Bombay High Court
Smt. Zulekhabi Wd/O Syed Zafroddin And ... vs Union Of India, Representing Railway ... on 10 January, 2024
Author: G. A. Sanap
Bench: G. A. Sanap
2024:BHC-NAG:860
902.fa.238.2018 judge railway.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FIRST APPEAL NO. 238 OF 2018
1. Smt Zulekhabi Wd/o. Syed Zafroddin,
Aged about 54 Years, Occ. Household work,
2. Syed Azaroddin S/o. Syed Zafroddin,
Aged about 37 Years, Occ. Labourer,
3. Smt. Shahistabi W/o. Syed Shabbir,
Aged about 35 Years, Occ. Household work,
R/o. Sainagar, Pimpalgaon Raja,
Tq. Khamgaon, Distt. Buldana,
4. Smt. Wahidabi W/o. Shaikh Rafique,
Aged about 30 Years, Occ. Household work,
5. Syed Sharif S/o. Syed Zafroddin,
Aged about 31 Years, Occ. Labourer,
6. Smt. Nahedabi W/o. Mushir Khan,
Aged about 29 Years, Occ. Household work,
R/o. Zopadpatti, Dhamangaon Badhe,
Distt. Buldana
7. Syed Arif S/o. Syed Zafroddin,
Aged about 26 Years, Occ. Labourer,
8. Smt. Syedabi d/o. Syed Zafroddin,
Aged about 24 yrs., Occ. Household work,
Nos. 1, 2, 4, 5, 7 and 8
R/o. Gaibi Nagar, Nandura, .... APPELLANTS
Tq. Nandura, Distt. Buldana
// V E R S U S //
902.fa.238.2018 judge railway.odt
2
Union of India,
Representing Railway Administration
Through the General Manager,
Central Railway,
C.S.T., MUMBAI. ... RESPONDENT
-----------------------------------------------------------------------------------------------
Mr C. A. Joshi, Advocate for the appellants
Ms Neerja Choubey, Advocate for the respondent
-----------------------------------------------------------------------------------------------
CORAM : G. A. SANAP, J.
DATE : 10th JANUARY 2024
ORAL JUDGMENT :
1 Heard finally with the consent of learned
Advocates for the parties.
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
31.08.2016, passed by the Railway Claims Tribunal, Nagpur
Bench, Nagpur whereby the claim for compensation filed by
the appellants/claimants came to be dismissed.
902.fa.238.2018 judge railway.odt
3 Background facts:
Appellant No.1 is the wife of the deceased Syed
Zafroddin. Appellant Nos. 2 to 8 are the children of the
deceased. The appellants claimed that on 05.07.2013 the
deceased was returning from Akola to Nandura by Amravati
Bhusawal passenger train. The deceased was having two valid
journey tickets. According to the appellants, the deceased fell
from a train at Nandura railway station. He sustained severe
injuries and died. According to them, the death of the
deceased was in an untoward incident. The deceased was a
bona fide passenger with valid journey ticket. On this count,
they claimed compensation.
4 The respondent-railway contested the claim.
According to the respondent, the deceased was not traveling
with a valid journey ticket. It was further contended that the
deceased was negligent while alighting from the train at
902.fa.238.2018 judge railway.odt
Nandura railway station. He tried to alight the train from the
wrong side and therefore, he fell from the train. The death
was, therefore, not in an untoward incident.
5 The claimants/appellants adduced the evidence
before the Tribunal. The evidence was not adduced by the
respondent/railway. Learned Member of the Tribunal, on
consideration of the evidence, found that the appellants were
not entitled to get the compensation and ultimately dismissed
the claim. Being aggrieved by the judgment and order, the
appellants are before this Court.
6 I have heard the learned Advocate Mr. C. A. Joshi,
for the appellants and the learned Advocate Mrs. Neerja
Choubey, for the respondent. I have perused the record and
proceedings.
902.fa.238.2018 judge railway.odt
7 In the facts and circumstances, the following points
fall for 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 as
understood by the provisions of 123(c)(2) of the Railways Act,
1989?
8 Learned Advocate for the appellants submitted that
two railway tickets were found on the person of the deceased at
the time of the panchnama. Learned Advocate submitted that
the deceased was travelling by the train in question with a valid
journey ticket and therefore, the finding recorded by the
Tribunal that the deceased was not a bona fide passenger could
not be sustained. Learned Advocate submitted that in the
factual background, the defence of negligence and/or death
due to self inflicted injury is not available to the railway
inasmuch as the deceased fell while de-boarding the train and
902.fa.238.2018 judge railway.odt
sustained the injuries. Learned Advocate submitted that the
railway has not adduced supporting evidence to substantiate its
contention that the deceased while de-boarding the train from
wrong side fell down and sustained injuries. Learned Advocate
submitted that in the factual situation, the defence of
negligence or death due to negligence is not available to the
railway. Learned Advocate submitted that, in the teeth of the
oral and documentary evidence on record, the findings
recorded by the Tribunal that the death was not in an
untoward incident cannot be sustained. In order to seek
support for his submission, the learned Advocate relied upon
the judgment in the case of Union of India .v/s. Rina Devi 1 .
