Bombay High Court
Khusal S/O Nilkanthrao Barahate And ... vs Union Of India Through The General ... on 12 January, 2024
2024:BHC-NAG:467
1 fa852.2019
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
FIRST APPEAL NO.852/2019
1. Khushal S/o Nilkanthrao Barahate,
aged about 66 Yrs., Occ. Labour. (Deleted as per Court's
order dated 13.10.2023)
2. Smt. Chandrakala W/o Khushal Barahate,
aged 61 Yrs., Occ. Household.
Both R/o Jagjai, Post Undari,
Tah. Ralegaon, District Yavatmal. ... Appellants
- Versus -
Union of India,
through The General Manager,
Central Railway C.S.T. Mumbai. ... Respondent
-----------------
Mr. R.G. Bagul, Advocate for the Appellants.
Ms. Neerja G. Chaubey, Advocate for the Respondent.
----------------
CORAM :- MRS. VRUSHALI V. JOSHI, J.
DATE OF RESERVING THE JUDGMENT :- 6.11.2023
DATE OF PRONOUNCING THE JUDGMENT :- 12.1.2024
JUDGMENT
Being aggrieved by the judgment and order passed by
the Railway Claims Tribunal, Nagpur in O.A. No.(IIu)/No.RCT/
NGP/377/2012 dated 22.7.2016 dismissing the death claim of
the deceased Prashant in railway accident, the claimants have filed
the present appeal.
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2. Appellants are the parents of the deceased Prashant
who died in railway accident on 20.4.2012 while returning to
Nagpur from Warora by Express Train. He was having a valid
ticket from Warora to Nagpur. As the train was overcrowded
with passengers and he was standing near the door of the bogie
and due to jerk of train and push of passengers he fell down from
the running train at Jaipur Shiwar 5 KM South, Tahsil Seloo,
District Wardha and died due to fatal injuries.
3. The respondent Railway has contested the claim
contending that the deceased was not a bona fide passenger and
he has not died in an "untoward incident". Only because the body
was lying on the track, the claimants cannot claim the
compensation from the Railway without any proof of travelling of
deceased by said train.
4. The Railway Tribunal has rejected the claim on the
basis of postmortem report as the body of the deceased was cut
into two pieces from the neck which indicates that the deceased
must have been run over by the train as otherwise the body of
deceased could not have been cut into two parts from the neck.
3 fa852.2019
The nature of injuries sustained by the deceased and the manner
in which two pieces of dead body of the deceased were lying will
not be suggestive of the fact that he would have fallen from the
running train and the claim was rejected.
5. I have heard both the counsel. Perused the record.
6. Following points fall for my determination:-
(i) Whether the deceased died due to fall
from running train and as such the death was in an
"untoward incident"?
(ii) Whether the deceased was a bona fide
passenger of the relevant train with a valid journey
ticket?
7. In this case, in the inquest and spot panchanama one
ticket is seized from the pocket of the deceased which shows that
the deceased was travelling from Warora to Nagpur. The
claimant has examined one witness Khushal Barahate (A.W.1).
From the evidence it be gathered that the deceased was travelling
from said train and he fell down from said train at KM
No.773/01 between Seloo Road to Tuljapur. From the evidence
of this witness it is brought on record that the deceased was
working in B.S.F. but was removed from service because he fired
4 fa852.2019
20 rounds under the influence of liquor. His married life was also
not successful and divorce petition is also pending. Though the
claimants have stated that the deceased was travelling from
Warora to Nagpur the description of the ticket is given as from
Wardha to Nagpur.
8. As per the Station Master's memo message on
20.4.12. about at 21.50 Hrs. received that one dead body is lying
at KM No.773/01 between up and down track. The evidence of
Virendra Gulabrao Kadu (R.W.1) who was working as Deputy
Station Master at Sewagram Railway Station shows that on
20.4.2012 at 22.40 Hrs. Deputy Station Master Seloo Road
informed on phone that a body of a person is lying between up
and down track of KM 773/01 inside of two poles of Home
Signal as informed by PWS/Selu Road to him. The
spot-panchanama shows that the body was lying there. The neck
is seen half broken, jaw and tongue had emerged out and injuries
are seem on back and other parts of the body. In postmortem
report it is mentioned that the head is completely severed from
the body and the injuries are ante-mortem. As per the
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inquest-panchanama and postmortem report the body of deceased
is cut into two pieces. The head has been amputated from neck.
