Bombay High Court

Smt. Surekha Wd/O Sanjay Bhandare And ... vs Union Of India Through Its General ... on 16 January, 2024

Author: G. A. Sanap

Bench: G. A. Sanap

2024:BHC-NAG:1047



                                                            901.fa.411.20220 railway judge.odt
                                                   1



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

                                     FIRST APPEAL NO. 411 OF 2020

                    1    Smt. Surekha Wd/o. Sanjay Bhandare,
                         Aged : 42 Yrs., Occ.: Household,
                         (widow of deceased)

                    2.   Ritik S/o. Sanjay Bhandare,
                         Aged : 17 Yrs., Occ.: Education,
                         (son of deceased)

                    3.   Kajal D/o. Sanjay Bhandare,
                         Aged : 15 Yrs., Occ.: Education,
                         (Daughter of deceased)

                    4.   Gayatri D/o. Sanjay Bhandare,
                         Aged : 13 Yrs., Occ.: Education,
                         (Daughter of deceased)

                         Appellant No. 2 to 4 are minor
                         through their mother i.e.
                         appellant No.1

                         All R/o. Wangi Road, Vishwas Nagar,
                         Zopadpatti Area, Parbhani,

                         At present R/o. At Bhande plot,
                         Sakkardara, Nagpur 440 024

                    5.   Shri Pralhad S/o. Tukaram Bhandare,
                         Aged : 71 Yrs., Occ.: Nil,
                         (Father of deceased)

                    6.   Sau. Lilabai W/o. Pralhad Bhandare,
                         Aged : 70 Yrs., Occ.: Nil,
                         (mother of deceased)

                         Appellant No. 5 and 6 R/o. Wangi
                         Road, Parbhani - 431 401
                                                                           .... APPELLANTS
                                                       901.fa.411.20220 railway judge.odt
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                                       // V E R S U S //

          Union of India,
          through its General Manager,
          South Central Railway,
          Secunderabad.                                                    .. RESPONDENT
    ----------------------------------------------------------------------------------------------
           Mr. Nagsen R. Mankar, Advocate for the appellants
           Mrs. Neerja Choubey, Advocate for respondent
    ----------------------------------------------------------------------------------------------
                             CORAM : G. A. SANAP, J.
                             DATE : 16/01/2024

ORAL JUDGMENT :

Heard.

1 ADMIT. Taken up for final disposal forthwith by 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

07.02.2020 passed by the Railway Claims Tribunal, Nagpur

Bench Nagpur whereby the claim application filed by the

claimants for compensation under Section 16 of the Act of

1987 was dismissed.

901.fa.411.20220 railway judge.odt

3 Background facts:

Appellant No.1 is the wife of the deceased,

appellant Nos. 2 to 4 are the children of the deceased and

appellant Nos. 5 and 6 are the parents of the deceased. The

deceased Sanjay, after purchasing the journey ticket, had

boarded the Kolhapur-Nagpur Express, train No. 11404 at

Miraj Railway Station to come to Parbhani. It is stated that

during the course of the journey, near the shunting point, after

Latur Railway Station, the deceased fell down from the

running train at KM No. 204/14-15 and died on the spot due

to the injuries sustained by him. It is the case of the appellants

that the deceased was a bona fide passenger traveling with a

valid journey ticket. The deceased while traveling by the train

lost his balance and fell from the running train and died. It is

stated that death was in an untoward incident as understood by

Section 123(c)(2) of the Railways Act, 1989.

4 The respondent/railway filed the written statement

901.fa.411.20220 railway judge.odt

and opposed the claim. The respondent railway denied the

claim in toto. It was contended that the deceased was not a

bona fide passenger. The deceased died due to run over by a

train while crossing the railway track. The death was,

therefore, 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.

6 I have heard learned Advocate Mr N. R. Mankar

for the appellants and learned Advocate Mrs Neerja Choubey

for the respondent. Perused the record and proceedings.

7 In view of the facts and circumstances following

points fall for my determination:

901.fa.411.20220 railway judge.odt

i) Whether the deceased died due to the

injuries sustained due to fall from running train and as

such, the death was in an untoward incident ?

ii) Whether the deceased was a bona fide

passenger on a train with the valid journey ticket ?

