Shobhatai W/O Ganesh Gaikwad And ... vs Union Of India, Through The ...
2017 Latest Caselaw 6773 Bom

fa.914.16.jud                          1


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

                       FIRST APPEAL NO.914 OF 2016

01]    Shobhabai w/o Ganesh Gaikwad,
       Aged about 48 years, Occ. Household.

02]    Ganesh s/o Kisan Gaikwad,
       Aged about 53 years, Occ. Labour.

       Both r/o Gopalwadi Tukaram Gram,
       Nanded, Tah. & District Nanded.                            .... Appellants

       -- Versus -

Union of India,
through the General Manager,
South Central Railway,
Secunderabad.                                                   .... Respondent


Shri S.K. Sable, Advocate for the Appellants.
Shri N.P. Lambat, Advocate for the Respondent.

                CORAM           : KUM. INDIRA JAIN, J.

                DATE            : SEPTEMBER 5, 2017.


ORAL JUDGMENT :-

This appeal takes an exception to the judgment and

order dated 12/03/2015 passed by the Railway Claims Tribunal,

Nagpur Bench (hereinafter referred to as 'Tribunal' for short) in

Claim Application No.OA(llu)/NGP/2012/0272. By the said

judgment and order, application for compensation preferred by

parents of deceased Kishor came to be dismissed by the

Tribunal.

02] For the sake of convenience, appellants shall be

referred in their original status as applicant nos.1 & 2.

03] The facts giving rise to the appeal may be stated in

nutshell as under :

i. On 04/06/2012, Kishor son of applicants purchased

Railway ticket from Nanded to Aurangabad and

boarded in a passenger train. As there was heavy

rush in the compartment, Kishor stood near the door.

Due to rush and jerk of the train, he fell down from

running train near Msala Shivar on Partur to Ranjani

railway line. Kishor sustained severe injuries on his

head and died on the spot.

ii. It was the case of applicants that ticket has been lost

during incident. It was submitted that deceased was

victim of an untoward incident and, therefore,

applicants were entitled to compensation under

Section 124-A of the Railways Act, 1989. They

claimed compensation of Rs.4.00 lacs with 9%

interest thereon.

iii. Respondent resisted the claim by filing written

statement. It was submitted that deceased did not

suffer any injury in an untoward incident. The

submission is that at every station, there is always an

announcement that passengers should not stand near

the door or travel on foot-board of the coach. If the

victim was standing near the door in the coach, there

was no possibility of his falling down due to jerk. It

was submitted that no ticket was found with the

deceased though money, mobile and a bus-ticket

came to be recovered from his pocket. This clearly

indicates that he was a ticket-less passenger.

Respondent submitted that victim died due to his

gross negligence and on account of self-inflicted

injury. As it was not an accident falling under Section

123(c)(2) of the Railways Act, applicants are not

entitled for compensation. It was submitted that

applicants could not prove an untoward incident

covered under Section 124-A of the Railways Act and

prayed to dismiss the application.

iv. From the rival pleading of the parties, Tribunal framed

the following issues.

S.N. Issues

1. Whether the applicants prove that they are the dependents of the deceased within the meaning of Section 123(b) of the Railways Act?

2. Whether the respondent Railway proves that deceased was not a bona fide passenger of the train on the relevant day with valid journey ticket?

3. Whether the applicants prove that the death of the deceased had occurred as a result of an untoward incident as alleged in the claim application?

4. To what order/relief?

v. To substantiate the claim, applicant no.1-Shobhabai

Gaikwad, mother of deceased, examined herself.

Respondent examined Bhima Dagdu Salwe, Track-

man, Partur Railway Station to substantiate it's

defence. Both the parties placed reliance on the

documents particularly police papers. Considering the

oral and documentary evidence adduced by the

parties, Tribunal came to the conclusion that death of

Kishor was not on account of untoward incident and

as he was not a bona fide passenger of any train

carrying passengers, applicants are not entitled to get

any relief. Accordingly, application for compensation

came to be dismissed. Being aggrieved by the order

of Tribunal, parents of the deceased have preferred

this appeal.

