Antaram S/O Ganpati Niralwad vs Union Of India, Through The ...
2021 Latest Caselaw 11759 Bom

  fa359.20 recent.odt                                 1



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

                               FIRST APPEAL NO.359/2020

  Antaram s/o Ganpati Niralwad,
  Age 38 years, Occ. Labour,
  R/o Dhangar Moha,
  Tq. Gangakhed,
  Dist. Parbhani                                             ..APPELLANT

           Versus

  Union of India,
  Through the General Manager,
  South Central Railway,
  Secunderabad.                                              ..RESPONDENT
                         ....

Shri R.G.Bagul, Advocate for the appellant. Shri Nitin P. Lambat, Advocate for respondent.

.....

CORAM : PUSHPA V. GANEDIWALA, J DATED : AUGUST 25, 2021.

ORAL JUDGMENT :

1. Heard.

2. Considering the issue involved in this appeal, it is heard

finally at the stage of admission, with the consent of leaned counsel

appearing for both parties.

3. Admit.

4. Shri N.P. Lambat, learned counsel waives service of

notice for the respondent.

5. This is the claimant's appeal under Section 23 of the

Railway Claims Tribunal Act, 1987 against the judgment and award

dated 18.11.2015 passed in Claim Petition No. OA

(IIu)/NGP/2011/0105 by the Member (Judicial), Railway Claims

Tribunal, Nagpur Bench, Nagpur, whereby the learned Tribunal

rejected the claim of the appellant for compensation on account of

the scheduled injuries received to him in an untoward incident.

The claim for compensation was rejected on the sole ground that

the appellant was negligent in boarding the running train and,

therefore, the injuries being self-inflicted, the appellant is not

entitled to receive any compensation as per law.

6. A short question arises for consideration of this Court is

"Whether the appellant received scheduled injuries in an untoward

incident, while travelling as a bonafide passenger?"

7. The facts, in brief, may be stated as under: -

It is the case of the appellant that on 13.9.2010, the

appellant - injured was going to Parbhani from Gangakhed for some

personal work. He had purchased a valid journey ticket bearing

No.82530031 dated 13.9.2010 to undertake the journey from

Gangakhed to Parbhani by Parli to Akola Passenger Train No. 540. It

is stated that there was heavy rush in the train. The appellant

boarded the train and was standing near the door. It is further

stated that due to jerk, he fell down from the train and received

serious injury. He, therefore, filed a Claim Petition claiming

statutory compensation with interest pendente lite.

8. The respondent- Railway Administration opposed the

Claim Petition by filing its written statement. The respondent denied

the contents in the Claim Petition in toto. It is the specific pleading

of the respondent that Railway Administration conducted detailed

inquiry with regard to the alleged incident and according to which,

Passenger Train no.540 left Parli at 13.17 hours on 13.9.2010 and

arrived at Gangakhed Railway Station at 13.49 hours. After

receiving the starter signal, the train was started from the platform

and when the train was leaving the platform one person came

running and tried to catch the running train, during the process he

slipped and fell down from the train and he sustained injuries.

Therefore, it is stated that the injuries sustained by him are due to

his own conduct and not due to the sudden jerk of the train. The

respondent claims that there was no jerk in the train as alleged.

9. It is further the defence of the respondent - Railway

Administration that it was not the case of accidental fall from the

train and it is a case of self-inflicted injury and hence, the

application is not maintainable.

10. The learned Tribunal framed necessary issues and

recorded evidence. The Claimant examined himself and brought on

record the following documents:-

  (i)      Railway Ticket (Exh.A-1);
  (ii)     Memo issued by Station Master, Gangakhed (Exh.A-2);
  (iii)    Spot panchanama (Exh.A-9);
  (iv)     Discharge card (Exh.A-12) and
  (v)      Disability Certificate (Exh.A-14).

11. The respondent/Railway Administration has brought on

record the Statutory Report at page numbers A-25 to A-28 of the

record and proceedings.

12. The learned Tribunal on the basis of oral as well as

documentary evidence before it rejected the claim of the appellant

mainly on the ground that the appellant failed to prove that the

accident occurred due to the negligence of the railway. On the

contrary, it is held that it was the self-inflicted injuries, as the

claimant was trying to board the running train. This judgment of

the Tribunal is assailed in this appeal.

