Bombay High Court
Kamarunisa Wd/O Kalandar Shaikh And ... vs Union Of India, Through Its General ... on 5 January, 2024
Author: G. A. Sanap
Bench: G. A. Sanap
2024:BHC-NAG:586
-1- 902.FA.18.2020.Judgment.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
FIRST APPEAL NO. 18 OF 2020
APPELLANTS : 1. Kamarunisa Wd/o. Kalandar Shaikh,
Aged 48 years, Occupation -
Household.
2. Sultan S/o. Kalandar Shaikh, Aged 16
years, Occupation - Education.
3. Shabana D/o. Kalandar Shaikh, Aged
15 years, Occupation - Education.
4. Salman S/o. Kalandar Shaikh, Aged 14
years, Occupation - Education.
(Applicant Nos.2 to 4 through
applicant No.1 mother the natural
guardian)
All Resident of - Pimpalkhuta, Post-
Chinchfalli, Tah. & Distt. Chandrapur
- 441224.
//VERSUS//
RESPONDENT : Union of India, through its General
Manager, Central Railway, Mumbai
CSMT - 400001.
**************************************************************
Mr. R.G. Bagul, Advocate for the Appellants.
Ms. Neerja Chaubey, Advocate for the Respondent.
**************************************************************
CORAM : G. A. SANAP, J.
DATED : 5th JANUARY, 2024.
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ORAL JUDGMENT
In this appeal, filed pursuant to Section 23 of the
Railway Claims Tribunal Act, 1987 (hereinafter referred to as "the
Act of 1987"), seeks to challenge the judgment and order passed on
31st July, 2019 by the Railway Claims Tribunal, Nagpur Bench,
Nagpur. The aforementioned verdict dismissed the claim
application submitted by the appellants under Section 16 of the
Act of 1987.
02] BACKGROUND FACTS :-
The deceased was the spouse of appellant No.1 and the
progenitor of appellant Nos.2 to 4. The appellants assert that the
deceased embarked on a private venture to Amravati, travelling via
a City Bus. Subsequently, he went to Murtizapur where he
procured a railway ticket for a voyage from Murtizapur to Akola on
25th April, 2016. He boarded the Vidarbha Express Train. It is
alleged that due to overcrowding and an abrupt jolt to the train, he
fell from the moving train en route to Akola and succumbed to his
injuries on the spot. The death was attributed to an untoward
incident. The deceased was a bona fide passenger.
03] The respondent-Railway has submitted a written
statement refuting the claim. They contend that the deceased did
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not possess a valid journey ticket, was not a legitimate passenger,
and that the death was not a result of an untoward incident but
rather a self-inflicted injury.
04] Evidence was adduced by both parties. Upon
examination of the evidence, learned Member of the Tribunal
concluded that the claim lacked merit and consequently dismissed
it. Aggrieved by this judgment and order of the Tribunal, the
appellants have sought redress from this Court in appeal.
05] I have heard Mr. R.G. Bagul, learned advocate for the
appellants and Ms. Neerja Chaubey, learned advocate for the
respondent-Railway. I have scrutinized the record and proceedings.
06] The following points are to be adjudicated upon :-
1) Whether the deceased died due to fall from running train
and as such the death was in an untoward incident?
2) Whether the deceased was a bona fide passenger having a
valid journey ticket?
07] Learned advocate for the appellants argued that AW-1,
the spouse of the deceased, has testified that the deceased died due
to falling from a moving train. Learned advocate further contended
that the evidence substantiates the claim that the journey ticket was
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lost in the incident. Learned advocate pointed out that the
evidence presented by the appellants sufficiently discharges the
burden of proof cast upon them. Learned advocate argued that the
affidavit submitted by appellant No.1 adequately establishes that
the deceased was a bona fide passenger. Learned advocate further
contended that the deceased's body was found adjacent to the
railway track between Mana and Murtizapur Railway Station.
Learned advocate argued that the evidence on record sufficiently
demonstrates that the deceased, while travelling on the train, fell
from the moving train due to overcrowding and a sudden jolt, and
died instantly. Learned advocate further contended that the
Railway has not raised the defence of the deceased being run over
by any train. Learned advocate further argued that the Railway's
defence that the death was a result of a self-inflicted injury is
untenable. Learned advocate submitted that, therefore, the
judgment and order passed by the Tribunal cannot be upheld.
08] Learned advocate for the respondent-Railway argued
that during the spot panchanama, a bus ticket for a journey to
Amravati was discovered in the deceased's trouser pocket. Learned
advocate pointed out that if the deceased had indeed purchased a
railway ticket, it would have been found in his possession. Learned
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advocate further contended that the Investigating Officer
conducted a thorough examination of the scene, but no ticket was
found. Therefore, learned advocate argued that the deceased was
not a bona fide passenger and on this ground alone, the claim for
compensation should be rejected. Learned advocate further argued
that mere discovery of the deceased's body by the side of the
railway track does not automatically imply that the death was in an
untoward incident. Learned advocate submitted that learned
Member of the Tribunal was correct in dismissing the claim.
