Bombay High Court

Shri Shyamlal S/O Tulsiram Bankar And ... vs Union Of India Through Its General ... on 16 January, 2024

Author: G. A. Sanap

Bench: G. A. Sanap

2024:BHC-NAG:1003



                                                                             902.fa.60.2022 judge railway.odt
                                                               1



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

                                               FIRST APPEAL NO. 60 OF 2022

                    1.        Shri Shyamlal S/o. Tulsiram Bankar,
                              Aged about 55 Yrs., Occu.: Labour,

                    2.        Smt Kiranbai W/o. Shyamlal Bankar,
                              Aged about 50 Yrs., Occu.: Housewife,
                              Both R/o. Pipartola, Post Dhanoli,
                              Tah. Amgaon, Distt. Gondia (Maharashtra)                        .... APPELLANTS

                                                           // V E R S U S //

                               Union of India,
                               Through its General Manager,
                               South East (Central Railway),
                               Bilaspur (C.G.)                                                   ... RESPONDENT
                        -----------------------------------------------------------------------------------------------
                               Mrs. H. S. Dhande, Advocate for the appellants
                               Mrs. Neerja Choubey, Advocate for the respondent
                        -----------------------------------------------------------------------------------------------
                                                 CORAM : G. A. SANAP, J.
                                                 DATE : 16/01/2024

                    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

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1987"), the challenge is to the judgment and order dated

15.01.2016 passed by the Railway Claims Tribunal,

Nagpur Bench, Nagpur, whereby the learned Tribunal

dismissed the claim application filed by the appellants/

claimants for compensation under Section 16 of the Act of

1987.

3 Background facts:-

The appellants are the parents of the deceased

Prakash. On 18.08.2012, the deceased was travelling from

Gondia to Nagpur by Maharashtra Express. It is stated that

the train was overcrowded. The deceased was standing in

the train. During his journey, due to a heavy rush and

sudden jerk the deceased fell from the running train near

Bhoboli Shivar Bridge No. 125 and died due to injuries

sustained by him. The deceased had purchased the ticket at

Gondia for the journey to Nagpur. The ticket was lost in

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the incident. It is the case of the appellants that the

deceased was a bona fide passenger travelling with a valid

journey ticket. The death was in an untoward incident.

The appellants on these averments claimed the

compensation.

4 Respondent-railway opposed the claim

application. According to the respondent, the deceased

was not travelling with a valid journey ticket. He was not a

bona fide passenger. It was contended that the death was

not in an untoward incident.

5 The parties adduced the evidence. Learned

member of the Tribunal, on consideration of the evidence,

found that the evidence was not sufficient to accept the

claim of the appellants and ultimately, dismissed the claim.

Being aggrieved by this order, the appellants are before this

Court.

902.fa.60.2022 judge railway.odt

6 I have heard learned Advocate Mrs. H. S.

Dhande for the appellants and learned Advocate Mrs.

Neeraja Choubey for the respondent. Perused the record

and proceedings.

7 In view of the facts and circumstances, the

following points fall for my determination:

i) Whether the deceased died due to injuries

sustained due to a fall from a running train and,

as such, whether the death was in an untoward

incident ?

ii) Whether the deceased was a bona fide

passenger on a train with a valid journey ticket ?

8 Learned Advocate for the appellants submitted

that the deceased died due to the injuries sustained in the

incident. Learned Advocate submitted that the dead body

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was found lying in the water of the stream near the railway

bridge. Learned Advocate submitted that, therefore, the

possibility of the deceased being run over by any train has

been completely ruled out. Learned Advocate took me

through the record and submitted that the material is

sufficient to infer that the deceased had fallen from

running train and died due to the injuries sustained in the

incident. Learned Advocate further submitted that

appellant No.1, the father of the deceased, has filed the

affidavit on record and categorically stated that on the date

of the incident the deceased was travelling from Gondia to

Nagpur by Maharashtra Express after purchasing a valid

journey ticket. Learned Advocate submitted that no efforts

were made by the police to carry out a minute inspection of

the spot and find out the lost articles, including the ticket

of the deceased. Learned Advocate submitted that no

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evidence is adduced by the respondent to rebut the

evidence of AW-1 and undisputed facts and circumstances.

9 Learned Advocate for the respondent submitted

that even if it is assumed that the death was in an untoward

incident, the appellants would not be entitled to get

compensation because there is no evidence to prove that

the deceased was a bona fide passenger travelling with a

valid journey ticket. Learned Advocate submitted that the

evidence adduced by the appellants is not sufficient to

discharge the initial burden. Learned Advocate therefore

submitted that on this count the findings of fact recorded

by the learned Member of the Tribunal is sustainable.

Learned Advocate, in short, supported the judgment and

order passed by the learned Member of the Tribunal.

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10 I have minutely perused the record and

proceedings. The deceased had sustained multiple injuries.