8 Learned Advocate for the appellants submitted that

the findings of fact arrived at by the learned Member of the

Tribunal on both counts cannot be sustained in the teeth of

oral, documentary and circumstantial evidence available on

record. Learned Advocate pointed out that fact of the

deceased boarding the Kolhapur-Nagpur Express at Miraj

railway station has been fully established on the basis of the

journey ticket, which is produced on record. Learned

Advocate submitted that the deceased was travelling from

Miraj to Parbhani and therefore, he had no reason to get down

at Latur railway station. Learned Advocate further submitted

that the possibility of the deceased getting down at Latur

901.fa.411.20220 railway judge.odt

railway station and crossing the railway line on the spot of the

incident has been completely ruled out. Learned Advocate

pointed out that there was no report by the loco-pilot of the

Kolhapur-Nagpur Express with regard to the death of any

passenger or any person while crossing the railway line at Latur

railway station or at the spot of the incident. Learned

Advocate submitted that the spot of the incident is the

shunting point and therefore, the possibility of the deceased

falling from the train by losing his balance can't be ruled out.

Learned Advocate submitted that the possibility of the

deceased getting entangled in any part of the train in the

process of falling and coming under the wheel of the train can't

be ruled out. Learned Advocate submitted that the learned

Member of the Tribunal inferred that the case in question was

of run over inasmuch as the dead body was cut in two parts.

Learned Advocate submitted that this finding is flawed and

therefore, cannot be sustained.

901.fa.411.20220 railway judge.odt

9 Learned Advocate for the respondent-railway

submitted that the learned member of the Tribunal has

properly appreciated the evidence on record. Learned

Advocate submitted that there is no evidence to prove that the

deceased was a bona fide passenger. Learned Advocate

submitted that evidence and circumstances clearly indicate that

the deceased at the spot, while crossing the railway line, was

run over by the train and therefore, died. Learned Advocate

submitted that in the event of a fall, the injuries sustained by

the deceased could not be possible. In short, the learned

Advocate supported the judgment and order passed by the

Tribunal.

10 I have minutely perused the record and

proceedings. On going through the record and proceedings, I

am satisfied that the learned Member of the Tribunal on both

the counts has committed error. It is undisputed that at the

time of panchanama, the ticket was recovered from the pocket

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of the deceased. The ticket was for a journey from Miraj to

Parbhani. The ticket was purchased on 23.04.2018 for

Rs.155/- at about 13:17 hours. Undisputedly, the Kolhapur-

Nagpur Express departed from the Miraj railway station at

1:30 p.m. The said train arrived at Latur railway station at

about 22:55 hours and departed at 22:59 hours on the same

date. The dead body was noticed by the loco-pilot of the train

coming from the opposite direction at 23:00 hours. In the

teeth of this material, the findings recorded by the Member of

the Tribunal that the deceased was not traveling by this train

on the given date can not be sustained. This finding is

contrary to the record and particularly the ticket, which was

undisputedly verified and found to be a genuine ticket.

Learned Member discarded the case of the appellants on the

ground that the appellant No.1, wife of the deceased, was not a

co-passenger and therefore, had no occasion to see the

deceased either purchasing the ticket or boarding the train at

901.fa.411.20220 railway judge.odt

Miraj railway station after purchasing the ticket. In my view,

this observation is completely flawed and therefore, cannot be

sustained. I, therefore, conclude that the material on record is

sufficient to prove that the deceased, on 23.04.2018, was

travelling from Miraj to Parbhani after purchasing a valid

journey ticket at Miraj and during the course of his journey, he

died at the spot of the incident.

11 The next important point that needs consideration

is whether the death was due to run over by any train or

whether it was due to fall from the running train and as such,

in an untoward incident. The Member of the Tribunal

recorded the findings that the death was due to a run over and

not due to fall from the moving train. This finding has been

arrived at on the basis of the injuries sustained by the deceased.

It is undisputed that the dead body was cut into two parts.

Learned Member of the Tribunal has observed that if the

deceased had fallen from the moving train then in that event

901.fa.411.20220 railway judge.odt

the dead body would not have fallen on the railway track and

came under the wheel. In my view, this finding also cannot be

sustained in the teeth of the available direct and circumstantial

evidence.

12 The deceased had no reason to get down at Latur

railway station because he was travelling to Parbhani. There

was no reason for the deceased to cross the railway line at the

place of the incident. The spot of the incident is the shunting

point. A shunting point is the place where the train from the

railway station comes on to the main line from the loop line.