The railway ticket is there and it is found that the railway ticket
was from Warora to Nagpur. Admittedly, there was no occasion
for this witness to notice as to how the deceased died, meaning
thereby, he had no occasion to see whether the deceased was cut
into two pieces while crossing the track or fell down from a
running train and subsequently came underneath the wheels of
another train. The postmortem report confirms the fact that
cause of death was haemorrhage shock due to polytrauma, his
body was cut into pieces. The Tribunal appears to have ignored
the fact that the deceased was holding a valid travelling ticket and
therefore, it cannot be lost sight that the deceased was a bona fide
passenger at the relevant time. The respondent has failed to
discharge its burden under Section 123(c)(2) of Railways Act to
prove that it was not an "untoward incident".
9. Now it has been argued on behalf of the Railways
administration that since the body was cut into two halves, it
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cannot be a case of accidental falling down, but it would be a case
of run over. In this regard, the decisions given by this Court in
many cases become pertinent. In those cases also, the body was
cut into two halves but this Court held that, the condition of the
body cannot, in any way, be used to deny that the incident was an
untoward incident.
10. Paragraph 23 of the decision of this Court in the case
of Megha w/o Vijay Thakur and Another vs. Union of India 1 is
relevant and is quoted as under:
"23. It cannot be said that the deceased has committed
suicide or was ran over by the train. Once it is held that the
deceased was travelling in the train and he fell down from
the running train, it is untoward incident as defined in
Section 123(c) of Railways Act, 1989. In para 6 of the
Judgment in the case of SH. Surai Besra (supra), it is
observed that it is not unknown that a body may be badly
cut up and crushed after falling from the train either on
account of the bonafide passenger getting entangled in the
steps of the train and thereafter in the wheels or the other
equipments of the train in which he was travelling or that
the deceased on account of the fall from the train gets hit
by the various equipments of the Railways which are
adjoining to the tracks such as poles, signals, wires,
junction boxes etc. Therefore, in the facts of the present
case, in my opinion, the Tribunal was wholly unjustified in
giving a finding of death of the deceased on account of
1 2020(5) Mh.L.J. (Bombay High Court)
7 fa852.2019
being run over simply because of the condition of the body
of the deceased." In the present case, the Railway Claims
Tribunal has wrongly not considered the Investigation
Report submitted by the respondent. Those documents
show that deceased fell down from running train.
(emphasis supplied)
11. Paragraph Nos.15 and 16 of the decision of this Court
in the case of Mr. Sadashiv Ramappa Kotiyan vs. Union of India 1
are relevant and are quoted as under:
"15. As already observed, there was no occasion for the
Motorman to actually witness the incident as to how it had
occurred, meaning thereby, there was no eye witness.
Secondly, how can opinion of the Police and the witnesses
of inquest panchanama be accepted and relied upon by
holding that;
"death may have came to the said deceased as to body
cut into two pieces and due to excess bleeding due to
railway accident".
These observations are not only improper, incorrect but
also perverse and are required to be set aside. Rather, the
socalled opinion of the Police and Panchas of inquest
panchanama does not indicate that, they had, in fact, seen
the deceased crossing the track and hit by the local train,
resulting into cutting his body into two pieces. This is
something ridiculous.
16. .....
There was no evidence of an expert before the
Tribunal to opine as to under what circumstances a
person's body would cut into two pieces and when it
1 First Appeal No.658/2018, decided on 15.3.2021 (Bombay High Court)
8 fa852.2019
would not. The Tribunal should not have rendered it's
personal opinion while adjudicating the claim under the
present Statute. Since the provision for compensation in
the Railways Act is a beneficial piece of Legislation, it
should receive liberal and wider interpretation and not
narrow and technical one. It should advance the object of
the Statute."
