Bombay High Court

Smt. Alka Wd/O Shrikrushna Dode And ... vs Union Of India Through The General ... on 5 February, 2024

Author: G. A. Sanap

Bench: G. A. Sanap

2024:BHC-NAG:1868



                                                      905.FA.185.2022 railway compensation judge.odt
                                                           1



                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                              NAGPUR BENCH, NAGPUR.

                                           FIRST APPEAL NO.185 OF 2022

                    1.     Smt Alka Wd/o. Shrikrushna Dode,
                           Aged about 37 Yrs., Occu.: Nil,

                    2.     Chaitali D/o. Shrikrushna Dode,
                           Aged about 17 Yrs., Occu.: Education,

                    3.     Nilanjali D/o. Shrikrushna Dode,
                           Aged about 12 Yrs., Occu.: Education,

                    4.     Dhanashri D/o. Shrikrushna Dode,
                           Aged about 06 Yrs., Occu.: Education,
                           Apl. Nos. 2 to 4 (Minor) through Mother,
                           Natural Guardian)

                    5.     Sarangdhar S/o. Ananda Dode,
                           Aged about 58 Yrs., Occu. : Labour,

                    6.     Pramilabai W/o. Sarangdhar Dode,
                           Aged about 53 Yrs., Occu. : Housewife,
                           All R/o. Merry Colony, Dindori Road,
                           Shivaji Nagar, Nasik, Dist. Nasik (M.S.)
                           422004                                                           .... APPELLANTS

                                                        // V E R S U S //

                           The Union of India,
                           Through the General Manager,
                           Western Railway, Churchgate, Mumbai                             ... RESPONDENT
                     ----------------------------------------------------------------------------------------------
                            Ms Sumesha Chaudhary, Advocate for the appellants
                            Ms Neerja Chaubey, Advocate for the respondent
                     ----------------------------------------------------------------------------------------------
                                              CORAM : G. A. SANAP, J.
                                              DATE : 05/02/2024
                        905.FA.185.2022 railway 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

10.01.2020, passed by the Railway Claims Tribunal, Nagpur

Bench, Nagpur, whereby the claim filed by the appellants/

claimants for compensation under Section 16 of the Act of

1987 was dismissed.

3 Background facts:

Appellant No.1 is the wife of the deceased.

Appellant Nos.2, 3 and 4 are the children of the deceased.

Appellant Nos. 5 and 6 are the parents of the deceased

Shrikrushna Dode. The appellants claimed that on

13.04.2016, the deceased, after purchasing a valid journey

905.FA.185.2022 railway compensation judge.odt

ticket, boarded the Tapti-Ganga Express at Jalgaon Railway

Station to go to Surat. The appellants contended that after

boarding the train, the deceased fell from the moving train at

Jalgaon Railway Station and died while undergoing medical

treatment in the hospital. According to the appellants, the

deceased was a bona fide passenger, with a valid journey ticket.

The deceased died in an untoward incident.

4 The respondent-railway filed the written statement

and opposed the claim. According to the respondent-railway,

the deceased was not a bona fide passenger travelling with a

valid journey ticket. The ticket was not recovered from the

spot. It is further contended that the deceased, while crossing

the railway track, was either run over by any train or dashed by

any train. The death, according to the railway, was therefore

not in an untoward incident.

5 The parties adduced evidence before the Tribunal.

905.FA.185.2022 railway compensation judge.odt

The learned Member of the Tribunal, on consideration of the

evidence, found that the claim was without substance and

therefore, ultimately dismissed the claim. Being aggrieved by

this judgment and order, the appellants have come before this

Court in appeal.

6 I have heard the learned Advocate Ms Sumesha

Chaudhary for the appellants and the learned Advocate Ms

Neerja Chaubey for the respondent. Perused the record and

proceedings.

7 In the facts and circumstances, the following points

fall for my determination:

(i) Whether the deceased died in an untoward

incident as understood by the provisions of Section

123(c)(2) of the Railways Act, 1989?