04] Learned Counsel for appellants submitted that

absence of ticket would not ipso facto mean that deceased was

not a bona fide passenger. The submission is that the fact of

bona fide passenger can be proved by oral evidence. The

learned Counsel submits that evidence of appellant-Shobhabai

clearly indicates that deceased was travelling in a train as a

bona fide passenger. On the law relating to absence of ticket,

learned Counsel relied upon the following judgments.

i. Sakhia Naik and another vs. Union of India - 2006(1) T.A.C. 29 (Ori.)

ii. Union of India vs. Leelamma - 2009 (2) T.A.C. 385 (Ker.)

iii. Mithun Kumar vs. Union of India - II (2017) ACC 697 (Jhar.)

05] Another contention raised by learned Counsel for

appellants is that burden of proof to establish that deceased was

not a bona fide passenger is on the respondent. It is submitted

that plea of negligence as alleged on the part of deceased has

also not been proved by respondent. The submission is that in

the absence of evidence to the contrary, Tribunal ought to have

placed reliance on the evidence of applicant no.1 and awarded

compensation. On burden of proof on respondent, learned

Counsel placed reliance on :

i. Union of India vs. Prabhakaran Vijaya Kumar and others -

2008 ACJ 1895 (S.C.).

ii. Bandana Mishra vs. Union of India - II (2017) ACC 484 (DB) (Cal.).

iii. Shankar Narayan Rathod vs. Union of India in First Appeal No.1147/2016 of this Court.

06] On merits, it is submitted on behalf of appellants that

an amount of Rs.230/- was given by applicant no.1 to her son,

and mobile and Rs.240/- were found from the pocket of the

deceased. A grievance is made that the evidence of Shobhabai

has not been appreciated in a proper perspective and wrong

finding came to be recorded that in the absence of ticket,

applicants could not prove that deceased was a bona fide

passenger in a running train.

07] The next contention pertains to inquest-panchnama

indicating that deceased had fallen down from the passenger

train. It is submitted that the contents of panchnama showing

that deceased had fallen down from the train were totally

ignored by Tribunal. According to appellants, the Act is a

beneficial piece of legislation and where two views are possible,

view favourable to applicants has to be taken. It is submitted

that police papers were not properly read in evidence and on the

wrong appreciation of oral and documentary evidence, Tribunal

held that applicants are not entitled to compensation.

08] Per contra, learned Counsel for respondent supports

the judgment and submitted that initial burden to prove that

deceased died in an untoward incident is on the applicant and

soon the burden is discharged by applicants, onus shifts on the

railway to prove that deceased was travelling without ticket and

was not a bona fide passenger. According to the learned

Counsel, dead body was found not actually on the track, but

away from the track. It is submitted that witness examined by

respondent and spot-panchnama proved by applicants clearly

indicate that deceased had not fallen down from the running

train and the death was not on account of untoward incident. In

support of submission, learned Counsel relies upon :

i. Jetty Naga Lakshmi Parvathi & others vs. Union of India -

2013 ACJ 1061 (AP).

ii. Union of India vs. Lakshmi and others - 2014 ACJ 2505 (Karnataka).

iii. Gurcharan Singh & ors. vs. Union of India in FAO No.507/2011 of Delhi High Court.

iv. Amareswar Mallik vs. Union of India - 2015 (1) T.A.C. 629 (Ori.).

v. Fatemabi Rahis Shah and others vs. The Union of India, through General Manager in First Appeal No.1844/2012 of this Court at Aurangabad Bench.

vi. Satya Dev Goswami & anr. vs. Union of India - 2016(1) T.A.C.28 (Del.)

vii. Smt. Sunita wd/o Gyaneshwar Upase & ors. vs. Union of India in First Appeal No.137/2015 of this Court at Nagpur Bench.

viii. Latabai wd/o Vasant More & others vs. Union of India in First Appeal No.123/2015 of this Court at Nagpur Bench.

ix. Shri Dnyaneshwar (Budha) Pandurang Pawar and another vs. The Union of India in First Appeal No.1350/2012 of this Court at Aurangabad Bench.

x. The Union of India vs. Jagganath Shankarrao Piske and another in First Appeal No.337/2010 of this Court at Nagpur Bench.

