Usha Wd/O Rajusingh Bais And ... vs Union Of India Through General ...
2021 Latest Caselaw 15742 Bom

 fa 192.19 judg.odt                                                                    1

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

                                FIRST APPEAL NO.192/2019


 1. Usha wd/o Rajusingh Bais,
    Aged 30 years, Occ.-Household,

 2. Anjali d/o Rajusingh Bais,
    Aged 11 years, Occ.-Student.

 3. Krishna s/o Rajusingh Bais,
    Aged 7 years, Occ.- Student.
 Hariram Nagar, Ward No.13, Pulgaon Camp,
 Pulgaon, Distt. Wardha.
 Appellant No.2 and 3 are minor through
 guardian appellant no.1.                                   ...APPELLANTS
                                                          O. Applicants on R.A.


                                        VERSUS

 Union of India,
 through General Manager,
 Central Railway, CST, Mumbai.                ...RESPONDENT/
                                             O. Respondent on RA
 _____________________________________________________________

                   Mr. V.A. Patait, Advocate for appellants.
             Mr. P.S. Khubalkar, Advocate for respondent.
 ______________________________________________________________

                               CORAM : PUSHPA V. GANEDIWALA, J.
                               Reserved on   : 08-10-2021.
                               Pronounced on : 15-11-2021.

  JUDGMENT

This is the claimants appeal, preferred under Section 23 of

the Railways Act, 1989 (for short 'Railways Act'), assailing the

judgment and order dated 08-06-2018 passed by the Member, Railway

Claims Tribunal, Nagpur Bench, Nagpur in Application No.54/OA(IIu)/

RCT/NGP/2016, whereby the claim of the appellants for compensation

came to be dismissed.

2. The facts in brief, leading to filing of the present appeal,

may be stated as under :-

The claimants/appellants are the wife and minor children

of the deceased Rajusingh Bais. It is the case of the

appellants/claimants before the Railway Claims Tribunal that on

28-10-2015 deceased boarded on one passenger train at Pulgaon

Railway Station, travelling from Pulgaon to Sewagram. While the

deceased was standing beside the door of compartment to get down

at Sewagram Railway Station, he accidentally fell down from the

running train due to the jerk of the train and thereby received serious

injuries and he succumbed to injuries on the spot as a result of

untoward incident. It is the further case of the claimants that the

deceased had to change the train at Sewagram Railway Station to

undertake journey to Pedapalli. The deceased was going to Pedapalli

for painting work. He had purchased a second class ordinary ticket

dated 28-10-2015 for travelling from Pulgaon to Pedapalli vide ticket

no.6110 for Rs. 65/-. The appellants/claimants claimed statutory

compensation as per the Rule.

3. The respondent-Railway Administration resisted the claim

of the appellants by filing written statement and in their specific

pleadings it is submitted that as per the STR, at the time of accident the

deceased was travelling by standing on the door of the compartment of

train and he fell down from the train due to his negligent act which is

dangerous and harmful act and therefore Railway Administration is

not liable to pay any compensation if the passenger dies due to self

inflicted injury.

4. The learned Member of the Tribunal, on the basis of

pleadings of the parties, framed necessary issues and recorded findings

as adduced by the parties.

5. Appellant no.1 wife of the deceased examined herself and

also brought on record relevant documents. The respondent-Railway

Administration examined Hemraj Gorakshnath Patil, Dy. S.M. Wardha.

6. Learned Tribunal on the basis of evidence on record and

the submissions on behalf of both the sides, dismissed the claim of the

appellants mainly on the ground that the claimants have failed to prove

that the deceased was the bona fide passenger and the death of the

deceased is due to an untoward incident. This judgment of the Tribunal

is challenged in the present appeal.

7. I have heard learned Advocate Mr. Patait for the appellants

and Mr. Khubalkar, learned Advocate for the respondent-Railway

Administration.

On the basis of submissions putforth on behalf of both the

sides and the material on record, the following point arises for

determination of this Court :-

"Whether the claimants could establish that deceased was a bona fide passenger on 28-10-2015 for journey from Pulgaon to Pedapalli and he died in an untoward incident?"