13. I have heard Shri R.G.Bagul, learned counsel appearing for

the appellant and Shri. N. P. Lambat, learned counsel appearing for

the respondent. Shri. Bagul invited my attention to the discharge

card (Exh.A-12) and disability certificates (Exh.A-7 and A-14 ) and

submitted that the appellant sustained crush injury to his left hand,

amputation to distal Phalanx of thumb bilateral pubic rani and

amputation to left thumb, index finger, middle finger contusion on

palm.

14. The learned counsel also drew my attention to the

Schedule of the Railway Accidents and Untoward Incidents

(Compensation) Rules, 1990 (amended with effect from 1.1.2017)

and submitted that the aforesaid injuries fall under the scheduled

injuries as per Item Nos.4, 5, 6 and 7. The learned counsel also

submits that the amended provisions to the aforesaid Rules would

be applicable as per the ratio of the Hon'ble Apex Court in the

case of Union of India Vs. Rina Devi reported in 2018 SCC 2362,

wherein it is held in para15.4, which reads thus:

"Accordingly, we conclude that compensation will be payable as applicable on the date of the accident with interest as may be considered reasonable from time to time on the same pattern as in accident claim cases. If the amount so

calculated is less than the amount prescribed as on the date of the award of the Tribunal, the claimant will be entitled to higher of the two amounts. This order will not affect the awards which have already become final and where limitation for challenging such awards has expired, this order will not by itself be a ground for condonation of delay. Seeming conflict in Rathi Menon (AIR 2001 SC 1333) and Kalandi Charan Sahoo (supra) stands explained accordingly. The 4-Judge Bench judgment in Pratap Narain Singh Deo (AIR 1976 SC 222)(supra) holds the field on the subject and squarely applies to the present situation. Compensation as applicable on the date of the accident has to be given with reasonable interest and to give effect to the mandate of beneficial legislation, if compensation as provided on the date of award of the Tribunal is higher than unrevised amount with interest, the higher of the two amounts has to be given".

15. The learned counsel also referred to Section 124A of

the Railways Act, 1989 and submitted that as per this provision, the

issue of negligence of the appellant is not to be considered while

deciding the amount of compensation on account of untoward

incident. The learned counsel urged to grant compensation as per

the prescribed rates in the Schedule in the Railway Accidents and

Untoward Incidents (Compensation) Rules, 1990.

16. The learned counsel Shri N.P. Lambat appearing for the

respondent/Railway Administration restricted his argument only to

the point that if at all this Court is going to hold that the appellant is

entitled to receive compensation as per the aforesaid Schedule, it

would not be appropriate to grant him compensation separately for

injuries to thumb, fingers and palm, as argued by learned counsel

Shri Bagul. It is the submission of learned counsel Shri Lambat that

at the most, Entry no.4 in the Schedule would be applicable in this

case.

17. I have considered rival submissions.

18. At the outset, as per Section 124-A of Railways Act,

1989, when in the course of working a railway an untoward

incident occurs, then whether or not there has been 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 Administration

shall, notwithstanding anything contained in any other law, be

liable to pay compensation to such extent as may be prescribed.

Proviso to the aforesaid section enumerates the conditions

wherein the railway administration shall not be liable to pay

compensation, which reads thus:

a) suicide or attempted suicide by him;

b) self-inflicted injury;

c) his own criminal act;

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 to the said Section defines "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.

19. Now, the question is " whether the injuries sustained by

the appellant, being a bonafide passenger, is due to an `untoward

incident' or self-inflicted injuries?

20. The definition of `untoward incident' is given under

Section 123(c) (2) of the Railways Act, 1989, which inter-alia

means the accidental falling of any passenger from a train carrying

passengers.

21. The appellant/claimant in his testimony has deposed

that on 13.9.2010, he came to the Railway Station, Gangakhed to

go to Parbhani and took railway ticket of passenger train at

Gangakhed railway station and boarded Train No. 540 Parli to

Akola passenger train. There was heavy rush in the train. He stood

near the door of the train. Thereafter the train started with jerk and

due to push by other passengers, he lost his balance and fell down

from the train on the platform and sustained injuries. In his cross-

examination, he denied the suggestion that he was standing on the

foot board of the train and while leaning out he fell down from the

train. The tenor of the cross-examination on behalf of Railway

Administration would reflect that the questions were asked on the

premise that due to his own negligence he fell down from the train.

In terms of the Section 124-A of the Railways Act, the claimant has

to prove that in an untoward incident, he sustained injuries,

irrespective of the aspect of negligence. The appellant in his

pleadings and the evidence has clearly established that due to a jerk

and heavy rush in the train he fell down and sustained injuries.