(emphasis supplied)
12. Paragraph No.7 of the decision of the Delhi High
Court in the case of SH. Prempal Singh and Another vs. Union of
India1 is also relevant and is quoted as under:
"7. The reasoning in the impugned order that because the
deceased was cut into halves: one part found inside the
railway tracks and the other outside, the death could not
have been caused due to accidental falling from a moving
train, is flawed. The impossibility of a passenger being so
crushed after a fall from a moving train has not been
conclusively established in law, so as to obviate all such
claims for compensation. It is possible that the deceased
while standing near the overcrowded passenger
compartment door, slipped down while holding on to the
door railing, and frantically tried to recover and re-board
the train with his legs flailing violently, and in the valiant
and violent melee his legs or his body could have
unfortunately come under the wheels of the train leading
to his being consumed in the fatal accident. As long as such
possibility exists, the claim cannot be ousted or denied on
technical assumptions. There is not a divine camera which
could replay the actual manner of the fatality, but all
factors lead to the inexorable conclusion that a bonafide
passenger died in an untoward train accident. There is also
1 FAO 211/2014, decided on 24.4.2018 (Delhi High Court)
9 fa852.2019
no reason why the deceased would be walking the railway
tracks in an odd place en-route his destination - his home.
It is not that he lived near the site of the accident or that he
had any regular business anywhere near the place of the
accident. Thus the inference that he died while crossing
the tracks, is unwarranted and untenable."
(emphasis supplied)
13. The circumstantial evidence suggests that Prashant
fell down from a train carrying passengers and was hit/dashed by a
running train resulting in the ghastly accident leading to his
death. The Apex Court in the case of Union of India vs.
Prabhakaran Vijaya Kumar 1 while considering the definition of
'untoward incident' with respect to the expression 'accidental
falling of a passenger from a train carrying passengers' in Section
123(c) of the Railways Act, has observed that if we attach a
restrictive meaning to the said expression, we will be depriving a
large number of railway passengers from getting compensation in
railway accidents, and therefore, a purposive and not literal
interpretation should be given to the said expression. Paragraph
14 of the said decision is usefully quoted as under:
1 2008(2) T.A.C. 777 (SC)
10 fa852.2019
"14 In our opinion, if we adopt a restrictive
meaning to the expression 'accidental falling of a passenger
from a train carrying passengers' in Section 123(c) of the
Railways Act, we will be depriving a large number of
railway passengers from getting compensation in railway
accidents. It is well known that in our country there are
crores of people who travel by the railway trains since
everybody cannot afford travelling by air or in a private car.
By giving a restrictive and narrow meaning to the
expression we will be depriving a large number of victims
of train accidents (particularly poor and middle class
people) from getting compensation under the Railways
Act. Hence, in our opinion, the expression 'accidental
falling of a passenger from a train carrying passengers'
includes accidents when a bona fide passenger, i.e., a
passenger travelling with a valid ticket or pass is trying to
enter into a railway train and falls down during the process.
In other words, a purposive, and not literal, interpretation
should be given to the expression."
(emphasis supplied)
14. Therefore, in my view, Prashant's death, as can be
seen from the police papers and the postmortem report is an
"untoward incident", resulting from a railway accident, involving a
train by which he was travelling. Even if deceased Prashant may
have been negligent, as observed by the Apex Court in the case of
Jameela and Others vs. Union of India 1, that an act may be
negligent or even rash, but it certainly is not a criminal act;
negligence of a passenger does not have effect on liability of
1 AIR 2010 SC 3705
11 fa852.2019
Railways and the claimants would be entitled to compensation.
Therefore, in this case as well, although deceased Prashant may
have been negligent, however, that cannot affect the
compensation that would be payable to the appellants under
Section 124A of the Railways Act.
15. The respondent has brought on record the conduct of
deceased while he was in service which makes no difference and
because of said incident and his unsuccessful married life
inference about suicidal death cannot be drawn. The appellants
are the parents of deceased. The Tribunal has observed that the
divorce petition was pending at the time of accident and the
appellant has not made party to wife and son of deceased as
dependents.
16. After going through the record of the Tribunal it
appears that during the cross-examination of A.W.1 he has
admitted about the pendency of divorce petition. The petition
was decided after the death of the deceased, it means at the time
of accident marriage was subsisting. The wife of the deceased is
not made party in claim petition. During cross-examination
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A.W.1 has requested for time to take steps to add her as party.