8. At the outset, it is not disputed that the deceased was

holding a valid journey ticket dated 28-10-2015 for passenger train

from Pulgaon to Pedapalli vide Ticket No.AB09216110. The said ticket

was recovered from the body of the deceased during inquest

panchanama. Therefore, there is no question that the deceased was

not a bona fide passenger (in General Category). It is also not disputed

that the death of the deceased is due to head injury (as per the post

mortem report Exhibit-A-6) and the dead body of the deceased was

found at Sewagram Railway Station between electric Pole Nos.760/10

and 760/8. Claimant-Usha Bais, the wife of the deceased, is admittedly

not the eye witness to the incident. Her testimony is only relevant on

the point that the deceased had left home for going to Pedapalli on

28-10-2015 for doing painting work. As stated earlier, train passenger

ticket for the journey from Pulgaon to Pedapalli was recovered from

the body of the deceased. The said ticket was verified by the Railway

Administration and found to be a valid ticket issued by the respondent-

Railway Administration (Verification Certificate Exhibit-A-2). Neither

the claimants nor the Railway Administration examined any eye

witness to the incident. Marg came to be registered at Marg

No.75/2015, under Section 174 of the Code of Criminal Procedure on

the information received from railway official (Police HC/647 GRP,

Wardha) informing that a dead body was lying near km.no.760/10

down home signal SEC Wardha Seargram upside. Thereafter,

proceedings for inquest panchanama and spot panchanama were

undertaken. As per the DRM report at page nos.A-21 to A-23 of the

record and proceedings of the Tribunal and on the basis of enquiry

performed by the respondent, the following inferences came to be

drawn :-

(a) As per inquest panchanama performed by GRP, Wardha, the deceased died due to fall from an unknown train.

(b) The deceased was travelling alone and during travelling he was standing or sitting at the door of the train and fell down from the running train. It was concluded that as the deceased because of his own negligent act fell down from the running train. The claimants are not entitled for any compensation.

9. Now the question is, whether the injuries sustained by the

deceased, being a bona fide passenger, is due to an 'untoward incident'

or self inflicted injuries?

10. 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.

It is the case of the claimants so also DRM enquiry report suggest that

the deceased while travelling fell down from the running train and

sustained injuries and died on the spot.

11. As per Section 124A of the 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.

12. 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.

13. The Hon'ble Apex Court in the case of Union of India vs

Prabhakaran Vijaya Kumar and others reported in 2008(5) ALL MR 917

has held that-

"Section 14-A of the Railways Act, 1989 casts strict liability on the Railway even the deceased died due to his own fault. Then also, Railway is liable to pay amount of compensation."

The Hon'ble Apex Court in the case of Jameela and others

vs Union of India reported in 2010 AIR (SC) 3705, has held that :

"When deceased died while alighting the train due to his own negligence, it is not a criminal act and, therefore Railway cannot deny its liability."

In the case of Union of India vs Rina Devi, reported in

2018 AIR (SC) 2362, the Hon'ble Apex Court has held that :

"Death or injury in course of boarding or de-boarding train will be "untoward incident". Victim will be entitled to compensation and will not fall under proviso to Section 124A merely on plea of negligence of victim as contributing factor."

In the case of Union of India vs Anuradha and another

reported in 2014 ACJ 856, this Court has held that :

"Even the deceased boarded in a wrong train having a valid journey ticket and died while alighting the train that does not mean that he was not a bona fide passenger and on that ground claim cannot be rejected."

14. In the instant case, the circumstances which have been

brought on record and the particulars referred in the DRM report

would indicate that the death of the deceased is due to his falling down

from the running train. Whether deceased was at fault or not is not

to be considered so long as the case of the deceased does not fall in any

of the exceptions to Section 124A.

15. As the deceased was holding a valid and bona fide ticket

for travelling from Pulgaon to Pedapalli and his death was an untoward

incident and was not covered by proviso to Section 124A of the

Railways Act, 1989, the appellants/claimants are entitled to receive

compensation in terms of law. The learned Member of the Tribunal has

erroneously recorded the finding that the deceased was not a bona fide

passenger and the claimants could not prove the death of the deceased

in an untoward incident. The learned Member of the Tribunal in the

absence of any substantive material on record and on the basis of

conjectures and surmises, has gone into the question that there was no

train from Pulgaon which has a stop at Sewagram in the evening hours

i.e. after 17.01 hours, the time at which the deceased had purchased

the journey ticket. The learned Member of the Tribunal ought not to

have gone into those questions and should have considered that the

death of the deceased was due to falling down from the train and he

was holding a valid journey ticket and therefore the contention of the

learned Counsel Mr. Khubalkar appearing on behalf of the respondent-

Railway Administration that the deceased died due to self inflicted

injuries, cannot be accepted. The learned Member of the Tribunal,

therefore, was not justified in rejecting the claim solely on the ground

that the claimant could not prove as to which train the deceased was

travelling. The appellants/claimants having discharged the initial

burden of proof that the deceased was the bona fide passenger and his

death was untoward incident. The respondent-Railway Administration

cannot be absolved their liability of paying compensation to the

dependents of the deceased.

16. For the reasons stated above, the impugned judgment

cannot be sustained. Hence, the following order :-

ORDER

(i) Appeal is allowed.

(ii) Impugned judgment dated 08-06-2018, is hereby quashed and set aside.

(iii) The respondent-Union of India is directed to pay to the appellants a sum of Rs. 8 lakh ( as per Union of India vs Rina Devi , reported in 2018 AIR SC) 2362 ).

(iv) The said amount shall be subject to deposit of deficit Court fee, if any.

(v) The said amount shall be deposited in the account of the claimants/appellants after verifying the identity within a period of three months.

17. Appeal stands disposed of.

JUDGE Deshmukh