Bombay High Court
Mr. Vilas S/O Hari Herode And Another vs Union Of India, Through General ... on 29 January, 2024
Author: G. A. Sanap
Bench: G. A. Sanap
2024:BHC-NAG:1351
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
FIRST APPEAL NO. 130 OF 2022
APPELLANTS : 1. Mr. Vilas s/o Hari Herode
(Original applicants on RA) Age about : 41 Yrs, Occu:- Labour
2. Mrs. Sangita w/o Vilas Herode,
Age about : 36 Yrs., Occu.: Housewife
Both are the R/o at 57, Thakur
Raghuvir Singh Marg,
Post-Burhanpur,
District-Burhanpur
(M.P.) 450331
//VERSUS//
RESPONDENT : 1. Union of India,
(Original respondent on through General Manager,
RA)
Central Railway, Mumbai (CST)
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Mrs. Uma A. Bhattad, Advocate for appellants.
Mrs. Neeraja Chaubey, Advocate for respondent.
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CORAM : G. A. SANAP, J.
DATED : 29th JANUARY, 2024
ORAL JUDGMENT
1. 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 25.07.2017 passed by
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the Railway Claims Tribunal, Nagpur Bench, Nagpur, whereby the
claim filed by the appellants/claimants for compensation was
dismissed.
2. Background facts:-
The appellants-claimants are the parents of the deceased
Rohit, s/o Vilas Herode. The appellants claimed that on
30.11.2014, the deceased had boarded the train for a journey to
Burhanpur via Bhusawal. He was a permanent resident of
Burhanpur. The appellants claimed that the deceased fell from the
running train near Bhusawal Railway Station due to a sudden jerk
to the train. He sustained serious injuries and died on the spot.
According to them, the death of the deceased was in an untoward
incident. The deceased was a bona fide passenger travelling with a
valid journey ticket. On this count, they claimed compensation.
3. 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 death was not in an untoward incident. The
deceased was negligent while undertaking his journey. He was run
over by some unknown train at Bhusawal Railway Station. The
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death was, therefore, not in an untoward incident.
4. The parties adduced the evidence before the Tribunal.
Vilas s/o Hari Herode (AW-1) is the appellant No.1. Shri Imran
Khan (RW-1) is the Deputy Station Manger, at Bhusawal Railway
Station. Learned Member of the Tribunal, on consideration of the
evidence, disbelieved the evidence of claimants and ultimately
dismissed the claim. Being aggrieved by the judgment and order,
the appellants are before this Court.
5. I have heard Mrs. Uma Bhattad, learned Advocate for
the appellants and Mrs. Neeraja Chaubey, learned Advocate for the
respondent. Perused the record and proceedings.
6. In view of the facts and circumstances following points
fall for my determination.
i) Whether the deceased was travelling as a bona fide
passenger with a valid journey ticket?
ii) Whether the deceased died in an untoward incident as
understood by Section 123 clause (c)(2) of the Railways Act, 1989?
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7. Learned Advocate for the appellants submitted that a
journey ticket was found from the person of the deceased at the
time of Panchanama. Learned Advocate submitted that the railway
ticket found on the person of the deceased is sufficient to
corroborate the contention of the appellants that the deceased
boarded a train at Badnera and while proceeding to Burhanpur via
Bhusawal, fell from running train and died. Learned Advocate
submitted that only on the basis of the injuries sustained by the
deceased a conclusion that the deceased was run over by an
unknown train at Bhusawal Railway yard, cannot be drawn.
Learned Advocate submitted that the inquiry conducted by the
DRM revealed that the deceased might have fallen from a moving
train at Bhusawal Railway Station. Learned Advocate pointed out
that the DRM report is based on the papers of investigation as well
as an independent inquiry conducted by the DRM. Learned
Advocate submitted that the deceased might have boarded any
train at Badnera after purchasing the ticket at about 04.08 p.m.
Learned Advocate submitted that therefore, the presumption that
the deceased, while travelling from Badnera to Bhusawal by train,
might have fallen down at Bhusawal Railway Station needs to be
drawn. Learned Advocate submitted that there was no report of
ACP at Bhusawal Railway Station. Similarly, there was no report
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by any loco pilot about run over of any person by any known or
unknown train. Learned Advocate submitted that these facts are in
the favour of the appellants and therefore, the judgment and order
passed by the learned Member of the Tribunal cannot be sustained.
8. Learned Advocate for the respondent-railway, in short,
supported the judgment and order passed by the learned Member
of the Tribunal. Learned Advocate submitted that Shalimar
Express was the only available train after 4.00 p.m., and therefore,
the arrival of the said train at Bhusawal Railway Station prior to
8.30 p.m. was not possible. Learned Advocate pointed out that the
dead body was noticed on the track at 8.00 p.m. Learned Advocate
submitted that all these facts and circumstances have not been
properly explained and therefore, the conclusion arrived at by the
learned Member of the Tribunal cannot be interfered with.
9. In this case, the railway ticket purchased by the deceased
at 04.08 p.m. was recovered from the person of the deceased at the
time of Panchanama. Other articles were also found. The ticket
was for a journey from Badnera to Burhanpur via Bhusawal. The
ticket was for Rs.75/-. In my view, this evidence clearly supports
the contention of the appellants that on the given date, the
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deceased travelled from Badnera to Bhusawal by some unknown
train. He met with an accident at Bhusawal Railway Station. The
ticket and particularly the timing of the ticket do not permit me to
accept the contention of the railway that there is no evidence to
substantiate the contention of the appellants that he travelled from
Badnera to Bhusawal. The evidence which was collected during
the course of the investigation in the form of a ticket is sufficient
to conclude that the deceased, at the time of the accident, was
travelling by a train as a bona fide passenger with a valid journey
ticket.
