The Union Of India,General ... vs Rajendrasingh Jhabbursingh ...
2017 Latest Caselaw 8761 Bom

                                                  1




        IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                         NAGPUR BENCH : NAGPUR



First Appeal No. 1012  of 2010 



Appellant :              The Union of India, through  General Manager,
                         Central Railway, CST, Mumbai 

                         Versus

Respondents:             1) Rajendrasingh son of Jhabbursingh Tomar
                         (Thakur), aged about 55 years, Occ: service

                         2) Smt Nubai w/o Rajendrasingh Tomar
                         (Thakur), aged about 50 years, Occ: Household

                         Both residents of Ward No. 4, Bhatpura, Katol,
                         District Nagpur



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Shri P. S. Lambat, Advocate for appellant None appears for respondents

Coram : S. B. Shukre, J

Dated : 13th November 2017

Oral Judgment

1. This is an appeal which questions the legality and

correctness of the judgment and order dated 26th February 2010 passed by

the Member (J), Railway Claims Tribunal, Nagpur Bench, Nagpur thereby

granting compensation of Rs. 4,00,000/- to the respondents on account of

accidental death of their son Dilip Rajendrasingh Tomar.

2. It was the case of the respondents that on 30 th March 2007,

Dilip was returning from Bhopal to Nagpur by Lucknow-Chennai Express

and when the train reached Katol Railway Station, Dilip lost balance and

fell down from the running train. They submitted that in this fall, Dilip

sustained grievous injuries and he was removed to the Government

Hospital at Katol where he succumbed to the injuries on 3 rd April 2017.

According to them, the deceased was a bonafide passenger, he having

purchased railway ticket for his journey from Bhopal to Nagpur.

According to them, he was travelling on a general class ticket, occupying

the general compartment of the train. So, a claim was raised against the

appellant claiming compensation by the respondents.

3. On merits on the case, the Tribunal found that the

respondents proved their contentions and by allowing the claim petition,

granted compesation to them by the impugned judgment and order. Not

being satisfied with the same, the appellant is before this Court in the

present appeal.

4. I have heard learned counsel for the appellant at length.

Nobody appears for the respondents, though duly served. I have go ne

through the record and proceedings including impugned judgment and

order of the Tribunal.

5. Now, the material point which arises for my determination

are -

Whether it is proved that deceased Dilip was travelling

on Lucknow-Chennai Express after having boarded the train

at Bhopal on purchasing a valid ticket and as a bonafide

passenger ?

6. It is the case of respondents that on 30 th March 2007, their

son Dilip was returning to Nagpur from Bhopal where he had gone to

acquire technical knowhow about the production of "Resham Larwa"

(Silk Larvae) and that he had purchased a general class ticket and

boarded Lucknow-Chennai Express for returning to Nagpur. This case

has been completely denied by the respondents. It is admitted fact that

dead body of Dilip was recovered from near the railway track at Katol

Railway Station immediately after passing over of said train from Katol

station. There is an adcidental death report (Exhibit 19) registered by

ASI Anandrao Gavai. This accidental death report does not state about

recovery of railway ticket from the person of the deceased. Respondents

also admit that in the enquiry that was conducted on that day, no railway

ticket was recovered from the possession of the deceased. This fact has

been viewed by the Tribunal as not creating any adverse impact on the

case of the respondents, stating that it is quite likely that in an accidental

fall of a person from running train, his belongings including train ticket

may get lost or scattered over such a long distance as not noticeable to

human eye. Such an explanation in ordinary circumstances would be

acceptable, but not when the evidence otherwise suggests. Let us see

what the evidence suggests in this regard, in favour or against the

respondents.

7. There is evidence of railway guard Durgaprasad Chourasia

who was on duty on Lucknow-Chennai Express from Itarsi to Nagpur

which is material. According to him, no untoward incident occurred on

this train on 30th March 2007 between Itarsi and Nagpur. Admittedly,

Katol station falls between these two railway stations. There is nothing in

the cross-examination taken on behalf of the respondents to prove the

contrary. The report of accidental death (Exhibit D-19) states that

according to Nanubai, mother of deceased Dilip, the deceased had left

the house in the afternoon of 29 th March 2007 and did not return home.

At that time, mother of the deceased did not say anything about the

deceased having gone to Bhopal for some training and about his return

from Bhopal to Nagpur on 30 th March 2007. If the deceased had really

gone gone to Bhopal, his mother would have said so then. Her not saying

so goes against the story of the respondents. No explanation whatsoever

has been given in this regard by her. Such evidence creates veritable

doubt that deceased being a bonafide passenger travelling on Lucknow-

Chennai Express had really boarded the said train at Bhopal for his return

to Nagpur on 30th March 2007.

8. In the circumstances, it was absolutely essential for the

respondents to have adduced further evidence to support their claim.

However, it is seen from the evidence available on record that they have

failed to do so. The respondents could have at least examined a person

from Bhopal who was to impart technical knowledge to their son about

sericulture at Bhopal. Had the respondents examined some person who

was contacted at Bhopal by deceased, if it were so, the claimant's

evidence would have received credence and appropriate finding could

have been recorded by the Court. But in the absence of any evidence

reasonably showing probability of the deceased travelling on the said

train on the fateful day having been adduced by the respondents,

evidence of railway guard Durgaprasad would have to be accpted as

inspiring onfidence for the reason that it is well supported by the

accidental death report (Exhibit D-19). This would mean that the

respondents could not prove that the deceased was travelling as a

bonafide passenger on Lucknow-Chennai Express on 30 th March 2007.

The possibility of the deceased having come under a running train while

crossing a railway track at Katol of which he was a resident, appears to be

more or at least cannot be ruled out. It then follows that the claimants

would not be entitled to receive any compensation in the present case.

Point is answered accordingly.

9. The Railway Claims Tribunal has failed to examine all these

material aspects of the matter and the result is of perverse conclusion

drawn by it. This is a fit case for making interference with the impugned

judgment and order by allowing the appeal.

8. In the result, appeal is allowed. The impugned judgment and

order are quashed and set aside. The claim petition is dismissed with

costs. The decretal amount deposited in this Court be refunded to the

appellant.

S. B. SHUKRE, J

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