Bombay High Court
Gautam S/O Prabhakar Bagade vs The Union Of India General Manager, ... on 12 December, 2023
2023:BHC-NAG:17099
1/9 FA.497.23-J.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
FIRST APPEAL NO. 497/2023
Gautam S/o. Prabhakar Bagade,
Aged about 32 years, Occ.: Nil,
R/o. Gangaram Plot, Tal-Bhusaval,
Dist. - Jalgaon (M.S.) 425201. ---APPELLANT
(Original Applicant on RA)
--VERSUS--
The Union of India,
General Manager Central Railway,
CSMT Mumbai. ----RESPONDENT
(Original Respondent on RA)
Ms. Sumesha Chaudhari and Mr. Mahendra Chaudhari, Advocate for Appellant.
Ms. Neerja G. Chaubey, Advocate for Respondent.
CORAM : MRS.VRUSHALI V. JOSHI, J.
RESERVED ON : OCTOBER 26th, 2023
PRONOUNCED ON : DECEMBER 12th, 2023
JUDGMENT
1. Heard.
2. ADMIT.
3. Being aggrieved by the judgment passed by the Railway
Claims Tribunal rejecting the injury claim of the appellant, the appellant
has preferred this appeal. Brief facts of the case are as under :
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4. The appellant/injured was travelling from Nasik Road to
Bhusawal by Mangala Express. He was doing labour work at Nasik. At
that time, he was staying with his sister. He went to Bhusawal to meet his
family. Accordingly, his brother-in-law dropped him at Nasik Road
Railway Station. While travelling in the general compartment of the train,
the injured fell down at KM No.444/23 at Bhusawal Railway Station, got
severely injured and his left leg got cut off and separated from below
knee. The traveling ticket of the injured is misplaced in the said untoward
incident and not recovered in the panchanama. The Railway has resisted
the claim stating that it is not untoward incident and injured has involved
self inflicted injury by crossing the track and dashed by some train, due to
which he got injured and the injured was not a bona fide passenger of the
train.
5. The learned Counsel for the appellant has stated that the
Tribunal without considering the oral evidence and the documentary
evidence on record, wrongly rejected the claim of the appellant. The
Tribunal while rejecting the claim of the appellant has observed that the
evidence in the case and probabilities as discussed clearly established that
the applicant could not have fallen down at KM No.444/23, which is
beyond Bhusawal Railway Station as contended by the applicant that he
fell down while the train was about to reach Bhusawal Station. The story
of the witness No.2 buying the ticket for the applicant is an afterthought
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just to mislead the Tribunal and grab the compensation somehow. Had
the applicant been in possession of the valid journey ticket, which he kept
in his pocket safely, the same would have been found in his possession.
Factually, nothing has been found with the applicant. The applicant has
neither been able to prove the bona fide of himself nor the untoward
incident of accidental fall from the alleged train while traveling. Instead,
the respondents have proved that the spot of incident is totally different
from what has been alleged by the applicant and rejected the application.
6. Heard both the learned Counsel.
7. The appellant is the injured. He fell down from the train
while travelling from Nasik to Bhusawal. The Tribunal while considering
the claim has observed that the occurrence of untoward incident at
Bhusawal Railway Station on 05.08.2016 at 21.10. hours. The
information received from Shri Majid Khan, RPF Controller that one
unknown person was lying at KM No.444/23 with his leg amputated. The
driver of Mangala Express has deposed that the train departed from
Igatpuri Railway Station at 16.15 hours and arrived at Nasik Railway
Station at 16.58 hours. His train departed from Nasik Railway Station at
17.03 hours and arrived Bhusawal Railway Station at 20.30 hours and due
to technical reasons his train stopped many time in between KM
No.441/11 to 442/05. The place of incident is about 100 meters beyond
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Bhusawal Railway Station towards Nagpur end. If the applicant boarded
on the rear side of the train and if he fell down from the train before
reaching Bhusawal Station then it is not possible for him to fall at KM
No.444/23 which is beyond Bhusawal Railway Station.
8. It appears that the Tribunal has confused while giving the
observation about the place of incident. The place of incident is toward
Nagpur. The train came from Nasik to Bhusawal and the statement given
by the appellant is that he fell down before the train reached to Bhusawal
Railway Station. He was going towards Bhusawal from Nagpur side.
Therefore, as he was on the last compartment, he fell down and,
thereafter, the train moved from Bhusawal Railway Station, the RPF
person found him in injured condition. The story narrated by the
appellant is correct and the place of incident does not create any doubt
about falling down from the train.
9. The statement of the injured is recorded on next day and he
has narrated the same story that he boarded the Mangala Express from
Nasik. His brother in law has purchased the ticket for him and he kept it
in his bag. The ticket was not found in his physical search but in the
hospital, he has given further statement that he kept it in his bag and that
bag was gone with the train and it was not found thereafter. The
appellant has examined the brother-in-law and he has given evidence on
5/9 FA.497.23-J.odt
affidavit that he has purchased the ticket for him and it was handed over
to him and, thereafter he went from there. The untoward incident
occurred immediately passing of said train from Busawal Station. The
appellant himself has given the evidence and the person who has
purchased the ticket is also examined by the appellant to prove that he
was travelling in said train as a passenger.
