Bombay High Court
Bhavsing Yadav Patil And Anr vs The Union Of India Thr Gen Manager ... on 6 July, 2017
Bench: V.K. Jadhav
1 FA.2095.13.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
FIRST APPEAL NO. 2095 OF 2013
1. Shri. Bhavsingh Yadav Patil,
Age - 68 years, Occupation - Pensioner,
2. Smt. Sulochanabai Bhavsingh Patil,
Age - 63 years, Occupation - Household,
Both are residing at Khadka Road, Behind
Ramdeobaba Mandir, Shiv Krupa Building,
Bhusawal, Tal. Bhusawal, Dist. Jalgaon. ... APPELLANTS
(Ori. Claimants)
VERSUS
The Union Of India,
Through the General Manager,
Central Railway, C.S.T., 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 learned Member of the Railway Claims Tribunal, Nagpur Bench
dated 12th April, 2013 in Claim Application
No.OA(llu)/NGP/2011/0126, the original Applicants have preferred
2 FA.2095.13.odt
this appeal.
2 Brief facts as stated in the claim application are as
follows:
i) On 11th October, 2010, deceased Vijay was
travelling from Dombivali to Bhusawal by an
unknown train. Deceased Vijay went to
Dombivali on 6th October, 2010 to his sister's
house in search of some job. As he could not get
the job, he had started returning to his home town
at Bhusawal on 11th October, 2010. It has been
contended that the deceased Vijay had
purchased the railway travelling ticket from
Dombivali for the destination of Bhusawal and
also informed to his family about his arrival. It
has been alleged in the claim application that due
to heavy rush in the train, deceased Vijay fell
down from the running train and sustained severe
injuries on his head and other parts of body and
died on the spot. The second class railway ticket
from Dombivali to Bhusawal dated 11th October,
3 FA.2095.13.odt
2010 was lost in the said accident.
ii) Respondent has strongly resisted the said claim
application by filing the written statement at
Exhibit A-16. It has been specifically denied that
on 11th October, 2010, deceased Vijay
accidentally fell down from the running train and
died. It has also been denied that deceased
Vijay was having valid journey ticket. It has been
contended that Loco Pilot of Train No.1055 down
has informed on walky-talky to the Central Panel
Operator and to Deputy Station Manager,
Jalgaon Railway Station that one boy aged 18 to
20 years was dashed and run over by the train at
KM No.415/25-27 near Jalgaon. On receipt of
the said information, the Deputy Station
Superintendent, Jalgaon Railway Station has
informed to the City Police, Jalgaon. Thus, the
alleged incident of accident is not due to
accidental fall down by the train and it is a case of
dash and run over by the train.
4 FA.2095.13.odt
iii) The Appellants / original Applicants and the
Respondent led their oral and documentary
evidence in support of their rival contentions.
The learned Member of the Railway Claims
Tribunal, Nagpur Bench by judgment and order
dated 12th April, 2013 dismissed the claim
application. Hence, this appeal.
3 The learned counsel for Appellants / original Applicants
submits that the Appellants and deceased Vijay were residing at
Bhusawal, District Jalgaon. On 6th October, 2010 deceased Vijay
had been to his sister's house Dombivali in search of some job.
Unfortunately, he could not get the job and decided to return at
Bhusawal from his sister's house on 11 th October, 2010. Deceased
Vijay had therefore, purchased a ticket and informed to his family
about his return journey to Bhusawal. On way, he fell down due to
heavy rush in the train and sustained severe injuries and died on the
spot. The learned counsel submits that deceased Vijay fallen down
on track of Railway at Shirsoli Jalgaon near Pole No.415/25-27. He
was having second class ticket purchased on 11th October, 2010 at
5 FA.2095.13.odt
Dombivali station for Bhusawal, which was misplaced. The
Appellants are the parents and deceased Vijay was unmarried. The
learned counsel submits that the railway tickets are always sold
irrespective of any space available and without considering the
convenience of the passengers. The same was in present situation,
which resulted into falling down of deceased Vijay. This is due to
irresponsible handling of the traffic of the train by the Respondent /
railways. The learned counsel submits that the said incident was
intimated to the brother of deceased Vijay on the same day by a
person, who was on duty as Deputy Station Superintendent on
Railway Station Bhusawal. FIR was lodged on the very day,
accidental death report was prepared, Panchanamas were
prepared, postmortem was conduced by Dr.Chavan, Medical
Officer, Civil Hospital, Jalgaon. All these documents are supporting
the case of the Appellants / Applicants and those are placed on
record before the Railway Claims Tribunal for consideration.
However, the Tribunal has not considered the said evidence. The
learned counsel submits that the Appellants / original Applicants
have proved their case and there is no evidence to prove the case
of Respondent / railways.
