Bombay High Court
Mr. Amit S/O Rajesh Pache And Others vs The Union Of India Through Its General ... on 5 February, 2024
Author: G. A. Sanap
Bench: G. A. Sanap
2024:BHC-NAG:1865
904.FA.101.2022 railway injury compensation judge.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FIRST APPEAL NO.101 OF 2022
Mr Amit S/o. Rajesh Pache (Dead),
Aged about 25 Yrs., Occu.: Labour,
R/o. Marari Mohalla, Ward No. 7,
Balaghat (M.P.)
Through Legal Heirs
1(a) Smt. Geeta W/o. Rajesh Pache,
Aged about : 43 Yrs., Occ. : Household.,
1(b) Shri Rahul S/o. Rajesh Pache,
Aged about 25 Yrs., Occ.: Labour Work,
1(c) Ku Mansi d/o. Rajesh Pache,
Aged about 21 Yrs., Occ.: Labour Work,
All R/o. Marari Mohalla, Ward No. 7,
Balaghat, Madhya Pradesh 481 001. .... APPELLANTS
// V E R S U S //
The Union of India,
Through Its General Manager,
South East Central Railway,
Bilaspur (C.G.) ... RESPONDENT
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Ms S. G. Barbate Advocate for the appellants
Ms Ashwini Athlye, Advocate for the respondent
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CORAM : G. A. SANAP, J.
DATE : 05/02/2024
904.FA.101.2022 railway injury compensation judge.odt
2
ORAL JUDGMENT :
1 Heard finally with the consent of learned
Advocates for the parties.
2 In this appeal, filed under Section 23 of the
Railway Claims Tribunal Act, 1987 (for short "the Act of
1987"), the challenge is to the judgment and order dated
23.01.2018, passed by the Railway Claims Tribunal, Nagpur,
whereby the Tribunal dismissed the claim application filed by
the appellant/claimant for compensation on account of injuries
sustained by him in an untoward incident.
3 Background facts:
The appellant/claimant claims that on 17.07.2015,
while travelling by Gondia-Balaghat passenger train, he fell
down from the running train at Khara Railway Station. He
states that there was a heavy rush in the train and due to a
sudden jerk, he fell down. He sustained injuries to his right
904.FA.101.2022 railway injury compensation judge.odt
leg. After medical treatment, his right leg has been amputated
below the knee. It is stated that he was a bona fide passenger
with a valid journey ticket. He sustained injuries in an
untoward incident. He, therefore, claimed compensation.
4 The respondent-railway filed the written statement
and opposed the claim. It is contended that the injured person
was not a bona fide passenger. He did not have a valid journey
ticket. It is further contended that the incident occurred due
to the contributory negligence of the appellant/claimant.
According to the respondent, the appellant/claimant was,
therefore, not entitled to claim compensation.
5 The parties adduced evidence before the Tribunal.
The Tribunal, on consideration of the evidence, found that the
injuries were not sustained in an untoward incident. The
Tribunal recorded a finding that the injuries sustained by the
injured were due to his negligence or contributory negligence.
904.FA.101.2022 railway injury compensation judge.odt
Being aggrieved by this judgment and order, the
appellant/claimant has come before this Court. During the
pendency of this appeal, the claimant- Amit S/o. Rajesh Pache
died and his legal heirs have been brought record.
6 I have heard the learned Advocate Ms S. G.
Barbate for the appellants and the learned Advocate Ms
Ashwini Athalye for the respondent. Perused the record and
proceedings.
7 In view of the facts and circumstances following
points fall for my determination:
(i) Whether the deceased was a bona fide
passenger on a train, with the valid journey ticket ?
(ii) Whether the appellants have proved
that on the relevant date, the injured sustained the
injuries due to fall from the running train and as
such, it was an untoward incident ?
904.FA.101.2022 railway injury compensation judge.odt
8 Learned Advocate for the appellants submitted that
a valid journey ticket was found with the injured. Learned
Advocate pointed out that the learned Tribunal has failed to
record a finding on this issue. Learned Advocate further
submitted that even if the defence of the respondent-railway is
accepted as it is, the injuries sustained by the appellant/
claimant would be in an untoward incident. Learned Advocate
submitted that falling down of the passenger, while boarding a
train at a railway station, is covered in the definition of an
'untoward incident'. Learned Advocate submitted that,
therefore, the Tribunal was not right in rejecting the claim of
the appellant/claimant. Learned Advocate for the appellants
fairly conceded that the injuries sustained by the
appellant/claimant would be covered by entry No. 22 of Part
III of a Schedule to the Railway Accidents & Untoward
Incidents (Compensation) Rules, 1990.
