Mr.Balu Motiram Dongare And Ors vs Union Of India Through General ...
2022 Latest Caselaw 8100 Bom

P.H. Jayani                                     16 FA698.2018.doc

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CIVIL APPELLATE JURISDICTION

                     FIRST APPEAL NO. 698 OF 2018

Mr. Balu Motiram Dongare and ors.                     .... Appellants
           v/s.
Union of India                                        .... Respondent

Mr. Vasant More for the Appellants.
Mr. T.J. Pandian for the Respondent.

                         CORAM: SMT. ANUJA PRABHUDESSAI, J.

DATED : 20th AUGUST, 2022.

P. C. :-

. This is an Appeal under section 23 of the Railway Claims Tribunal

Act, 1987 assailing the judgment dated 30/11/2017 whereby the

Railway Claims Tribunal has dismissed the Application filed by the

Appellants for compensation under section 124 of the Railways Act,

1989.

2. The Appellants who are the children of the deceased - Motiram

Dongre (hereinafter referred to as 'the claimants') had filed an

Application for compensation under section 124A of the Railways Act,

1989. It was the case of the Claimants that on 22/01/2012, their

father Motiram Dongre had boarded Hussain Sagar Express (Train

no.12701) at CST station to proceed to Solapur. The Claimants had

P.H. Jayani 16 FA698.2018.doc

alleged that the deceased had travelled in second class compartment

under a valid ticket. It was alleged that the deceased fell down from

the train at Kurduwadi station. He sustained injuries and was taken to

the hospital and upon examination, the Doctor declared him dead. The

claimants sought statutory compensation under section 124 of the

Railways Act contending that the deceased was a bonafide passenger

and that his death was caused in an untoward incident.

3. Respondent denied that the deceased was bonafide passenger

and that his death was caused in an untoward incident. The

Respondent claimed that the deceased had come under Train No.12701

Down Express while he was crossing the track at Kurduwadi.

4. The Tribunal, upon considering the evidence adduced by the

claimants held that the deceased was not holding a valid train ticket

and was not a bonafide passenger. The Tribunal relied upon the DRM's

Report and held that the deceased had come under the train while

crossing the track. The Tribunal therefore concluded that the death of

the deceased was not caused in an untoward incident and hence,

dismissed the Application. Being aggrieved by this judgment, the

Claimants have filed this Appeal.

P.H. Jayani 16 FA698.2018.doc

5. Mr. Vasant More, learned counsel for the claimants submits that

the statement of AW1 - Sanjay Dongare that the deceased had boarded

the Train No.12701 at CST to go to Solapur has not been denied. He

further submits that the inquest panchanama also records that the

deceased had fallen from the running train. Learned counsel for the

claimants submits that the claimants have discharged the burden by

filing the affidavit of AW1 and that the Respondents have not rebutted

the said evidence. He therefore contends that the Claims Tribunal has

grossly erred in holding that the deceased was not a bonafide

passenger and/or that his death was not caused in an untoward

incident. He has relied upon the decision of the Apex Court in Union

of India v/s. Rina Devi (2019) 3 SCC 572 and the decision of the

learned Single Judge of this Court in Balram Sudakaji Sakpal and

another v/s. Union of India 2021 (6) Mh.L.J. 374.

6. Per contra, Mr. T.J. Pandian, learned counsel for the Respondent

submits that AW1 had not witnessed the accident and that his evidence

does not support the case of the Claimants. He submits that the

inquest panchanama indicates that no train ticket was found on the

person of the deceased. Learned counsel for the Respondent further

submits that the DRM's Report clearly indicates that the deceased had

P.H. Jayani 16 FA698.2018.doc

expired while trying to cross the railway track. He also submits that

the body of the deceased was found at Kurduwadi which falsifies the

contention of the claimants that he was traveling to Solapur. He

submits that the claimants have failed to prove that the deceased was a

bonafide passenger and that the death was caused in an untoward

incident and hence, they are not entitled for compensation under

section 124 of the Railways Act.

