Bombay High Court
Ashok S/O Sheshrao Sawarkar And Another vs Union Of India Thr. General Manager, ... on 11 January, 2024
Author: G. A. Sanap
Bench: G. A. Sanap
2024:BHC-NAG:979
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
FIRST APPEAL NO. 370 OF 2020
APPELLANTS : 1. Ashok S/o. Sheshrao Sawarkar, Aged
about 46 years, Occ. Labour.
2. Shila W/o. Ashok Sawarkar, Aged
about 43 years, Occ. Household.
R/o. Near Dr. Gonnade Hospital,
Pandhari Ward, Pandhurna, Dist-
Chindwada (M.P.).
//VERSUS//
RESPONDENT : Union of India, through General
Manager, Central Railway, Mumbai,
C.S.T., Mumbai.
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Mr. K.P. Mirache, Advocate for the Appellants.
Ms. Neerja Chaubey, Advocate for the Respondent.
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CORAM : G. A. SANAP, J.
DATED : 11th JANUARY, 2024.
ORAL JUDGMENT
. 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 9 th September, 2019,
passed by the Railway Claims Tribunal, Nagpur Bench, Nagpur,
whereby the claim filed by the appellants came to be dismissed.
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02] BACKGROUND FACTS:
The appellants are the parents of the deceased Sachin
Sawarkar. The appellants claim that on 14 th November, 2017, the
deceased, while travelling in a railway train from Nagpur to
Pandhurna with a valid journey ticket fell from the running train
and died due to the injuries sustained by him. The death was in an
untoward incident. He was a bona fide passenger, inasmuch as the
journey ticket was recovered from the trouser pocket of the
deceased at the time of the inquest panchanama.
03] The respondent-Railway filed the written statement and
opposed the claim. It is contended that the deceased was not a
bona fide passenger. The death was not in an untoward incident.
04] The parties adduced the evidence. The learned Member
of the Tribunal, on consideration of the evidence, found that the
death was not in an untoward incident and, therefore, dismissed
the claim. Being aggrieved by this judgment and order of the
Tribunal, the appellants have come before this Court in appeal.
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05] I have heard Mr. K.P. Mirache, learned advocate for the
appellants and Ms. Neerja Chaubey, learned advocate for the
respondent-Railway. Perused the record and proceedings.
06] The following points fall for my determination:
(a) Whether the deceased died in an untoward incident as
understood by Section 123(c)(2) of the Act of 1989?
(b)Whether the deceased was a bona fide passenger
travelling in the train with a valid journey ticket?
07] The learned advocate for the appellants submitted that the
learned Member of the Tribunal has accepted the case of the
appellants that the deceased was a bona fide passenger travelling
with a valid journey ticket. The learned advocate submitted that the
evidenced adduced by the appellants is sufficient to prove that the
deceased died due to a fall from the moving train and, therefore, the
death was in an untoward incident. The learned advocate submitted
that the learned Member of the Tribunal has not properly
appreciated the facts, circumstances, and evidence on record. The
learned advocate submitted that the possibility of the deceased being
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run over by any train has been completely ruled out. The learned
advocate submitted that the respondent-Railway has not adduced
any evidence to make its defence probable that the death was not
due to a fall from the moving train but it was due to run over of the
deceased by any train. The learned advocate submitted that,
therefore, the finding on this point recorded by the Tribunal cannot
be sustained.
08] The learned advocate for the respondent-Railway has
supported the judgment and order passed by the learned Member of
the Tribunal. The learned advocate submitted that the material
relied upon by the learned Member of the Tribunal to record an
inferential finding against the appellants is part of record. The
learned advocate submitted that there was no eye witness to the
incident. There was no report of ACP about accidental falling of any
passenger from a train, either by the guard of any train or by the
Loco Pilot of any train.
09] In order to appreciate the rival submissions advanced by
the learned advocates for the parties, I have gone through the record
and proceedings. Undisputedly, the Tribunal has recorded a finding
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that the deceased was a bona fide passenger, inasmuch as he was
travelling with a valid journey ticket. The journey ticket was found
in the trouser pocket of the deceased at the time of the inquest
panchanama.
10] The only question that needs to be addressed is whether
the deceased died due to a fall from the moving train, and as such,
whether the death was in an untoward incident. The material on
record is not sufficient even to infer that the deceased was run over
by any train. The body of the deceased was not cut into pieces. The
possibility of the deceased being run over by any train or being
dashed by any train while crossing the railway track has been
completely ruled out on the basis of the available material. The dead
body of the deceased was found lying between Km. No.981/40-42
between Up and Down Tracks, quite some distance away from Katol
Railway Station. The deceased had sustained a major injury to his
head. The injuries sustained by the deceased could be possible due
to a fall from a train. The body of the deceased, except for these
injuries, was intact. If the deceased was run over by a train while
crossing the track, then his body would have been cut into pieces. If
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the deceased was dashed by any train at high speed, then he would
have been thrown away by the side of the track, and in that situation,
he would have sustained multiple fractures. The injuries sustained
by the deceased, and more particularly recorded in Column No.17 of
the post-mortem report indicate that the case in question was not of
run over. It indicates that it was a case of a fall from a train. The
defence of negligence or contributory negligence is not available to
the Railway in such a case. The liability in such a case is based on
'strict' or 'no fault theory'. As long as the case is covered by the first
part of Section 124A of the Act of 1989, the Railway is liable to pay
the compensation. The Railway cannot be held liable to pay the
compensation if the case is covered by any of the clauses of the
proviso to Section 124A of the Act of 1989.
11] The evidence on record is sufficient to prove that the
deceased while travelling from Nagpur to Pandhurna fell from the
moving train and died due to the injuries sustained in the incident.
The death in this case has been proved to be in an untoward
incident. The learned Member of the Tribunal was, therefore, not
right in rejecting the claim. Accordingly, I record my findings on the
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above points in the affirmative.
12] Accordingly, the first appeal is allowed.
i. The judgment and order dated 9th September, 2019,
passed by the Railway Claims Tribunal, Nagpur Bench,
Nagpur in Claim Application
No.OA(IIu)/NGP/153/2018 is set aside. The claim
petition is allowed.
ii. The appellants are entitled to get compensation of
Rs.8,00,000 (Rupees Eight Lakhs Only) with interest @
6% per annum from the date of the accident till its
realization.
iii. The respondent/Railway shall pay the compensation of
Rs.8,00,000/- (Rupees Eight Lakhs Only) with interest @
6% per annum from the date of accident till its realization
to the appellants within four months from the date of
uploading of this judgment.
iv. The amount of compensation be deposited directly in the
bank accounts of the appellants. The appellants are
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directed to provide their bank account details to the
respondent-Railway.
v. Out of total compensation, appellant Nos.1 and 2 shall be
entitled to get 50% share each.
13] The first appeal stands disposed of in the aforesaid terms.
No order as to costs. Pending applications, if any, stand disposed of.
(G. A. SANAP, J.)
Vijay
Signed by: Mr. Vijay Kumar
Designation: PA To Honourable Judge
Date: 24/01/2024 19:57:33