09] I have meticulously examined the record and
proceedings. Upon examination of the record pertaining to the
deceased's death in an untoward incident, I am convinced that
learned Member of the Tribunal was incorrect in this regard. The
deceased's body was discovered by the side of the railway track. It
can be seen that the appellants in the claim application initially
stated that the deceased had purchased railway ticket at Murtizapur
and was travelling from Murtizapur to Akola. It appears that after
filing the application, the appellants realized that the incident had
occurred between Mana and Murtizapur Railway Station. Mana
Railway Station is located before Murtizapur Railway Station and is
not situated between Murtizapur and Akola. Consequently, an
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application was made to amend the claim application. It is
observed that the application for amendment was rejected. Even if
it is assumed for argument's sake that this was an error, in my
opinion, it would not alter the factual scenario.
10] The deceased's body was found by the side of the railway
track. The spot of the incident is not in close proximity to the
railway station. The spot is situated between Mana and Murtizapur
Railway Station. The appellants claim that the deceased fell from
the Vidarbha Express and died instantly. The spot panchanama is
part of the record. The facts discovered at the spot have been
documented in the spot panchanama. The post-mortem report is
on record. The cause of death is attributed to the injuries sustained
in the accident. The deceased did not sustain any significant injury
to his hands or legs. The injury was to his head. It is also not the
contention of the Railway that it was a case of being run over. Even
if such a contention has been raised, the material on record would
not have substantiated such a contention. The material on record
clearly indicates that the deceased, while travelling on a train, fell
from the moving train and died instantly. Therefore, the finding of
the Tribunal that the death was not in an untoward incident
cannot be upheld. It is further relevant to note that the defence of
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contributory negligence is not available to the Railway as the
liability is based on 'no fault theory'. This position has been
established by the Hon'ble Supreme Court in the case of Union of
India Vs. Rina Devi [AIR 2018 SC 2362].
11] In the light of the facts and circumstances, I am
unequivocally convinced that the death was due to fall from a
moving train. The death was, therefore, in an untoward incident, as
defined by Section 123(2)(c) of the Railways Act, 1989. According
to the appellants, the deceased had purchased a ticket for journey
from Murtizapur to Akola. It is their contention that the ticket was
lost in the unfortunate incident. The question arises is whether
mere assertion of appellant No.1 would be sufficient to accept this
factual contention. As far as this issue is concerned, the Hon'ble
Supreme Court in the case of Rina Devi (supra) has crystallized the
legal position in paragraph 17.4. Paragraph 17.4 is extracted below:
"17.4 We thus hold that mere presence of a body on the
Railway premises will not be conclusive to hold that injured
or deceased was a bona fide passenger for which claim for
compensation could be maintained. However, mere absence
of ticket with such injured or deceased will not negative the
claim that he was a bona fide passenger. 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
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with from case to case on the basis of facts found. The legal
position in this regard will stand explained accordingly."
12] It is held that the mere presence of a body on the
Railway premises will not definitively establish that the injured or
deceased was a bona fide passenger for which a claim for
compensation could be upheld. It is further held that mere absence
of a ticket with such injured or deceased will not invalidate the
claim that he was a bona fide passenger. The Hon'ble Supreme
Court has held that the initial onus will rest on the claimant and
can be discharged by submitting an affidavit of the pertinent facts.
The question that needs to be addressed in this case is whether the
evidence on record is sufficient to discharge the initial onus placed
on the appellants.
13] Unquestionably, appellant No.1 was not accompanying
the deceased. She has also not declared in her affidavit that she had
witnessed the deceased boarding the specific train after procuring a
valid journey ticket. The appellants have not presented any other
independent evidence to substantiate this fact. A statement has
been made in the affidavit that the deceased was travelling from
Murtizapur to Akola by procuring a railway ticket at Murtizapur
Railway Station. The deceased's body was discovered between
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Mana and Murtizapur Railway Station. In my view, therefore, the
very crux of her evidence is negated. The deceased had not
boarded the train at Murtizapur Railway Station. In my view, this
flawed statement of appellant No.1 would have to be properly
evaluated in the context of the contents of the panchanama. A bus
ticket was discovered in the trouser pocket of the deceased at the
time of the spot panchanama. The railway ticket was not found.
The spot, as can be seen from the contents of the panchanama, was
meticulously examined and no article, including the ticket, was
discovered at the spot. The bus ticket discovered was for a journey
to Amravati. It is noteworthy that if the deceased had procured the
railway ticket, then the said ticket should have been discovered on
the person of the deceased. Therefore, mere discovery of the body
on the railway premises will not definitively establish that he was a
bona fide passenger. In her cross-examination, appellant No.1 has
admitted that the deceased was not mentally sound.
14] In the light of the evidence on record, it is not possible to
accept the contention of the appellants that the deceased was a
bona fide passenger travelling with a valid journey ticket. Learned
Member of the Tribunal has properly evaluated the available
evidence on record and has rightly rejected the contention of the
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appellants on this ground. I do not see any reason to interfere with
this finding of fact. The appellants have failed to discharge the
initial onus on this aspect. Therefore, though the death was in an
untoward incident, due to lack of proof that the deceased was a
bona fide passenger, the claim cannot granted. As such, I record my
finding to point No.1 in the affirmative and I record my finding to
point No.2 in the negative.
15] In the light of the above, I do not discern any substance
in the appeal. The appeal is, accordingly, dismissed.
(G. A. SANAP, J.)
Vijay
Signed by: Mr. Vijay Kumar
Designation: PA To Honourable Judge
Date: 17/01/2024 10:28:37
