Bombay High Court
Rajpati Wd/O Pradip Paswan And Others vs Union Of India, Thr. General Manager, ... on 15 January, 2024
Author: G. A. Sanap
Bench: G. A. Sanap
2024:BHC-NAG:1024
1 FA218.22 (J) final.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
FIRST APPEAL NO. 218 OF 2022
APPELLANTS : 1] Rajpati Wd/o Pradip Paswan,
Age 33 years, Occu. Housewife
2] Monika D/o Pradip Paswan,
Age 10 years, Occu. Nil
3] Shiva S/o Pradip Paswan,
Age 9 years, Occu. Nil
4] Priya D/o Pradip Paswan,
Age 9 years, Occu. Nil
(Applicant Nos.2 - 4 are through mother,
natural Guardian.)
5] Bagedu @ Vanshraj S/o Tapesar Paswan,
Aged about 69 years, Occu. Labour
All R/o Village Khiridad, Post Harpur,
Budhaat, Dist. Gorakhpur (U.P.)
VERSUS
RESPONDENT : Union of India,
through General Manager,
Central Railway, C.S.T.M., Mumbai.
---------------------------------------------------------------------------------------------------
Ms. Sumesha M. Chaudhari, Advocate for the appellants
Ms. N. G. Choube, Advocate for the respondent
---------------------------------------------------------------------------------------------------
CORAM : G. A. SANAP, J.
DATED : JANUARY 15, 2024.
ORAL JUDGMENT
2 FA218.22 (J) final.odt
1. In this appeal, filed under Section 23 of the Railway
Claims Tribunal Act, 1987 (hereinafter referred to as "the Act of 1987"
for short), the challenge is to the judgment and order dated 24.07.2019
passed by the Railway Claims Tribunal, Nagpur Bench, Nagpur,
whereby the claim for compensation filed by the appellants came to be
dismissed.
2. Background facts :-
Appellant no.1 is the wife of the deceased. Appellant nos. 2
to 4 are the children of the deceased and appellant no. 5 is the father of
the deceased. The appellants claim that on 11.08.2016, the deceased,
along with co-passenger Shriram Kanta Pasi, came to Manmad railway
station from Pune. They purchased their journey ticket at Manmad
railway station and boarded the Sewagram Express. According to them,
the deceased fell from a running train near Jalgaon railway station and
died due to the injuries sustained by him. According to them, the death
was in an untoward incident. The deceased was travelling with valid
journey ticket. The appellants on these averments claimed the
compensation.
3 FA218.22 (J) final.odt
3. The respondent- Railway filed a written statement and
denied the claim. It is contended that the deceased was not a bona fide
passenger. The journey ticket was not found on the person of the
deceased at the time of panchanama. It is further contended that the
death was not in an untoward incident. The deceased died due to his
negligence.
4. The parties have adduced evidence before the Tribunal.
Learned Member of the Tribunal, on consideration of the evidence,
held that the deceased was not a bona fide passenger as well as death
was not in an untoward incident. Being aggrieved by this judgment and
order, the appellants have come before this Court in appeal.
5. I have heard Ms. Sumesha Chaudhari, learned advocate for
the appellants and Ms. Neeraja Choube, learned advocate for the
respondent. Perused the record and proceedings.
6. In the facts and circumstances, the following points fall for
my determination:-
4 FA218.22 (J) final.odt
i] Whether the deceased was a bona fide passenger
travelling by the train in question with 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. Learned advocate Ms. Sumesha Chaudhari for the
appellants submitted that relying upon the statement of co-passenger
Shriram Pase, a conclusion has been drawn in DRM's report that the
deceased fell from a train due to his negligent act. Learned advocate
submitted that this conclusion in DRM's report is sufficient to hold that
the deceased died due to fall from a moving train and the deceased was
not either run over or dashed by any train while crossing railway track.
