Smt. Nasimbanu Mohd Rafiq Sheikh vs Union Of India Through General Manager ...
2024 Latest Caselaw 23583 Bom

Bombay High Court

Smt. Nasimbanu Mohd Rafiq Sheikh vs Union Of India Through General Manager ... on 12 August, 2024

Author: Sharmila U. Deshmukh

Bench: Sharmila U. Deshmukh

2024:BHC-AS:33174

                                                                               34fa210-15


                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                       CIVIL APPELLATE JURISDICTION

                                     FIRST APPEAL NO. 210 OF 2015

                Smt. Nasimbanu Mohd Rafiq Sheikh                      ]
                (Aged - 50 years), Mother,
                Room No.101, Simnani Apptts,                          ]
                Alshifa Nursing Home, Mansuri Nagar,                  ]
                Gopchar Pada, Virar-East, Dist-Thane                  ] ... Appellant.

                          Versus

                Union of India, Through                               ]
                General Manager, Western Railway,                     ]
                Having his office at G M Building,                    ]
                Churchgate.                                           ] ... Respondent.
                                                ----------
                Mr. Vaneet Khosla, for the Appellant.
                Mr. Chetan Agarwal, for the Respondent.
                                               ----------

                                             Coram : Sharmila U. Deshmukh, J.
                                             Date : August 12, 2024
                ORAL JUDGMENT :

1. By this Appeal, the challenge is to the judgment dated 17 th

January, 2014 passed by the Railway Claims Tribunal in Claim

Application No.OA (llu)/MCC/2009/1068, rejecting the Claim

Application.

2. The facts of the case are that the claimant is the mother of the

deceased, who expired in an unfortunate accident which occurred on

24th May, 2009, where the deceased who was aged about 24 years fell

down from the running train between Nalasopara and Vasai Road

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Railway Station. The accident memo shows the injury on head and the

hand. The inquest panchanama was conducted which records that the

panchanama was conducted on 24th May, 2009 at about 1:30 hours and

that as per the Station Master's memo and as per the panchanama the

deceased fell down from some local train. The panchanama records

that after taking dead person's body, upon search no money and no

personal items, no ornaments and no papers were found.

3. On 24th May, 2009, after the panchanama was over, the Police

recorded the statement of one Sajjan Mohd. Hanif Khan, who was the

friend of the deceased and was traveling with the deceased, who

stated that he was travelling with the deceased and identified the

dead-body as that of Irfan Rafiq Sheikh. He has further stated that

after finishing their work at about 12:50 a.m., the said Sajjan as well as

the deceased were going to home at Virar and due to rush in the train

they were standing in the train and that the deceased had eaten

Gutkha and while spitting he fell down from the local train.

4. The claim was filed by the mother under Section 16 of the

Railway Claims Tribunal Act, 1987 (for short, "Railway Tribunal Act")

claiming compensation of Rs.4,00,000/- alongwith interest at the rate

of 18%, stating that her son had expired in accident by falling from

local train between Nalasopara and Vasai Railway Station while

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travelling in the train with Sajjan, Naved Shaikh. It was stated that the

deceased was holding second class monthly railway pass valid for

travelling between Mira Road and Virar Railway Station which was lost

in the incident and the pass was purchased in presence of the

deceased's friends.

5. The written statement of the Respondent states that the

incident had occurred in the running train and there is no eye witness

and evidence to prove that the injured fell down from the running

train and that the accident took place due to deceased's own

negligence and carelessness for which he himself is responsible. It was

also denied that the deceased was travelling with valid ticket. The

Claimant examined herself and also the friend of the deceased Naved.

The Railways did not examine any witnesses but relied upon the

investigation report stating that the accident took place due to the

deceased's own negligence and carelessness for which the railway is

not responsible and the GRP did not find any travelling authority from

railway and that the deceased was not a bonafide passenger.

However, only the report was annexed to the written statement and

no witness stepped into the box to prove the report.

6. The Tribunal by judgment dated 17th January, 2014 dismissed

the Claim Application by deciding the issue of the deceased meeting

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with an accident in an untoward incident in the negative for the sole

reason that the GRP report states that the accident occurred due to

the deceased's own negligence as the deceased had eaten Gutkha and

while spitting he fell down from the train. The Tribunal also held that

no valid document or ticket has been showed to establish that the

deceased was a bonafide passenger. The Tribunal held that the

compensation is not admissible when the cause of the death is due to

the deceased's own negligence.

7. Heard Mr.Khosla, learned counsel for the Appellant and

Mr.Agarwal, learned counsel for the Respondent.

8. Mr. Khosla, learned counsel appearing for the Appellant has

taken this Court through the record and would submit that the record

would establish that the deceased fell down while travelling in the

local train. He submits that the incident has not been denied and the

accident memo as well as the statement would indicate that the

accident had taken place as the deceased fell down from the local

train. He submits that the accident does not fall within any of the

exceptions set out in Clauses (a) to (e) of Section 124(A) of the

Railways Act, 1989 ("Railways Act") and therefore, the compensation

was payable as an accident in untoward incident.

