Pratibha Wd/O Manoj Rangari And ... vs Union Of India, Thr. The General ...
2021 Latest Caselaw 12293 Bom

  25FA 696.2019.odt                             1



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

                         FIRST APPEAL NO. 696 OF 2019

  1. Pratibha wd/o Manoj Rangari,
     aged about 30 years, Occ. Household.

  2. Jigyanshu s/o Manoj Rangari,
     aged about 8 years, Occ. Student.

  3. Manthn d/o Manoj Rangari,
     aged about 3 years, Occ. Student.

       Applicant Nos. 2 and 3 are minor children
       Through applicant No.1, i.e., mother.

  4. Rekha w/o Haridas Rangari,
     aged about 56 years, Occ. Household,

       All are R/o Near Railway Cabin,
       Chandramani Nagar, J.N. Road, Kamptee,
       Tah. Kamptee, District Nagpur.
                                                            ...APPELLANTS
                    Versus

  Union of India,
  Through The General Manager,
  South East Central Railway, Bilaspur.
                                                          ...RESPONDENT

  Shri B.S. Mandhare, Advocate h/f Shri P.S. Mirache, Advocate for
  the appellants.
  Shri Anoopsingh Parihar, Advocate for the respondent.
                   .....

                                 CORAM : PUSHPA V. GANEDIWALA, J.

DATED : SEPTEMBER 01, 2021.

ORAL JUDGMENT :

Heard finally with the consent of learned counsel

appearing for the parties at the stage of admission itself.

2. This is the claimants' Appeal filed under Section 23

of the Railway Claims Tribunal Act, 1987 ("the Act") assailing

the judgment and award dated 17/08/2018 passed by the

Member (Technical), Railway Claims Tribunal, Nagpur in Case

No. OA(IIu)/NGP/188/2016, whereby the Tribunal has

rejected the claim of the claimants.

3. The facts, which are necessary to decide the present

Appeal, are as under :

i. Appellant No.1 is the wife, appellant Nos. 2 and 3

are the children and appellant No.4 is the mother of the

deceased Manoj. The appellants filed claim petition before the

Railway Claims Tribunal, Nagpur stating therein that on

26/03/2016, the deceased had purchased an ordinary railway

ticket bearing No. UXA-00198465 for performing journey from

Gondia to Nagpur for Rs.60/-. The deceased was travelling by

the train as a bonafide passenger, and when the said train

reached the Railway Station, Kamptee up main line near KM

No. 1115/31-32, the deceased fell down from the said running

train due to jerk and died on the spot in the said untoward

incident. The Police had filed the merg report for accidental

death. The appellants filed claim petition claiming

compensation of Rs.8,00,000/-.

ii. The respondent/ railway administration, in its

written statement, denied the contents in the claim petition

with regard to bonafide passenger and untoward incident,

thereby denying its liability to pay compensation. It is the

specific defence of the railway administration that no incident

of accidental fall from the running train was reported to the

Station Manager, Kamptee by any loco-pilot or guard of any

train passed through Kamptee Railway Station in between

16:00 to 24:00 hrs on the day of alleged incident. The railway

administration also denied the authenticity of the railway ticket

and claimed that the deceased was not the bonafide passenger.

The Tribunal framed the following issues :

"1. Whether the Applicants are the dependents of the deceased within the meaning of section 123(b) of the Railways Act?

2. Whether the death of the deceased had occurred as a result of an untoward incident as alleged in the claim application within the meaning of Section 124-A r/w 123 © of Railways Act?

3. Whether the deceased was a bonafide passenger of the train on the relevant day, with valid journey ticket?

4. To what order/relief?"

iii. The claimants examined claimant No.1, i.e., the

wife of the deceased Pratibha, and brought on record following

documents, in support of their claim :

• Railway ticket (Exh. A-1).

• Memo issued by Deputy Station Manager-II, Kamptee (Exh.A-

2).

• Merg report (Exh. A-3).

• First Information Report (Exh. A-4). • Spot panchanama (Exh. A-5).

• Inquest Panchanama (Exh. A-6). • Postmortem report (Exh. A-7). • Death certificate (Exh. A-8).

iv. The respondent/ railway administration examined

one Sharda Prasad Sahu, who was working as a Station Master,

Railway Station, Kamptee at the relevant time, and he has

placed on record original Station Master Diary, TSR and Memo

at Exh. R-1 to R-3.

v. The Tribunal, on the basis of appreciation of

material on record, rejected the claim of the appellants. The

Tribunal doubted the veracity of the deposition of the

claimants' witness Pratibha mainly on the ground that she was

not knowing as to in which train the deceased was travelling

and that the place of the incident is very near from her

residence, and therefore, it is doubtful about the genuineness

of the purchase of railway ticket. The Tribunal also raised

doubt on the falling of the passenger from the train considering

the injuries as mentioned in the postmortem report. The

Tribunal has observed that considering the extensive damage

and destruction to the entire body involving all vital organs

would result only when a person is hit by a speedy train, but

not in the case of mere fall from the train. The Tribunal also

observed that the appellants have failed to mention any reason

as to why the deceased had purchased the railway ticket from

Gondia to Nagpur when the deceased is the resident of

Kamptee. It is further observed that there was no reason for the

deceased to go to Gondia, which is almost 100 kilometers away

from Kamptee in search of a job rather than Nagpur, which is

only 20 kilometers from Kamptee. It is further observed that

the reason for journey ticket upto Nagpur also goes

unexplained as the journey was being performed in late night

hours and a person who is not working anywhere would not

look for job in night hours.

