Bombay High Court

Dilip S/O Madhukar Ogle And Other vs Union Of India, Thr The General ... on 20 June, 2017

Bench: Dr. Shalini Phansalkar-Joshi

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

                           FIRST APPEAL NO.145 OF 2010


1.  Dilip s/o Madhukar Ogle, 
     Aged 55 years, Occ. Labour. 

2.  Ganga w/o Dilip Ogle
     Aged 50 years, Occ. Labour 

3.  Bharat s/o Dilip Ogle
     Aged 11 years, Occ. Nil. 
     (being minor through Natural 
      guardian father, applicant No.1) 

     All r/o Dongri, Tumsar, Tahsil Tumsr, 
     Dist. Bhandara.                                        ... Appellants. 
 
-vs-

Union of India 
Thr. The General Manager, 
South Estern Central Railway, 
Bilaspur.                                                   ... Respondent. 


Shri S. K. Sable, Advocate for appellants. 
Shri N. P. Lambat, Advocate for respondent.  


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

DATE : JUNE 20, 2017

ORAL JUDGMENT :

The appellants are the original claimants whose Claim Application

No.45/OA-II/RCT/NGP/2006 for compensation came to be dismissed by the

Railway Claims Tribunal, Nagpur, vide its judgment and order dated

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10/09/2009.

Brief facts of the appeal can be stated as follows :

On 04/02/2006 deceased Ravi, the son of appellant Nos.1 and 2

and brother of appellant No.3 left the house in order to proceed to Itwari for

purchase of material, along with his sister Jyoti. He went to Dongri railway

stand and purchased railway ticket from Dongri to Itwari. Thereafter he

boarded train No. 4TT Tirodi - Itwari at Dongri railway station. Due to

heavy rush in the train, he was required to stand in the door of the train

compartment and as a result he fell down from running train, near pole

No.1087/36-37. He died on the spot. When Gangman by name Soma Kakde

informed about the incident to Railway Station Master, he sent a stretcher to

bring the injured but he was dead. The Station Master accordingly informed

about the accident to the Kamptee GRP and they conducted spot and inquest

panchanama. The statements of witnesses were also recorded. As per the

appellants as the death of Ravi is clearly covered by definition of 'untoward

incident', as laid down in Section 124-A of the Railway Act, they filed claim

petition before the Tribunal, seeking compensation of Rs.4,00,000/-.

2. This claim petition came to be resisted by the respondent vide its

written statement, contending inter alia that as no ticket was issued from

Dongri railway station to Itwari on the relevant date, deceased Ravi was not

bonafide passenger of the said train. Moreover, there was no evidence to

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show that his death was on account of fall from the running train. Hence it

was submitted that respondent is not liable to pay any amount of

compensation to the appellants.

3. On the rival pleading of the parties, the Tribunal framed necessary

issues for its determination. In support of their case, appellant No.2 Ganga

examined herself and her daughter Jyoti. Whereas respondent examined two

witnesses viz. RW-Hansraj, Guard of 4 TT train and RW-2 Maheshkumar

Meena, Assistant Station Master. The learned Tribunal in order to verify the

correct facts, on suo moto issued summons to the Gangman Soma Kakde and

he is examined as a Court's witness.

4. On appreciation of oral evidence and other documentary evidence

produced on record by both the parties, learned Tribunal was pleased to hold

that appellants have failed to prove that the deceased Ravi was bonafide

passenger travelling in the said train and his death had occurred due to fall

from the running train. Resultantly, claim application of the appellants

came to be dismissed and hence the instant appeal.

5. I have heard learned counsel for appellants and respondent at

length and on the basis of rival submissions advanced by them following two

points arise for my determination :

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(i)           Whether   the   appellants  prove   that  deceased  Ravi   was  bonafide

passenger travelling in 4 TT train at the relevant time ?

(ii) Whether the death of Ravi was on account of 'untoward incident'

as contemplated under Section 124-A of the Railway Act, 1989 ?