10. The next important aspect that needs to be addressed is
whether the case in question was of a run over by any train or an
accidental fall from a moving train? The deceased was travelling
from Badnera to Burhanpur via Bhusawal. The deceased was
required to change the train at Bhusawal Railway Station to
undertake his journey from Bhusawal to Burhanpur. The dead
body was found in the yard of the Bhusawal Railway Station.
There was no eye witness to the incident. Similarly, there was no
ACP of any train. Similarly, the loco pilot of any train did not
report to the Station Master about run over of any passenger by a
train. It could be said in the teeth of the evidence that the deceased
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would have undertaken his journey after purchasing the ticket at
about 04.08 p.m. and he would have taken three and a half hours
to come to Bhusawal. So the time, when the dead body was
noticed, clearly indicates that the deceased had travelled to
Bhusawal by some unknown train. The incident would have
occurred between 7.30 p.m. to 8.30 p.m. because by that time, in
any case, he would have reached Bhusawal Railway Station . There
was no report by any loco pilot about run over of any passenger
during this period at Bhusawal Railway Station.
11. A case of run over is sought to be made out on the basis
of injuries sustained by the deceased. It is seen that the dead body
was cut into two parts. The question is simply because of the
nature of these injuries, a conclusion of run over of the deceased by
any train could be drawn or not? It is true that such injuries are
possible in the case of run over of a person by a train. However, at
the same time, it needs to be stated that even by an accidental fall
of a passenger from a moving train, such injuries could be possible,
as well. The place of the occurrence indicates that at the said place,
the train would have slowed down its speed. The deceased had to
go to Burhanpur. In this situation, the possibility of the deceased
getting down from the train hurriedly cannot be ruled out.
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Similarly, in this process, the deceased getting stuck in any part of
the train after fall from the running train cannot be ruled out. If
this happens, then the person can come under the train and sustain
the injuries of the nature found on the person of the deceased.
There is no eye witness to the incident. In the absence of any
categorical report, by the loco pilot, of the run over of any
passenger at the spot of the incident, at the relevant time, the
possibility of the deceased falling from a moving train and getting
under the wheels of the train cannot be ruled out. In my view, the
learned Member of the Tribunal was required to take care while
appreciating the evidence. The report of DRM concludes that the
deceased might have died due to a fall from the running train. The
DRM has concluded that at the time of his fall, the deceased might
have been standing at the door of the compartment or sitting at the
footboard of the train. In view of this, conclusion drawn by the
DRM, on the basis of the available investigation papers as well as
the result of his own inquiry, the learned Member was required to
record the cogent reasons to discard this report. In the facts and
circumstances of the case, I am of the view that this finding of fact
arrived at by the Member of the Tribunal cannot be sustained. It is
not possible to accept the case of the railway that the deceased was
run over by any train. If the deceased was run over by any train at
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the spot of the incident, at the relevant time, then the loco pilot of
the train would have reported the same to the Station Master. If all
these facts are taken into consideration, it would show that the case
of the appellants would fall under the first part of Section 124-A of
the Railways Act, 1989 (for short, "the Act of 1989). The case
would not fall under any of the clauses of proviso to Section 124-A
of the Act of 1989. In such a case the liability is based on the no
fault theory and therefore, the defence of contributory negligence
is not available.
12. In this case, there is one more possibility in favour of the
appellants. The deceased, after getting down at Bhusawal Railway
Station, might have tried to board the train for Burhanpur. In that
process, the possibility of the deceased falling while boarding the
train could not be ruled out. In any case, the death while boarding
or deboarding of a train would be a death in an untoward accident.
In such a case, the defence of contributory negligence is not
available to the railway. Therefore, I conclude that the learned
Member of the Tribunal was not right in rejecting the claim.
Accordingly, I record my findings on both the points in the
affirmative. The judgment and order deserves to be set aside.
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13. The learned Advocates for the railway submits that in
view of the law laid down in the case of Union of India vs. Radha
Yadav reported in [(2019) 3 SCC 410], the appellants would be
entitled to get the compensation of Rs.8,00,000/- (Rupees Eight
Lacs Only) without interest. The learned Advocate has relied upon
a Notification issued by the Ministry of Railways (Railway Board)
dated 22.12.2016, wherein it is stated that in case of the death
claim, the claimants are entitled to get a compensation of
Rs.8,00,000/-. In view of the decision in the case of Radha Yadav
(supra), the appellants are entitled to get a compensation of
Rs.8,00,000/- (Rupees Eight Lacs Only) without interest.
14. Accordingly, the appeal is allowed.
15. The judgment and order dated 25.07.2017 passed by
Railway Claims Tribunal, Nagpur Bench, Nagpur in Claim
No.OA(IIu)/NGP/2015/0072 is hereby quashed and set aside.
The claim petition is allowed.
16. The respondent-Railway shall pay the compensation of
Rs.8,00,000/- (Rupees Eight Lacs Only) to the appellants within
four month from the date of the judgment without interest. If the
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amount is not deposited within four months from the date of the
judgment then the respondent-Railway shall pay interest @ 6% per
annum from the date of this judgment till its realization.
17. The amount of compensation be deposited directly in
the bank accounts of the appellants. The appellants are directed to
provide their bank account details to the respondent-Railway. Out
of total compensation, appellant Nos.1 and 2 shall be entitled to
get 50% share each.
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: 02/02/2024 18:16:48