vi. With regard to factum of untoward incident, the

Tribunal observed that the deceased and the claimants are the

residents of Near Railway Cabin, Chandramani Nagar,

Kamptee, which is very near to the Kamptee Railway Station,

and the distance of spot of incidence is only 50 meters from the

residence as seen from the documents, sketch in DRM report

and as admitted by the claimants' witness Pratibha herself in

her cross-examination. In conclusion, the Tribunal hold that the

appellants have failed to prove that the deceased died on

account of untoward incident, and therefore, the railway

administration is not liable to pay any compensation. This

judgment is impugned in this Appeal.

4. I have heard Shri Mandhare, learned counsel for

the appellants, and Shri Parihar, learned counsel for the

respondent.

5. Shri Mandhare, learned counsel for the appellants,

pointed out various documents from the record, i.e., railway

ticket, merg report, spot panchanama, inquest panchanama,

ticket verification report, etc. and submits that the deceased, at

the relevant time, was travelling as a bonafide passenger in

train running from Gondia to Nagpur, and due to untoward

incident, he fell down from the running train and came under

the wheels of the train and died on the spot. That the

postmortem report shows the death due to head injury and

injuries to vital organs.

He further submits that the claimants' witness

Pratibha has proved the journey ticket, which was recovered

from the pant pocket of the deceased at the time of inquest

panchanama, and therefore, he was a bonafide passenger, and

that the impugned judgment of the Tribunal is based only on

its own assumptions and presumptions without considering the

factual position on record, and thus, the learned counsel urged

to set aside the impugned judgment and award and grant

compensation to the appellants.

6. Per contra, Shri Parihar, learned counsel for the

respondent/ railway administration, while supporting the

impugned judgment and award, submitted that considering the

multiple injuries sustained by the deceased, it is certainly a

case of running over by the train and not the case of falling

down from the running train, and thus, the learned counsel

urged to dismiss the Appeal.

7. I have considered the submissions put forth on

behalf of both the sides and perused the record. The following

points arose for consideration of this Court :

i. Did the claimants prove that the deceased Manoj was travelling as a bonafide passenger in train running from Gondia to Nagpur, died in an untoward incident ? ii. Whether the claimants are entitled for statutory compensation ?

8. At the outset, for claiming compensation under the

provisions of the Railways Act, 1989 ("Act of 1989"), the

appellants need to prove that the deceased, at the relevant

time, was a bonafide passenger, i.e., he was having a valid and

effective journey ticket, and that his death has occurred due to

untoward incident. The untoward incident is defined under

Section 123(c)(2) of the Act of 1989 which inter alia means

"the accidental falling of any passenger from a train carrying

passengers."

9. In the instant case, the journey ticket (Exh. A-1) is

recovered from the body of the deceased during inquest

panchanama by the Police during inquiry of the merg report

No. 12/2016 under Section 174 of the Code of Criminal

Procedure. The document at page A-47 is a ticket verification

report, issued from the Chief Booking Supervisor, Central

Railway, Gondia, whereby it is certified that the ticket No. UXA-

00198465 issued on 26/03/2016 purchased for Rs.60/-, which

was valid for three hours from the time it was issued, and

therefore, considering the overwhelming evidence on record

with respect to the journey ticket for performing journey from

Gondia to Nagpur, the doubt raised by the Tribunal about the

genuineness of the ticket is misplaced, and is contrary to the

material on record.

10. With regard to the untoward incident, as per the

definition of untoward incident, as stated above, it is necessary

to prove that the death of the deceased was due to falling

down from the train while travelling. In the instant case,

admittedly, the claimant No.1 Pratibha, who was examined, is

not an eye-witness to the incident. However, DRM enquiry

report, at page 26, indicates that during police panchanama,

the Police recovered journey ticket bearing No. UXA-00198465

of time 19:22 hrs, which was purchased from Gondia

reservation center for probably train No.18237 up from Gondia

to Nagpur. That the said report also indicates that at 23:20 hrs,

report with regard to detection of dead body at spot was

informed. The report further indicates that during inquiry, the

statement of the claimant No.1 Pratibha was recorded, wherein

she has stated that on 25/03/2016, the deceased Manoj was

supposed to take a journey to Gondia in search of a job, and

that she herself works as a Cleaner in Chodhary hospital. She

further stated that on 26/03/2016, the deceased was supposed

to come to Kamptee, however, in the report it is claimed that

there was no information or report about the untoward

incident occurred to train No. 18237 up or any other train at

Kamptee Railway Station, and therefore, they claimed that the

railway administration is not responsible for the death of the

deceased.