6. In order to understand and appreciate properly the controversy

involved in this appeal, it would be necessary to re visit at the definition of

the term 'untoward incident' as defined in Section 123 (c) which is as

follows:

123(c) "untoward incident" means

(1) ... not relevant.

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

passengers.

7. Section 124-A speaks about the compensation on account of untoward

incident which reads as follows :

Compensation on account of untoward incidents :

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 dependent of a passenger who has been killed to

maintain an action and recover damages in respect thereof, the railway

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administration shall, notwithstanding anything contained in any other law, be

liable to pay compensation to such extent as may be prescribed an to that extent

only for loss occasioned by the death of, or injury to, a passenger as a result of

such untoward incident :

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:

(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 travelling, by a train

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

victim of an untoward incident.

8. Thus two aspects necessarily emerge from the definition of the

term 'untoward incident' is that it covers the accidental falling of any

passenger from a train carrying passengers and so far as the definition of

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passenger is concerned, in view of the Explanation given in Section 124-A of

the Act, passenger includes a person who has purchased a valid ticket for

travelling, by a train carrying passengers, and becomes a victim of an

'untoward incident'.

9. The reading of Section 124-A makes it further clear that when in a

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, it would entitle a passenger, who has been injured

or the dependents of a passenger who has been killed, to maintain an action

and recover damages. The said Section further makes it clear that the

railway administration shall, notwithstanding anything contained in any

other law, be liable to pay compensation for such untoward incident. In

order to escape from this liability, it will be for the railway administration to

prove that the death of the passenger was either on account of suicide or

attempted suicide or on account of self-inflicted injury or by his own criminal

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

any natural cause or disease or medical or surgical treatment. Thus once it is

proved that the death has occurred in the course of working of railway and

such death has occurred in an untoward incident, then there is absolute

liability on railway administration to pay compensation in such matters.

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10. In the backdrop of this legal position, if this Court re-appreciates

the evidence on record, then it has to be held that in the instant case, the

initial burden was on the appellants to prove that the death of Ravi was on

account of such untoward incident or he has succumbed to death on account

of the fall from the running train. In addition to that, the appellants also

have to prove that Ravi was bonafide passenger of the said train having

purchased the valid ticket as contemplated under Section 124-A.

11. To prove that Ravi has purchased the ticket and he was travelling

in the said train, appellant No.2 Ganga has examined herself and also lead

evidence of her daughter, Jyoti. Admittedly, when the dead body of Ravi

was found by the police, no railway ticket was found on his person or in his

possession and hence evidence of these witnesses becomes relevant. It is

deposed by Ganga that on that day her son Ravi was going by grain from

Dongri to Itwari. Her daughter Jyoti gave amount of Rs.200/- to Ravi and

accompanied Ravi to Dongri railway station. However Ravi fell down from

the running train and railway police informed her about the death of her

son. In cross examination she has admitted that she was not an eye-witness

to the fact of Ravi purchasing ticket or sitting in the train. According to her,

it was Jyoti who had accompanied Ravi.

12. Her daughter Jyoti has stated in her evidence that she came to

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Dongri railway station to see off her brother Ravi. Her brother Ravi boarded

the train for proceeding to Nagpur after purchasing the ticket. In cross-

examination, she had stated that she saw while Ravi was purchasing ticket.

It was cardboard ticket purchased at Dongri station. She had denied the

suggestion that she had not seen Ravi boarding the train.

13. Learned counsel for respondent has challenged Jyoti's evidence on

account that her mother Ganga has admitted that Jyoti was residing at

Bilaspur and she came to Nagpur after the incident. Hence it is urged that,

if she was not present at all in Dongri, there is no question of her seeing

Ravi purchasing the ticket. However, evidence of Jyoti reveals that on the

day of incident she was very much present in the house of her mother. Her

mother gave Rs.200/- to Ravi and Jyoti accompanied Ravi to Dongri railway

station. Thereafter on the very day, she went to Bilaspur. She got phone call

from police about death of her brother on the next day and she returned back

to Dongri. There is no searching cross-examination of this witness on this

aspect to disbelieve her in any way. No doubt there may be minor

inconsistency in the evidence of appellant No.1 Ganga and Jyoti like Ganga

has stated that Jyoti gave amount of Rs.200/- to Ravi for purchasing ticket,

while Jyoti has stated that her mother gave Rs.200/- to Ravi for purchasing

ticket. In my opinion if one has regard to the benevolent object of this

legislation which needs to be taken into consideration, then such minor

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inconsistencies cannot be magnified so as to disbelieve the evidence of

