Bombay High Court
Dagadu S/O Bhila Patil vs The Union Of India, General Manager ... on 11 January, 2024
Author: G. A. Sanap
Bench: G. A. Sanap
2024:BHC-NAG:1207
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
FIRST APPEAL NO. 66 OF 2022
APPELLANTS : 1. Dagadu S/o. Bhila Patil, Aged about
65 years, Occ. Labour.
2. Ashabai W/o. Dagdu Patil, Age-46
years, Occu. Housewife.
R/o. Vill.-Bhadgaon, Savde, Dist.
Jalgaon (MS) 424103.
//VERSUS//
RESPONDENT : The Union of India, General Manager
Central Railway, CSMT, Mumbai.
**************************************************************
Ms. Sumesha Chaudhari, Advocate for the Appellants.
Ms. A.S. Athalye, Advocate for the Respondent.
**************************************************************
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 6th December, 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 Swapnil
Patil. They claim that on 4th August, 2016, the deceased, after
attending his medical fitness examination at Nanded, had started
his journey with his cousin to Jalgaon. At Manmad Railway
Station, the deceased and his cousin Anil Patil boarded the Down
Punjab Mail Train No.12137. According to the appellants, the
deceased fell down from a running train between Km.342/6 and
342/8 in Tandalwadi Shivar of Railway Station Kajgaon. He
sustained serious injuries and died. According to the appellants, the
composite railway ticket purchased for the journey by the deceased
and Anil Patil was with the deceased. The railway ticket was lost in
the incident. The deceased was a bona fide passenger. The death
was in an untoward incident, as understood by Section 123(c)(2) of
the Railways Act, 1989 (for short, "the Act of 1989"). On these
averments, the appellants claimed the compensation.
03] The respondent-Railway filed the written statement and
contested the claim. It is the case of the Railway that the death was
not in an untoward incident. The deceased might have fallen from
the train due to his negligence. It is further contended that the
journey ticket was not recovered either from the spot or from the
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pocket of the deceased. The deceased was not a bona fide passenger
and, therefore, the claim was not maintainable.
04] The parties adduced the evidence before the Tribunal.
The learned Member of the Tribunal, on consideration of the
evidence, found that the claim was without substance and, as such,
dismissed the claim. Being aggrieved by this judgment and order of
the Tribunal, the appellants have come before this Court in appeal.
05] I have heard Ms. Sumesha Chaudhary, learned advocate
for the appellants and Ms. A.S. Athalye, 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
there is ample evidence in the form of the DRM report and the RPF
investigation report that the deceased was not run over by any train
while crossing the railway line. The learned advocate submitted that
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the deceased, while travelling in a train, fell from the moving train
and sustained serious injuries, and as such, the death was in an
untoward incident. The learned advocate further submitted that
there is no evidence adduced by the respondent-Railway to establish
that the Loco Pilot of any train reported the run over of any person
by any train at the spot of the incident. The learned advocate
submitted that the injuries found on the dead body of the deceased
completely rule out the possibility of the deceased being run over by
any train. The learned advocate submitted that the inquiry
conducted by the DRM as well as by the RPF revealed that the
deceased was travelling from Nanded to Jalgaon with his cousin Anil
Patil. The learned advocate submitted that there is no evidence
adduced by the respondent-Railway to disprove the fact that the
deceased was travelling with a valid journey ticket on the given date,
as has been proved on the basis of the DRM report and other
evidence. The learned advocate submitted that the mother of the
deceased came to know from Anil Patil that they had purchased the
composite journey ticket at Nanded to come to Jalgaon, and the said
ticket was kept by the deceased with him. The learned advocate
submitted that Anil Patil, after joining the Armed Forces, could not
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attend the Court and, therefore, has not been examined. The learned
advocate submitted that the statement of Anil Patil recorded by the
Police during the course of the inquiry has been considered by the
DRM while conducting the inquiry and for the purpose of drawing
a conclusion as to the incident.
08] The learned advocate for the respondent-Railway
submitted that failure to examine Anil Patil by the appellants is the
glaring defect in the case of the appellants and, therefore, the
statement of Anil Patil recorded by the Police could not be used as
evidence. The learned advocate submitted that no explanation has
been put forth for the non-examination of Anil Patil as a witness.
The learned advocate submitted that the conclusion drawn by the
DRM on the basis of the statement of Anil Patil and other material
cannot be made use of by the appellants. The learned advocate
submitted that the affidavit of evidence filed by appellant No.2 is
not sufficient to discharge the initial burden that the deceased was a
bona fide passenger. The learned advocate, in short, supported the
impugned judgment and order passed by the learned Member of the
Tribunal.