(ii) Whether the deceased was a bona fide

passenger travelling with a valid journey ticket?

905.FA.185.2022 railway compensation judge.odt

8 Learned Advocate for the appellants submitted that

the learned Member of the Tribunal has not properly

appreciated the evidence adduced by the appellants. Learned

Advocate took me through the evidence of witness No.2-

Devchand Tayade, examined by the appellants and submitted

that the evidence of this witness is sufficient to prove that the

deceased, after purchasing a valid journey ticket, had boarded

the Tapti-Ganga Express to go to Surat at Jalgaon Railway

Station. Learned Advocate submitted that the possibility of

the loss of a ticket cannot be ruled out inasmuch as the

deceased was shifted at 2:00 p.m. to the hospital in an injured

condition. Learned Advocate submitted that the spot

panchanama as well as the inquest panchanama are silent about

seizure of the clothes of the deceased. Learned Advocate

submitted that the DRM report is based on the material

collected during the course of the statutory inquiry. Learned

Advocate pointed out that in his report, the DRM has

905.FA.185.2022 railway compensation judge.odt

concluded that the deceased fell from the running train due to

his negligence. The DRM has concluded that the deceased

might have been standing near the door in a careless manner

and due to his negligence, he might have fallen from the

running train and died. Learned Advocate submitted that this

conclusion, drawn by the DRM, is against the case of the

respondent-railway, as sought to be pleaded in the written

statement. Learned Advocate submitted that the defence of

negligence or contributory negligence in the factual situation

would not be available to the railway. Learned Advocate

pointed out that the learned Member, due to certain mistakes

committed in the pleadings by the appellants, has failed to

properly appreciate the material on record. Learned Advocate

submitted that Tapti-Ganga Express left Jalgaon railway

station at 13:45 hours, whereas Tapti-Ganga Express from

Surat arrived at Jalgaon railway station at 15:25 hours.

Learned Advocate submitted that the dead body was found at

905.FA.185.2022 railway compensation judge.odt

2:00 p.m. i.e. 14:00 hours and therefore, the possibility of the

deceased travelling by Tapti Ganga Express from Surat to

Jalgaon is out of question. Learned Advocate submitted that

on both counts the appellants have proved their case.

9 Learned Advocate for the respondent-railway

submitted that the learned Member has recorded findings on

the basis of the pleadings of the appellants that the deceased

never travelled by Tapti-Ganga Express from Jalgaon to Surat.

Learned Advocate submitted that the admission in the

pleadings is sufficient to negative the contention of the

appellants that the deceased was travelling by Tapti-Ganga

Express from Jalgaon to Surat. Learned Advocate submitted

that the ticket was not found on the spot as well as on the

person of the deceased and therefore, the learned Member was

right in rejecting the claim. Learned Advocate further

submitted that the evidence of AW-2 cannot be relied upon

inasmuch as he is a close relative of the deceased.

905.FA.185.2022 railway compensation judge.odt

10 In order to appreciate the rival submissions, I have

minutely perused the record and proceedings. The first

question that has to be considered is whether the deceased was

travelling by the Tapti-Ganga Express from Jalgaon to Surat

with a valid journey ticket. Admittedly, the ticket was not

found on the spot. Similarly, the ticket was not found on the

person of the deceased. At this stage, it would be appropriate

to consider the direct evidence adduced by the appellants.

AW-2 Devchand Tayde has deposed that on the date of the

incident, he had accompanied the deceased to Jalgaon railway

station. He has stated that in his presence, the deceased

purchased a journey ticket to go to Surat. He has categorically

stated that the deceased boarded the Tapti-Ganga Express at

Jalgaon railway station to go to Surat. This witness was cross

examined. Perusal of his cross examination would show that

the admission of any significance has not been elicited to

discard his evidence. There are other circumstances on record

905.FA.185.2022 railway compensation judge.odt

to make his version probable. His statement was recorded

immediately on the next day of the incident. In his statement,

recorded on 14.04.2016, he stated that in his presence, after

purchasing the railway ticket, the deceased had boarded the

Tapti-Ganga Express to go to Surat. His second statement was

recorded by railway police on 05.11.2017. In his statement,

recorded by the railway police, he categorically stated that the

deceased, after purchasing the railway ticket, boarded the

Tapti-Ganga Express in his presence.