6 FA.2095.13.odt
4 The learned counsel for Respondent submits that
Respondent / railways examined RW-1 Sandeep Gaurishankar
Upadhyay, Loco Pilot of Godan Express Train No.1055, Ex Igatpuri
to Bhusawal by filing his affidavit of evidence. It has been averred
in the said affidavit of evidence that at KM No.415/15-17 between
Shirsoli and Jalgaon Railway Stations, when the said train was
passing, Loco Pilot Sandeep Gaurishankar Upadhyay had seen two
boys aged about 15 to 20 years were playing on the track. He
repeatedly blown the whistle and also applied the brakes. Out of
two boys, one boy left the track and other did not move from the
track and as a result, he was dashed by the cattle guard of engine
of his train. The learned counsel submits that on judicial scrutiny, it
is revealed that deceased Vijay was not bona-fide passenger of the
train. The learned counsel submits that there is no substance in the
appeal and the appeal is liable to be dismissed.
5 On careful perusal of pleadings, evidence adduced by
the parties in support of their rival contentions and the judgment and
order passed by the learned Member of the Railway Claims
Tribunal, it appears that it is a specific case of the Appellants /
7 FA.2095.13.odt
Applicants that on 11th October, 2010, deceased Vijay was coming
from Dombivali to Bhusawal. He had gone to Dombivali before 5-7
days to his sister's house in search of some job. He could not get
the job and as such, he started returning to his home town on 11 th
October, 2010. Deceased Vijay had purchased a railway ticket from
Dombivali station and informed his family about his arrival. As
against this, the Respondent / railways has come with a specific
case that deceased Vijay alongwith another boy was playing on the
track and even after giving the signals and blowing the whistle, he
did not move from the track. In the result, he was dashed and run
over by Train No.1055, Igatpuri to Bhusawal.
6 On careful perusal of the record, it appears that
immediately after the said incident, RW-1 Sandeep Gaurishankar
Upadhyay, Loco Pilot of Godan Express Train No.1055, Ex Igatpuri
to Bhusawal had informed the said incident on walky-talky to the
Guard and Deputy Station Superintendent, Jalgaon. RW-1
Sandeep Gaurishankar Upadhyay, Loco Pilot has specifically
averred in this affidavit of evidence that on that day his train was
passing from KM No.415/15-17 between Shirsoli and Jalgaon
Railway Stations and at that time he had seen two boys aged about
8 FA.2095.13.odt
15 to 20 years playing on the track approximately 300 meters away.
He has repeatedly blown the horn and applied the brakes. Out of
the two boys, one boy left the track and other did not move from the
track. As a result, he was dashed by the cattle guard of engine of
the train. His train was stopped at KM No.415/25-27 at about 17:32
hours. The train has completely passed from the body of the
deceased and the Station Master has instructed him to restart the
train and accordingly, he has restarted the train at 17:38 hours.
Thereafter, his train stopped at its schedule halt at Bhusawal
Railway Station at 18:05 hours. He has also taken the entry in Loco
Pilot diary to that effect. On perusal of the memo Exhibit A-36, it
further appears that the Deputy Station Manager, Jalgaon on 11th
October, 2010 informed to the In-charge, Jilha Peth Police Station,
Jalgaon that the driver of 1055 down has informed on walky-talky to
the Panel Operator of Central Panel Jalgaon A. A. Malik that, in
between Shirsoli - Jalgaon on the down road, one boy aged about
18-20 years is run over. The gunman has removed and kept him
out of the track. On the basis of said memo, the concerned Police
Station Jilha Peth, Jalgaon has taken entry vide Station D. No.204
of 2010, registered at 18:30 hours. RW-1 Sandeep Gaurishankar
9 FA.2095.13.odt
Upadhyay, Loco Pilot has denied the suggestion that the dead body
was already lying on the track and no dash given by the engine of
his train to the trespasser.
7 On perusal of postmortem notes at Exhibit A-46, the
opinion as to the probable cause of death is the death due to
railway track accident with crushed head injury with multiple
commuted and open # of skull and both U/L humerus # with
hemorrhage shock. I have also carefully gone through the external
injuries as mentioned in 17 with corresponding injuries in column
18. I do not think that the aforesaid injuries as mentioned in these
two columns alongwith probable cause of death as opined by the
medical officer, who has conduced the postmortem examination, is
possible by merely a fall of a passenger from a running train. The
postmortem notes Exhibit A-46 clearly supports the case of
Respondent / railways. Deceased Vijay was run over by said
Godan Express Train No.1055 as reported by its Loco Pilot and as
such, deceased Vijay sustained the crush head injury with other
injuries. It has no where mentioned in the postmortem notes that
the aforesaid injuries sustained by deceased Vijay were post
mortem injuries.
10 FA.2095.13.odt
8 Appellant No.1 / Applicant No.1 Bhavsingh Yadav Patil
has also admitted in his cross-examination that police handed over
the pocket diary but not the journey ticket recovered from deceased
Vijay. It is pertinent that even after such an incident, the pocket
diary of deceased Vijay was found, but the journey ticket was not
recovered.
9 In view of the above discussions, I do not find any fault
in the finding recording by the learned Member of the Railway
Claims Tribunal. There is no evidence at all that deceased Vijay
died in an untoward incident in terms of the provisions of Section
123(c) of the Railways Act on 11th October, 2010. There is no merit
in the appeal. 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
