Bombay High Court
Mr. Jagannath S/O Mangluji Shende And ... vs The Union Of India Through Its General ... on 5 January, 2024
Author: G. A. Sanap
Bench: G. A. Sanap
2024:BHC-NAG:407
-1- 901.FA.1321.2018.Judgment.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
FIRST APPEAL NO. 1321 OF 2018
APPELLANTS : 1. Mr. Jagannath S/o. Mangluji Shende,
Aged 65 years, Occ. Labour.
2. Smt. Baranbai W/o. Jagannath Shende,
Aged 58 years, Occ. Household, Both
R/o. Ward No.1, Khaparkheda, Tah.
Saoner, Dist. Nagpur.
//VERSUS//
RESPONDENT : The Union of India, through its
General Manager, South East Central
Railway, Bilaspur, C.G.
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Ms. Shilpa G. Barbate, Advocate for the Appellants.
Ms. N.G. Chaubey, Advocate for the Respondent.
**************************************************************
CORAM : G. A. SANAP, J.
DATED : 5th JANUARY, 2024.
ORAL JUDGMENT
In this appeal, filed under Section 23 of the Railway
Claims Tribunal Act, 1987 (for short "the Act of 1987"), challenge
is to the judgment and order dated 9 th May, 2018, passed by the
Railway Claims Tribunal, Nagpur Bench, Nagpur, whereby learned
Member of the Tribunal dismissed the claim application filed by
the appellants under Section 16 of the Act of 1987.
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02] BACKGROUND FACTS :-
The appellants are the parents of deceased Dinesh
Jagannath Shende. It is the case of the appellants that on 7 th June,
2015, the deceased had gone to Saoner for his personal work and
after completion of his work, he was coming back from Saoner to
Khaparkheda by unknown train. It is stated that during the
journey, the deceased fell from running train near Down Home
Signal at Khaparkheda. He sustained multiple injuries and died
due to the injuries. The incident occurred at 00.40 hrs. on 8 th
June, 2015. It is further case of the appellants that the deceased was
travelling as a bona fide passenger with a valid journey ticket. The
journey ticket was lost in the unfortunate incident.
03] The respondent-Railway contested the claim. The
Railway denied the material facts pleaded in the application. It is
contended that the case in question was of run over of the deceased
by a train while crossing the railway line. The death was not in an
untoward incident. The deceased was not a bona fide passenger.
The journey ticket was not found on the person of the deceased or
on the spot.
04] The parties adduced the evidence before the Tribunal.
Learned Member of the Tribunal, on appreciation of the materials
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placed on record, found the evidence insufficient to accept the
claim of the appellants. Learned Member of the Tribunal,
therefore, dismissed the application. Being aggrieved by this
judgment and order of the Tribunal, the appellants have come
before this Court in appeal.
05] I have heard Ms. Shilpa G. Barbate, learned advocate for
the appellant and Ms. N.G. Chaubey, learned advocate for the
respondent-Railway. Perused the record and proceedings.
06] Following points fall for my determination :-
1) Whether the deceased died due to fall from running train
and as such his death was in untoward incident?
2) Whether the deceased was a bona fide passenger travelling
with a valid journey ticket at the time of the incident?
07] Learned advocate for the appellants submitted that it is
the specific case of the appellants that the deceased was travelling
as a bona fide passenger with a valid journey ticket. Learned
advocate took me through the spot panchanama as well as the
inquest panchanama and pointed out the position prevailing on the
spot at the time of drawing of the spot panchanama. Learned
advocate pointed out that the panchanama was drawn in the night
and, therefore, the possibility of loss of ticket cannot be ruled out.
-4- 901.FA.1321.2018.Judgment.odt
Learned advocate submitted that the Investigating Officer might
not have noticed the ticket on the spot in the night time. Learned
advocate pointed out that the red shirt worn by the deceased was
torn and it was lying by the side of the dead body. It is also pointed
out that his trouser was in torn condition. It is submitted that this
fact is sufficient to infer that the journey ticket might have been
lost in this incident. Learned advocate further submitted that there
is ample evidence in the form of DRM Report to conclude that the
deceased died due to fall from running train. Learned advocate
submitted that the Loco Pilot of the train, which passed through
the station, had not reported about run over of the train on any
person. Learned advocate, therefore, submitted that learned
Tribunal has completely missed the substance of the matter and
has wrongly dismissed the claim of the appellants. Learned
advocate submitted that the oral evidence adduced by the
appellants has been supported by circumstantial evidence to
conclude that the deceased was travelling as a bona fide passenger.
Learned advocate submitted that this evidence is sufficient to
discharge the initial onus of proof.
08] Learned advocate for the respondent-Railway supported
the judgment and order passed by the Tribunal. Learned advocate
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submitted that on both the counts, learned Member of the
Tribunal has properly appreciated the evidence and rightly
dismissed the claim application. Learned advocate submitted that
while drawing the panchanama, proper care was taken by the Police
Officer. It is submitted that if the ticket was lost on the spot as
stated, then the ticket would have been noticed on the spot by the
Investigating Officer. Learned advocate submitted that, therefore,
the findings recorded by the Tribunal do not warrant interference.
09] It is undisputed that AW-1, who is the father of the
deceased, was not an eye witness to the incident. In his evidence,
he has stated that the deceased on the date of the incident had gone
to Saoner for his personal work and while coming back to
Khaparkheda, he fell from running train and died. The
respondent-Railway has denied this fact in the written statement. It
is to be noted that it is not the case of the Railway that the case in
question is of run over by a train. Similarly, this conclusion cannot
be reached on the basis of available evidence. The DRM Report is
on record at page 22 of the record. The result of the enquiry
conducted by the DRM clearly indicates that the death was found
to have been caused due to fall from running train. This conclusion
was arrived at by the DRM on the basis of the available material.