11 The independent inquiry was conducted by the

DRM. The DRM has concluded in his report that the

deceased was not a bona fide passenger inasmuch as the

railway ticket was not found on the spot as well as on the

person of the deceased. In my view, the evidence of AW-2

Devchand Tayade cannot be discarded. This evidence is

supported by the circumstances. The dead body was noticed

on the spot by the guard of the N Box Ukai Songarh Goods

905.FA.185.2022 railway compensation judge.odt

Train (for short 'NUSG train') at 14:00 hours. At that time,

the deceased was lying in an injured condition on the spot. He

was alive. He was shifted to the hospital. There is no record as

to the clothes or seizure of the clothes on the person of the

deceased in the hospital. Similarly, there is no mention of the

inspection of the clothes of the deceased in the hospital. The

spot panchanama was carried out on 13.04.2016 in between

19:45 hours and 20:15 hours, after four hours of the incident.

The spot of the incident was not guarded either by the police

or any railway employee. In my view, these circumstances

clearly support the contention of the appellants with regard to

loss of the ticket.

12 It is true that initial burden is on the appellants to

prove that the deceased was travelling as a bona fide passenger

with a valid journey ticket. The railway cannot be held

responsible to discharge the burden. Whether the evidence is

sufficient to discharge the burden is a main question that

905.FA.185.2022 railway compensation judge.odt

requires consideration in each case. On this point, a useful

reference can be made to the decision of the Hon'ble Apex

Court in the case of Union of India .v/s. Rina Devi 1. Para

No.29 would be relevant for the purpose of addressing the

issue. It is extracted below:

"29. We thus hold that mere presence of a body on the Railway premises will not be conclusive to hold that the injured or deceased was a bona fide passenger for which a claim for compensation could be maintained. However, mere absence of a ticket with such an injured or deceased person will not negative the claim that he was a bona fide passenger. The 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. 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."

13 As per the dictum of the Apex Court, mere

presence of the body on the railway premises will not be

1 (2019) 3 SCC 572

905.FA.185.2022 railway compensation judge.odt

conclusive enough to hold that the injured or deceased was

a bona fide passenger for which the claim for compensation

could be maintained. It is held that, however, mere absence

of a ticket with such an injured or deceased person will not

negative the claim that he was a bona fide passenger. The

initial burden will be on the claimant, which can be

discharged by filing an affidavit of the relevant facts. The

burden will then shift on the railway and the issue can be

decided based on the facts shown in the attending

circumstances. This will have to be dealt with from case to

case on the basis of the facts found. In this case, the

affidavit of AW-2 is sufficient to discharge this initial

burden cast on the appellants. The evidence of AW-2 is

corroborated by the DRM report. The railway has not

adduced any evidence in rebuttal to discard and disbelieve

the evidence of AW-2. As such, I conclude that the

905.FA.185.2022 railway compensation judge.odt

appellants have proved that the deceased was a bona fide

passenger, travelling with a valid journey ticket, at the time

of the incident.

14 The next point that needs consideration is

whether the death was in an untoward incident or not.

The undisputed facts having bearing on this issue need to

be stated at the outset. Train No.19046 Tapti -Ganga

Express, departed from Jalgaon railway station for Surat at

13:45 hours. The deceased was found lying in an injured

condition by the guard of the NUSG train. He was alive.

He was immediately shifted to the hospital. In the

hospital, while taking treatment, he died. In the written

statement, the railway contended that the deceased might

have been run over or dashed by any train while crossing

the railway line. In order to make good this possibility, it is

pointed out that the deceased is residing at a distance of

905.FA.185.2022 railway compensation judge.odt

2 km away from the spot. It is not the case of the railway

that, at the relevant time, there was ACP for any train.

