Bombay High Court
Shewantabai Wd/O Ruprao Barde And ... vs Union Of India, Thr. General Manager, ... on 6 February, 2024
Author: G. A. Sanap
Bench: G. A. Sanap
2024:BHC-NAG:2095
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FIRST APPEAL NO.205 OF 2018
1. Shewantabai wd/o Ruprao Barde
Aged about 52 Yrs., Occu.: Household,
2. Mahesh s/o Ruprao Barde,
Aged about 31 Yrs., Occu.: Nil,
3. Satish s/o Ruprao Barde
Aged about 28 Yrs., Occu.: Nil,
4. Priya D/o Ruprao Barde,
Aged about 27 Yrs., Occu.: Student,
All R/o At Post- Teburdoh,
Th-Saoner, Dist. Nagpur
// V E R S U S //
The Union of India,
Through General Manager,
... RESPONDENT
Central Railway, Mumbai
On R.A.
C.S.T. Mumbai
----------------------------------------------------------------------------------------------
Mr. K.P. Mirache, Advocate for the appellants
Ms Neerja Chaubey, Advocate for the respondent
----------------------------------------------------------------------------------------------
CORAM : G. A. SANAP, J.
DATE : 06/02/2024
ORAL JUDGMENT :
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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 09.05.2017
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 Ruprao
Barde. Appellant Nos.2, 3 and 4 are the children of the
deceased. The appellants claimed that on 02.01.2013, the
deceased, while boarding in a Train No.18029 Shalimar
Express at Nagpur Railway Station after purchasing a valid
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journey ticket, fell down. He sustained injuries. He was carried
to the hospital and while taking the treatment in the hospital,
he succumbed to the injuries sustained in the incident.
According to the appellants, the deceased died in an untoward
incident, as understood by Section 123 clause (c) sub-clause
(2) of the Act of 1989. The deceased was having a valid
journey ticket. The journey ticket was lost in the incident.
4 The respondent-railway filed the written statement
and opposed the claim. It was contended that the death was not
in an untoward incident, inasmuch as the deceased fell down
while boarding the running train. The deceased was negligent.
It was further contended that the ticket was not recovered from
the person of the deceased or from the spot of the incident at
the time of the spot panchanama. According to the respondent-
railway, the deceased was not a bona fide passenger travelling
with a valid journey ticket. The ticket was not recovered on the
spot.
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5 The parties adduced the evidence before the
Tribunal in support of their rival contentions. The learned
Members of the Tribunal, on consideration of the evidence,
found that the claim was without substance and 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 Mr. K.P. Mirche
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?
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(ii) Whether the deceased was a bona fide
passenger travelling with a valid journey ticket?
8 Learned Advocate for the appellants submitted that
the finding of fact recorded on both the counts by the Tribunal
is not consistent with the record and evidence. Learned
Advocate submitted that the circumstances available on record,
if considered in totality, would indicate that there was a
possibility of loss of ticket. Learned Advocate pointed out that
an inquest panchanama was carried out in the hospital after
three to four hours of the incident. Learned Advocate further
pointed out that the spot panchanama was drawn after 25 hours
of the incident. Learned Advocate pointed out that there is no
mention in the spot panchanama that the spot was inspected by
the police either before drawing panchanama or at the time of
panchanama. Learned Advocate submitted that if the deceased
had entered the platform without ticket and attempted to
board the train without a ticket then he would have been
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caught. Learned Advocate submitted that therefore, the
inference has to be drawn that the deceased had purchased the
ticket tried to board the train. Learned Advocate further
submitted that guard of the concerned train has stated that the
deceased tried to board the moving train and in the process, fell
down on the track. Learned Advocate submitted that the
accidental falling of any passenger from a train carrying
passengers while boarding the train is covered under the
definition of an "untoward incident." In order to seek support
to his contention, the learned Advocate has relied upon the
decision in the case of Union of India vs Prabhakarn Vijaya
Kumar and others reported in [2009 (1) Mh.L.J.] Learned
Advocate relying upon a decision in the case of Union of India
vs. Rina Devi reported in [AIR 2018 SC 2362], submitted that
the evidence adduced by the appellants is sufficient to discharge
the initial burden and accept their case that the deceased was a
bona fide passenger.