9 Learned Advocate for the respondent, relying on
the DRM report submitted that the inquiry conducted
revealed that the deceased was seen while de-boarding the
train from the wrong side. Learned Advocate submitted that
1 (2019) 3 SCC 572
902.fa.238.2018 judge railway.odt
the act of the deceased de-boarding the train from the wrong
side at Nandura railway station would amount to negligence
and as such, the injury sustained due to his negligent act would
be a self-inflicted injury. Learned Advocate submitted that the
case of the appellants would be covered by clause No. (b) of
the proviso to Section 124-A of the Railways Act, 1989.
Learned Advocate submitted that two journey tickets were
found on the person of the deceased and therefore, without
explaining this fact, it could not be said that the deceased was a
bona fide passenger. It is submitted that the findings recorded
by the Tribunal suffer from patent illegality.
10 In order to appreciate the rival submissions, I have
gone through the record and proceedings. On going through
the record and proceedings, I am constrained to observe at the
outset that the Member of the Tribunal has not properly
considered the material placed on record and thereby
902.fa.238.2018 judge railway.odt
misdirected himself in applying the relevant provisions of law
to the facts.
11 Undisputedly, the deceased was travelling from
Akola to Nandura by Amravati Bhusawal Passenger Train.
Two journey tickets were found on the person of the deceased
at the time of inquest panchanama. The ticket numbers are
mentioned in the panchanama. The respondent-railway has
not contended that these tickets were not genuine and valid
journey tickets. It is also not the defence of the railway that the
tickets were either manipulated or planted for the sake of
supporting the likely claim by the legal heirs of the deceased.
Further perusal of the material does not permit me to accept
the defence of the railway on this point. The deceased, as can
be seen from the record, fell from the train at platform No.1 of
Nandura railway station. He sustained injuries. He was shifted
to the hospital. In the hospital, the doctor declared him dead.
902.fa.238.2018 judge railway.odt
The family members of the deceased were not either
accompanying him or present at the railway station. Therefore,
the possibility of planting tickets is remote. The evidence
therefore supports the contention of the appellants that the
deceased was travelling by Amravati Bhusawal Passenger train
with a valid journey ticket. Therefore, the findings on this
point recorded by the Tribunal cannot be accepted.
12 The next important point that needs to be
addressed is whether the deceased sustained the injuries while
de-boarding the train and as such, whether the death was in an
untoward incident. It is the defence of the railway that the
deceased, in the process of de-boarding the train from the
wrong side, fell down and sustained injuries. It is contended
that the death was due to the negligence of the deceased. In my
view, this conclusion arrived at in the report of DRM is not
supported by any document.
902.fa.238.2018 judge railway.odt
13 The report made by the Deputy Station
Superintendent of Nandura Railway Station, dated
05.07.2013, is at A-41. It was stated in this report that one
unknown passenger had fallen from the train on the platform
and he was taken to the hospital. This is the first document
prepared on behalf of the railway officer after the incident. The
next important document is the spot panchanama. The spot
panchanama at A-72 has categorically stated the place of the
incident. It is platform No.1 between two poles. The spot
panchanama, therefore, supports the contention of the
appellants that the deceased had fallen on the platform. The
inquest panchanama is at A-69. The injury sustained by the
deceased has been mentioned in the inquest panchanama. The
accidental death entry is at A-67. In this document the place of
the incident is mentioned as Platform No. 1. The DRM report
at page A-30 categorically mentioned that one unknown
person was lying in an injured condition on a platform and the
902.fa.238.2018 judge railway.odt
said person was carried to the hospital by Banwarilal
Bhagwadin. The conclusion drawn in the DRM report is not
supported by the material. It was concluded by the DRM in his
report on the basis of the material that the deceased tried to de-
board the train from the wrong side and therefore, he fell
down and sustained injuries. No oral evidence has been
adduced by the railway to substantiate this defence. The
deceased was travelling from Akola to Nandura. The material
on record clearly indicates that indeed he travelled by train in
question from Akola to Nandura. The material is also
sufficient to conclude that he fell while de-boarding the train
at Nandura railway station.
14 In the teeth of the above-stated factual background,
the only question that needs to be addressed is whether the act
of the deceased de-boarding the train before the train halted
would constitute negligence resulting in the self-inflicted
902.fa.238.2018 judge railway.odt
injury. In order to counter this situation, the learned Advocate
has relied on a decision in the case of Rina Devi (supra). For
the purpose of addressing the factual and legal point involved
in the appeal, the observations made by the Hon'ble Apex
Court in para No. 25 would be useful. It is extracted below.