10. While rejecting the claim, the Tribunal has observed that the
house of the appellant was near the railway track and, therefore, he used
to cross the railway track and, therefore, run over by some moving train.
From the statement of the appellant, it appears that he has stated that his
house is 10 kilometers away from the spot of incident. Therefore,
frequently coming from 10 kilometers and crossing the railway track is not
possible and therefore, the story mentioned by the Tribunal about crossing
the railway track frequently as the house was near, is not probable. The
respondent has examined the RPF person and the driver of the Mangala
Express. Nobody has witnessed the incident and therefore, the Tribunal
has come to the conclusion that it was not untoward incident and he was
not travelling in said train and therefore, the claim is rejected.
11. Considering the statement of the appellant, which was
recorded immediately after the accident clearly indicates that the
claimant/applicant was a bona fide passenger and that it was a case of
6/9 FA.497.23-J.odt
untoward incident. The appellant relied on the judgment of the Hon'ble
Apex Court in the case of Union of India Vs. Prabhakaran Vijaya Kumar &
Ors. [Appeal (civil) 6898 of 2002] wherein in paragraph No.16 it has
observed as under :
"The accident did not occur because of any of the reasons
mentioned in clauses (a) to (e) of the proviso to Section
124A. Hence, in our opinion, the present case is clearly
covered by the main body of Section 124A of the Railways
Act, and not its proviso."
12. In the judgment of Hon'ble Karnataka High Court in the case
of Mahaboob Sab and Another Vs. Union of India reported in 2011 (1)
T.A.C. 589 (Kant), wherein it has observed that a person who is travelling
in a train is deemed to have been purchased the ticket and is travelling as
a valid passenger until and unless it is rebutted by respondent to show
otherwise.
13. The appellant has also relied on the judgment of the Kerala
High Court in the case of Union of India Vs. Leelamma reported in 2009
(2) T.A.C. 385 (Ker.) wherein it has observed as under :
"9. The question mooted for consideration is whether due
to mere non-production of the Ticket, an adverse inference
can be drawn by the Tribunal that the person got injured and
succumbed to death was travelling without a valid journey
ticket and that he was not a bona fide passenger. According
to the claimants the deceased was holding journey ticket and
7/9 FA.497.23-J.odt
the same was lost in the accident. The normal presumption is
that a passenger in a Railway holds a valid ticket. When the
appellant/respondent contends that the deceased was a
passenger who fell down while attempting to board a train,
the burden is heavily upon them to prove that he attempted
such journey without purchasing a ticket. Since that burden
is not discharged by the Railway, the Tribunal is perfectly
justified in rejecting the contention that the deceased was not
a bona fide passenger. The Railway Tribunal in such cases are
perfectly justified in drawing a presumption that the person
concerned was travelling or attempting to travel with a valid
ticket and in such case the passenger cannot be termed as
"not a bona fide passenger".
14. The police record indicates that the claimant was found in an
injured condition near the Bhusawal Railway Station, he was shifted to
civil hospital and thereafter treated in Saipushpa Accident Hospital,
Bhusawal. The statutory report and medical case paper record the history
of injury by running train. The appellant is eye witness. His evidence is
reliable. The brother-in-law of the injured has also deposed before the
Court in support of purchasing ticket. Thus, initial burden stands
discharged. The Railway Authorities have not adduced any evidence to
rebut this evidence. From the facts and attending circumstances it is
evident that the claimant was a bona fide passenger and he has sustained
injuries in an untoward incident.
15. The learned Counsel for the respondent has relied on the
judgment of Union of India Vs. Rina Devi reported in (2019) 3 SCC 572,
8/9 FA.497.23-J.odt
in which it is observed that mere presence of a body on the railway
premises will not be conclusive to hold that injured or deceased was a
bona fide passenger for which claim for compensation could be
maintained. However, mere absence of ticket with such injured or
deceased will not negative the claim that he was a bona fide 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 facts shown or the attending
circumstances.
16. In the instant case, the material on the record indicates that
the injured was shifted to the hospital at Bhusawal and, thereafter, he was
shifted to Saipushpa Accident Hospital, Bhusawal. The medical report,
particularly the injury certificate issued by the Government Medical
College reveals that the left leg below knee was amputated. 70% disability
is proved through Disability Certificate issued by the District Hospital,
Jalgaon. Amputation of leg below knee is scheduled injury and as per the
schedule, compensation payable is Rs.4,00,000/-.
17. Under the circumstances, the appeal is allowed. The
appellant is held to be entitled for total compensation of Rs.4,00,000/-.
The respondent shall deposit the said amount within a period of three
months.
9/9 FA.497.23-J.odt
18. The appeal stands disposed of.
(MRS.VRUSHALI V. JOSHI, J.)
RGurnule
Signed by: Mrs. R.M. MANDADE
Designation: PA To Honourable Judge
Date: 13/12/2023 12:39:36