claimant, who had already undergone a mental shock on account of death of

her near and dear one. Therefore there is no reason to disbelieve the

evidence of these two witnesses, when they are making positive assertions

since beginning that Ravi has left the house along with Jyoti and Jyoti has

seen him purchasing the ticket and also boarding the train.

14. Much reliance is placed by learned counsel for respondent and

also by the Tribunal on the evidence of ASM Maheshkumar Meena who at

the relevant time was on duty at Dongri railway station and according to him

on that day not a single ticket for Itwari station was sold from Dongri. To

support this submission, he has also produced the railway register of that

day. Learned Tribunal has attached much emphasis and importance to the

evidence of this witness and disbelieved the evidence of Ganga and Jyoti.

However, in my considered opinion, this defence that Ravi was travelling

without purchasing ticket, was taken by the respondent, by way of

amendment in written statement, four months after filing of the same.

Hence there is positive evidence of appellant No.2 Ganga and Jyoti that Ravi

had purchased the ticket, it would not be proper to disbelieve their evidence

and give all the credence to the evidence of this witness. From the very fact

that there is no entry of issuance of such ticket in his register, it cannot be

accepted that Ravi was not bonafide passenger of the said train.

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15. As held by the Orissa High Court in case of Sakhia Naik and anr

v. Union of India 2006(1) T.A.C.29, even in absence of a ticket, question as

to whether or not deceased was a bona fide passenger can be proved by oral

evidence. In that case on behalf of the Railways, the Chief Booking

Supervisor was examined and he has stated that on that particular day there

was no sell of any ticket for the train in question from Titilagarh to

Kantabanjhi. Despite that, it was held that there is evidence of an eye-

witness proving that such ticket was purchased by the deceased, and that can

be sufficient evidence to prove that the deceased was a bonafide passenger.

It was held that, considering the nature of the case, when a passenger dies in

an accident by falling from the train, it is not possible for the legal

representatives to produce the ticket or other authorities for travelling in the

train and in absence of the production of the ticket also, it can be held that

deceased was a bonafide passenger.

16. In this judgment, reliance was placed on the reported decision of

Andhra Pradesh High Court in Union of India, Secunderabad v. B.

Kodderkar and ors 2002 (3) TAC 320 (AP) wherein it was held that the

burden does not lie on the dependents to prove bona fide of the passenger

but the burden is on the Railways to prove that the deceased was a ticketless

traveller or was not a bona fide passenger.

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17. In the case of Gullipalli Lashmikanthamma v. General

Manager, South Central Railway, 2003 ACJ 1582, in a similar situation,

the High Court Andhra Pradesh was pleased to observe in para 12 of its

judgment as follows :

" 12. After considering the same, I am of the opinion that an inference can be drawn to the effect that the deceased is a bona fide passenger having regard to the realities and realistic and pragmatic approach of the question involved. It cannot invariably be conceived or comprehended that always ticket should be traced. One has to imagine the circumstances that will prevail at the relevant time and whether keeping of the ticket should be given that much of importance at the crucial time when the deceased was suffering from fatal injuries and died; ticket could have been missing. So from the material on record it must be held that deceased is a bona fide passenger."

18. On consideration of the principles therefore, laid down in these

cases by Orissa High Court and also by Andhra Pradesh High Court, it has to

be held that in this case also on the question as to whether Ravi was bonafide

passenger of the said train, there is ample evidence on record of appellant

No.2 Ganga, the mother and witness Jyoti who has personally seen, with her

own eyes, deceased purchasing ticket from ticket counter. In my

considered opinion therefore, learned Tribunal has taken too technical a

view of the matter, overlooking very object of this beneficial statute and

therefore said finding of the Tribunal being as against the purport and object

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of the legislation, needs to be set aside.