Nothing could be brought on record by the respondent to rebut the

case of the claimant. In the circumstances, there is no reason not to

believe the testimony of the claimant-the injured witness.

22. With regard to the pleading of a bonafide passenger, a perusal

of the record would reflect that the appellant at the relevant time

was holding a valid journey ticket as the copy of the ticket has been

produced on record at Exh.A-1 and the Railway Administration

could not prove as to how the aforesaid ticket (Exh. A-1) is false and

manipulated document and, therefore, the appellant has clearly

established that at the relevant time he was a bonafide passenger

travelling in the aforesaid Train no.540 Parli to Akola. On this

aspect, the learned Railway Tribunal has erroneously recorded the

finding in negative without considering the facts on record. Without

any basis, the learned Tribunal has wrongly held that the ticket

placed on record is manipulated and procured. Once the appellant -

claimant has produced on record the valid journey ticket, the onus

is shifted on Railway Administration to establish that the ticket was

manipulated and procured and in the instant case the respondent-

Railway Administration has manifestly failed to discharge its

burden.

23. It appears that without considering the evidence of the

appellant in proper perspective, the learned Tribunal erroneously

reached the conclusion that the injuries sustained by the appellant

were self-inflicted injuries, which were caused while boarding the

running train and there was no accidental fall from the train

amounting to `untoward accident'.

24. For the reasons aforestated, in the opinion of this Court,

the appellant could prove that there was an `untoward incident'

happened on 13.9.2010 wherein he sustained injuries as per

disability certificate (Exh.A-14) and the discharge certificate

(Exh.A-12) . Now the question is under which Item of the schedule,

the case of the appellant would fall? Item nos.4, 5, 6, 7 and 8 of

Rules of Schedule of the Railway Accident and Untoward Incident

(Compensation) Rules, 1990 deal with amputation to the hands,

thumb, finger etc. For ready reference the said items are

reproduced below:-

  PART I                                    Amount of compensation
                                                   (in rupees)
  xxx

  PART II xxxx
  PART III
  (1) xxx
  (2) xxx
  (3) xxx
  (4) For loss of a hand or the thumb and
      and four fingers of one hand or amputation
      from 4½                                              4,80,000

  (5) For loss of thumb                                    2,40,000
  (6) For loss of thumb and its metacarpal bone            3,20,000
  (7) For loss of four fingers of one hand                 4,00,000
  (8) For loss of three fingers of one hand                2,40,000

25. As per Item (4) for the loss of a hand or the thumb and

four fingers of one hand or amputation from 4½ inches below

space tip of olecranon, amount of compensation prescribed is at

Rs.4,80,000/-.

26. The accident occurred in the year 2010 and the

Schedule to the Railway Accidents and Untoward Incidents

(Compensation) Rules, 1990 came to be revised on 1.1.2017.

However, in the judgment in the case of Union of India Vs. Rina

Devi (supra), Their Lordships of the Hon'ble Apex Court has held in

para 15.4 that "Compensation as applicable on the date of accident

has to be given with reasonable interest and to keep effect to the

mandate of beneficial legislation, if compensation as provided on

the date of award of the Tribunal is higher than unrevised amount

with interest, the higher of the two amounts has to be given".

27. The learned counsel Shri R.G.Bagul urged to grant

compensation to the appellant under the heads of Item (5) and (7)

separately.

28. Considering the injuries sustained to the appellant,

which includes injury to his thumb, middle finger and index finger,

in the considered opinion of this Court, the injuries collectively fall

for loss of a hand or the thumb and four fingers of one hand and or

amputation from 4½ below space tip of olecranon, and therefore,

he would be entitled for compensation under Item (4) at Rs.

4,80,000/- as statutory compensation.

29. Considering the reasons aforestated, I find merit in the

appeal and impugned judgment and award of the Tribunal needs to

be set aside and the same is quashed and set aside. I pass the

following order:

ORDER

1. The appeal is allowed.

2. The impugned judgment and award order passed by the Tribunal is quashed and set aside.

3. Respondent - Railway Administration shall deposit compensation of Rs. 4,80,000/-with the registry of this Court within a period of two months. Thereafter, the appellant-claimant is permitted to withdraw the same with interest accrued thereon.

4. The appeal stands disposed of. In the circumstances there shall be no order to costs.

JUDGE

****** Ambulkar