Bombay High Court

Smt. Sunitabai Wd/O Rambhau Chaudhari ... vs Union Of India Through Its General ... on 11 December, 2023

2023:BHC-NAG:17057




                                               1                       fa1015.2019

                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           NAGPUR BENCH : NAGPUR

                                FIRST APPEAL NO.1015/2019

            1.   Smt. Sunitabai Wd/o Rambhau Chaudhari,
                 aged about 43 Yrs., Occ. Housewife
                 (widow of deceased)

            2.   Shri Amol S/o Rambhau Chaudhari,
                 aged about 24 Yrs., Occ. Education
                 (Son of deceased)

            3.   Shri Dipesh S/o Rambhau Chaudhari,
                 aged about 22 Yrs., Occ. Education.
                 (So of deceased)

                 All R/o Bahirpura Pachora,
                 Tah. Pachora, Dist. Jalgaon (Mah)          ...    Appellants
                                                     (Original Claimants on R.A.)


                  - Versus -
            Union of India,
            through its General Manager,
            Central Railway, Mumbai CST.                    ... Respondent
                                                   (Original Respondent on R.A.)




                        -----------------
            Mr. Ravindra G. Bagul, Counsel for the Appellants.
            Ms. Neerja G. Chaubey, Counsel for the Respondent.
                       ----------------
                                    2                      fa1015.2019

CORAM: MRS. VRUSHALI V. JOSHI, J.
DATE OF RESERVING THE JUDGMENT : 7.11.2023
DATE OF PRONOUNCING THE JUDGMENT : 11.12.2023




JUDGMENT

Heard.

2. This appeal arises out of the judgment dated 4.6.2018

passed by the Railway Claims Tribunal, Nagpur. Brief facts of the

case are as under:-

3. The deceased was travelling by the Nagpur Dadar

Sevagaram Express from Pachora to Nashik on 3rd December 2014.

He has boarded the general compartment of Nagpur Dadar

Sewagram Express in presence of his son Amol. It is the case of

appellants that when train started to run the deceased fell down from

the said running train at KM No.372/03-04 at Pachora Railway

Station and died on the spot. The ticket was not found during the

inquest panchanama. The respondent Railway has opposed the 3 fa1015.2019

application stating that the incident causing death of deceased within

the meaning of provisions of Section 123(c) read with Section 124A

of the Railways Act has not taken place and as such the claim

application is not maintainable and the deceased was not a bona fide

passenger of the train.

4. The Member of the Tribunal after considering the

arguments and the documents on record has rejected the claim

stating that in the spot panchanama or in the inquest panchanama

ticket was not found from the body of deceased. There is no eye

witness to the accident. The claimants have not shown as to whether

the deceased had boarded the train while in possession of valid ticket.

There is no evidence on record to remotely suggest that the death of

Rambhau Chaudhary was due to fall from train to bring the case

within the meaning of "untoward incident" as defined in Section

123(c)(2) of the Railways Act, 1989. It is the duty of the claimants

to prove that the death was due to "untoward incident" and cannot

ipso facto prove that the said person fell down from the train. The 4 fa1015.2019

claimants have not been able to prove that the deceased had fell

down from any train carrying the passengers and, therefore, has

rejected the application by observing that the deceased was not a

bona fide passenger and was not involved in an "untoward incident"

as defined in Section 123(c)(2) of the Railways Act and rejected the

application.

5. Heard both sides and perused the record.

6. The applicants are the dependents of deceased. It is the

case of the claimants that on 3.12.2014 the deceased was travelling by

Nagpur Dadar Sewagram Express from Pachora to Nashik with a

valid journey ticket which was purchased by the deceased in front of

his son Amol who is the applicant No.2. The incident was reported

by Loco Pilot of Train No.12168 Up that the body of one person is

lying on KM 372/03-04 near Repeater. During the period of

inquest personal search of the deceased was conducted by police

officials. It is not in dispute that no journey ticket nor any belonging 5 fa1015.2019

