Smt. Rajeshwari Motilal Verma And ... vs Shri Surendra Bhagwandin ...
2022 Latest Caselaw 4371 Bom

               Rane                         1/7                   FA-566-2007
                                                                 26April,2022.

                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           CIVIL APPELLATE JURISDICTION

                             FIRST APPEAL NO. 566 OF 2007
                                      WITH
                             CIVIL APPLICATION NO. 1092 OF 2007

               Union of India                            ...Appellant

                      V/s.

               Mr. Shahit Hussain                        ...Respondent

                                         ----
               Mr. T.J. Pandian a/w. Mr. T.C. Subramanian a/w. Mr. Dheer
               Sampat, Advocate for the appellant.

               Mr. Ashif Hussain a/w. Ms. Deepika Oswal i/by. Mr. Hashim
               Husain, Advocate for the respondent.

                                 CORAM : SANDEEP K. SHINDE, J.

                                 RESERVED ORDER ON : 1ST APRIL, 2022.
                                 PRONOUNCED ORDER ON :- 26TH APRIL, 2022.




               JUDGMENT :

1. This appeal under Section 23 of the Railway

Tribunals Act, 1957 impugns the judgment and order dated

12th October, 2006 of Railway Claims Tribunal by which NEETA Tribunal, SHAILESH awarded compensation in the sum of SAWANT Digitally signed by NEETA SHAILESH SAWANT Date: 2022.04.26 17:08:48 +0530 Rane 2/7 FA-566-2007 26April,2022.

Rs.4,00,000/- to the applicant with interest at the rate of 6%

p.a. from the date of the order till realisation.

2. Briefy stated facts of the case are that, on 4 th

October, 2003 applicant boarded a local train at Sandhurst

Road Railway Station for going to his home at Kurla. After

sometime, due to rush in the train and push of fellow

passengers he fell down from the train on the platform of

Sandhurst Road Station. He was found in seriously injured

condition and was taken to St. George Hospital vide Station

Master's Memo. The Memo at Exhibit-A4 states, the

applicant was found in seriously injured condition on

platform-1 and was sent to St. George Hospital alongwith

Police Constable 3261. It appears, the statement of claimant

was recorded by Police which states that he fell down from

running local train due to crowd in the compartment. The

statement is at Exhibit-A of the paperbook. Besides,

discharge summary of St. George Hospital, states that

claimant was brought by the police and was admitted in

hospital with history of fall from running train.

Additionally,     applicant   deposed      and   described     the
 Rane                         3/7                  FA-566-2007
                                                 26April,2022.

circumstances in which he fell from the moving train. So

also, the claimant in support of his application, examined

Anish Ahmed as witness no.2. This witness deposed that, he

had purchased two tickets at Ghatkopar station one, for

himself and another for the claimant. In the claim

application, claimant has stated that he had kept the

railway ticket in his purse which has been lost in the

incident. In consideration of the evidence brought on

record, the Claim Tribunal held that, claimant was a

bonafide passenger in local train on 4 th October, 2013 and he

met towards an untoward incident and sustained injuries

and thus was entitled to receive the compensation.

3. Appeal challenges these findings, to contest that,

claimant was not a bonafide passenger and injuries

sustained by him, were not due to accidental falling from

running train, but due to dash of the train, as he might be

walking precariously on the edge of the platform due to his

sheer negligence. In support of this contention, the learned

Counsel for the appellant would rely on the statement of the

GRP constable, which states that, claimant had suffered Rane 4/7 FA-566-2007 26April,2022.

injury due to dash by train. Contesting, as to issue of

bonafide passenger, learned Counsel for the appellant, relied

on the statement of On-Duty GRP Constable-Vijay Patil,

which according to him, does not state or indicate, that the

railway ticket was found in the possession of the claimant

alongwith the other articles i.e. his wrist watch, one diary

and one broken spectacle. Moreover, appellants would rely

on claimant's statement recorded in the hospital (Exhibit-

A2), which does not state about loss of his ticket. It is

therefore contended that the applicant was neither the

bonafide passenger in the local train nor he met towards an

untoward incident and sustained injuries due to accidental

fall from the running train. Learned Counsel, would

therefore urge, that impugned Judgment and Award be

quashed and set aside.

4. Law is, mere absence of ticket with injured

claimant will not negative the claim that he was a "bonafide

passenger" and although initial burden is on the claimant,

and if the same is discharged by filing Affidavit of relevant

facts, burden will shift on Railways to prove that he was not

a "bonafide passenger" or that, he was a "ticketless Rane 5/7 FA-566-2007 26April,2022.

traveller", as held and laid down by the Apex Court, in the

case of Union of India V/s. Rina Devi, Civil Appeal

No.4945/2018. In the case in hand, claimant in his

application, had stated that, he had kept the railway ticket

in his purse which was lost in the incident. In support of his

assertion, claimant had examined Anish Ahmed who

deposed that, he had purchased two tickets at Ghatkopar

Station, one for himself and another for the applicant.

Therefore, claimant had discharged the initial burden,

whereafter it was shifted on the Railway. However, the

burden has not been discharged by the Railways. In that

view of the matter, the finding recorded by the Railway

Claim Tribunal that the claimant was the "bonafide

passenger, calls for no interference.

5. Next contest is that, the claimant had sustained

injury due to dash of the train, as he might be walking on

the edge of the platform due to his sheer negligence and as

such the injury sustained by him, would clearly fall within

the meaning of "self inficted injury" as contemplated in

Section 124A of the Railway Act. As to this contest, it may Rane 6/7 FA-566-2007 26April,2022.

be stated that, Railway did not lead evidence to prove

claimant's negligence before the Claim Tribunal. Rather,

statement of claimant to police, as well as the Station

Master's Memo at Exhibit-A4, states that, applicant was

found in seriously injured condition on platform no.1 of the

Sandhurst Road Station. I have no reason to disbelieve,

either of these. Infact, claimant's statement was recorded

by the Police, soonafter the accident, which states, he

sustained injury due to accidental fall from running train

due to push by the co-passenger. In contrast to this

assertion, Railway did not examine Motorman of the train

which gave dash to the claimant, while claimant was

allegedly walking on the edge of the platform. In that view

of the matter, contest of the appellant-Railway, that the

claimant had sustained "self-inficted injury" as

contemplated in proviso to Section 124A of the Railways

Act, is rejected. Moreso, settled law is that, "negligence",

will not disentitle grant of compensation under the Railway

Act. In the case of Rina Devi (supra), the Apex Court has

held, that the concept of "self-inficted injury" would require Rane 7/7 FA-566-2007 26April,2022.

intention to infict such injury and not mere negligence of

any particular degree. The 'intention' was absent here.

6. Thus, in consideration of the facts of the case and

for the reasons stated above, Appeal fails and it is dismissed

alongwith applications therein.

(SANDEEP K. SHINDE, J.)