Bombay High Court
The Union Of India vs Bherulal Chunilal Shethiya on 9 January, 2023
Bench: Amit Borkar
44.FA-952-2011.doc
SAP
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 952 OF 2011
The Union of India ... Appellant
V/s.
Bherulal Chunilal Shethiya ... Respondent
Mr. J. S. Saluja i/b. Mr. Arjun H. Patil for the appellant.
Mr. Vaneet Khosla for the respondents.
CORAM : AMIT BORKAR, J.
DATED : JANUARY 9, 2023
P.C.:
1. The Appellant has challenged the judgment and award dated
17th September, 2009 passed by the Railways Claims Tribunal,
Mumbai Bench, Mumbai (hereafter "Tribunal", for short) directing
the appellant to pay sum of Rs.4,00,000/- (Rs. Four Lacs only) as
compensation amount along with simple interest @ 6% per annum
from the date of Application till the date of award. Learned
Tribunal had also directed the appellant to pay the compensation
amount within sixty (60) days from the date of order, failing which
the interest @ 9% per annum shall be paid. Out of the said
compensation, an amount of Rs.1,00,000/- (Rs. One Lac only)
with entire interest has been directed to be paid to the appellant
by cheque drawn in his name and the remaining amount of Rs.3
lakhs shall be invested in a nationalized bank in his favour in term
deposit for a period of five (5) years.
2. Being aggrieved by the said judgment and award, the
44.FA-952-2011.doc
appellant has filed the present First Appeal. The claim of the
original applicant in short is as under.
3. The applicant is the father of the deceased. The deceased
was travelling from Charni Road to Malad by unknown local train
on 08th June, 2003. The deceased accidentally fell down from
unknown local train near Santacruz Railway Station and got
injured. According to the applicant, the deceased was travelling
after obtaining proper railway ticket. The appellant contested the
claim by denying the claim in the Application.
4. According to the appellant, the incident dated 08th June,
2003 was in an untoward incident and the said incident does not
fall within the ambit of Section 123(c) of the Railways Act, 1989.
According to the appellant, he was not a bona fide passenger on
the date of incident. According to the appellant, the deceased was
knocked out of the local train. In support of the claim, the
applicant examined himself. The learned Tribunal framed three
(3) issues and allowed the claim considering the evidence laid by
the parties.
5. The learned Advocate for the respondent submitted that the
appellant failed to prove that the deceased was bona fide
passenger of the local train. To prove the said fact, the applicant
filed an affidavit of himself. He, in paragraph 3, stated that the
deceased was travelling from Charni Road to Malad. His work
place was at Charni Road and he was residing at Malad. Since he
was travelling from Charni Road to Malad by train and the
accident was occurred near Santacruz railway station, he must
44.FA-952-2011.doc
have purchased railway ticket and was holding a valid ticket. To
support the said statement, he stated on oath that an amount of
Rs.330/- was found on him to show that he had purchased of the
railway ticket. He stated that the ticket must have been lost in the
untoward incident. To support the said evidence, claimant
examined his another son who stated similar things in his affidavit.
6. The Tribunal based on the statement on oath made by the
applicant and also of his son recorded finding of fact that the
deceased was bona fide passenger. The learned Tribunal in
paragraph 11 has considered the material in support of the said
fact. The learned counsel for the claimant rightly relied on the
judgment of the Apex Court in the case of Union of India vs Rina
Devi reported in (2019) 3 SCC 572. The Apex Court after taking
stock of earlier binding decisions in paragraph no.17.4 has
observed as under:
"17.4 . We thus hold 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 filling 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. This will have to be
dealt with from case to case on the basis of facts found. The
legal position in this regard will stand explained
accordingly..."
7. In the facts of the present case, the initial burden cast on the
claimant has been discharged by filing an affidavit and stating on
oath that the deceased must have the ticket as he was travelling
44.FA-952-2011.doc
from Charni Road to Malad and an accident occurred near
Santacruz Station. The Apex Court has held that mere absence of
ticket with the deceased will not negative the claim that he was a
bona fide passenger. Once such statement is made on affidavit by
the claimant, it is the responsibility of the railway to lead evidence
to show or bring on record circumstances to prove that the
deceased was not a bona fide passenger. Therefore, in the absence
of material produced by the appellant, in my opinion, the learned
Tribunal was justified in answering issue no.1 in favour of the
claimant.
8. In so far as issue no.2 is concerned, the Tribunal in
paragraph 10 has considered that the appellant has failed to prove
that the deceased was knocked out of the train. In my opinion, the
appellant should have led evidence to prove that the deceased was
knocked down by the train. As this was the specific plea raised by
the appellant, it was the appellant's duty to prove the fact that the
deceased was knocked down by the train and it was not the result
of falling of the deceased from the train.
9. Third submission made on behalf of the appellant is that the
claimant failed to prove that he is father of the deceased. To prove
the said fact, in addition to the statement on oath that he is father
of the deceased, the claimant produced ration card on which name
of the deceased Dheeraj Behrulal Sethiya has been shown as son of
the claimant. The age in the ration card also corresponds with the
age of the deceased. Additionally, the claimant produced on
record death certificate of the deceased which shows name of
father of the deceased as Bherulal Sethiya which is the name of the
44.FA-952-2011.doc
claimant. Therefore, in my opinion, both the documents are
sufficient to hold that the claimant has proved that he was father
of the deceased.
10. No other submission was made on behalf of the appellant.
11. For the reasons stated above, in my opinion, the judgment
and award passed by Tribunal is based on cogent finding and
appreciation of evidence on record. There is no merit in the First
Appeal. The First Appeal, therefore, stands dismissed.
12. No costs.
13. The Amount deposited in this Court shall be paid to the
respondent.
(AMIT BORKAR, J.)
