Kamaru Jama S/O Sahadat Husen ... vs Union Of India, Through The ...
2021 Latest Caselaw 12152 Bom

  fa644.19 recent.odt                                1



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

                               FIRST APPEAL NO.644/2019


  1. Kamaru Jama S/o Sahadat Husen
    (Since died)

  2.Chandtara     Khatun     w/o     Kamaru              Jama,
    aged about 50 years,
    Occupation - House wife
    R/o 110, Fakhadinpur, Town/Village
    Kanahar, Anchal - Badhariya,
    Tah and District - Siwan (Bihar)                        ..APPELLANTS

           Versus

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

                         ....
  Shri R.G.Bagul, Advocate for the appellants.
  Shri N.P. Lambat, Advocate for the respondent.

                                   .....

                               CORAM : PUSHPA V. GANEDIWALA, J
                               RESERVED ON : AUGUST 8, 2021.
                               PRONOUNCED ON : AUGUST 31, 2021

  JUDGMENT :

1. This appeal is preferred under Section 23 of the

Railway Claims Tribunal Act, 1987. The appellants are the original

Claimants/dependents of deceased Murad Ali Kamaru Jama.

2. The appellants (original claimants) filed Claim Petition

before the Railway Claims Tribunal, Nagpur, stating therein that

deceased Murad Ali was travelling from Patna to Bangalore by

Sanghamitra Express. He was going to Bangalore for doing labour

work, as he was working under a Contractor. It is stated that on

11.4.2011, the deceased had purchased a general ticket for Patna to

Bangalore and while travelling, near Nagpur Station, at Mangalwari

Bazar Gate to Mecosabagh Bridge, the deceased fell down from the

train due to jerk of the train and he sustained grievous injuries. He

was admitted in Mayo Hospital, Nagpur but, on 13.4.2011 he died

during treatment. It is stated that Dr. Ankur Sanghvir from Mayo

Hospital gave treatment to the deceased. The appellants claimed

rupees 4,00,000/- towards compensation with interest @ 9% per

annum. It is further stated that the said ticket, which was purchased

by the deceased, is in the custody of Jaripatka Police Station,

Nagpur.

3. Alongwith the Claim Petition, the claimants-appellants

filed the following documents:

  (i)      Marg report;

  (ii)     Spot Panchanama;

  (iii)    Inquest Panchanama;







  (iv)     P.M. Report;

  (v)      Photocopy of the Ticket;

  (vi) Telegram and

  (vi)     Death Certificate.


  4.                In    response,   the   respondent     -   Union      of    India

represented through the General Manager, Central Railway, C.S.T.

Mumbai, in its written statement, denied the case of the appellants

in toto and specifically pleaded that as per the statement of Duty

Guard - Shri S.K. Datta and Conductor - L.C. Shende Train

No.122296 on Sanghamitra Express on 12.4.2011, there was no

report of chain pulling. It is further pleaded that even there was no

untoward incident was reported during their duty hours. The

respondent also took a defence that the deceased was not holding a

railway ticket for Patna to Bangalore and he was not a bona fide

passenger.

5. On the basis of pleadings of both parties, learned

Tribunal framed the following issues:-

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

(ii) 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?

(iii) Whether the Respondent Railway proves that deceased was not a bona fide passenger of the train on the relevant day, with valid journey ticket and the deceased was not involved in untoward incident?

(iv) To what order/relief?

6. The appellants examined appellant No. 1 in support of

their claim while the respondent - Railway Administration preferred

not to examine any witness.

7. The learned Tribunal, on the basis of oral and

documentary evidence on record, rejected the claim of the

appellants mainly on the ground that the appellants have failed to

prove that the death of deceased had occurred as a result of an

untoward incident as alleged in the claim petition and the

respondent - Railway proved that the deceased was not a bonafide

passenger of the train on the relevant day with a valid journey

ticket. This judgment of the learned Tribunal is impugned in this

appeal.

8. The learned counsel Shri R.G.Bagul appearing on

behalf of the appellants vehemently urged that the learned Tribunal

has erred in not considering the evidence of the appellants in its

proper perspective and wrongly dismissed the claim. It is further

urged that there is an ample evidence on record, which would go to

show that the deceased while travelling from Patna to Bangalore by

Sanghamitra train fell down from running train near Nagpur

Railway station in between Mangalwari bazar gate to Mecosabagh

Bridge and sustained grievous head injury and succumbed to his

injuries during treatment on 13.4.2011 at Mayo Hospital, Nagpur.

9. It is further urged that the Railway Administration has

not come with any evidence to show that deceased while crossing

rail track was dashed by some train or jumped before any train and

therefore he is not died in untoward incident.

10. The learned counsel further urged that the learned

Tribunal failed to appreciate the police documents in its proper

perspective and erred in not considering the fact that the valid

railway ticket was recovered from the person of deceased and the

ticket verification report is also its certified copy was submitted

alongwith claim application and therefore, the deceased was the

bona fide passenger of the train.