9 Learned Advocate for the respondent-railway fairly
904.FA.101.2022 railway injury compensation judge.odt
conceded that the Tribunal ought to have decided issue No.1,
which pertains to possession of a valid journey ticket by the
appellant. Learned Advocate further conceded that the ticket
was found with the injured/claimant. As far as the occurrence
of the incident is concerned, the learned Advocate submitted
that there is ample evidence to prove that the injured got down
at Khara Railway Station and after the train started, he
attempted to board a moving train and in the process, his hand
slipped from the handle and he fell down. Learned Advocate
in short, submitted that there was contributory negligence on
the part of the injured and therefore, his claim was rightly
rejected.
10 There is ample evidence to come to the conclusion
that the injured had a valid journey ticket for a journey from
Gondia to Balaghat. The incident occurred at Khara Railway
Station. It is evident on perusal of the record that the deceased
at Khara Railway Station tried to board a moving train and in
904.FA.101.2022 railway injury compensation judge.odt
the process, his hand slipped from the handle. He fell down
and was crushed under the wheels of the train. It is
undisputed that his right leg at knee level was amputated. The
only question that requires consideration is whether the act of
the appellant/claimant boarding a moving train could be said
to be a negligent act. In my view, this issue has been
considered by the Hon'ble Apex Court in the case of Union of
India .v/s. Prabhakaran Vijaya Kumar and others 1. It is seen
that the facts of the present case and the facts in the case of
Prabhakaran (supra) are identical. In the case of Prabhakaran
(supra), also the passenger had died due to the injuries
sustained, while boarding a moving train. The Hon'ble Apex
Court held that the injuries sustained by the passenger, in such
a situation, would be covered by the expression "accidental
falling of a passenger from a train carrying a passengers." The
injury sustained would, therefore, be termed as injury
sustained in an untoward incident.
1 2009(1) Mh.L.J.27
904.FA.101.2022 railway injury compensation judge.odt
11 The Hon'ble Apex Court in the case of Union of
India .v/s. Rina Devi2 has considered the issue of negligence or
contributory negligence. Para 25 of the said judgment would
be relevant. It reads thus:
"25. 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 Insurance Co.
Ltd. versus Sunil Kumar laying down that plea of
negligence of the victim cannot be allowed in claim
based on 'no fault theory' under Section 163-A 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 124-A merely on the plea
of negligence of the victim as a contributing factor."
12 In view of this settled position, the defence of
negligence or contributory negligence would not be available
to the railway. The injury or death of a passenger while
2 (2019) 3 SCC 572
904.FA.101.2022 railway injury compensation judge.odt
boarding or de-boarding a train will be an untoward incident.
The defence of contributory negligence would not be enough
to reject such a claim. As such, I conclude that the injuries
sustained by the appellant/claimant in an untoward incident as
understood by Section 123(c)(2) of the Railways Act, 1989.
13 Learned Advocate for the appellants fairly
conceded that the injuries sustained by the claimant would be
covered by entry No. 22 of Schedule Part III. After
amendments to this schedule, with effect from 01.01.2017,
the compensation payable under the various entries has been
revised. As per amended entry No. 22, the compensation
payable is Rs.3,20,000/-. It is true that this claim was filed
before this amendment. However, in view of the law laid
down in the case of Union of India .v/s. Radha Yadav 3 the
appellants would be entitled to get the compensation, as
prescribed in the schedule after its amendment with effect
3 (2019) 3 SCC 410
904.FA.101.2022 railway injury compensation judge.odt
from 01.01.2017. However, the appellants shall not be
entitled to interest on this amount. Accordingly, I answer the
above points in the affirmative and pass the following order:
ORDER
(i) The first appeal is allowed.
(ii) The judgment and order dated 23.01.2018 passed
by the Railway Claims Tribunal, Nagpur Bench, Nagpur in
Claim Application No. OA(IIu)/NGP/2015/0295 is quashed
and set aside. The claim application is allowed.
(iii) The respondent-railway is directed to pay
compensation of Rs.3,20,000/- (Rupees Three Lacs only) to
the appellants. The appellants shall not be entitled to interest
on this amount of compensation.
(iv) Appellant Nos. 1(a) to 1(c) are entitled to equal
share of amount of compensation.
(v) The compensation amount must be deposited
904.FA.101.2022 railway injury compensation judge.odt
within four months with the Railway Claims Tribunal,
Nagpur, from the date of this judgment. If the amount is not
deposited within four months, the appellants would be entitled
to interest @ of 6% per annum from the date of this judgment
till realization of the amount.
(vi) After depositing of the amount with the Railway
Claims Tribunal, Nagpur, the same shall be paid over to the
appellant Nos. 1(a) to 1(c), with accrued interest, if any.
14 The first appeal stands disposed of accordingly. No
order as to costs. Pending applications, if any, stand disposed
of.
(G. A. SANAP, J.)
Namrata
Signed by: Miss Namrata Suryawanshi
Designation: PA To Honourable Judge
Date: 15/02/2024 12:04:21