"25. We are unable to uphold the above view as the
concept of 'self inflicted injury' would require intention
to inflict such injury and not mere negligence of any
particular degree. Doing so would amount to invoking
the principle of contributory negligence which cannot be
done in the case of liability based on 'no fault theory'. We
may in this connection refer to judgment of this Court in
United India Insurance Co. Ltd. versus Sunil Kumar
laying down that plea of negligence of the victim cannot
be allowed in claim based on 'no fault theory' under
Section 163-A of the Motor Vehicles Act, 1988.
Accordingly, we hold that death or injury in the course of
boarding or de-boarding a train will be an 'untoward
incident' entitling a victim to the compensation and will
not fall under the proviso to Section 124-A merely on the
plea of negligence of the victim as a contributing factor."
15 The Hon'ble Apex Court in this case has ruled that
the liability in the claim is based on the principle of strict
liability or no fault theory. It is held that the principle of
contributory negligence cannot be applied in the case of strict
902.fa.238.2018 judge railway.odt
liability based on 'no fault theory'. It is further held that the
death or injury in the course of boarding and de-boarding a
train will be an 'untoward incident' entitling a victim to the
compensation and will not fall under the proviso to Section
124A merely on the plea of negligence of the victim as a
contributing factor. In my view, the legal position settled by
the Hon'ble Apex Court does not permit me to sustain the
findings recorded by the railway Tribunal that the injuries
sustained by the deceased in the factual situation could be
termed self-inflicted injuries. In my view, therefore, the
learned Member of the Tribunal was not right in rejecting the
claim. The case would not be covered by the proviso to Section
124-A of the Railways Act, 1989. The case would be covered
by the first part of Section 124 A of the Railways Act. The
material on record, particularly the evidence, is sufficient to
accept the case of the appellants that the deceased, as a bona
fide passenger, was travelling in the train. He fell from a
902.fa.238.2018 judge railway.odt
running train and sustained injuries. He died due to injuries
sustained in the incident. Therefore, it goes without saying
that the death was in an untoward incident. In my view, there
is substance in the appeal. Therefore, I answer the above points
in the affirmative.
16 In the context of the issue involved in this appeal it
would be appropriate to make useful reference to the decision
in the case of Union of India .v/s. Prabhakaran Vijaya Kumar
and others2. In this case, the Hon'ble Supreme Court has held
that the expression "accidental falling of a passenger from a
train carrying a passengers" has to be interpreted in such a
manner that it serves the object of the statute. It is held that
when two interpretations are possible, considering the
beneficial nature of the legislation, the interpretation which
advances the object of the statute and serves it purpose should
be preferred. In my view, in this case, the expression
2 2009(1) Mh.L.J.27
902.fa.238.2018 judge railway.odt
"accidental falling of a passenger from a train carrying a
passengers" requires liberal construction. By applying this
proposition the passenger falling from the train while de-
boarding or boarding from wrong side of the train would be
covered by the definition of an untoward incident.
17 Learned Advocates pointed out that, in view of the
notification issued by the Ministry of Railways (Railway
Board) dated 22.12.2016 in case of death claim, the
respondent shall be liable to pay compensation of
Rs.8,00,000/- (Rs. Eight Lacs Only). Learned Advocates
further submits that appellants are entitled to get
compensation of Rs.8,00,000/- but without interest. In view of
the decision of the Hon'ble Apex Court in the case of Union
of India .v/s. Radha Yadav3 the appellants may not be entitled
to get the interest.
3 (2019) 3 SCC 410
902.fa.238.2018 judge railway.odt
18 Accordingly, I pass the following order:
(i) The first appeal is allowed.
(ii) The judgment and order dated 31.08.2016 passed by
the Railway Claims Tribunal, Nagpur Bench, Nagpur in Claim
Application No. OA(IIu)/NGP/2014/0040 is quashed and set
aside. The claim application is allowed.
(iii) The respondent-railway is directed to pay Rs.8,00,000/-
(Rupees Eight Lacs Only) towards compensation to the
appellants.
(iv) The appellant No.1 shall be entitled to get 70 % of the
amount of compensation.
(v) The remaining 30% of compensation shall be equally
divided amongst the appellants Nos. 2 to 8.
(vi) The amount shall be deposited within four months from
the date of uploading the judgment and order, in the bank
account of the appellants, directly. The appellants shall provide
the particulars of their bank account to the respondent-
902.fa.238.2018 judge railway.odt
Railway. If the amount is not deposited within four months,
the appellants would be entitled to get interest @ of 6% per
annum from the date of this judgment till realization of the
amount.
19 The First appeal stands disposed of. No order as to
costs. Pending applications, if any, stand disposed of.
(G. A. SANAP, J.)
Namrata
Signed by: Miss Namrata Suryawanshi
Designation: PA To Honourable Judge
Date: 22/01/2024 17:38:08