were recovered from the body of the deceased. There is also no

evidence to suggest that any ticket was purchased by or for the

deceased to travel from Pachora to Nashik by any train. It is the case

of the claimants that the deceased was travelling by Nagpur Dadar

Sewagram Express but it was not informed by the driver of said

express there was no chain pulling and passengers and the driver of

the said train were not aware about falling down of the passenger

from their train. The Loco Pilot of Train No.12168 Up has informed

about it. He saw the body lying there. There is neither any eye

witness; nor any other witness to the accident that may have lead to

the death of deceased. It is settled law that onus to prove an

untoward incident is on claimants. It is only when initial burden is

discharged, that burden shifts on the Railways. Thicket was not

found though it is claimed that he has purchased it. Therefore, it is

not proved that the deceased was travelling by the said Nagpur

Dadar Sewagram Express.

7. The son of the deceased i.e. claimant No.2 has given the

statement that his father has purchased the ticket in his presence and 6 fa1015.2019

he was with him when he has boarded the said train. Said witness is

not examined by the claimants / appellants.

8. The body was lying on the track. It is also not disputed

that there is hardly any evidence to demonstrate that deceased

travelled by any train or deceased died due to any fall accidently from

a train. The appellants have examined the applicant No.1 as A.W. 1

the wife of deceased. She has narrated about the death of her

husband due to railway accident and how she came to know about it

and how her son has given the statement but she was not eye witness

of the incident or was not travelling with the deceased. The son who

has given the statement that in his presence the deceased boarded the

train, has not entered the witness box. The witness has stated that

the deceased was running Betel Kiosk (Pan-shop) which is one

kilometre away from the spot of incident. As it is not proved that

the deceased was travelling by said train and was bona fide passenger

of said train it does not fall under "untoward incident" though he

died due to dash and cutting by the railway, there is no presumption

of an "untoward incident" under Section 123(2)(c) read with Section 7 fa1015.2019

124A of the Railways Act, the initial burden of proving an "untoward

incident" always being on the claimants.

9. The appellants have relied on the judgment in the case of

Kamukayi and others V/s. Union of India and others reported in

2023 SCC Online SC 692 in support of their case that in absence of

any cogent evidence that the deceased was travelling without ticket,

the Railway Administration shall be liable to pay compensation as

prescribed. But in said case the person in whose presence he has

purchased the ticket is examined and it was confirmed that the

deceased fell down from the said train. Here in case in hand, it is not

confirm whether deceased fell down from the train while travelling

or whether the train dashed him and the accident took place.

Coming to the decision in the case of Union of India Vs. Rina Devi

reported in AIR 2018 SC 2362, wherein it is held as under :

"16.6 We are unable to uphold the above view as the concept of 'self inflicted injury' would require intention to inflict such injury and not mere negligence of any particular degree. Doing so would amount to invoking the principle of contributory negligence which cannot be done in the case of liability based on 'no fault theory'. We may in this connection refer to judgment of this Court in United India 8 fa1015.2019

Insurance Co. Ltd. versus Sunil Kumar (AIR 2017 SC 5710) laying down that plea of negligence of the victim cannot be allowed in claim based on 'no fault theory' under Section 163A of the Motor Vehicles Act, 1988. Accordingly, we hold that death or injury in the course of boarding or de- boarding a train will be an 'untoward incident' entitling a victim to the compensation and will not fall under the proviso to Section 124A merely on the plea of negligence of the victim as a contributing factor."

10. It is not the case of applicants that deceased died in the

course of boarding or de-boarding. On the contrary, it is proved

from the evidence of A.W.1 that he was running the Pan Shop which

is 1 km. away from the spot of the incident. Therefore, in absence of

any evidence of travelling in a train and falling down from running

train, it is most probable that the deceased met with an accident

while crossing the track.

11. It is regular practice, who live close to the railway track or

run the business, they used to cross railway tracks frequently during

the course of their daily affairs, that can not saddle the Railway

Administration with a liability of compensation in the event of

person gets hit or run over by train while doing so.