Bombay High Court
Meenabai Wd/O Shankar Mesekar And ... vs Union Of India Through Its General ... on 8 January, 2024
Author: G. A. Sanap
Bench: G. A. Sanap
2024:BHC-NAG:812
1 FA 41.20 final
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
FIRST APPEAL NO. 41 OF 2020
APPELLANTS : 1] Meenabai Wd/o Shankar Mesekar,
Aged about 41 years, Occu. Household.
2] Garav S/o Shankar Mesekar,
Aged about 19 years, Occu. Education.
3] Achal D/o Shankar Mesekar,
Aged about 17 years, Occu. Education.
(Appellant No. 3 is a minor, under guardian.)
of Applicant no.1)
4] Nilkant, S/o Dasrathji Mesekar,
Aged about 76 years, Occu. Household,
5] Nanibai, W/o Nilkanth Mesekar,
Aged about 70 years,
All R/o Ward No. 4, Post-Waigaon Nipani,
Tah. & Dist. Wardha, 442 001.
VERSUS
RESPONDENT : Union of India,
through the general manager,
Central Railway, C.S.T.M., Mumbai.
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Mr. R. G. Bagul, advocate for the appellants
Ms. N. G. Choube, Advocate for the Respondent--Railway.
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CORAM: G. A. SANAP, J.
DATED: JANUARY 08, 2024.
ORAL JUDGMENT
2 FA 41.20 final
1. This appeal, filed under Section 23 of the Railway Claims
Tribunal Act, 1987 (henceforth referred to as "the Act of 1987" for short),
challenges the judgment and order dated September 27, 2019, passed by the
Railway Claims Tribunal, Nagpur Bench, Nagpur, in Claim Application No.
OA(IIu)/NGP/134/2018, which resulted in the dismissal of the appellants'
compensation claim.
2. Background facts:
The appellant no. 1 is the wife of deceased Shankar Mesekar;
appellants nos. 2 and 3 are the children; and appellants nos. 4 and 5 are the
parents of the deceased. The appellants claim that on June 27, 2017, the
deceased, along with his friend Kishor Vitthal Giradkar, after purchasing the
railway tickets, travelled to Pandharpur by train no. 11403, i.e., Nagpur-
Kolhapur Express. After offering the prayers at the Vitthal-Rukhmini Temple
in Pandharpur, they started their return journey by purchasing railway tickets.
They travelled together from Pandharpur to Kurduwadi by train No. 22156.
The friend of the deceased had some work at Kurduwadi, and therefore, he
stayed at Kurduwadi. The deceased, after purchasing the railway ticket,
boarded an unknown train at Kurduwadi for an onward journey to Daund in
the presence of his friend, who has been examined as AW2. It is stated that the
deceased, during his journey to Daund, fell from a running train and died as a
3 FA 41.20 final
result of the injuries sustained by him. The appellants claim that the deceased
was a bona fide passenger travelling with a valid journey ticket. The ticket was
lost in the accident, and the death was in an untoward incident. They,
therefore, claimed the compensation.
3. The respondent--Railway opposed the claim by filing written
statement. The respondent, in sum and substance, denied the material facts. It
is contended that the deceased was not a bona fide passenger. The journey
ticket was not recovered from the person of the deceased at the time of drawing
spot panchanama or at the time of inquest panchanama. It was further
contended that there was no witness to the death of the deceased from a
running train, and as such, the death was not in an untoward incident. It was
further contended that the deceased, while crossing a railway track, was run
over by some unknown train.
4. The parties have adduced evidence before the tribunal. The
Tribunal, on consideration of the material, did not believe the evidence and
rejected the claim of the appellants. Being aggrieved by the judgment and
order passed by the Tribunal, the appellants are before this Court in appeal.
4 FA 41.20 final
5. I have heard Mr. R. G. Bagul, learned advocate for the appellants,
and Ms. Neeraja Choube, learned advocate for the respondent. I perused the
record and proceedings.
6. In the facts and circumstances, the following points fall under my
determination:
i] Whether the deceased was a bona fide passenger travelling
by the train in question with a valid journey ticket ?
ii] Whether the deceased died in an untoward incident within
the meaning of Section 123(c) of the Railways Act, 1989 ?