Similarly, there was no report by a loco-pilot of any train

about the run over of any person or dash to any person at

the spot of the incident while crossing the railway line.

The incident occurred during the day. If the deceased was

either dashed or run over by any train, the loco-pilot would

have immediately reported it to the station master. These

are the circumstances which need proper appreciation to

arrive at a just conclusion.

15 It needs to be stated, at the cost of repetition,

that the evidence of AW-2 is sufficient to prove that the

deceased had boarded the Tapti-Ganga Express at Jalgaon

railway station for Surat. This evidence of AW-2 is

supported by the undisputed facts. The case of run over, as

sought to be contended, has been negatived by this

905.FA.185.2022 railway compensation judge.odt

evidence. The DRM report is again of great help to the

appellants. On the basis of the inquiry, the DRM has

recorded that after boarding the train, the deceased might

have been standing at the door and therefore, due to his

negligent act, he might have fallen down from the railway.

The report of the DRM nowhere states that the deceased

was either run over or given a dash by any train while

crossing the railway line. Such a conclusion was not

possible because there was no material in the form of the

report of the loco-pilot of any train or the report by any

witness to such an incident. The only aspect that needs to

be addressed, on the basis of the observations made in the

DRM report, is whether the negligence or contributory

negligence of the passenger could be the basis for rejecting

the claim. In my view, on this point, the decision in the

case of Rina Devi (supra) would also be helpful. Para No.

905.FA.185.2022 railway compensation judge.odt

25 is relevant for this purpose. It is extracted below:

"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."

16 In this case, there is evidence to show that the

deceased boarded the train at Jalgaon railway station. It is

held that for the purpose of causing self-inflicted injury,

there must be a specific intention on the part of the person.

905.FA.185.2022 railway compensation judge.odt

It is held that the defence of the negligence or contributory

negligence, in such a case, is not available because the

liability is based on no fault theory or strict liability. In my

view, therefore, on this count also the contention of the

railway cannot be accepted. As such, I answer both points

in the affirmative.

17 Learned Advocates pointed out that, in view of

the notification issued by the Ministry of Railways

(Railway Board) dated 22.12.2016 in case of a death claim,

the respondent shall be liable to pay compensation of

Rs.8,00,000/- (Rs. Eight Lacs Only). Learned Advocates

further submit that appellants are entitled to get

compensation of Rs.8,00,000/- but without interest. In

view of the decision of the Hon'ble Apex Court in the case

of Union of India .v/s. Radha Yadav 2 the appellants may

2 (2019) 3 SCC 410

905.FA.185.2022 railway compensation judge.odt

not be entitled to the interest.

18 Accordingly, I pass the following order:

      (i)          The first appeal is allowed.

      (ii)         The judgment & order dated 10.01.2020

passed by the Railway Claims Tribunal, Nagpur

Bench, Nagpur in Claim Application No.

OA(IIu)/NGP/0069/2017 is quashed and set aside.

The claim application is allowed.

(iii) Respondent-railway is directed to pay

Rs.8,00,000/-(Rupees Eight Lacs Only) towards

compensation to the appellants.

(iv) Appellant No. 1 shall be paid 50 % of the

amount of compensation.

      (v)          Appellant Nos. 2 to 6 shall be paid 10 %

      of the amount of compensation each.

      (vi)         The amount of the share of appellant Nos.

905.FA.185.2022 railway compensation judge.odt

3 and 4 shall be kept in fixed deposit in any

nationalized bank till they attain majority.

(vii) The amount shall be deposited within four

months directly in the bank account of the appellant

Nos. 1, 2, 5 and 6 from the date of this judgment.

The appellant Nos. 1, 2, 5 and 6 shall provide the

particulars of their bank accounts to the respondent-

Railway. If the amount is not deposited within four

months, the appellants would be entitled to get

interest @ 6% per annum from the date of this

judgment till realization of the amount.