the accident has occurred in the year 2005,

whereas this Notification of enhancing the amount of

compensation is issued in December, 2016 and came into effect

from January, 2017, therefore, the amount of compensation

cannot be enhanced in this case.

25] In support of his submission, learned counsel for

respondent has relied upon the decision of Calcutta High Court in

Bandana Mishra Vs. Union of India, II(2017) ACC 484 (DB)

(Cal.), wherein relying upon this Notification dated 22.12.2016

the claimants were held entitled to get the compensation of sum

of Rs.8,00,000/-, with interest @ 7.50% per annum from the date

of lodging of claim petition.

26] Learned counsel for the appellant has however, tried

to distinguish this case on the count that in that case the claimant,

has preferred the appeal; therefore, the enhanced amount of

compensation was awarded.

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27] However, in my considered opinion, whether the

claimant or the Railway administration has preferred the appeal is

not of relevance because it is the duty of the Tribunal and the

Court to award the compensation which appears to be just,

reasonable and legal. While arriving at such amount of

compensation, it is duty of the Court to take note of the enhanced

rate of compensation, as notified by the railway administration.

Merely because at the relevant time, when the impugned order

was passed by the Tribunal, the prevailing rate was of

Rs.4,00,000/- and hence respondents have not preferred the

appeal against the judgment of the Tribunal, they cannot be

deprived of the amount of compensation to which they are

entitled when the present appeal is being decided by this Court,

especially considering that all these years, they are deprived from

getting their due and reasonable amount of compensation because

of the appeal preferred by railway administration and it being

pending in this court. Therefore, as per the decision of the Apex

Court in the case of Rathi Menon Vs Union of India reported in

2001 ACJ 721, the benefit of this new Notification needs to be

extended to the respondents claimants also.

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28] As a result, the appeal stands dismissed.

However, in view of the Notification dated

22.12.2016 coming into effect from 1.1.2017 the judgment and

order of the Tribunal is modified and it is directed that respondent

nos. 1 and 2 are entitled to get compensation Rs.8,00,000/- with

interest @ 7.5 per annum from the date of lodging claim petition

before the Tribunal till date of payment.

The entire compensation awarded by this Court

together with interest shall be paid to the respondent No.1 who is

the mother of the deceased.

Appellant shall deposit the cheque of compensation

amount in the office of Registrar (Judicial) within four months

from the date of this order. Thereafter, respondent no.1 shall be

entitled to collect the same upon proving her identity and in

accordance with law.

The appeal is disposed of in above said terms.

JUDGE

RGIngole