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09] In order to appreciate the rival submissions advanced by
the learned advocates for the parties, I have gone through the record
and proceedings. It is to be noted at the outset that there is no
evidence adduced by the respondent-Railway to establish that any
passenger was run over by any train on the given date at the spot of
the incident. At the outset, it is necessary to mention that, as per
Section 124A of the Act of 1989, the Railway is liable to pay the
compensation when in the course of working a railway, an untoward
incident occurs, whether or not there has been any wrongful Act,
neglect, or default on the part of the railway administration. It
would entitle a passenger who has been injured or dependent of a
passenger who has died to claim 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.
10] The accidental falling of a passenger from a railway train is
not covered by any of the clauses of the proviso to Section 124A of
the Act of 1989. It has come on record that the dead body was found
between Km.342/6 and 342/8 in Tandalwadi Shivar of Railway
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Station Kajgaon. It has come on record that the deceased, along with
his cousin Anil Patil, boarded the Down Punjab Mail at Manmad
Railway Station for an onward journey to Jalgaon. It is undisputed
that the said train passed through Kajgaon Railway Station at about
2:00 a.m. on 4th August, 2016. The dead body was found lying by
the side of the bridge near the railway track. The Railway has not
proved that on the given date at the spot of the incident, it was
reported by the Loco Pilot of any train that any person while
crossing the railway line was either dashed by the train or run over
by the train. The injuries sustained by the deceased clearly indicate
that the deceased was not run over by any train. If the deceased was
run over by any train, then his body would have been cut into
pieces. The dead body in that contingency would have been found
lying on the railway track. The post-mortem report clearly indicates
that the death was due to Cardio respiratory arrest due to massive
hemorrhage shock due to plolytrauma. The deceased was a resident
of Jalgaon district. The spot of the incident is far away from Jalgaon
Railway Station. It, therefore, goes without saying that the deceased
had no reason to go to the spot of the incident. The material on
record is sufficient to prove that the deceased, while travelling by
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train, fell from the moving train and died due to the injuries
sustained by him. It is true that there is no eyewitness to the
accidental fall of the deceased from the railway train. It is undisputed
that the incident occurred at about 2:00 a.m. on 4 th August, 2016.
During the night, it is not possible to notice the accidental falling of
any passenger from the train by a co-passenger because most of the
passengers are either sleeping or sitting in the coach. In this case,
therefore, the case of the appellants would be covered by the first
part of Section 124A of the Act of 1989. The case would not be
covered by any of the clauses of the proviso of Section 124A of the
Act of 1989. In the facts and circumstances, I conclude that the
appellants have proved that the deceased died in an untoward
incident.
11] The next important issue that needs to be addressed is
whether the deceased was a bona fide passenger travelling with a
valid journey ticket. It is undisputed that the cousin of the deceased,
by name Anil Patil has not been examined. His statement was
recorded during the course of the DRM inquiry as well as the police
inquiry. A statement is part of a record. Certain conclusions have
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been drawn in the DRM report on the basis of the statement of Anil
Patil. This fact would establish the existence of a person by name
Anil Patil and the recording of his statement. In the DRM report,
the conclusion has not been drawn that the statement made by Anil
Patil was found completely unbelievable or false. It needs to be
stated that since the statement has been relied upon by the DRM to
draw the conclusion, the same now cannot be discarded. The
statement of the father of the deceased was also recorded. Appellant
No.2, the mother of the deceased, has made a statement on affidavit
that the deceased and Anil Patil had gone to Nanded for recruitment
in the Armed Forces. The deceased was selected, and after attending
his test, the deceased, along with Anil Patil, was returning to Jalgaon
by train. This statement has been made by appellant No.2 on the
basis of information conveyed to her by Anil Patil. In her affidavit of
evidence, she categorically stated that the deceased and Anil Patil
had purchased a ticket and were coming back to Jalgaon. A major
part of the DRM's report is devoted to the analysis of the statement
of Anil Patil. It was stated in the conclusion part of the DRM's
report that Anil Patil did not tell the journey fare and, therefore, it
could not be said that the deceased was travelling with a valid
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journey ticket. In my view, the statement of Anil Patil was accepted
and relied upon to draw the conclusion in the DRM inquiry. The
respondent-Railway can not contend that the part of the statement
of Anil Patil, favourable to the Railway, shall be accepted and the
part of the statement, against the Railway, shall be rejected. The
statement has to be discarded or accepted in its entirety. The
statement has been converted into a finding. It has been treated as
evidence for the purpose of finding in favour of the Railway. The
DRM inquiry does not indicate that the statement made by Anil
Patil was either false or unbelievable. In my view, considering the
nature of this proceeding in the absence of the examination of Anil
Patil as a witness and, more particularly, the fact that the said
statement was made the basis of the DRM inquiry, the said
statement cannot be discarded. The Railway was required to adduce
evidence to disprove the facts established on the basis of the
statement of appellant No.2 coupled with the statement of Anil
Patil.