11. With regard to marg report and marg summary, learned

counsel Shri Bagul took me through various documents and

submitted that immediately after the death of deceased at Mayo

Hospital, marg report was lodged at police station, Jaripatka and

thereafter the investigation in the cause of death was carried on and

marg summary was submitted after one year under Section 176 of

the Code of Criminal Procedure. Therefore, it is submitted that there

was no reason for the learned Tribunal to take a doubt on either on

police or the appellants for manipulation of the record and directing

police inquiry. In support of his submissions, learned counsel relied

on the following judgments:

(i) AIR 2018 SC 2362 (Union of India Vs. Rina Devi);

(ii) AIR 2010 SC 3705 (Jameela and Ors. Vs. Union of India); and

(iii) The Union of India Vs. Mangalabai w/o Manohar Darunde and

others (unreported judgment of this Court) in First Appeal

No.297 of 2013) dated 4.12.2013.

12. Per contra, the learned counsel Shri N.P. Lambat

appearing on behalf of Railway Administration while supporting the

impugned judgment and order, took me through various documents

and record and submitted that a perusal of various police papers

would not reflect that the valid railway ticket was recovered from

the person of the deceased and, therefore, the burden is on the

appellants to prove that deceased was a bonafide passenger with the

valid journey ticket.

13. The learned Counsel Shri Lambat further doubted on

the late filing of marg summary and submitted that the learned

Tribunal has rightly rejected the marg summary from consideration

as there was no explanation forthcoming from the appellants as to

how after one year the marg summary was submitted. The learned

counsel urged to dismiss the appeal.

14. I have considered the submissions made by both parties

and also perused record.

15. Before adverting to discuss the rival contentions and

the evidence on record, a few provisions of Railways Act 1989 need

to be noted.

16. Section 2 Clause 29 of the Railways Act, 1989 defines

`passenger' means: "A person travelling with a valid pass or ticket".

Chapter XIII of the Act deals with liability of Railway Administration

for death and injury to the passengers due to accident". Section 123

Clause (a) of the said Chapter defines `accident' to mean an

accident of the nature described in Section 124 and Clause-c of

Section 123 defines `untoward incident' which means:

"(1) (i)the commission of a terrorist act within the meaning of sub-section (1) of section 3 of the Terrorist and Disruptive Activities (Prevention) Act,1987 (28 of 1987); or

(ii) the making of a violent attack or the commission of robbery or dacoity; or

(iii) the indulging in rioting, shoot-out or arson, by any person in or any train carrying passengers, o0r in a waiting hall, cloak room or reservation or booking office or on any platform or in any other place within the precincts or a railway station; or (2) the accidental falling of any passenger from a train carrying passengers."

17. Section 124-A deals with providing compensation on

account of untoward incident. It reads thus:

"124-A:Compensation on account of untoward incident:- When in the course of working a railway an untoward incident occurs, then whether or not there has been any 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 and to that extent only for loss occasioned by the death of, or injury to, a passenger as a result of such untoward

incident:

Provided that no compensation shall be payable under this section by the railway administration if the passenger dies or suffers injury due to -

(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 - For the purposes of this Section, "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".

18. The Railway Claims Tribunal Act, 1987 provides for the

establishment of Railway Claims Tribunal for inquiring into and

determining claims against a railway administration for loss,

destruction, damage, deterioration or non-delivery of animals or

goods entrusted to it to be carried by railway or for the refund of

fares or freight or for compensation for death or injury to

passengers occurring as a result of railway accidents (or untoward

incidents) and for matters connected therewith or incidental

thereto.

19. This Act of 1987, which covers Chapter II, III and IV

provides for establishment of Railway Claims Tribunal, its

jurisdiction, powers and procedure to be followed. Chapter V deals

with appeals and Chapter VI deals with miscellaneous provisions.

20. Section 18 of the Tribunal Act, 1987 provides that the

Claims Tribunal shall not be bound by the procedure laid down by

the Code of Civil Procedure 1908, but shall be guided by the

principles of natural justice and the Tribunal shall have powers to

regulate its own procedure. Sub-section (2) of Section 18 mandates

Tribunal to decide every application as expeditiously as possible and

ordinarily every application shall be decided on a perusal of

documents, written representations and affidavits and after hearing

such oral arguments as may be advanced.

21. Now, coming to the facts of present case, the appellant

no.1, the father of the deceased examined himself and substantiated

his case by producing on record railway ticket, marg report, crime

details form, inquest panchanama, P.M. report, voter ID and ration

card, which are marked as Exh.AW 1/1 to Exh. AW 1/8. This

witness has been cross-examined, wherein he has stated that the

police informed him about the incident and he has no personal

knowledge. A perusal of journey ticket at Exh. AW1/1 would

reflect that this ticket is for the journey from Patna junction to

Bangalore City dated 11.4.2011, time of the ticket 16.39 for Rs.313

bearing no.E99226270. Interestingly, the Railway Administration

does not dispute the truthfulness of the ticket and the ticket

verification report dated 7.4.2012 which was issued from East

Central Railway, Danapur Division, Patna junction, would reflect

that the aforesaid Ticket was issued from Patna Junction Booking

office on 11.4.2020.