9. On the aspect of bonafide passenger, he submits that the

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claimant has discharged the burden by examining the mother as well

as one witness who have stated that the deceased purchased monthly

pass for his travel which was valid upto 31 st May, 2009 and that the

same was lost in the incident. Pointing out to the cross-examination,

he submits that there is no cross-examination on the said aspect and

therefore the evidence has gone uncontroverted. Criticizing the

judgment of the Tribunal he submits that the Tribunal has failed to

consider that it is not disputed that the deceased had fallen down

from the train as the evidence shows the same and the only reason

that the compensation was not paid is that the cause of the death is

held due to the deceased's own negligence which is contrary to the

decision of the Apex Court in the case of Union of India (UOI) vs. Rina

Devi, [2018 (3) Bom.CR 729] . He submits that the railway pass would

have been lost at the time of the occurrence of the accident and no

attempt was made to search for the same. Once the burden has been

discharged by the Applicant, the onus shifts upon the railways to

prove the incident and the railway has not examined any person and

therefore failed to prove it's case.

10. Per contra, learned counsel appearing for the Respondent

would point out the inquest panchanama which records that there

was nothing found from the dead person's body. He submits that the

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statement of the friend of the deceased, Sajjan which was recorded by

the police does not show that the others were travelling alongwith

the deceased. He would further submit that the said Sajjan was not

examined and instead some other person i.e. Naved was examined. He

submits that the said Sajjan had stated in the police report that the

deceased had eaten Gutkha and he fell while spitting Gutkha. He

submits that the accident happened due to the negligence of the

deceased for which the railways is not responsible. He would further

point out that the decision of the Apex Court in Union of India vs.

Rina Devi (supra) has been rendered subsequently.

11. The following points arise for determination:

(i) Whether the facts of the case fall within exceptions (a) to (e) of Section 124A of the Railways Act, 1989 ?

(ii) Whether the evidence on record shows that the deceased was a bonafide passenger and was entitled to compensation having met with an untoward accident within the meaning of Section 123(c)(ii) of the Railways Act, 1989 ?

As to points (i) and (ii) :

12. The occurrence of the incident of 24th May, 2009 is not disputed. The deceased was found lying in a dead condition on the railway track between Nalasopara and Vasai Railway Station. The inquest panchanama dated 24th May, 2009 would show that upon taking the

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search of dead person's body nothing was found. However, the inquest panchanama or police report does not indicate that any search was taken in the vicinity where the dead person was found to ascertain whether there was any items of the dead person which could have been flung afar after the fall of the deceased from the running train. The inquest panchanama only records that the body of the dead person did not have any documents or items and it is not stated that despite search nothing was found in or around the dead person's body.

13. As regards the issue of the deceased being a bonafide

passenger, the claimant who is the mother of the deceased has

specifically deposed that the deceased had purchased a monthly

railway pass for travel which was valid upto 31 st May, 2009 and that on

the date of the accident, she has personally given him his pass and

other belonging and that he had purchased monthly pass in front of

the deceased's friend. In the cross-examination, there is not even a

suggestion given that the deceased had not purchased the monthly

pass and was not a bonafide passenger. The evidence of the claimant

therefore stands uncontroverted to that extent. In support of the

claim, the claimant has examined the friend of the deceased one

Naved Rashid Sheikh, who has specifically deposed that on 23 rd May,

2009 after finishing work, they had come on Mira Road Station and

boarded local train and that due to the excessive rush in the second

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class compartment all were compelled to stand near the compartment

door and when the train was moving between Vasai to Nalasopara

Railway Station, the deceased accidentally fell down and that he had

personally informed the Nalasopara Station Master's office. He has

further stated that the deceased was travelling with valid second class

monthly railway pass which was valid till 31st May, 2009 and that he

had purchased the railway pass in his presence and that the

belongings as well as the railway pass were lost in the accident.

Nothing has been demonstrated from the cross-examination of the

witness to prove that the deceased had not purchased the monthly

railway pass and as in case of the claimant, even in the case of

evidence of Naved, there is not a suggestion given that the monthly

railway pass was not purchased. His evidence also remains

uncontroverted as regards the deceased being a bonafide passenger.

14. Coming to the aspect of the negligence of the deceased as the

deceased was standing near the door, the untoward incident is

defined under Section 123(c)(ii) of the Railways Act as the accidental

falling of any passenger from train carrying passenger. The provisions

regarding grant of compensation on account of untoward incident is

provided in Section 124A of the Railways Act, reads thus:

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"124.A. Compensation on account of untoward incidents.-

When in the course of working a railway an untoward incident occurs, then whether or not there has been any wrongful act, neglect or default on the part of the railway administration such as would entitle a passenger who has been injured or; the dependant of a passenger who has been killed to maintain an action and recover damages in respect thereof, the railway administration shall, not withstanding anything contained in any other law, be liable to pay compensation to such extent as may be prescribed and to that extent only for loss occasioned by the death of, or injury to, a passenger as a result of such untoward incident.

