Bombay High Court
Ushabai Mangal Deshmukh And ... vs The Union Of India on 6 July, 2017
Bench: V.K. Jadhav
1 FA.2941.13.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
FIRST APPEAL NO. 2941 OF 2013
1. Smt. Ushabai Mangal Deshmukh,
Age - 45 years, Occupation - Household,
2. Ku. Savita Mangal Deshmukh,
Age - 16 years, Occupation - Education,
3. Chi. Pramod Mangal Deshmukh,
Age - 14 years, Occupation - Education,
Appellant Nos.2 and 3 are minors and
Appellant No.1 is their natural guardian
as mother. All are residing at 23 Bornar,
Tal. and Dist. Jalgaon. ... APPELLANTS
(Ori. Claimants)
VERSUS
The Union of India,
Through General Manager,
Central Railway, CST, Mumbai. ... RESPONDENTS
(Ori. Respondents)
...
Advocate for Appellants : Mr. Madhav M. Bhokarikar.
Advocate for Respondent : Mr. Manish N. Navandar.
...
CORAM : V. K. JADHAV, J.
RESERVED ON : 2nd May, 2017.
PRONOUNCED ON: 6th July, 2017.
JUDGMENT:
. Being aggrieved by the judgment and order passed by the
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learned Member of the Railway Claims Tribunal, Nagpur Bench dated
30th August, 2013 in Claim Application No.OA(llu)/NGP/2011/0162, the
original Applicants have preferred this appeal.
2 Brief facts giving rise to the present appeal are as follows:
i) On 24th September, 2010 deceased Mangal while
travelling from Pachora to Mhasawad by an
unknown train allegedly fell down from the running
train at Km. No.396/13-15 on DN line of Railway
track, Bornar Shivar of Railway Station Mhasawad.
It has also alleged that second class ticket
purchased by deceased Mangal from Pachora to
Mhasawad was misplaced.
ii) Respondent / railways has strongly resisted the
claim application by filing the written statement. It
has been contended that deceased Mangal was
not travelling by train. Deceased Mangal was in
habit of taking liquor and under the influence of
liquor he came on the railway track which is nearby
his village and was dashed by the train at Km.
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No.396/13-15.
iii) The Appellants / original Applicants and the
Respondent / railways adduced their oral and
documentary evidence in support of their rival
contentions. The learned Member of the Railways
Claims Tribunal, Nagpur Bench by impugned
judgment and order dated 30th August, 2013
dismissed the application. Hence, this appeal.
3 The learned counsel for Appellants / original Applicants
submits that on 24th September, 2010 deceased Mangal Deshmukh
was travelling by train having valid ticket from Pachora for Mhasawad.
Due to heavy rush, he fell down from the running train on down
Railway track near Km. 396/13-15 in Bornar Shivar. In consequence
of which, he sustained severe injuries and died on the spot. The
learned counsel submits that incident was informed on 24th September,
2010 at about 08:00 am by Sanjay Baliram Patil, Deputy Station
Master, Mhasawad to MIDC Out-Post, Mhasawad and accordingly,
report was registered in the said Police Station vide No.55 of 2010.
The ticket was misplaced and could not be found. Postmortem was
conducted by Dr. Ajay B. Sonawane, Medical Officer, Civil Hospital,
4 FA.2941.13.odt
Jalgaon. The learned counsel submits that deceased Mangal was a
bona-fide passenger and all the documents are supporting the case of
the Appellants / original Applicants. The learned counsel submits that
railway tickets are always sold irrespective of any space available and
without considering the convenience of the passengers. Due to the
said irresponsible approach of the Respondent / railways, the
accidents are increasing day-to-day. There is an irresponsible handing
of the traffic of the train. The Respondent / railways is totally
responsible for the loss and damages caused to the legal heirs of
deceased Mangal. The learned counsel submits that the Appellants /
original Applicants have proved their case and there is no evidence to
substantiate the case as put forth by the Respondent/ railways.
4 The learned counsel for Respondent / railways submits
that as per the statements of the relatives of deceased Mangal before
the police, it has come on record that deceased Mangal was a heavy
drunker. The Respondent / railways has examined two witnesses to
substantiate its defence. Deceased Mangal was not travelling as
passenger and the Appellants / original Applicants have utterly failed to
prove that the death of Mangal occurred as a result of an untoward
incident as alleged in the claim application. The learned Member of
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the Railway Claims Tribunal has therefore, rightly dismissed the claim
application. There is no substance in the appeal and the same is liable
to be dismissed.
