Bombay High Court
Shri.Kuwarbai Lakha Sarvaiya And ... vs Union Of India,Through General ... on 23 December, 2021
Bench: P. K. Chavan
FA-1205-2017.doc
Shailaja
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.1205 OF 2017
1) Kuwarbai Lakha Sarvaiya ]
Age: 65 years, ]
(Wife of the deceased) ]
2) Rajesh Lakha Sarvaiya ]
Age: 40 years, ]
(Son of deceased) ]
Both R/o. 1st Wadi, Opp. Azad ]
Timber Mart, 90 Feet Road, ]
Dharavi Kumbharwada, Mumbai. ] Appellants
Vs.
Union of India, ]
Through General Manager, ]
Central Railway, CST Mumbai. ] Respondent
.....
Mr. Vasant N. More, for Appellant.
Mr. T. J. Pandian, for Respondent.
.....
CORAM : PRITHVIRAJ K. CHAVAN, J.
RESERVED ON : 21st DECEMBER, 2021.
PRONOUNCED ON : 23rd DECEMBER, 2021.
SHAILAJA Digitally signed by SHAILAJA
SHRIKANT HALKUDE
SHRIKANT Date: 2021.12.23 17:14:01
HALKUDE
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JUDGMENT:
1. This is an appeal challenging the judgment of dismissal of
the claim application bearing No. OA /IIu/2011/0371 by the
Railway Claims Tribunal, Mumbai Bench dated 21st October, 2016.
2. The facts are as follows;
3. On 15th March, 2011, deceased Lakha Jadhav Sarvaiya
(hereinafter referred to as "deceased Lakha") along with his
relative Chhagan Keshav Wala boarded a local train at Kings Circle
station at 7.45 a.m. They had purchased two railway tickets for
their respective destinations namely Mira Road and Borivali. When
Chaggan Keshav Wala alighted at Bandra for catching further local
train for Borivali, he could not see deceased Lakha. It is the
contention of the appellants who are widow and son of deceased
Lakha that when the local train reached between K.m. No.11/14-
15 between Kings Circle and Mahim Station, deceased Lakha fell
down from the running local train due to pushing from
overcrowded compartment. He fell down resulting into serious
injuries and subsequently died on the spot. It is contended that
the journey ticket which was in possession of deceased Lakha lost
during the incident.
4. Government Railway Police, Wadala Railway Station reached
the spot and took the dead body to Sion Hospital for conducting
it's postmortem. Assistant Sub Inspector Ramesh Malhari Shendge
GRP, Wadala reported the matter on the basis of which A.D.R
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No.48 of 2011 came to be registered at Wadala Railway Police
Station. An inquest panchanama was drawn at Sion Hospital in the
presence of two panch witnesses namely Durgaram Ramnath Ram
and Santosh Bhimrao Bhandari. Identity of deceased Lakha was
not ascertained till then. Subsequently, the appellants came to
know about the death of deceased Lakha and, therefore, body was
handed over to the family members for performing last rituals.
5. The appellants claimed that deceased Lakha was a bona fide
passenger of the local train with a valid traveling ticket. It was an
untoward incident as defined in section 123 (c) (2) of the
Railways Act, 1989 (for short "Railways Act") and, therefore, they
being legal representatives and dependent of deceased Lakha,
claimed compensation under section 124-A of the Railways Act.
6. In the written statement, it was the contention of the
Railways that after investigation it revealed that deceased Lakha
was hit by some local train while crossing railway lines at Km
No.11/14-15. Since death had occurred while crossing railway
tracks, it was an offence punishable under section 137 and 147 of
the Railways Act.
7. As such, it is the contention of the respondent-Railways that
case of deceased Lakha does not fall within the meaning of an
'untoward incident' as defined in section 123 (c) (2) of the
Railways Act. A report under section 174 of the Code of Criminal
Procedure was filed.
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8. On the basis of the pleadings, the Tribunal framed necessary
issues. In support of appellants' claim, Rajesh Lakha Sarvaiya, son
of deceased Lakha had sworn an affidavit, inter alia, tendered
certified true copy of Memo of Station Master, Certified true copy
of Inquest panchanama, Certified true copy of cause of death
certificate and certified true copy of statement of co-traveller.