From the Roznama of the Claims Tribunal it appears that the case
was adjourned for taking steps by the applicant to add the party.
The note is taken in Roznama by the Tribunal on 28.1.2016 and
22.04.2016 as under:-
"28.01.2016 Applicants by None.
Respondent by Adv. V. Bais.
On 10.4.2013, the respondent had filed the
reply alongwith statutory report and the issues were
framed and accordingly the matter was posted for
A/evidence on 29.7.2013. On 29.7.2013, 30.10.2013 &
4.3.2014 neither the applicant nor his counsel was
present. But however, the opportunities were afforded
to adduce the A/evidence. On 23.11.2015 the evidence
of Khushal s/o Nilkantrao Barahate was adduced as AW-
1 wherein the applicant has admitted that the deceased
was married and his marriage was dissolved by way of
decree of Divorce under Section 13(1)(1a) of Hindu
Marriage Act vide order dt.18.2.2013 passed by the Joint
Civil Judge, Sr. Dn., Wardha. From the perusal of the
judgment, the order was passed Ex-parte on 18.2.2013
after the death of deceased. It is pertinent to mention
here that the Court of Civil Judge, Wardha was not
apprised with the death of the deceased by any of the
party. The applicant was directed to take necessary steps
i.e. impleadment of the wife of the deceased as necessary
party and the case was posted for A/evidence on
28.1.2016.
Today on 28.1.2016, neither the applicant
nor his counsel is present. The applicant's counsel has
not taken necessary steps as directed by the Tribunal so
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the A/evidence is closed and the case is posted for
R/evidence on 22.4.2016.
The case is posted for R/Evi. on 22.4.2016."
"22.4.2016 Applicants by Adv. Sable.
Respondent by Adv. B. Bais.
R.W.-1 is examined, cross-examined and
discharged.
The applicant, Khushal Barahate is present in person
before the Tribunal.
The counsel for applicant asked to how many children
the applicant is having? He replied that he has only two
sons & two daughters namely;
1) Prashant (deceased) and 2) Rahul (30 yrs) and
two daughters namely Rupali (27 yrs) and one daughter
is married, who is elder than the deceased.
It has been observed that younger brother and sisters
have not been impleaded as Parties.
The applicant also stated that the deceased was married
and from the said wedlock, there was one son but
daughter-in-law has taken the divorce, copy placed on
record, and has remarried & son is also living with her
mother. The issue from the said wedlock has also not
been impleaded as party.
The counsel for applicants is directed to implead them
as parties.
Posted for steps/Arguments on 24.06.2016."
17. The directions were not complied by the parties.
Though the statement is made that the deceased was having
son but in the judgment of divorce petition reference of issue
out of said wedlock is not there. The direction was given by
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the Tribunal to add the parties i.e. dependents and it was not
complied.
18. In the light of the above discussion, I am of the
view that the deceased being a bona fide passenger, died in an
untoward incident and therefore, the appellants would be
entitled to compensation under Section 124A of the Railways
Act.
19. In the circumstances, the impugned judgment
dated 22.7.2016, passed by the Railway Claims Tribunal,
Nagpur in Case No.OA(IIu)/RCT/NGP/377/2012 deserves
to be set aside and is hereby set aside.
During the pendency of appeal appellant No.1
died on 12.2.2021 and as per order dated 13.10.2023 his name
is deleted.
20. Though I have come to conclusion that the
appellant No.2 is entitled for compensation and compensation
is allowed of Rs.8,00,000/- (Rs. Eight Lakhs Only), for
apportionment of the claim the matter is remanded back to the
Tribunal with direction to appellant No.2 to add wife and the
son of the deceased as necessary party by filing affidavit before
the Tribunal and Tribunal to decide the apportionment after
considering the age and dependency of the wife and the son.
21. The appellant No.2 to appear before the Tribunal
on 1.2.2024 at 11 a.m.
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22. The appeal is allowed in above terms. No costs.
(MRS. VRUSHALI V. JOSHI, J.)
Tambaskar.
Signed by: MR. N.V. TAMBASKAR
Designation: PA To Honourable Judge
Date: 16/01/2024 10:22:06
