Harish Chandra Damodar Gaikwad vs Union Of India
2022 Latest Caselaw 4968 Bom

Rane                             1/9                 FA-979-2009
                                                       24.5.2022

       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
              CIVIL APPELLATE JURISDICTION
                FIRST APPEAL NO. 979/2009

Shri. Harish Chandra Damodar
Gaikwad, aged 55yeard, Residing
at Motiram Park, Saraswati Apartment,
Room No.304, B- Cabin Road,
Ambernath, District-Thane.                    ) Appellant

       :VERSUS:

Union of India,
represented by General Manager,
Central Railway, Mumbai-C.S.T.                ) Respondent


                              ****

Mr. Mohd. Hasain, Advocate for the appellant.

Mr. T.J. Pandian a/w. Mr. Dheer Sampat, Advocate for the
      respondent.

             CORAM : SANDEEP K. SHINDE, J.

             JUDGMENT RESERVED ON : 6th May, 2022.

             JUDGMENT PRONOUNCED ON : 24th May, 2022.


JUDGMENT :

1. Appellant's application under Section 16 of the

Railway Claims Tribunal Act, 1987 claiming compensation for

injuries sustained due to accidental fall from, the train

carrying passengers, was rejected by Railways Claims

Tribunal, vide judgment and order dated 17 th March, 2009.

Thus, this Appeal under Section 23 of the Railway Claims

Tribunal Act, 1987.

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2. Appellant would claim, that, he fell down from a

local train, on 25th January, 2004 at around 17.00 hrs at Dadar

Railway Station due to heavy rush of passenger in the

compartment. As a result, he sustained serious injuries, to

spine and pelvis and had undergone six surgeries, at LTMG

Hospital, Mumbai. While travelling, he was carrying with him

a valid season ticket, bearing no.62490200, with journey

extension tickets, Mulund to CSMT and CSMT to Mulund.

Appellant would therefore claim, he was "bonafde passenger"

In support of the claim, he had produced on record, season

ticket (Pass), journey extension tickets, discharge card of

LTMG hospital, report of A.R. Shaikh, Railway Police Constable

446. That being so, he claimed compensation in the sum of

Rs.4,00,000/-. The claim was opposed by the respondents-

Railway, contending that, appellant had sustained injuries due

to his own act and negligence, and therefore claim was not

admissible, in absence of "untoward incident" within the

meaning of Section 123(c) of the Act of 1989. Respondents,

relied on the evidence of Mr. Jagtap, Deputy Station Manager,

Dadar Railway Station and Station Masters' Memo at Exhibit-

R1, to contend that, appellant was knocked down by BL-25 dn

(Badlapur train) at Kilometer 8/25 near platform no.4 at

Dadar, while tresspassing the front edge of the platform which

itself was an offence punishable under Section 147 of the Rane 3/9 FA-979-2009 24.5.2022

Railways Act. Next ground taken up and urged while denying

the claim, was that, appellant was not "bonafde passenger".

3. The Tribunal, upon appreciating the evidence held

that, appellant was not the, "bonafde passenger", reason being,

although he was carrying and possessing the valid 'Pass'

(season ticket) and journey extension tickets, for want of

identity card, season ticket could not have been held valid and

therefore applicant was a passenger travelling without ticket.

The next fnding recorded by the Tribunal is that, a Station

Master's memo dated 25th January, 2004 (Exhibit-R1) in no

uncertain terms, reveals that, appellant was knocked down by

BL-25 dn train, near platform no.4 of Dadar Railway Station

and therefore report of A.R. Shaikh, Constable stating,

appellant fell from the train, required no consideration and

accordingly kept it out of consideration. Consequently,

Tribunal concluded that, applicant was travelling without

proper pass and in absence of "untoward incident" the claim

was not admissible, and thus rejected the claim by judgment

and order dated 17th March, 2009. Hence, this Appeal.

4. Heard learned counsel for the parties. Perused the

records and proceedings.

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5. Expression "passenger" as defned under Section

2(28) of Act of 1989 means, "a person travelling with a valid

pass or ticket. Expression "ticket" is not defned under the Act.

However, term "pass" defned under Section 2(28) does not

include ticket. Thus, to be understood, ticket includes "season

ticket", which is popularly known as "Pass". Herein, appellant

was travelling in the passenger train with valid and proper

season ticket no.6249200 with journey extension tickets and

this fact was not in dispute. Inspite of it, Tribunal held,

appellant was travelling "without ticket" and thus concluded,

applicant was not a "bonafde passenger". Question is, whether,

for want of identity card, season ticket, carried and possessed

by applicant-passenger, was invalid, and as such, was not

"Bonafde Passenger"? In the context of these facts,

respondents relied on instructions issued by the Ministry of

Railways. Instructions stipulate that;

"It is necessary for the passenger to produce the identity card

alongwith the season ticket, otherwise the season ticket will be

invalid and passenger will be treated without ticket. It is necessary

that, particulars of the passenger are properly and correctly

entered on the Identity Card and the photograph frmly pasted

thereon. The booking clerk will put a station stamp in such a way

that half of the stamp appears on the photograph and remaining

part appears on the Identity Card."