19. The next question arising for consideration is whether the death

of Ravi was on account of fall from the running train. On this aspect, the

evidence adduced on record by the appellant clearly goes to show that the

cause of his death was fall from the running train. It is pertinent to note that

information of the accident was given to the Station Master by the Gangman

Soma K. Kakde. On the basis of this information, Marg information was

given by the Station Master to SDO stating that one person had fallen from

the running train No. 4 TT while he was travelling in the said train. Since he

had succumbed to head injury, this information was given by Railway

Station Master under Section 174 of CrPC. Copy of said Marg Information is

produced at page No.829. There is also spot panchanama carried out

immediately on the very date and in that panchanama there are recitals to

the effect that Gangman Soma Kakde has given information that one person

fell from the running train No.4 TT near Rewral railway station and his dead

body was found near pole No.1087/36-37. Even the Inquest panchanama

and PM report which are contemporaneous documents state that the death of

the deceased was on account of fall from 4 TT train.

20. Learned Tribunal has however not relied upon this

contemporaneous documentary evidence, merely on the basis of evidence of

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the guard Hansraj Santosh, who had stated that he had not received any

information from the Station Master or passengers, about happening of any

untoward incident. However in cross-examination this witness has admitted

that if a passenger falls down by opposite side of train, he could not see it.

Therefore, merely because he has not seen or not received any intimation,

does not mean that no such incident or accident has taken place, especially

when the immediate information of the accident as recorded by the Station

Master and as can be seen from spot panchanama, the inquest panchanama

and PM report clearly indicate that death of Ravi was on account of fall from

the running train.

21. Much reliance is placed by the Tribunal on the evidence of

Gangman Soma also. The Tribunal examined him as Court's witness and he

has stated before the Tribunal that he did not see any passenger falling from

train No.4 TT at pole No. 1087/36-37 at Revral railway station at relevant

time. In his cross-examination he has stated that police has prepared

inquest panchanama and spot panchanama and asked him to sign on them.

It is clear that the evidence of this witness is in the nature of an afterthought.

He is stating something which is against the contemporaneous documentary

evidence on record and that too on the basis of information given by him to

Railway Station Master. Hence, needless to state that his evidence cannot be

accepted as gospel true closing the eyes to the reality of life that he being the

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employee of the Railway administration is bound to support the case of

respondent.

22. Admittedly the dead body of Ravi was found at Pole No.1087/36-

37 at Revral Railway Station. If no one seen him falling from the train then

how he succumbed to death is also not explained. As stated above and in

view of Section 124-A of the Railways Act, 1989, in order to escape from the

liability of paying compensation to the dependents of the deceased, it was

incumbent upon the respondent to prove that the death of Ravi was either on

account of suicide or attempted suicide or self-inflicted injury or on account

of his own criminal act or by any act committed by him in a state of

intoxication or insanity or by any natural cause or disease or medical or

surgical treatment unless such treatment becomes necessary due to injury

caused by the said untoward incident. Respondent Railways has not led any

evidence to bring the death of Ravi within any of the exceptions provided in

Section 124-A of the Railways Act, 1989. In such situation, when the death

of the passenger is proved to have occurred and that too in an untoward

incident of falling from the train carrying passengers, then the respondent

cannot absolve itself from the liability of paying compensation amount to the

appellants.

23. In the case of Union of India v. Prabhakaran Vijaya Kumar and

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ors. 2008 ACJ 1895 relied upon by the appellants, it was found that

Passenger fell on railway track and was run over by the train. Eyewitness

stated that deceased fell down from the train when the train was moving.