11. The sketch map, attached to the spot panchanama

at page A-48, would indicate the spot of the incident to be one

of the tracks of the railway. A perusal of all the police papers

would show that there is no eye-witness to the incident, and

the report of lying of dead body at track is reported to the

police. A perusal of the inquest panchanama would show that

after inspection of the dead body, the police and the panchas

reached the conclusion that the deceased had died due to fatal

injuries while the deceased fall down from the train and came

under the wheels of the train and died on the spot in the said

incident.

12. A perusal of the cross-examination of claimant No.1

Pratibha would reveal that she has denied all the suggestions

put to her, however, she has admitted that she was not the eye-

witness to the incident. She has also admitted that the place of

the incident is near to her residence. She has further stated that

the deceased was searching for a job and was not working. She

has denied that she has filed a false and bogus ticket on record.

She has denied that the deceased, while crossing railway track

under the influence of liquor, was dashed by some unknown

train and died.

13. The witness Sharda Prasad Sahu, examined on

behalf of the respondent/ railway administration, deposed that

on 26/03/2016, at about 23:20 hrs, Shri Manikchand - RPF,

informed him that one unknown person's dead body is lying at

KM No. 1115/32 up main line No.3 track, and accordingly, he

asked to the staff member to visit the said spot, and issued a

written memo. That neither the guard nor the loco-pilot or any

other person informed about the untoward incident and

accidental fall down from the train. In his cross-examination,

he has admitted that he did not visit the spot.

14. With regard to the untoward incident, as the

claimants could not examine any eye-witness, from the

minimal evidence which could be produced on behalf of the

claimants, i.e., the journey ticket, verification of ticket, spot

panchanama showing body of the deceased on the track and

the inquest panchanama, inference in favour of the claimants

has to be drawn.

15. Considering the overall position with regard to the

body of the deceased that he might have fallen down from the

running train, and in the absence of any concrete evidence on

part of the railway administration to prove its defence of

suicide or running over by train, I have to observe that the

claimants could prove that on 26/03/2016, the deceased

Manoj was a bonafide passenger of the aforesaid train and died

due to falling down from the running train and came under the

wheels of the trian. The observation of the Tribunal so also the

argument of Shri Parihar, learned counsel for the respondent,

that considering the multiple injuries on the body of the

deceased, it could have been a case of running over by the train

and not falling down from the train, is without any substance.

16. A perusal of the spot panchanama and the inquest

panchanama indicates the position and location of the body

which suggests that the body was run over by the train, and

that does mean that after falling down from the train by the

passenger, there is every possibility that some other train would

have run over from the person of the passenger. Section 124-A

of the Act of 1989 is a salutary provision for the welfare of the

passengers, who are travelling in the train and it has to be

interpreted and the evidence on record has to be appreciated

by keeping in mind the avowed object in bringing the aforesaid

provisions in the statute book.

17. In the instant case, I am satisfied that considering

the valid journey ticket, which was recovered from the pant

pocket of the deceased, so also considering the fact that he was

travelling from Gondia to Nagpur in train coming from Gondia

to Nagpur at the relevant time, coupled with the fact of

evidence of wife of the deceased stating that he had gone to

Gondia in search of a job and he was supposed to come to

Kamptee on 26/03/2013, in the opinion of this Court, in the

absence of any other rebuttal evidence from the side of railway

administration, the minimal evidence brought on record by the

claimants, has to be accepted. The Tribunal has reached the

conclusion mainly on the basis of its own conjectures and

surmises. The Tribunal has not considered the material on

record in its correct perspective. The Tribunal has not

considered the evidence of the claimant No.1 Pratibha, so also

not considered the verification issued by railway administration

about the authenticity of ticket issued by railway

administration. The Tribunal also failed to consider the inquest

panchanama in its proper perspective and wrongly concluded

that considering the multiple injuries, the deceased not fallen

from the train.

18. For the aforestated reasons, this Court is of the

opinion that the impugned judgment and award needs to be

set-aside. Hence, the following order :

ORDER

i. First Appeal is allowed.

ii. The judgment and award dated 17/08/2018 passed

by the Member (Technical), Railway Claims Tribunal, Nagpur

in Case No. OA(IIu)/NGP/188/2016 is quashed and set-aside.

iii. The respondent shall deposit compensation of

Rs.8,00,000/- with the Registry of this Court within a period of

twelve weeks from the date of communication of this order to

the concerned authority. After deposit of the same, the

appellant Nos.1 and 4 are permitted to withdraw their share,

i.e., Rs.2,00,000/- each.

iv. Share of appellant Nos.2 and 3, i.e., Rs.2,00,000/-

each shall be deposited in a fixed deposit until they attain the

age of majority in any nationalised bank, and they would be

entitled to withdraw the periodical interest accrued on such

deposit.

JUDGE ******

Sumit