5 On careful perusal of pleadings, evidence and the
judgment and order passed by the learned Member of the Railway
Claims Tribunal, it appears that Respondent / railways has examined
RW-2 Rameshwar Rakhonde, Loco Pilot, Central Railway, Division
Bhusawal by filing his affidavit of evidence. As per the facts averred in
the said affidavit of evidence, on 23rd/24th September, 2010, RW-2
Rameshwar Rakhonde was working as Loco Pilot of Train No.N-Bost
(Goods Train) and his duty was from Nandgaon to Bhusawal. He has
further stated in this affidavit of evidence that when his train was
passing through KM No.396/13-15 at about 00:29 hours from
Mhasawad Railway Station, he noticed one person was standing near
the track and at that time the speed of his train was 75 KMPH. He
continuously blew the whistle but the said person did not walk away
but jumped in front of the train engine and as a result dashed and run
over by the engine of his train. He had immediately informed the
incident to Station Master, Mhasawad for further action and also taken
an entry in the Loco Pilot Book. An extract of the said Loco Pilot Book
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is also placed on record, which is marked as A-86.
6 On careful perusal of postmortem notes A-55, it appears
that the concerned medical officer, who has conducted the
postmortem, has recorded the external injuries in column 17 alongwith
corresponding internal injuries in column 18 of the postmortem notes.
The medical officer has opined about the probable cause of death as
crush injury of head and crush injury of chest and polytruma. I do not
think that such injury is possible by fall from the running train. On the
other hand, the said injury alongwith the probable cause of death as
opined by the concerned medical officer, supports the case of
Respondent / railways that deceased Mangal was run over by the said
goods train.
7 The Respondent / railways has also examined RW-1
Sanjay Baliram Patil, Deputy Station Superintendent, Lasalgaon
Railway Station, Central Railway, Division Bhusawal by filing his
affidavit of evidence. He has stated in his affidavit of evidence that on
23rd September, 2010 he was working as Deputy Station Master at
Mhasawad Railway Station and his duty hours were between 16:00
hours and 01:00 hours of 24th September, 2009. According to him, no
any untoward incident had taken place and accidental fall down of any
7 FA.2941.13.odt
passenger was reported to him by Loco Pilot, Guard or any passenger
of any train. He has further explained that KM No.396/13-15 is
between Maheji and Mhasawad Railway Stations. On 24 th September,
2010 at about 00:30 hours he was informed by Loco Pilot of Goods
Train on walky-talky that a dead body of one unknown person is lying
on the down track. Accordingly, he has informed the same to RPF and
PWS, Mokkdam for further course of action. He has further stated in
his affidavit of evidence that the last passenger train which arrived
from Pachora to Mhasawad was at 16:43 hours and thereafter, no
passenger train arrived at Mhasawad Railway Station on 23 rd
September, 2010. Thereafter, there was no passenger train on 23 rd
September, 2010 / 24th September, 2010 till his duty. The report
submitted by him is placed on record and the same is marked as A-62.
The Appellant / Claimant No.1 Smt. Ushabai Mangal Deshmukh has
filed an affidavit of evidence at A-64 and she has admitted in her
cross-examination that on 23rd September, 2010 deceased Mangal
came to the house at about 10:00 p.m. According to RW-2
Rameshwar Rakhonde, Loco Pilot, when the goods train was passing
through from KM No.396/13-15 at about 00:29 hours, on 24 th
September, 2010, the said incident had taken place. RW-1 Sanjay
Baliram Patil, Deputy Station Superintendent has deposed that last
8 FA.2941.13.odt
passenger train which arrived from Pachora to Mhasawad was at
16:43 hours and thereafter, no passenger train was arrived at
Mhasawad Railway Station on 23rd September, 2010 and thereafter,
there was no passenger train on 23rd September, 2010 / 24th
September, 2010 till his duty.
8 On the basis of the evidence as discussed above, the only
inference could be drawn that deceased Mangal was not travelling as
a passenger in any train on the track. On the other hand, the last
passenger train which arrived from Pachora to Mhasawad was at
about 16:43 hours on 23rd September, 2010.
9 The Appellants / original Applicants have failed to
substantiate their case. Deceased Mangal was in the house till 10:00
p.m. on 23rd September, 2010 and his dead body was found on the
track on 24th September, 2010. There is no evidence at all as to where
from deceased Mangal had purchased the railway ticket and started
his journey.
10 In view of the above discussions, I do not find any fault in
the finding recorded by the learned Member of the Railway Claims
Tribunal. There is no substance in the appeal. The appeal is thus,
9 FA.2941.13.odt
liable to be dismissed. Hence, the following order:
O R D E R
I. The appeal is hereby dismissed. No costs.
II. Appeal is accordingly disposed of.
[ V. K. JADHAV, J. ]
ndm