As per the doctor, the death was due to head injury and

multiple organ failure. The spot where the dead body was

found is under the railway bridge. The distance from the

spot to the railway line has not been mentioned in the

inquest panchanama. The injuries sustained by the

deceased indicate that after falling from a running train, the

body of the deceased was rolled over and thereafter fallen

in the nallah. It has come on record that the dead body was

found lying in the water. The dead body was removed from

the water at the time of drawing the inquest panchanama.

The spot where the dead body was found lying and the

injuries sustained by the deceased clearly suggest that the

deceased was not run over by any train or dashed by any

train while crossing the railway line. The place where the

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dead body was found is not near any railway station or

railway crossing line. The dead body was noticed by the

railway keyman at about 11:40 a.m. The deceased was not

residing in the vicinity of the spot where the dead body was

found. The only inference that is possible in the teeth of

these facts is that the deceased, while travelling by train,

might have fallen from the running train and his body

might have rolled over and fallen in the water. In the facts

and circumstances, therefore, the finding of the Tribunal

that the death was not in an untoward incident cannot be

sustained. The evidence, direct as well as circumstantial, is

sufficient to conclude that the death was due to a fall from

the running train and as such, in an untoward incident.

11 The next important aspect is with regard to the

journey ticket. AW-1 is the father of the deceased. In his

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affidavit, he has stated that the deceased, after purchasing

the railway ticket, boarded the Maharashtra Express at

Gondia for Nagpur. He was not an eye witness either for

purchasing a ticket by the deceased or boarding the train

by the deceased. Even if it is assumed that he was not a

witness to this fact, his evidence, being father, about the

visit of the deceased to Nagpur cannot be doubted. AW-1,

being the father, was supposed to know the destination

where the deceased was going on the given date.

12 In this case, the respondent-railway has

contended that a railway ticket was not found from the

person of the deceased at the time of the inquest

panchanma and therefore, the inference has to be drawn

that the deceased was not a bona fide passenger. Before

addressing this issue, it would be appropriate at this stage

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to consider settled legal position on this point. Useful

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

Court in the case of Union of India .v/s. Rina Devi1. 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 The Hon'ble Apex Court has held that the mere

presence of the body on the railway premises will not be

1 (2019) 3 SCC 572

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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 and

burden will then shift on the railways 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. It is therefore pertinent

to mention that there cannot be a straight jacket formula

while addressing this issue. The facts and circumstances

and the evidence are required to be taken into

consideration. The burden can be discharged on the basis

of direct or circumstantial evidence.

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14 In my view, in this case, there are numerous

circumstances to substantiate the contentions of the

appellants that, after fall, the railway ticket might have lost.

I may narrate those circumstances in brief. The dead body

was noticed at 11:40 a.m. by a keyman. He reported the

incident to the station master. The police went to the spot.

In presence of the panchas, the police drew the inquest

panchanama. The dead body was in the water of the nallah.

The dead body was taken out of the water. The condition

of the dead body and the injuries found on the dead body

have been recorded in the panchanama. It has not been

mentioned in the panchanama that the police, at the time

of the inquest panchanama inspected the spot minutely. In

my view, therefore, the possibility of the loss of the ticket,

as contended by the appellants, can't be ruled out. The

facts and circumstances obtained from the record support

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this possibility. The burden was on the railway to dispel

this possibility by producing a record which would show

that spot was inspected and after careful inspection, the

ticket was not found.

15 In this case, the spot panchanama of the spot of

the incident was not drawn by the police. Generally, while

drawing the inquest panchanama the spot is not carefully

examined. For the purpose of inquest panchanama only

the dead body is carefully examined. The spot of the

incident for the collection of evidence is required to be

carefully examined by the police at the time of the spot

panchanama. In this case, the spot panchanama was not

drawn. The inquest panchanama does not make it clear as

to whether the water was flowing in the river or not. The

body might have rolled over after fall to the nallah and

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therefore, in this process, the possibility of loss of ticket was

on the higher side. In the facts and circumstances, in my

view, this material on record is sufficient to discharge the

initial burden. The railway has not adduced any evidence

to rebut this inferential possibility. On minute perusal of

the record, I am satisfied that the Member of the Tribunal

has failed to properly appreciate this circumstance and as

such, has come to the wrong conclusion.

16 In view of the materials on record I conclude

that the death of the deceased was in an untoward incident.

The appellants have proved that the deceased was a

bonafide passenger travelling with a valid journey ticket

and as such, the findings recorded by the learned Member

of the Tribunal cannot be sustained. Accordingly, I record

findings on both the points in the affirmative.

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17 Learned Advocates pointed out that in view of

the notification issued by 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

not be entitled to get the interest.

18 Accordingly, I pass the following order:

(i) The first appeal is allowed.

(ii) The judgment and order dated 15.01.2016

2 (2019) 3 SCC 410

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passed by the Railway Claims Tribunal, Nagpur

Bench, Nagpur in Claim Application No. OA(IIu)/

NGP/2012/0325 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 Nos. 1 and 2 shall be entitled to

get 50 % of the amount of compensation each.

(v) The amount shall be deposited within four

months in the bank account of the appellants directly.

The appellants shall provide the particulars of their

bank account 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