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9. Learned Advocate for the respondent-railway
submitted that the Members of the Tribunal have made
threadbare analysis of the evidence and on doing so, found that
the said evidence was not sufficient to prove the case of the
appellants on both the counts. Learned Advocate submitted
that there was contributory negligence on the part of the
deceased. Learned Advocate submitted that the injury sustained
by the passenger while boarding a running train is equal to a
self-inflicted injury. Learned Advocate submitted that if the
deceased had purchased a railway ticket as sought to be
contended by the appellants then the ticket would have been
found in the pocket of the deceased at the time of the inquest
panchanama. In short, learned Advocate has supported the
judgment and order passed by the learned Members of the
Tribunal.
10. In order to appreciate the rival submissions, I have
gone through the record and proceedings. As far as the issue of
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death in an untoward incident is concerned, in my view, the
finding of fact recorded by the Tribunal cannot be sustained.
The evidence on record is sufficient to conclude that the
deceased in attempting to board the Shalimar Express, fell
down and came under the wheels. The evidence of
Umeshchandra s/o Trinath Behera-guard (RW-1) has been
relied upon to substantiate the contributory negligence on the
part of the deceased. RW-1 has stated that the deceased tried to
board a moving train despite his instructions not to board the
same. Guard has stated that after fall the passenger came under
the wheels of the train. He thereafter applied the brake and
stopped the train. He informed Station Master, Nagpur about
the incident. He has stated that he thereafter attended the spot
and lifted the injured person. His evidence shows that dead boy
was lying on the track. His body was not cut into pieces. The
deceased sustained serious injuries and died due to the injuries.
The evidence of the guard is sufficient to prove that the
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deceased tried to board Lokmanya Tilak-Shalimar Express Ex-
Nagpur to Bilaspur. The question is whether the death in such
an accident could be said to be a death in an "untoward
incident" as understood by Section 123(c)(2) of the Act. In my
view, this issue can be addressed by making reference to the
decision of the Apex Court in the case of Union of India Vs.
Prabhakarn Vijay Kumar (supra). At the out set, it is necessary
to state that the facts of this case and the facts in the case of
PrabhakarN Vijay Kumar (supra) are identical. The deceased
in the case of Prabhakaran had sustained the injuries in her
anxiety to get into the train which was moving. The question
was whether it would come within the expression "accidental
falling of a passenger from a train carrying passengers" and as
such an "untoward incident". The Hon'ble Apex Court has held
that accidental falling of passengers from train carrying
passengers in this manner is an "untoward incident." It is held
that the death in such an incident has to be termed as an
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"untoward incident". The Hon'ble Apex Court has held that
the words used in a beneficial or welfare statute when are
capable of two constructions, the construction which is more in
consonance with the object of the Act and for the benefit of the
person for whom the Act was made should be preferred.
11. On going through the record, I am satisfied that the
deceased died in an untoward incident. It is to be noted that the
guard of the train has not stated that the train had gained
considerable speed and momentum. The train had departed
from the Nagpur Railway Station. The train was on a loop line.
Immediately after departure, the train does not run in high
speed. RW-1 who was the guard of the concerned train could
have thrown sufficient light on this aspect in his evidence. In
the teeth of the material available on record and in view of the
settled legal position as above, I conclude that the Tribunal was
not right in holding that the death was not in an "untoward
incident".
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12. At this stage, it would be appropriate to consider
whether the defence of negligence or contributory negligence is
available or can be invoked in such a case. In my view, the legal
position on this point has been well settled by the Apex Court
in the case of Union of India vs. Rine Devi (supra). Paragraph
No.16.6 would be relevant for the purpose of addressing the
issue. It is extracted below:-
"16.6 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 reported in (AIR 2017 SC 5710)
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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.".
13. It is held that in order to cause self-inflicted injury,
the intention is necessary. It is held that liability in such a claim
is based on 'no fault theory' and therefore, the principle of
contributory negligence or negligence cannot be brought in. It
is held that the death or injury in the course of boarding or de-
boarding a train will be in an 'untoward incident' entitling a
claimant to the compensation and will not fall under the
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proviso to Section 124-A merely on the plea of negligence of
the victim as a contributing factor. In my view, in the backdrop
of this settled legal position, the defence of negligence of the
victim as a contributing factor is not available in this case.
14. The next important issue that needs independent
consideration is as to whether the deceased was a bona fide
passenger or not? Admittedly, the ticket was not found on the
person of the deceased at the time of the inquest panchanama.