The record reveals that a Marg Report at Sr. No.39/2011

under Section 174 of the Code of Criminal Procedure was registered

at Jaripatka Police Station, Nagpur, and thereafter marg enquiry as

to the cause of death of the deceased was initiated which

includeed conducting of inquest panchanama, spot panchanama,

recovery of clothes of the deceased, recording of statements of

witnesses, and other formalities. The record reveals that the police

got clue about the parents of the deceased from one diary which

was found from the clothes of the deceased. They informed the

parents of the deceased and called them at Nagpur for identification

of the dead body from the pictures and the clothes of the deceased.

As by that time the body of the deceased was already cremated as

unknown person.

22. Considering the aforesaid documents now the onus is

shifted on the respondent Railway to prove as to how the said ticket

was not issued to the deceased. The learned Tribunal committed an

error in not considering this ticket as valid ticket for journey

undertaken by the deceased and rejected the claim of the appellants

on a misplaced ground that the ticket was not recovered from the

person of the deceased.

23. In addition to the above, the appellants in their

pleadings and evidence has stated that the aforesaid ticket was

issued to the deceased and he was a bonafide passenger. On the

contrary, the Railway Administration has failed to prove that this

ticket was not issued to deceased and he was not a bonafide

passenger.

24. With regard to untoward incident, all the police papers

even inspection report of the officer of the respondent would show

that death of deceased was due to falling from the running train.

Section 123 (c) of the Act, 1989 defines `untoward incident' which

includes the accidental falling of any passenger from train carrying

passengers. With regard to untoward incident there is

overwhelming evidence on record and further more the respondent

has failed to lead any positive evidence in order to substantiate its

contention that it was the criminal act or negligence of the deceased

for his death. Moreover, as per Section 124-A of the Act of 1989, it

is not the requirement of law to prove negligence on the part of

railway administration. What is required to be proved to claim

compensation is that the deceased was bonafide passenger with

valid railway ticket for travelling, by train carrying passengers at the

relevant time and untoward incident occurred and the claimants

are dependents of the passenger.

25. The learned Tribunal in the impugned judgment held

that the appellants have failed to prove that the death of passenger

had occurred on account of an untoward incident as contemplated

under the Act.

26. The Coordinate Bench of this Court in the case of

United India Insurance Company Vs. Sindhubai w/o Kondiram

Darwante and others reported in 2010 (3) Mh.L.J.886, in the

similar fact and situation in paragraph 13 relied on various

pronouncements of the Hon'ble Apex Court and held that in a

beneficial and welfare statute we should adopt the construction

which is in consonance with the object of the Act for the benefit of

person the Act of was made.

27. A holistic consideration of all the police papers on

record would go to show that immediately after the death of the

deceased in Mayo hospital during treatment a marg report was

lodged at Sr. no.39/11 under Section 174 of the Code of Criminal

Procedure at Police Station, Jaripatka. On the basis of marg report,

police investigation as to cause of death was initiated under Section

176 of the Code of Criminal Procedure by ASI Patne. Inquest

panchanama and spot panchanama were conducted. Statements of

Railway guards were recorded. The police also made inquiry of the

deceased. During investigation, general railway ticket was found

from the deceased was annexed with marg.

28. For the reasons stated above, I hold that the appellants

have proved that the deceased - Murad Ali s/o Kamaru Jama was

bonafide passenger with valid journey ticket dated 11.04.2011,

travelling from Patna to Banglore by Sanghmitra Express and while

travelling, near Nagpur Railway Station in between Mangalwari

Bazar Gate to Mecosabagh Bridge, the deceased - Murad Ali fell

down from the running train and sustained fatal injuries and died

on 13.04.2011 during course of treatment at Mayo Hospital,

Nagpur.

29. Considering these findings, the impugned judgment of

the learned Tribunal needs to be quashed and set-aside and

accordingly the same is quashed and set-aside.

30. The appellants, being the dependents of the deceased -

Murad Ali are entitled to receive statutory compensation of

Rs.8,00,000/- (Rs. Eight Lakhs Only). The appellant No.1 i.e. the

father of the deceased - Murad Ali, since dead and the appellant No.

2 is mother of the deceased - Murad Ali would be entitled to receive

compensation.

31. Accordingly, the respondent i.e. The General Manager,

Central Railway, C.S.T. Mumbai is hereby directed to deposit

Rs.8,00,000/- (Rs. Eight Lakhs Only), within a period of three

months from the date of this order. On such deposit, the appellant

Noo. 2 is permitted to withdraw the same with interest accrued

thereon.

32. The Appeal stands disposed of. No order as to costs.

JUDGE

Ambulkar