9. The learned Member, having considered the evidence on
record, reasoned that the appellants failed to establish that
deceased Lakha was, in fact, Lakha Jadhav Sarvaiya, father of
deponent and husband of Kuwarbai, inter alia, observed that
deceased Lakha was not a bona fide passenger with valid ticket
and, therefore, declined to accept the appellant's contention. For
the said reason, claim application came to be dismissed.
10. I heard Mr. More, learned Counsel for the appellant and Mr.
Pandian, learned Counsel for the respondent-Railway.
11. At the outset, the office note signed by Senor Divisional
Security Commissioner/RPF/CSTM on the subject of claim on
account of death of deceased Lakha indicates that from the report
of Inspector of RP.F as well as GRP, it was noticed that no railway
ticket or pass was found on the person of deceased Lakha during
inquest panchanama. Prima facie, it was found that he was not a
bona fide passenger. It was further noticed that his presence in
railway yard was unauthorized and that he had been knocked
down by an unknown local train while crossing the railway track
and it is an offence under section 137 and 147 of the Railways Act.
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12. Secondly, communication by Inspector of R.P.F Wadala Road
to Senior Divisional Security Commissioner dated 21st July, 2011
reveals that applicant Kuwarbai had stated before him during
inquiry that her husband deceased Lakha left the house on 15th
March, 2011 in the morning to go to his relative at Mira Road.
While crossing railway track between Mahim and Kings Circle
Railway Station, he was hit by some unknown local train and died
in the said accident. These two documents prima facie indicate
that deceased Lakha was not a bona fide passenger, particularly in
view of the fact that during inquest panchanama, no valid ticket
was found on his person.
13. The most important document on record is the inquest
panchanama drawn on the very day at Sion Hospital in the
presence of two panchas namely Durgaram Ramnath Ram and
Santosh Bhimrao Bhandari. Apart from the injuries noted on the
person of deceased Lakha who appears to have been hit by some
unknown local train, there was yellow coloured shirt and lungi.
Apart from description of the injuries over his forehead and hand,
panchanama also reveals that when his private part was examined,
his penis was found to be circumcised and, therefore, they noticed
that it must be a dead body of a Mulsim. This was quite obvious
because except the affidavit of Rajesh Lakha Jadhav Sarvaiya,
there is absolutely no evidence, much less, acceptable and
believable evidence to establish the identity of deceased Lakha as
father of Rajesh and husband of Kuwarbai.
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14. Perusal of the postmortem report, especially column No.15
supports the recitals of the inquest panchanama, in the sense ,
column No.15 of autopsy report deals with the injuries to external
genitals. It appears that Medical Officer who conducted autopsy
started writing something viz; "as per described in col" which got
scored and it was written as "Nil". This also creates a doubt as to
what was the reason for the autopsy surgeon not to mention about
the injuries to external genitals. Whether the autopsy surgeon
wanted to suppress that the penis was circumcised?
15. Second glaring aspect is that body of deceased Lakha was
bought by Police Naik No.2294. Column No.3 of postmortem
report indicates "By whom identified"? However, that column is
kept blank. It is not the contention of the appellants that Police
Naik No.2294 was acquainted with deceased Lakha. However,
surprisingly on the top of the postmortem report, Medical Officer
has written name of deceased as " Lakhaji Jadhav Sarvaiyya". It is
mysterious as to how Doctor came to know about name of
deceased Lakha when the body was not at all identified at the time
of conducting postmortem on 16th March, 2011 at 10.45 a.m.
This aspect indeed creates a reasonable doubt as regards identity
of deceased Lakha.
16. Admittedly, there was no eye witness to the incident. In his
affidavit, Rajesh, though testified that his father fell down from a
train between Kings Circle and Mira Road, except his bare words,
there is nothing on record nor he was an eye witness who noticed
his father either purchasing the ticket or falling from the train.
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17. There is one more important aspect of this case. To
substantiate the fact that the appellants are the legal heirs of
deceased Lakha, copy of the ration card has been filed. It's bare
perusal reveals that name of Lakha has been scored whose age has
been shown as 25 years and age of Kuwarbai is shown as 20 years.