7. Mr. Bagul, the learned advocate for the appellants, submitted that
Kishor Giradkar (AW2) was a co-passenger with the deceased until
Kurduwadi, but due to his personal work, he did not travel with the deceased
from Kurduwadi to Daund. The learned advocate took me through the
evidence of AW2 and pointed out that in his presence, the deceased had
purchased the ticket and boarded an unknown train. The learned advocate
submitted that the railway tickets for the journey from Wardha to Pandharpur
and from Pandharpur to Kurduwadi were for two adult passengers, recovered
from the pocket of the deceased at the time of the panchanama. Learned
advocate submitted that, on the basis of oral as well as documentary evidence,
the initial burden cast on the shoulders of the appellants has been fully
5 FA 41.20 final
discharged. In order to seek support for these submissions, he has placed
reliance on the decision of the Hon'ble Supreme Court in Union of India vs.
Rina Devi, reported at AIR 2018 SC 2362.
8. The learned advocate for the appellants submitted that no
evidence in rebuttal has been adduced to disprove these facts. The learned
advocate further submitted that in this case, the possibility of the deceased
being run over by any train has been completely ruled out. Learned advocate
drew my attention to the DRM's report and submitted that the DRM has also
concluded that the deceased might have died due to the injuries sustained due
to fall from a moving train. Learned advocate submitted that, therefore, the
contention of the respondent that the deceased was run over by any train
cannot be accepted. Learned advocate submitted that the learned Member of
the Tribunal has not properly appreciated the evidence adduced by the parties
as well as the settled legal position.
9. Ms. Neerja Choube, learned advocate for the respondent, has, in
short, supported the judgment and order passed by the Tribunal. The learned
advocate submitted that on both counts, there was no mistake on the part of
the Tribunal in recording findings of fact against the appellants. The learned
advocate submitted that the non-recovery of the journey ticket for the journey
6 FA 41.20 final
from Kurduwadi to Daund is a material fact that has not been proved by
leading evidence. Learned advocate submitted that evidence of AW2 in the
absence of any corroborative material cannot be believed. Learned advocate
submitted that, considering the nature of injuries sustained by the deceased,
the possibility of the deceased being run over by any train cannot be ruled out.
10. It is undisputed that the journey tickets for journey from Wardha
to Pandharpur and return journey from Pandharpur to Kurduwari by two adult
passengers, were recovered from the pocket of the deceased at the time of the
panchanama. This fact would, therefore, clearly suggest that on the given date,
two adult passengers travelled together from Wardha to Pandharpur and from
Pandharpur to Kurduwadi. This fact is required to be kept in mind while
appreciating the evidence of AW2. It is undisputed that the journey ticket
from Kurduwadi to Daund was not recovered. The initial burden was on the
appellants to prove that the deceased was a bona fide passenger. Whether the
evidence adduced by the appellants is sufficient to discharge the initial burden
or not is a question of fact. In the matter of discharge of burden, it would be
useful to consider the law laid down by the Hon'ble Apex Court in Rina Devi
(supra). Paragraph 17.4 of the decision, which is relevant for the purpose of
addressing this issue, is reproduced below: -
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"17.4. We thus hold that the mere presence of a body on the
railway premises will not be conclusive to hold that the
injured or deceased was a bona fide passenger for which a
claim for compensation could be maintained. However,
mere absence of a ticket with such an injured or deceased
person will not negate 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.
The burden will then shift to the railways, and the issue
can be decided based on the facts shown or the attending
circumstances. This will have to be dealt with from case to
case on the basis of the facts found. The legal position in
this regard will be explained accordingly."
11. The legal position, which can be culled out from the decision in
Rina Devi (supra), in my view, supports the contention of the appellants. The
dead body was found on the railway premises. The journey ticket from
Kurduwadi to Daund was not found. The evidence of AW2, who was a co-
passenger with the deceased up to Kurduwadi and who had seen the deceased
while purchasing railway ticket for the journey from Kurduwadi to Daund and
boarding a train at Kurduwadi railway station for his onward journey to
Daund, is on record. AW1, who is the widow of the deceased, has also stated
that the deceased travelled from Pandharpur with AW2. AW2, on the material
facts stated in the affidavit, was subjected to cross-examination; however, no
material has been brought on record in the cross-examination to discard his
contention that he undertook journey from Wardha to Pandharpur and from
Pandharpur to Kurduwadi with the deceased. In my view, this evidence is
sufficient to discharge the initial burden cast on the appellants. The proved
8 FA 41.20 final
facts and attending circumstances clearly indicate that the deceased was a bona
fide passenger. The respondent-Railway, has not adduced any evidence in
rebuttal to disprove this fact. The decision in Rina Devi (supra), therefore,
fully supports the case of the appellants. I, therefore, conclude that the
learned Member of the Tribunal was not right in holding that the deceased was
not a bona fide passenger. This finding, therefore, cannot be sustained.
