Sushma Wd/O Milind Ganvir And 2 ... vs Union Of India, Through The ...
2017 Latest Caselaw 547 Bom

40-J-FA-1190-16                                                                             1/6


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

                          FIRST APPEAL NO.1190  OF  2016


1.  Sushma wd/o Milind Ganvir
     Aged 32 years, 
     Occ. Household. 

2.  Divyang s/o Milind Ganvir
     aged about 8 years. 
     Occ. Student, 
     Acting through his natural 
     guardian mother appellant No.1. 

3.  Mahendra s/o Ramaji Ganvir
     Aged about 51 yers. 
     Occ. Labour   
     All residents of Kapil Nagar, 
     NIT Quarter, D-48, Nari Road, 
     Nagpur Dist. Nagpur.                                      ... Appellants. 

-vs-

Union of India, 
Through the General Manager, 
Central Railway, C.S.T. Mumbai                                 ... Respondent. 


Shri Lalit Limaye, Advocate for appellants. 
Shri N. P. Lambat, Advocate for respondent. 

                                                  CORAM  : A.S.CHANDURKAR, J. 

DATE : March 07, 2017

Oral Judgment :

In view of notice for final disposal issued earlier, the appeal is

taken up for final disposal. The learned counsel for the parties have been

heard at length.

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The appellants are the claimants who had initiated proceedings

for grant of compensation on account of the death of one Milind Ganvir,

husband of appellant No.1 and father of appellant No.2 in an accident dated

18/04/2010. The Railway Claims Tribunal by the impugned judgment

dismissed the claim application by holding that said Milind Ganvir did not

die on account of any untoward incident.

2. It is the case of the appellants that on 18/04/2010 said Milind

Ganvir had purchased railway ticket for travelling from Nagpur to Akola. On

said day between stations Chandur Railway and Manjerkhed Railway, said

Milind fell down from a running train on account of a sudden jerk and died

on the spot. The respondent denied the claim on the ground that the

deceased did not take proper care while travelling and that there was not

unexpected jerk to the train. It was pleaded that the death was not on

account of any accidental fall but it was a case of self inflicted injury. The

Claims Tribunal after considering the evidence on record held that said

Milind was travelling with a valid ticket and that he was a bonafide

passenger. However, it was held that the appellants had not able to prove

that the accident occurred as an untoward incident.

2. Shri L. Limaye, learned counsel for the appellants submitted that

the Claims Tribunal having found that the deceased was a bonafide

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passenger had committed an error in holding that the death occurred on

account of a self inflicted injury. He submitted that there was no evidence

brought on record by the respondent to hold that the deceased had

committed suicide. Though the statutory investigation report indicated that

the deceased had violated provisions of Section 156 of the Railways Act,

1989, no offence in that regard had been reported. Only on the basis of

surmises it was concluded that the the death occurred not as an untoward

incident. He referred to the investigation papers that were submitted to the

Railway Authorities and by relying upon the judgment of the Hyderabad

High Court in Shaik Mahboob Basha and ors. vs. Union of India 2016(3)

T.A.C. 538 prayed that the appellants were entitled for grant of

compensation.

3. Per contra, Shri N. P. Lambat, learned counsel for the respondent

supported the impugned order. According to him the ticket found with the

deceased was dated 17/04/2010 while the accident had occurred on

18/04/2010. He submitted that though the respondent had examined the

Deputy Station Manager, said witness was not cross-examined. In the claim

application, the number of the train was also not stated. He urged that

considering the injuries sustained by the deceased it could not be said that

the death occurred on account of an accidental fall from the train. It was not

a case of any untoward incident. He therefore submitted that the Claims

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Tribunal rightly declined to grant compensation.

4. I have heard the learned counsel for the parties at length and I

have perused the records of the case. The following point arises for

consideration :

" Whether the appellants are entitled for grant of statutory

compensation ? "

5. The Claims Tribunal while answering Issue No.2 has recorded a

finding that as the deceased was found in possession of railway ticket, he

was a bonafide passenger. This finding recorded in paragraph 7 of the

impugned judgment is not under challenge. Once it is found that the

deceased was a bonafide passenger, the only question that remains to be

considered is whether the death as occurred was on account of an untoward

incident as defined in Section 123 (c) of the Railways Act, 1989. Under sub

clause-(2) of clause (c) of Section 123, the accidental fall of a passenger from

the train carrying passengers is included as an untoward incident.

6. The appellant No.1 was examined in support of the claim for

compensation. This witness however admitted that she was not travelling

along with the deceased and hence she was not aware about the manner in

which the accident occurred. She denied the suggestion that the deceased

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had committed suicide in front of the train. The respondent examined its

Deputy Station Manager who deposed that no untoward incident of any

accidental death was reported by any Guard or Loco Pilot. This is the only

evidence available on record. Perusal of the statutory investigation report

indicates that the deceased died on account of his own negligence and was

also guilty of the offence punishable under Section 156 of the Railways Act,

1989. The liability to pay compensation under Section 124-A of the said Act

is regardless of any wrongful act or default on the part of the Railway

administration. Once it is found that the deceased was a bonafide passenger

then the burden to urge that the claim for compensation should be

disallowed is on the Railways. With regard to the exceptions that are carved

out under Section 124-A of the said Act, there is no evidence brought on

record by the respondent. Merely because of the fatal injuries suffered by the

deceased due to which his body was crushed, it is sought to be urged that the

injuries were self inflicted. In absence of any such evidence being brought on

record, it would not be permissible to deny the claim for compensation only

on the basis of nature of injuries suffered by the deceased. As noted above,

there was no report made under Section 156 of the said Act despite the case

being that said provisions were violated. Failure to cross-examine Deputy

Station Manager is not of much avail after it is found that the deceased was a

bonafide passenger. The observations in Shaik Mahboob (supra) support

the case of the appellants. The Claims Tribunal without any evidence on

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record has erroneously held that the death of said Milind Ganvir did not

occur on account of any untoward incident. The point as framed is answered

by holding that the claimants are entitled for grant of statutory

compensation.

7. In view of aforesaid discussion, the following order is passed :

The judgment of Railway Claims Tribunal, Nagpur dated

04/10/2013 in Claim Application No.OA(IIu)/NGP/2010/0301 is quashed

and set aside. It is held that the appellants are entitled for an amount of

Rs.4,00,000/- as statutory compensation along with interest @ 9% per

annum from the date of presentation of the claim petition which is

15/12/2010 till realization of the amount. Before the amount of

compensation is released in favour of the appellants, the deficit court fee

shall be deducted by the respondent and remitted to this Court.

First Appeal is allowed in aforesaid terms with no order as to

costs.

JUDGE

Asmita