It is difficult to ascertain as to who had issued this ration card and
on what date? Apart from the name of Kuwarbai, there are names
of Ramesh, Rajesh and Ritaben who are not the applicants before
the Tribunal. Even otherwise, this document is not sufficient to
hold that it was the same deceased Lakha who had died in the
train accident. The appellants could have tendered, at least voters
identity card, Aadhar Card or any other document with
photograph to establish identity of deceased Lakha. In the absence
of any such evidence, it is difficult to believe that deceased Lakha
was father of Rajesh and husband of Kuwarbai. If the appellants
can file photostat copy of identity card of Kuwarbai issued by
Election Commission of India and copy of Aadhar Card of Rajesh,
why they could not file any such documentary evidence qua
deceased Lakha?
18. Turning to the affidavit of Chhagan Keshav Wala, who
claimed to be a relative of deceased Lakha and was travelling with
him on 15th March, 2011, deposed that both of them purchased
railway ticket for the journey and boarded the local train in
different compartments. When he alighted at Bandra to change
the train for going to Borivali, he could not notice deceased Lakha.
On 16th March, 2011, he came to know that deceased Lakha was
missing. During inquiry, they came to know that deceased Lakha
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fell down from the local train.
19. In his cross-examination, Chagan admits that he did not see
deceased Lakha purchasing ticket. This admission gives a fatal
blow to the contention of the appellants that deceased had
purchased a ticket on that day.
20. On behalf of Railways, Ramesh Shendge, A.S.I was
examined. He testified that at the relevant time, he was posted at
Wadala Police Station. He prepared the inquest panchanama at
Sion Hospital on 15th March, 2011 which is at Exhibit RW-2. He
testified that in his memo, he had mentioned that deceased Lakha
was hit by train while he was crossing the track. Admittedly, he
was not an eye witness but his evidence on oath remained
unchallenged because his cross was declined by the learned
Counsel for the appellant.
21. The learned Member in the impugned judgment has,
therefore, rightly observed all the aforesaid facts while dismissing
the application seeking compensation.
22. Thus, it can be safely concluded that the appellants failed to
establish identity of deceased Lakha as father of Rajesh and
husband of Kuwarbai. Prima facie, it appears that deceased Lakha
was not a bona fide passenger with valid ticket but was crossing
railway tracks during which he was hit by some unknown local
train resulting into his death.
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23. At this stage, Mr. Pandian, learned Counsel for the
respondent placed reliance on a judgment of the Hon'ble Supreme
Court in case Kamrunnissa Vs. Union of India, (2019) 12 Supreme
Court Cases 391 on the point of section 124-A of the Railways Act.
In the said judgment, the Hon'ble Supreme Court held that the
applicant had failed to prove that deceased was a bona fide
passenger who had purchased ticket and was in the process of
boarding train. However, evidence on record and the F.I.R reveal
that deceased was seen going from direction of Bangalore and
while crossing railway track, he failed to notice ongoing train and
was overrun by it. It is, therefore, held that there was no
justification in entertaining a challenge to the orders passed by
Railway Claim Tribunal as also by the High Court rejecting the
claim of compensation.
24. Somewhat similar are the facts in the case at hand. Here,
not only the appellants failed to establish that it was an untoward
incident but also could not establish identity of deceased Lakha as
head of their family. Evidence is quite short to construe that the
appellants were dependents of deceased Lakha.
25. At this stage, Mr. More has placed reliance on a judgment of
Delhi High Court in case of Moola Ram Vs. Union of India, 2014
ACJ 1975. In this case, it was observed by Delhi High Court that
minor discrepancies in the testimony of eye witness who travelled
in the same train with deceased cannot be discarded by adopting a
hyper technical approach. However, this ratio would not be of any
help to the appellants for the simple reason that apart from minor
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discrepancies the very fact that the appellants were dependents of
deceased Lakha has not been established and, therefore, ratio
would not be of any assistance to the appellants.
26. Consequently, I do not find any merit in the appeal. Hence, it
stands dismissed.
[PRITHVIRAJ K. CHAVAN, J.]
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