7. I have perused the records and considered the submissions

advanced by the learned counsel for the respective parties.

8. It is not in dispute that the body of the deceased was found lying

along the railway track at Kurduwadi. He had sustained injuries and

he was taken to the hospital and was declared dead. The question

which falls for consideration is whether the deceased was a bonafide

passenger in Train No.12701 and whether his death was caused in an

untoward incident.

9. At the outset, it may be mentioned that the Hon'ble Supreme

Court in Rina Devi (supra) has held that mere presence of a body on

the Railway premises will not be conclusive to hold that injured or

P.H. Jayani 16 FA698.2018.doc

deceased was a bonafide passenger for which claim for compensation

could be maintainable. The Hon'ble Supreme Court has further held

that mere absence of ticket with such injured or deceased will not

negative the claim that he was a bonafide passenger. Initial burden will

be on the claimant which can be discharged by filing an affidavit of the

relevant facts and burden will then shift on the Railways and the issue

can be decided on the basis of facts found or the attending

circumstances.

10. In the instant case, the Claimant No.2 - Sanjay Dongare has filed

his affidavit in evidence. He had asserted that on 22/01/2012, his

father, the deceased - Motiram Dongare boarded the Train No.12701 at

CST station to go to Solapur. He has deposed that his father was

holding a valid train ticket. Though this witness was cross-examined,

his statement that the deceased was traveling from CST to Solapur by

Train No.12701 and that he was holding a valid train ticket has gone

unchallenged. The Claimants having discharged the initial burden, the

onus was on the Respondent to controvert the said evidence. In the

absence of rebuttal evidence, there is no reason to disbelieve the

statement of this witness that the deceased was a bonafide passenger.

P.H. Jayani 16 FA698.2018.doc

11. It is pertinent to note that the body of the deceased - Motiram

Dongre was found along the railway track at about 04:15 a.m. at

Kurduwadi, which is a station between Dhond and Solapur. The

deceased was not a resident of Kurduwadi and there was no reason for

him to be at Kurduwadi station at such unearthly hours. It is also

relevant to note that as per the Railway Train Time Schedule, Train

No.12701 by which the deceased was purportedly traveling, reaches

Kurduwadi, at 04:15 a.m. These circumstances support the contention

of AW1 that the deceased was traveling from CST to Solapur by Train

No.12701.

12. The deceased - Motiram Dongre was to travel to Solapur and

there was no reason for him to deboard the train at Kurduwadi. The

fact that his body was found by the side of the railway tracks at

Kurduwadi, where he could not have been unless traveling by a train,

also leads to an inference that he had fallen from the train and falsifies

the defence that the deceased was hit by a train while he was trying to

cross the railway track at Kurduwadi.

13. Under the circumstances, the evidence on record proves that the

deceased was a bonafide passenger and that his death was caused in an

untoward incident. Hence, the Claims Tribunal was not justified in

P.H. Jayani 16 FA698.2018.doc

rejecting the Claim Petition. The impugned order cannot be sustained.

Hence, the following order :-

(a) The Appeal is allowed.

(b) The impugned judgment and award dated

30/11/2017 passed by the Railway Claims Tribunal,

Mumbai is quashed and set-aside.

(c) It is held that the Appellants/Claimants are entitled

for compensation of Rs.8,00,000/- to be paid to the

Claimant Nos.1 and 2 in equal proportion.

(d) The Claimants to give the details of their individual

bank accounts to the Respondent - Railway Administration

within a period of two weeks.

(e) The Respondent to deposit the amount in the bank

account of the Claimants within a period of eight weeks

thereafter.

14. The Appeal stands disposed of in above terms. PREETI H JAYANI Digitally signed by (SMT. ANUJA PRABHUDESSAI, J.) PREETI H JAYANI Date: 2022.08.23 16:53:36 +0530