Provided that no compensation shall be payable under this section by the railway administration if the passenger dies or suffers injury due to -

(a) suicide or attempted suicide by him:

(b) self-inflicted injury:

(c) his own criminal act:

(d) any act committed by him in a state of intoxication or insanity;

(e) any natural cause or disease or medical or surgical treatment unless such treatment becomes necessary due to injury caused by the said untoward incident.

Explanation.- For the purposes of this section, "passenger" includes -

(a) a railway servant on duty : and

(b) a person who has purchased a valid ticket for traveling, by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident."

15. Clause (a) to (e) of proviso to Section 124 of the Railways Act

provides that the liability to pay the compensation does not arise only

in these eventualities which are enumerated therein.

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16. In the present case, even if the statement of Sajjan is accepted

that the deceased had eaten Gutkha and while spitting fell down, the

same does not fall within the exceptions which is provided in Clauses

(a) to (e) of proviso to Section 124A of the Railways Act. At this stage,

it is apposite to refer to the law laid down by the Apex Court in the

case of Rina Devi (supra) while considering the concept of "self

inflicted injury" appearing in Clause (b) of proviso to Section 124A of

the Railways Act. The Apex Court has held that the concept of "self

inflicted injury" would require intention to inflict such injury and not

mere negligence of any particular degree. As 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". The Apex Court

has held that there has to be something more than rash and

negligence for the act of the deceased to fall within the exception as

"self inflicted injury". In the present case, all that is said is that the

deceased while travelling had eaten Gutkha and while spitting fell

down from the running train. The said accident even if it is accepted

would not fall within the concept of "self inflicted injury" as held by

the Apex Court.

17. The Apex Court in the said decision has also held that mere

absence of the boarding pass of the Railway will not be conclusive to

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hold that deceased was a bonafide passenger. However, the mere

absence of ticket with such injured or deceased will not negative the

claim. The Apex Court in the said decision has cast the initial burden

on the claimant which is to be discharged by filing an affidavit of the

relevant facts and the burden would then shift on the railways and the

issue can be decided on the facts shown or the attending

circumstances.

18. In light of the enunciation of law by the Apex Court, in facts of

the present case, the initial burden has been discharged by the

claimant by examining herself and the friend of the deceased had

deposed specifically that the railway pass was purchased in his

presence and was valid upto 31st May, 2009. There is no cross-

examination in that respect and neither the railways has examined any

witnesses to disprove the said claim of purchase of railway pass by the

deceased. Further the Tribunal while rejecting the claim has taken into

consideration, the GRP report which states that the accident took

place due to the deceased's own negligence without noticing the

decision of the Apex Court in the case of Rina Devi (supra), which

holds that there has to be something more than rash and negligent

act, to fall within the concept of "self inflicted injury".

19. It is well-settled that while interpreting the provision of law, the

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Apex Court does not lay down any new law but only interprets the

existing in law in force and interpretation of provision of law relates

back to the date of the law itself and cannot be prospective unless

specifically directed.

20. In light of the above, the Claimant has established that the

deceased was a bonafide passenger by deposing the said fact, which

deposition stands uncontrovered. No reliance could be placed on the

inquest panchanama, to support the claim of the railways that the

deceased was not a bonafide passenger, considering that the search if

any was taken from the body of dead person and not of the vicinity to

find out whether any items are found near or around the dead body.

21. The finding of the Tribunal that cause of the death is due to

deceased's own negligence even if accepted does not fall in the

concept of self inflicted injury. The accident was an untoward incident

which occurred due to accidental as falling of the deceased from the

train. Hence, I pass the following order:

ORDER

(a) Impugned judgment dated 17th January, 2014 is hereby quashed and set aside;

(b) Claim Application No.OA (llu)/MCC/2009/1068 stands allowed;

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(c) Respondent is directed to pay to the Claimant compensation of Rs.8,00,000/- to be payable within a period of eight weeks from the date of uploading of this order on the official website of this Court.

(d) In event the payment is not made within a period of eight weeks, the Respondent will be liable to pay interest at the rate of 6% p.a. from the date of expiry of eight weeks till the payment or realization.

22. In view of the disposal of the Appeal, Civil/Interim Applications,

if any, taken out in this Appeal, does not survive and same is disposed

of.

[Sharmila U. Deshmukh, J.]

13 of 13 Signed by: Sanjay A. Mandawgad Designation: PA To Honourable Judge Date: 20/08/2024 10:37:29