The shunting point is not far from the railway platform. The

train is required to take a slight turn at the shunting point at a

slow speed. The possibility of the passenger losing balance

while crossing the shunting point by train can't be ruled out.

While crossing the shunting point, the train does not move at

high speed. Therefore, in such a situation, if some passenger

falls from the train, the possibility of the passenger getting

901.fa.411.20220 railway judge.odt

entangled with any part of the railway train and coming in the

wheel can't be ruled out. In this case, this is the only

possibility. The possibility of the deceased being run over by

the said train has been completely ruled out. If the deceased

was run over by this train, then the loco-pilot of the train,

which was moving at a slow speed, would have noticed the

incident. The loco-pilot, therefore, would have made a report

to the station master. The loco-pilot of this train had not

reported the death of any person due to run over or due to

dash by his train. It is further seen that after the departure of

the Kolhapur-Nagpur Express train from the spot of the

incident, no other train had passed through that line. It is

seen that within 5-10 minutes, the loco-pilot of the train

coming from the opposite direction noticed the dead body on

the spot. The incident admittedly occurred at night.

13 The papers of investigation with regard to the

statement of the station master at Chakur railway station and

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statement of the loco-pilot of the train coming from the

opposite direction and the statement of the station master at

Latur station are the best pieces of evidence in support of the

claim of the appellants. In these statements, they have stated

that the dead body was lying on the railway track at the

shunting point. The station master at page 42, document No.

16, has stated that the death might have been due to a fall from

the train. In my opinion, the material on record clearly

indicates that the death was not due to run over of the

deceased by the train in question. The possibility of the

deceased falling on the spot from the moving train and

coming under the train can't be ruled out. This inference is

the only possible inference supported by materials available on

the record.

14 In the facts and circumstances, I conclude that

merely because of the nature of the injury sustained by the

deceased, the conclusion cannot be drawn that the case in

901.fa.411.20220 railway judge.odt

question was of run over. The theory of run over of the

deceased has been completely ruled out in the teeth of the

material available on record. As such, I conclude that the

deceased died due to a fall from the moving train and as such,

it was the death in an untoward incident, as understood by the

provisions of Section 123(c)(2) of the Act. In view of the

above, I am of the view that the judgment and order passed by

the Tribunal cannot be sustained. In my view, there is

substance in the appeal. Therefore, I answer the above points

in the affirmative.

15 Learned Advocates for the parties submit that, in

view of the Notification issued by the Ministry of Railways

(Railway Board) dated 22.12.2016 which came into effect

from 01.01.2017, in case of a death claim, the claimants are

entitled to get compensation of Rs.8,00,000/- (Rupees Eight

Lacs only). The claimants are entitled to get the interest on this

amount. The Court has discretion to quantify the interest.

901.fa.411.20220 railway judge.odt

The interest can be awarded from the date of the incident or

from the date of the application depending upon the facts of

the case. It needs to be stated that this claim is filed under the

Act, which is a beneficial piece of legislation. As far as possible,

under such legislation the Court has to exercise the discretion

in favour of the claimants. The discretion cannot be exercised

in favour of the claimants if there is a delay in filing the claim

application. Ordinarily the interest needs to be awarded from

the date of the incident. In this case, the date of incident is

23.04.2018. The claim was filed within limitation. In the

facts and circumstances, the claimants would be entitled to get

the interest on the amount of compensation @ of 6% p.a. from

the date of incident i.e. 23.04.2018.

16 Accordingly, I pass the following order.

(i)         The first appeal is allowed.

(ii)        The judgment and order dated 07.02.2020 passed
                                      901.fa.411.20220 railway judge.odt

by the Railway Claims Tribunal, Nagpur Bench, Nagpur in

Claim Application No. OA(IIu)/NGP/0007/2019 is quashed

and set aside. The claim application is allowed.

(iii) The respondent-railway is directed to pay

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

to the appellants with interest @ 6% per annum from the date

of the incident i.e. 23.04.2018, till its realization.

(iv) The appellant No.1 shall be entitled to get 40 % of

the amount of compensation.

(v) The appellant No.2, 3 and 4 shall be entitled to get

10 % of the amount of compensation each.

(vi) The appellant No.5 and 6 shall be entitled to get 15 %