Bombay High Court
Smt. Ushabai Wd/O Dharmsing Patil And ... vs Union Of India Through General Manager, ... on 31 January, 2024
Author: G. A. Sanap
Bench: G. A. Sanap
2024:BHC-NAG:1349
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
FIRST APPEAL NO.100 OF 2022
APPELLANTS : 1. Smt. Ushabai Wd/o Dharmsing Patil,
(Original applicants on Age about : 47 Yrs. Occu: Housewife
RA)
2. Savita d/o Dharmsing Patil,
Age about : 22 Yrs., Occu.: Nil
3. Chetan s/o Dharmsing Patil
Age about : 20 Yrs., Occu. : Education
All r/o Near Swami Samarth Temple,
Shankar Nagar, Kajgaon,
Taluka- Chalisgaon, Dist.- Jalgaon
(Maharashtra) - 424103
//VERSUS//
RESPONDENT : 1. Union of India,
(Original respondent on through General Manager,
RA)
Central Railway, Mumbai (C.S.T.)
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Mrs Uma A. Bhattad, Advocate for appellants.
Mrs. N.G. Choubey, Advocate for respondent.
**************************************************************
CORAM : G. A. SANAP, J.
DATED : 31st JANUARY, 2024
ORAL JUDGMENT
1. Heard finally with the consent of learned Advocates for
the parties.
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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 17/07/2018 passed by
the Railway Claims Tribunal, Nagpur Bench, Nagpur, whereby the
claim filed by the appellants/claimants under Section 16 of the Act
of 1987 was dismissed.
3. Background facts:-
Appellant No.1 is the wife of the deceased. Appellant
Nos.2 and 3 are the children of the deceased. The appellants claim
that on 17/06/2015 the deceased Dharmsing Patil had gone to
Chalisgaon to meet his daughter. On the same day, alongwith his
son-in-law, he came to Chalisgaon Railway Station and after
purchasing a general class railway ticket, boarded a train for the
journey to Kajgaon. It is stated that at Kajgaon Railway Station,
due to a sudden jerk and heavy rush in the train, he fell down and
sustained injuries. The journey ticket was lost or misplaced on the
spot. It is stated that the deceased was a bona fide passenger. The
death was in an untoward incident. On these averments, the
appellants claimed the compensation.
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4. The respondent-railway filed the written statement and
opposed the claim. It is contended that the deceased was not a
bona fide passenger travelling with a valid journey ticket. The
ticket was not recovered from the person of the deceased. The
deceased was either run over or dashed by any train while crossing
the railway line. According to the respondent, the death was not
in an untoward incident.
5. Appellant No.1 examined herself as a sole witness. The
railway has examined any witness. The learned Member of the
Tribunal, on consideration of the evidence, found that the
evidence was not sufficient to believe the case of the claimants and
as such, dismissed the claim. Being aggrieved by this judgment and
order, the appellants are before this Court in appeal.
6. I have heard Mrs. Uma A. Bhattad, learned Advocate for
the appellants and Mrs. N. G. Choubey, learned Advocate for the
respondent. Perused the record and proceedings.
7. In view of the facts and circumstances following points
fall for my determination.
i) Whether the deceased was travelling as a bona fide
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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?
8. It is the case of the appellants that the deceased, after
purchasing journey ticket at Chalisgaon Railway Station, had
boarded some unknown train to go to Kajgaon. It is their case that
the ticket was purchased in presence of his son-in-law at
Chalisgaon Railway Station. The railway ticket was not found
either on the spot or on the person of the deceased at the time of
Panchanama. It is the case of the appellants that the ticket was
either misplaced or lost in the accident. Ushabai (AW-1) was not
an eye witness either to the purchase of the ticket by the deceased
or the boarding of the deceased in any particular train. The
appellants have not filed an affidavit of son-in-law. They have not
placed on record a plausible explanation for the non filing of such
affidavit. It is the case of the appellants that the deceased had gone
to meet his daughter at Chalisgaon and after meeting, he alongwith
his son-in-law came to Chalisgaon Railway Station and purchased
the ticket. If the ticket was purchased then the ticket would have
been found on the person of the deceased at the time of the
inquest panchanama. The initial burden is on the appellants/
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claimants to prove that the deceased was a bona fide passenger
travelling with a valid journey ticket. The Hon'ble Apex Court in
the case of Union of India vs. Rina Devi reported at AIR 2018 SC
2362 has held that mere absence of a ticket with 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. In order to
discharge this burden, the appellants could have filed the affidavit
of son-in-law in whose presence according to them, the ticket was
purchased by the deceased. In this case, this vital evidence is
missing. Admittedly, Ushabai (AW-1) was not an eye witness to
this fact. Her evidence on this aspect could be said to be hearsay
evidence. The evidence on record is not sufficient to discharge the
initial burden. On the basis of the evidence, the appellants have
not been able to establish that the ticket was lost or misplaced. On
this point, the learned Member of the Tribunal has properly
appreciated the evidence.
9. Learned Member of the Tribunal has held that the death
was not in an untoward incident. A finding has been recorded that
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the deceased might have been run over or dashed by any train
while crossing the railway line. On going through the entire
material on record, I am satisfied that this finding is also based on
the proper appreciation of the evidence. The place of residence of
the deceased was at the distance of one and a half kilometers from
the spot of the incident. The deceased was undisputedly residing
in the vicinity of the spot. The son-in-law has not been examined
to establish that the deceased boarded the train at Chalisgaon for
Kajgaon. This vital evidence is missing in this case. If the deceased
had travelled from Chalisgaon to Kajgaon then he would have
deboarded the train at Kajgaon Railway Station. The spot of the
incidence is at some distance away from the Kajgaon Railway
Station on a down line towards a Pachora side. If the deceased had
deboarded at Kajgaon then there was no reason for him to fall from
a train ahead of Kajgaon Railway Station at the spot of the incident.
It is also not the case of the appellants that for one reason or
another, the deceased over travelled Kajgaon Railway Station. It is
the case of the appellants that there was a heavy rush in the train
and therefore, due to a sudden jerk deceased fell from the running
train. There was no ACP of any train at Kajgaon Railway Station.
If there was a heavy rush in the train then co-passengers would
have seen the deceased falling from the train and would have
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reported the same to the Railway Administration. The co-
passengers, in all probability would have pulled the chain. This is
one more circumstance against the appellants.
10. Admittedly, the deceased was not run over by train
No.11026. The record reveals that the loco pilot of train No.11026
reported the Station Master, Kajgaon Railway Station, about the
dead body beside the railway track in injured condition. If the
deceased was run over by train No.11026 the loco pilot would have
made a report of the same to the Station Master. This fact would
indicate that the deceased did not fall from the train No.11026.
This further indicates that he was not travelling by this train. The
deceased had sustained serious injuries. He had sustained the
fractures. His head was smashed. These injuries sustained by the
deceased clearly indicate that the deceased might have been dashed
by some train. The deceased would have sustained these injuries
due to a forceful impact on the ground after the dash.
11. In my view, all these factors and the available evidence
have been taken into consideration by the learned Member of the
Tribunal to record the finding that the death was not due to a fall
from running train. On re-appreciation of the evidence, I am
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satisfied that the learned Member of the Tribunal has not
committed any mistake. I do not see any reason to interfere with
the finding of fact recorded by the Tribunal. As such, I record my
findings on both points in the negative. Accordingly, I pass the
following order:-
12. The First Appeal stands dismissed and 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 18:15:50