Hence it was contended by Railway Administration that there was no fault on

the part of Railways and it was a case of contributory negligence of the

deceased. This contention was however rejected by the Honourable Apex

Court, by holding that legally it will not make any difference whether the

deceased was actually inside the train or she was trying to get into the train

when she fell down, iff the accident did not occur because of any of the

exceptions mentioned in clauses (a) to (e) of the proviso to Section 124-A. It

was held that this section lays down strict liability or no fault liability in case

of railway accidents. Hence if the deceased has died due to accidental

falling from the train it is covered within the definition of 'untoward

incident.' It was observed by the Apex Court in paragraph 14 of its

judgment as follows :

" 14. In our opinion, if we adopt a restrictive meaning to the expression 'accidental falling of a passenger from a train carrying passengers' in section 123 (c) of the Railways Act, we will be depriving a large number of railway passengers from getting compensation in railway accidents. It is well-known that in our country there are crores of people who travel by the railway trains since everybody cannot afford travelling by air or in a private car. By giving a restrictive and narrow meaning to the expression we will be depriving a large number of victim of train accidents (particularly

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poor and middle class people) from getting compensation under the Railways Act. Hence, in our opinion, the expression 'accidental falling of a passenger from a train carrying passengers' includes accidents when a bona fide passenger, i.e. a passenger travelling with a valid ticket or pass is trying to enter into a railway train and falls down during the process. In other words, a purposive, and not literal, interpretation should be given to the expression."

24. In the instant case also, therefore considering the legal provision

contained in Section 124-A, the respondent Railways cannot escape from its

liability to pay compensation to the appellants. Honourable Supreme Court

has in case of Jameela and ors v. Union India 2010 ACJ 2453 relied upon

by learned counsel for appellants, also held that when admittedly there was

no eye witness to the incident and case of Railways that deceased was

standing at open door of train compartment in a negligent manner from

where he fell down is entirely based on speculation. Moreover, assuming

that deceased fell from the train due to his own negligence,it is not a criminal

act so as to attract clause (c) of proviso to section 124-A. Hence the railway

administration was held liable to compensate the dependents of the

deceased.

25. Having regard to this legal position in the instant case also, if one

considers the documentary evidence on record, proving the fact that

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deceased Ravi has died due to accidental fall from running train while

travelling therein, in absence of railway administration bringing the case

within any of the exceptions of clauses (a) to (e) of the proviso to section

124-A of the Railways Act, the appellants become entitled to get

compensation from the respondent.

26. What remains now to be considered is the quantum of

compensation payable to the appellants. Learned counsel for appellants has

brought to the notice of this Court the Notification dated 22/12/2016 issued

by Ministry of Railways making amendment in Rule 3(2) of the Railway

Rules, 1990 with effect from 1st January 2017, by which the amount of

compensation in case of death is enhanced to Rs.8,00,000/- from

Rs.4,00,000/-. Learned counsel for appellants has also relied upon the

judgment of the Apex Court in Rathi Menon v. Union of India 2001 ACJ

721 wherein the benefit of amendment in the then existing Rules was given

to the claimants by holding that " Suppose a Tribunal wrongly dismissed a

claim after a few years of filing the application and the claimant approaches

the High Court in appeal. As it happens quite often now, some High Courts

could take up such an appeal only after the lapse of many years and if the

appeal is decided in favour of the claimant after so many years, what a pity if

the amount awarded is only in terms of the figure indicated on the date of

the accident. In paragraph 30 it was held thus :

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" 30. From all these, we are of the definite opinion that the Claims Tribunal must consider what the Rules prescribed at the time of making the order for payment of the compensation."

27. It is pointed out by learned counsel for appellants that in the

reported decision of Bandana Mishra vs. Union of India II (2017) ACC 484

(Cal.) decided on 12/05/2017, the Division Bench of Calcutta High Court,

relying on the judgment of Apex Court in Rathi Menon vs. Union of India, I

(2001) ACC 453 has granted compensation of Rs.8,00,000/- to the claimants

with interest at the rate of 7.5% per annum from the date of lodging of the

claim application before the Tribunal till date of payment in respect of the

death that has occurred on 21/07/2005.

In view thereof, applying the aforesaid ratio laid down by the

Apex Court in case of Rathi Menon (supra) to the instant case, it has to be

held that in view of Amendment in the Railway Rules with effect from

01/01/2017 vide Notification issued by Ministry of Railways on 22/12/2016,