12. Another important aspect is whether the deceased died due to fall
from a running train and, as such, whether the death was in an untoward
incident. It is the contention of the respondent--Railway that neither the
guard nor Loco Pilot of any train reported the stoppage of any train due to
ACP. In my view, this statement of fact would not by itself be sufficient to
accept the defence of the railway. This issue has to be answered in totality of
the facts, circumstances, and evidence brought on record. The DRM report is
part of the record. Similarly, the police inquiry report is also part of the record.
In both the reports, a conclusion has been drawn that the death of the deceased
was possibly due to fall from a train. It is to be noted that there was no report
by a Loco pilot to the Station Master about run over of any passenger at Daund
railway station. The deceased had sustained multiple injuries. The major
injury sustained by him was to his leg. A part of his leg was smashed. The leg
was not separated from the body. On the basis of the injuries sustained by the
9 FA 41.20 final
deceased, the defence of the respondent--Railway that it was a case of run over
cannot be accepted. If at the relevant time there was run over of a passenger
by any train at Daund railway station, the Loco Pilot would have reported the
same to the Station Master. But no such report was made by a Loco Pilot of
any train. Evidence of AW2 that the deceased had boarded a train at
Kurduwadi railway station to go to Daund further fortifies the conclusion that
the case in question was not of run-over but fall from a running train. The
dead body was found on the railway premises. The injuries sustained by the
deceased and the conclusion drawn by the statutory report of the DRM inquiry
clearly suggest that the deceased died due to fall from a train. In my view, the
evidence on record is sufficient to accept the claim of the appellants. The
learned Member of the Tribunal, on this count as well, was not right in
rejecting the claim of the appellants. The judgment and order passed by the
Tribunal in the light of the available evidence cannot be sustained. It deserves
to be set aside. Accordingly, I record my finding on points nos. 1 and 2 in
affirmative.
13. The appellants would be entitled to a compensation of Rs.
8,00,000 (Rupees Eight lakhs only) with interest. The quantum of interest has
to be decided by the Court. Similarly, the court has discretion to award interest
either on the date of the incident or on the date of the application. The
10 FA 41.20 final
legislation is a beneficial piece of legislation. Whenever discretion is vested
with the Court, it must be exercised in favour of the claimants. Discretion
cannot be exercised in favour of the claimants, if the claim is filed beyond
limitation after condoning the delay. In this case, the date of the incident is
June 28, 2017. The claim filed by the appellants was within its limitations. In
this case, therefore, I do not see any reason to deny interest to the appellants
from the date of the incident, i.e., June 28, 2017. In the facts and
circumstances, the appellants would be entitled to get interest on the said
amount at 6% per annum from the date of the incident.
14. Accordingly, the first appeal is allowed.
(i) The judgment and order dated September 27, 2019 passed by the
Railway Claims Tribunal, Nagpur Bench, Nagpur in Claim Application No.
OA(IIu)/NGP/134/2018 is quashed and set aside. The claim application is
allowed.
(ii) Respondent - Central Railway is directed to pay a sum of Rs.
8,00,000/- (Rupees eight lakhs only) towards compensation to the appellants
with interest at 6% per annum from the date of the accident, i.e., June 28,
2017, until its realization.
(iii) The amount shall be deposited into the bank account of the
appellants directly within four months of uploading the judgment and order.
11 FA 41.20 final
The appellants shall provide the particulars of their bank account to the
respondent- Railway.
iv] Appellants nos. 1 to 3 would get 60% of the amount of
compensation with interest together, and appellants nos. 4 and 5 would get
40% of the amount of compensation with interest together.
v] The First Appeal stands disposed of in the aforesaid terms. No
order as to costs.
( G. A. SANAP, J. )
Diwale
Signed by: DIWALE
Designation: PS To Honourable Judge
Date: 20/01/2024 16:12:20