Admittedly, the inquest was drawn after three hours of the
incident. The deceased had fallen on the railway track. His
body was carried to the platform by guard of the train. It is not
the case of respondent-railway as well as guard (RW-1) that the
spot was immediately inspected and on inspection, the ticket
was not found. In fact, it is not the case of the railway that the
spot was immediately inspected and the ticket was not found.
The deceased, as per the case of the appellants was travelling
from Nagpur to Gondia. It has been mentioned in the inquest
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panchanama that not a single article including money was
found in the pocket of the deceased. Learned Advocate
submitted that there is a presumption that one who travels by a
train, travels with a valid journey ticket. Learned Advocate
submitted that there is constant vigil at the platform as well as
routine checking in the train of passengers travelling without a
ticket. Learned Advocate submitted that if the deceased had
entered the railway station without a ticket then he would have
been caught. In my view, this is one of the factors to be
considered while answering this issue.
15. Shewantabai (AW-1), the wife of the deceased has
not stated that she has seen the deceased purchasing the ticket
and boarding the train. It is the case of the appellants that the
deceased had purchased the ticket for journey to Gondia from
Nagpur and the said ticket was lost in the incident. The
question is whether the material on record is sufficient to make
this contention of the appellants probable. It is to be noted that
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this issue has to be considered and decided on the
preponderance of probabilities. In my view, the possibility of
the loss of the ticket in this case cannot be ruled out.
Admittedly, the deceased tried to board the running train. The
guard has stated that while boarding a running train he fell
down and came under the wheels of the train. The possibility
of loss of a ticket and other articles in such an accident is
possible. This possibility cannot be ruled out.
16. In order to accept the defence of the railway, there
must be other material to dispel this possibility. As stated
above, the spot was not immediately inspected either by the
police or by the railway officials. It is undisputed that the spot
panchanama was drawn after 24 hours. It is further seen on
perusal of the spot of panchanama that the spot was shown at
the platform and not on the railway track. The deceased had
fallen on the track. This fact would suggest that the track where
the deceased had fallen was not inspected. It is further pertinent
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to note that even if track had been examined or inspected after
24 hours, the possibility of locating the goods and articles
including the ticket was remote. The deceased was carried to
the hospital in an injured condition. The person who had
carried the deceased was not examined. The inquest
panchanama was drawn after three to four hours. In my view,
therefore, the possibility of loss of a ticket cannot be ruled out.
As such, I conclude that on both the counts, the learned
Tribunal was not right in rejecting the claim. The evidence on
record, coupled with the undisputed facts and circumstances, is
sufficient to discharge the initial burden cast on the shoulders
of the appellants. The evidence is sufficient to prove that the
deceased was a bona fide passenger. Accordingly, I record my
findings on both the points in the affirmative.
17. In this case, the accident had occurred on
02.01.2013. In view of the notification issued by the Ministry
of Railways (Railway Board) dated 22.12.2016, came into
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effect from 01.01.2017, in case of death claim, the claimant/s
is/are entitled to get compensation of Rs.8,00,000/- (Rs. Eight
Lacs Only). In view of the decision of the Hon'ble Apex Court
in Union of India .v/s. Radha Yadav, reported at (2019) 3 SCC
410, in case of old claim after this notification, the
claimants/appellants would be entitled to get compensation of
Rs.8,00,000/-, without interest, if the compensation provided
earlier with interest is less than Rs.8,00,000/-. Learned
Advocate submitted that the compensation provided earlier i.e.
Rs.4,00,000/- with interest would not be more than
Rs.8,00,000/-. Therefore, in this case, the appellants/claimants
would be entitled to get Rs.8,00,000/- (Rupees Eight Lacs
Only), without interest.
18. Accordingly, I pass the following order:
(i) The first appeal is allowed.
(ii) The judgment and order dated 09.05.2017
passed by the Railway Claims Tribunal, Nagpur Bench,
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Nagpur in Claim Application No.
OA(IIu)/NGP/2013/0250 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-Shewantabai wd/o Ruprao
Barde shall be paid 70 % of the amount of compensation.
(v) Appellant Nos. 2 to 4 shall be paid 10 % of
the amount of compensation each.
(vi) The amount shall be deposited within four
months directly in the bank account of the appellants
from the date of this judgment. The appellants 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
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judgment till realization of the amount.
18. The first appeal stands disposed of. No order as to
costs. Pending applications, if any, stand disposed of.
(G. A. SANAP, J.)
manisha
Signed by: Mrs. Manisha Shewale
Designation: PA To Honourable Judge
Date: 22/02/2024 11:08:49
