Bombay High Court
The Union Of India, General ... vs Smt. Pratibha W/O Prabhakar ... on 18 September, 2017
Bench: S.B. Shukre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL No.1201 OF 2009
The Union of India,
General Manager,
South Central Railway,
Secunderabad. : APPELLANT
...VERSUS...
1. Smt. Pratibha w/o. Prabhakar Nigadkar,
Aged about 26 years,
Occupation : Household.
2. Pratik s/o. Prabhakar Nigadkar,
Aged about 6 years,
Occupation : Nil.
3. Pranavi d/o. Prabhakar Nagadkar,
Aged about 7 months,
Occupation : Nil.
Applicant Nos.2 and 3 are minor and
under guardianship of their mother i.e.
applicant No.1.
All R/o. Viveknagar, Parbhani,
Distt. Parbhani. : RESPONDENTS
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Shri P.S. Lambat, Advocate for the Appellant.
Shri K.N. Lad, Advocate for the Respondents.
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CORAM : S.B. SHUKRE, J.
th
DATE : 18
SEPTEMBER, 2017.
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ORAL JUDGMENT :
1. This is an appeal preferred against the judgment and order
dated 29th January, 2009, passed in Claim Application No.112/OA-
II/RCT/NGP 2005, by Member (Judicial) of the Railway Claims Tribunal,
Nagpur.
2. By the impugned judgment and order, a claim application
seeking compensation for the death of one Prabhakar Nigadkar, who
died in an untoward incident which occurred on 27.3.2005 at about 8.30
p.m. when deceased Prabhakar was traveling on Manmad-Dharmabad
Express Train No.7687, between Devalgaon Awchar and Pedgaon
Railway Station. It was claimed by the respondents that the accident
occurred at the time when deceased was standing in the door way near
wash-basin and a sudden jerk experienced by him resulted in his being
thrown out of the running train. The appellant, being not satisfied with
the impugned judgment and order have preferred the present appeal.
3. It is the contention of the learned counsel for the appellant
that the Tribunal took into consideration something which was not part
of the evidence and, therefore, the impugned judgment and order are
perverse. Learned counsel for the respondents submits that some of the
documents relied upon by the Tribunal, particularly the documents like
one report submitted by a Police Head Constable Sk. Aziz and the report
filed under Section 174 of the Cr.P.C. were forming part of the record
J-fa1201.09.odt 3/5
and, therefore, no illegality could be said to be committed by the
Tribunal, when it considered these documents for reaching its
conclusions in the matter.
4. Upon hearing both sides and perusing the records of the
case, the only point which arises for my determination is :
Whether the impugned judgment and order are
perverse and arbitrary and therefore liable to be set
aside ?
5. On going through the impugned judgment and order as well
as record of the case, I find that there is great substance in the argument
of learned counsel for the appellant and no merit in the argument of
learned counsel for the respondents.
6. It is seen from the impugned judgment and order that two
documents, one stated to be a report of a Police Head Constable or Police
Constable Sk. Aziz and the other termed as a report under Section 174 of
the Cr.P.C. have been heavily relied upon by the Tribunal in making its
conclusions in the matter. Both these documents were not admitted in
evidence. They were not exhibited by the Tribunal. It was, therefore,
clear that the appellant did not get any opportunity to give its
explanation in respect of or confront the contents of these documents
and, therefore, it has to be said that this is a case wherein the Tribunal
has recorded its findings by taking into account something, which was
not part of the evidence available on record and as such, the impugned
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judgment and order are perverse.
7. The impugned judgment and order are, therefore, liable to be
set aside, being based upon consideration of something which is not
available as evidence on record. The point is answered accordingly.
8. In the result, the appeal is allowed.
9. The impugned judgment and order are hereby quashed and
set aside.
10. The matter is remanded back to the Tribunal for a decision
afresh in the matter, from the stage of recording of evidence.
11. It is made clear that the evidence already tendered by the
parties shall be taken into consideration and both parties shall be
permitted to adduce additional evidence, if any.
12. The Tribunal is requested to finally decide the case in
accordance with law at the earliest and in any case within three months
from the date of appearance of the parties before it.
13. Parties to appear before it on 31st October, 2017.
14. The amount deposited in this Court be transferred to the
Tribunal where it shall be held deposit till final disposal of the claim
application by the Tribunal.
15. Leave to make amendment to the claim application seeking
more compensation is granted to the claimants, which amendment be
carried out within one week from the date of appearance of the parties
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before the Tribunal.
16. Permission to lead additional evidence on this aspect of the
matter is granted.
Civil Application (F) No.2191/2009, Civil Application (F) No.2805/2013
and Civil Application (F) No.3542/2017.
Civil applications are disposed of by final order made in the
appeal.
JUDGE
okMksns