09] In view of the aforesaid contentions, following points

arise for determination in this appeal.

S.No.                              Points                             Findings

   1      Whether                the   claimants       have       In the negative
          established that the death of Kishor
          occurred          in    an   untoward    incident

defined under Section 123(c)(2) of the Railways Act, 1989?

   2      Whether the respondent/Railways has In the affirmative
          established that deceased was not a
          bona fide passenger travelling in a
          train        running      from      Nanded        to
          Aurangabad?




10]             The       only   witness      examined          by     appellants          is

Shobhabai, mother of deceased Kishor.                        She is not an eye

witness to the accident. She admitted in cross-examination that

she does not know how her son had fallen down from the

running train. She produced copies of spot-panchnama, inquest-

panchnama, postmortem report, death certificate and other

documents. Inquest-panchnama prepared under Section 174 of

the Code of Criminal Procedure contains the opinion of panchas

in column 12 as under :

";krhy e;r gk jsYos e/kwu iMY;kus R;kps MksD;kl nxMkpk ekj

ykxqu Mksds QwVy;kus R;kl ej.k vkysps okVrs-"

"It appears that deceased sustained injuries by

stones on his head due to fall from railway."

11] Similar is the opinion expressed in postmortem report.

None of the persons, who prepared inquest-panchnama and

postmortem report have been examined by the claimants. It is

not the case of applicants that panch-witnesses to inquest-

panchnama were the eye witnesses to the accident. In the

absence of evidence to establish that deceased had fallen down

from the running train, Tribunal was right in holding that the plea

that deceased died as a result of untoward incident, has not

been established.

12] So far as the decisions referred by the learned

Counsel for parties are concerned, they reiterate well settled

propositions of law. Needless to state that initial burden to

establish that deceased died in an untoward incident is on the

applicants and soon the applicants prove that the death was the

result of untoward incident, onus shifts on railways to establish

the defence that deceased was travelling without a ticket and

was not a bona fide passenger. In the present case, Tribunal has

held that ticket for travel was also not recovered from the body

of the deceased. Tribunal has further held that deceased was

not a bona fide passenger. It is an undisputed fact that ticket

was not recovered from the dead body. The spot-panchnama

indicates that cash of Rs.240/-, mobile and a bus-ticket were

found from the pocket of the deceased. Applicants have come

with a case that ticket was lost during the incident. It is

submitted that burden to prove that deceased was travelling

without a ticket is on the respondent. True, the burden lies on

the railways to show that deceased was a passenger travelling

without a ticket and he was not a bona fide passenger. The

question is whether in the absence of evidence to show that the

death was a result of an untoward incident, onus would shift on

the railways to establish that deceased was a passenger without

a ticket.

13] In the decisions relied upon by the learned Counsel for

appellants, factum of death of deceased as a result of untoward

incident was established. Therefore, it was held that onus to

prove that injured/deceased were the passengers travelling

without a ticket was on the respondent. In the present case, as

discussed above, appellants-claimants have failed to establish

that deceased died in an untoward incident as defined under

Section 123(c)(2) of the Railways Act. In view of the failure of

the claimants to prove that the death was a result of an

untoward incident, the other question does not deserve

consideration. As such, the onus would not shift on the

respondent as the initial burden on appellants is not discharged.

14] Considering the above, no case for interference is

made out. The above points are, therefore, answered

accordingly. Hence, the following order :

ORDER

I. First Appeal No.914/2016 stands dismissed.

            II.     No costs.



*sdw                                             (Kum. Indira Jain, J)