-6- 901.FA.1321.2018.Judgment.odt
Besides, the possibility of run over of deceased by any train has
been completely ruled out. The dead body was noticed by the
Gateman after passing of Train No.58836 from Khaparkheda
towards Itwari at 23:40 hrs. In this factual situation, the Railway
was expected to examine the Loco Pilot of Train No.58836, to
substantiate its defence of run over. If the Loco Pilot of Train
No.58836 had noticed the dash to any person while crossing the
railway line at the relevant time, he would have reported the same
to the Station Master.
10] Learned Member of the Tribunal has observed that since
there was no report of any ACP by passenger after the incident, the
contention of the appellants that the deceased died due to fall from
running train could not be accepted. In my view, this finding
cannot be sustained for more than one reason. The first important
reason would be that the Railway has not examined the Loco Pilot
of the train in question. The Loco Pilot of the said train had not
reported to the Station Master about run over. In my view,
therefore, the case of the Railway that it was a case of run over
cannot be accepted.
11] The dead body was found by the side of the track. The
deceased had sustained serious multiple injuries. He died due to
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the injuries sustained in the accident. AW-1, the father of the
deceased, has categorically stated that he had gone to Saoner for his
personal work and while coming back, he fell from running train
and died. The position prevailing on the spot and the condition of
dead body would clearly suggest that it was a case of fall from
running train and not the case of run over of the deceased by any
train. Therefore, in my view, since the dead body was found in the
railway premises, learned Member of the Tribunal ought to have
accepted the contention of the appellants on this point. The
material, in my opinion, is sufficient to conclude that the deceased
while travelling from Saoner to Khaparkheda fell from running
train and died on the spot due to the multiple injuries sustained by
him. As such, the finding of the Tribunal on this point cannot be
sustained.
12] The Tribunal has held that since the ticket was not
found on the person of the deceased or on the spot, he could not
be said to be a bona fide passenger. It is undisputed that AW-1 was
not an eye witness to the incident. Similarly, he has not stated that
he had seen the deceased purchasing the railway ticket for journey.
However, he has stated that the deceased had gone to Saoner for
his personal work by a train. He has stated that the deceased had
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purchased the journey ticket and as such he was a bona fide
passenger. He has stated that the ticket was lost in the unfortunate
incident.
13] The question is whether this evidence is sufficient to
prove that the deceased was a bona fide passenger. It is necessary to
see whether the appellants have discharged the initial burden cast
on their shoulder by leading evidence. The deceased was doing
labour work. It is not the case of the Railway that the deceased had
come to the Railway Station at odd hours of the night without any
reason or was roaming at the railway station. The possibility of the
deceased crossing the railway line in the night on the available
material has been completely ruled out. It is the case of the
appellants that the ticket was lost in the unfortunate incident. In
my view, the material on record is sufficient to accept the
submission made by learned advocate for the appellants that at the
time of panchanama, the police might not have noticed the ticket
lying on the spot in the night. It has come on record that the
panchanama was drawn with the help of torch light as well as the
light at the railway station. The red shirt on the person of the
deceased was torn and was lying by the side of the dead body.
Generally, the article like a ticket is kept in the shirt pocket. It is
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further seen that the trouser worn by the deceased was also torn.
The shirt and trouser were not seized. Perusal of the panchanama
does not indicate that the entire spot was inspected minutely by the
Officer, who had drawn the panchanama. It is quite possible that
the Investigating Officer might not have noticed the ticket on the
spot.
14] In the facts and circumstances, in my view, the evidence
on record is sufficient to discharge the initial burden cast on the
shoulders of the appellants. The respondent-Railway has not
adduced any evidence in rebuttal to disprove this fact and
presumption. In my view, therefore, learned Member of the
Tribunal was not right in dismissing the claim. Learned Member of
the Tribunal has not considered all these aspects while deciding the
claim application. Therefore, I record my findings on both the
points in the affirmative. The impugned judgment and order dated
9th May, 2018, passed by learned Member of the Tribunal,
therefore, cannot be sustained. The impugned judgment and order
is accordingly set aside.
15] Learned advocate for the appellants submits that in view
of the law laid down in the case of Union of India Vs. Radha Yadav
[(2019) 3 SCC 410], the appellants would be entitled to get the
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compensation of Rs.8,00,000/- (rupees eight lakhs only) without
interest. Learned advocate has relied upon a Notification issued by
the Ministry of Railways (Railway Board) dated 22 nd December,
2016, wherein it is stated that in case of death claim, the claimants
are entitled to get the compensation of Rs.8,00,000/-. In view of
the decision in the case of Radha Yadav (supra), appellants are
entitled to get the compensation of Rs.8,00,000/- (rupees eight
lakhs only) without interest.
16] The respondent/Railway shall pay the compensation of
Rs.8,00,000/- (rupees eight lakhs only) to the appellants within
four months. If the amount is not deposited within four months,
then the respondent/Railway shall pay interest @ 6% per annum
from the date of this order till realization.
17] The appeal is allowed and disposed of accordingly. No
order as to costs.
(G. A. SANAP, J.)
Vijay
Signed by: Mr. Vijay Kumar
Designation: PA To Honourable Judge
Date: 12/01/2024 10:54:20