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Although, instructions stipulate, season ticket would be invalid

for want of Identity Card, in my view, for more than one

reason, non-production of the Identity Card alongwith the

season ticket by a passenger, who had sustained injury due to

accidental fall, itself would not render valid season ticket,

invalid. First reason is that, applicant was travelling with

valid and proper season ticket. Therefore, he was "Passenger"

within the meaning of Section 2(29) of the Act. Second

reason is, instructions relied on by the Railways, cannot be

said to be 'mandatory' and therefore would not render, proper

season ticket, automatically invalid for non-production of

identity card. Furthermore, in terms of provisions of Section

54 of the Act of 1989, every passenger shall, on demand by,

any railway servant present his "pass" or "ticket" to such

railway servant for examination during the journey.

Therefore, passenger producing proper season ticket without,

identify card, ipso-facto, would not render season ticket,

improper and/or invalid, unless, it is proved that passenger

was using season ticket, that was issued in the name of another

person. Although, Section 53 of the Act, prohibits transfer of

'certain tickets' however, it is not respondent's case that,

season ticket produced by the applicant was issued in the name

of another person. Even otherwise, in this case, the appellant

had discharged the initial burden by fling an Affdavit of Rane 6/9 FA-979-2009 24.5.2022

relevant facts. Whereafter, burden was shifted on the Railways

to prove that, he was not a "bonafde passenger". Herein,

appellant had produced the valid season ticket bearing his

signature and also journey extension tickets, which bore

season ticket no.62490200. The signature of the appellant on

season ticket, was not disputed by the Railways. Moreover,

season ticket and the journey extension tickets, were

recovered, from the appellant while removing him at Hospital.

In the circumstances, non-production of Identity Card

alongwith season ticket, itself would not render proper season

ticket, invalid. Besides, in the case of Union of India Versus.

Rina Devi, the Apex Court has held that, mere presence of body

on railway premises will not be conclusive to hold that, injured

or deceased was a "bonafde passenger" for which claim for

compensation could be maintained. However, mere absence of

ticket with such injured or a deceased, will not negative the

claim that he was a "bonafde passenger". Initial burden would

be on the claimant which can be discharged by fling an

Affdavit of the relevant facts and burden will then shift on the

Railways and the issue can be decided on the facts shown by

the attending circumstances. Herein, the appellant has

discharged the initial burden by fing Affdavit alongwith the

relevant documents i.e. valid season ticket, journey extension

tickets and report of Constable. However, his evidence has not Rane 7/9 FA-979-2009 24.5.2022

been rebutted by the respondents-Railways and therefore the

fnding recorded by the Tribunal that, he was not a "bonafde

passenger" being contrary to evidence, is hereby quashed and

set aside. Thus, I hold that, appellant was a "bonafde

passenger".

6. The next question that falls for the consideration is,

whether appellant had sustained injuries in "untoward

incident" within the meaning of Section 123C(2) of the

Railways Act, 1989. Appellant, in support of his claim, had

relied on the report of Constable, A.R. Shaikh. The report is at

Exhibit-A2. It reveals therefrom that, Mr. Jagtap, Deputy

Station Manager had issued a station memo, calling upon Mr.

Shaikh to remove the appellant-injured at the hospital. The

evidence of the appellant and report of Constable, Shaikh was

discarded by the tribunal on the ground that, report of Shaikh

was contrary to Station Master's Memo. The memo, according

to Tribunal reveals fact, that appellant was knocked down by

BL-25 dn train near platform no.4. In context of these facts, I

have perused the evidence of Mr. Jagtap, Deputy Station

Master, Dadar Railway Station. His evidence reveals that, on

25th January, 2004, one unknown passenger, without

disclosing his identify informed him that, a person aged about

52 years was knocked down by Badlapur train kilometer 8/25 Rane 8/9 FA-979-2009 24.5.2022

near platform no.4. In cross-examination, Mr. Jagtap admitted

that, personally he did not see the accident. Moreso,

motorman of BL-25 dn train, had not given memo to the

Station Master, nor he was examined, by the respondents.

Thus, it is to be held that, evidence of Mr. Jagtap, Deputy

Station Manager was hear-say. In view of these facts and

evidence on record, the fnding recorded by the Tribunal, that

appellant had not sustained injuries in "untoward incident",

but suffered "self-inficted injuries", is erroneous and therefore

quashed and set aside. Even otherwise, in the case of Union of

India Versus. Rina Devi, the Apex Court has clarifed that,

concept of "self inficted injuries" would require intention to

refect such injury and not mere negligence of any particular

degree. For all these reasons, the impugned order is quashed

and set aside.

7. Appellant had moved an application under Section

16 of the Railway Claims Tribunal Act, 1987 claiming

compensation, under the Railway Accidents and Untoward

Incidents (Compensation) Rules, 1990. It was an injury claim.

The compensation sought was in respect of the injuries

sustained by the appellant in an "untoward incident". As such,

the Railway Claim Tribunal, shall proceed to grant

compensation to the appellants in terms of Rule 3 of the Rules, Rane 9/9 FA-979-2009 24.5.2022

1990, after verifying the medical evidence produced by the

appellant in support of his claim, preferably before 31 st July,

2022, and in accordance with law, laid down by the Apex

Court, in the case of Union of India v/s. Rina Devi.

8. The Registry shall transmit, records and

proceedings in Original Application No. 675/2005 to the

Railway Claims Tribunal, Bench, Mumbai within two weeks

from the date of uploading the judgment on the website.

9. The appellant shall appear before the Railway

Claims Tribunal Bench, Mumbai on 10th June, 2022.

10. Appeal is partly allowed and disposed of. NEETA SHAILESH SAWANT Digitally signed by (SANDEEP K. SHINDE, J.) NEETA SHAILESH SAWANT Date: 2022.05.25 12:20:39 +0530