12] Undisputedly, the deceased was selected for the Armed
Forces. Anil Patil was also selected for the Armed Forces. They were
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returning back after attending the test. They travelled together from
Nanded to Jalgaon. From Manmad to Jalgaon, they were travelling
by Down Punjab Mail. If they were travelling without a ticket, then
they would have been caught by the Ticket Controller. This is one
more fact that goes against the Railway. Even if it is held that this
could not be the sole fact to draw any inference against the Railway,
in my view, there is another most important circumstance that makes
the case of the appellants probable on this count. The train in
question passed through Kajgaon Railway Station Railway Station at
about 2:00 a.m. on 4th August, 2016. The dead body was noticed by
Keyman on 4th August, 2016 at 16:40 hrs. The report was made to
the Station Master. The dead body was shifted to the hospital. In the
hospital, the inquest panchanama was drawn. It is not the case of the
Railway that, at the time of removing the dead body from the spot in
the presence of independent witnesses, an inspection was carried
out, and during that inspection neither any article nor the journey
ticket was found on the spot. It is true that the journey ticket was not
found on the person of the deceased while drawing the inquest
panchanama. The spot panchanama was drawn on 5 th August, 2016
between 8:30 a.m. and 9:00 a.m. It is not the case of the Railway
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that, after the removal of the dead body, the spot was guarded by the
Railway Police. The spot is in an open area. The perusal of the
panchanama would indicate that, apart from taking note of the
boundaries of the spot, no search or inspection of the spot was
carried out. Therefore, the possibility of losing a ticket on the spot
cannot be ruled out. The mother of the deceased, in her affidavit,
categorically stated that the deceased and Anil Patil were travelling
together with a valid journey ticket. She has stated that she was
informed by Anil Patil that after attending the test at Nanded, they
were returning after purchasing the ticket. In my view, therefore, this
affidavit would be sufficient to discharge the initial burden cast on
the shoulders of the appellants. The contents of the affidavit, more
or less, have been supported by the conclusion drawn in the DRM
Report.
13] In this factual position and in the teeth of the evidence, it
would be appropriate to consider the law on the subject laid down in
the case of Union of India Vs. Rina Devi [AIR 2018 SC 2362] .
Paragraph 17.4 would be relevant for the purpose of addressing this
issue. It is extracted below:
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"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 with from case to
case on the basis of facts found. The legal position in this
regard will stand explained accordingly."
14] In my view, this settled position supports the contention
of the appellants. The initial burden in this case has been discharged
by filing the affidavit of the relevant facts. The material collected
during the course of the DRM inquiry and the Police inquiry clearly
revealed that Anil Patil was travelling with the deceased. The
statement of Anil Patil has been made the basis of the DRM inquiry.
This DRM inquiry report, which has considered the statement of
Anil Patil, would also be relevant and would be of immense help to
the appellants to discharge the initial burden. It is to be noted that
this issue has to be dealt with from case to case on the basis of the
facts found in the said case.
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15] In the teeth of the material on record, I am satisfied that
the appellants have proved this fact as well. I do not see any reason
to disbelieve the evidence available on record. The evidence is
sufficient to prove that the deceased was travelling with a valid
journey ticket on the given date by Down Punjab Mail from
Manmad to Jalgaon. The learned Member of the Tribunal has failed
to consider all these aspects. Therefore, on both counts, the findings
of fact recorded by the Tribunal cannot be sustained. Accordingly, I
record my findings on the above points in the affirmative. The
impugned judgment and order deserves to be set aside.
16] The learned advocate for the appellants submits that in
view of the law laid down in the case of Union of India Vs. Radha
Yadav [(2019) 3 SCC 410], the appellants would be entitled to get
the compensation of Rs.8,00,000/- (rupees eight lakhs only) without
interest. The learned advocate has relied upon a Notification issued
by the Ministry of Railways (Railway Board) dated 22 nd December,
2016, wherein it is stated that in case of the death claim, the
claimants are entitled to a compensation of Rs.8,00,000/-. In view of
the decision in the case of Radha Yadav (supra), appellants are
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entitled to a compensation of Rs.8,00,000/- (rupees eight lakhs
only) without interest.
17] Accordingly, the first appeal is allowed.
i. The judgment and order dated 6th December, 2019, passed
by the Railway Claims Tribunal, Nagpur Bench, Nagpur
in Claim Application No.OA(IIu)/NGP/046/2018 is set
aside. The claim petition is allowed.
ii. The respondent-Railway shall pay the compensation of
Rs.8,00,000/- (Rupees Eight Lakhs Only) to the
appellants within four months from the date of this
judgment. If the amount is not deposited within four
months from the date of this judgment, then the
respondent-Railway shall pay interest @ 6% per annum
from the date of this judgment till its realization.
iii. The amount of compensation be deposited directly in the
bank accounts of the appellants. The appellants are
directed to provide their bank account details to the
respondent-Railway.
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iv. Out of total compensation, appellant Nos.1 and 2 shall be
entitled to get 50% share each.
18] 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: 31/01/2024 17:10:12