Learned advocate submitted that the dead body was found by the side
of railway track in injured condition and therefore, the conclusion
drawn by the learned Member of the Tribunal that the death might
have been caused due to run over, cannot be sustained. Learned
advocate further submitted that learned Member of the Tribunal, for
non-examination of co-passenger Shriram Pasi as witness, has discarded
the evidence to support their contention that the deceased was a bona
fide passenger travelling with a valid journey ticket. Learned advocate
5 FA218.22 (J) final.odt
submitted that the statement of co-passenger Shriram Pasi was recorded
on two occasions, first by police and second by RPF. Learned advocate
submitted that in his statements, he has consistently stated that after
purchasing the tickets at Manmad railway station, they boarded
Sewagram Express to come to Nagpur. Learned advocate further
submitted that the statement of Shriram Pasi has been made the
foundation of DRM's report, and therefore, the non-examination of co-
passenger Shriram Pasi would not go against the appellants. Learned
advocate submitted that if the deceased was travelling without journey
ticket, then he would have been caught by the Ticket Checker between
Manmad and Jalgaon. Learned advocate submitted that therefore, the
evidence of AW1, wife of the deceased, is sufficient to discharge the
initial burden coupled with the observations made in DRM's report.
8. Learned advocate for the respondent/Railway, in short,
supported the judgment and order passed by the Tribunal. Learned
advocate submitted that reliance cannot be placed on the statement of
Shriram Pasi because his statement is totally unbelievable. Learned
advocate pointed out that he is the brother-in-law of the deceased. It is
pointed out that if the deceased had fallen from running train at
6 FA218.22 (J) final.odt
Jalgaon, then on reaching at Nagpur or at least at his village he would
have informed appellant no.1 that the deceased on the way to
Gorakhpur went missing. Learned advocate submitted that the learned
Member of the Tribunal was right in rejecting the evidence. Learned
advocate submitted that the evidence on record, particularly the injuries
sustained by the deceased, would show that it was a case of run over and
not the case of accidental fall from moving train.
9. In order to appreciate the rival contentions, I have gone
through the record and proceedings. It is to be noted that on the basis
of the material collected during the inquiry, the DRM has concluded
that the deceased might have been sitting at the entrance door of the
coach and fallen from the train due to his negligence and died. The
DRM's report does not support the defence of the Railway that the
deceased was either run over or dashed by any train while crossing
railway line. The dead body was found at Jalgaon railway station by the
side of the track in an injured condition. The dead body was not found
on the track at Jalgaon railway station. The body was found lying near
the track before the Jalgaon railway station platform. It is undisputed
that there was no report by a Loco Pilot of any train that the deceased
7 FA218.22 (J) final.odt
was run over by any train. Similarly, the possibility of being run over by
Sewagram Express has been completely ruled out. The material on
record indicates that the deceased was travelling in the last bogie of the
train. Therefore, the possibility of the deceased getting down at railway
station and being run over by Sewagram Express is completely ruled
out. Sewagram Express entered Jalgaon railway station at 10.15 p.m. and
departed within two minutes from Jalgaon railway station. The dead
body was noticed at 10.20 p.m. by a Loco Pilot of an Up train i.e. a train
proceeding towards Mumbai at 10.20 p.m. There is no eye-witness to
the incident. The incident had occurred ahead of Jalgaon railway
station. The Guard of that train has been examined to prove that there
was no accidental fall of any passenger. As far as this point is concerned,
the only defence that is available to the Railway would be negligence of
the deceased. The question is whether this defence of negligence or
contributory negligence is available to the Railway or not. In my view,
the defence of negligence would not be available to the Railway because
the case would not fall under any clause of Proviso to Section 124 of
the Railways Act, 1989. The case in question would be covered by first
part of Section 124-A of the Act of 1989. In my view, therefore, the
death was in an untoward incident as understood by Section 123(c)(2)
8 FA218.22 (J) final.odt
of the Act of 1989. The legal position on this point has been settled by
the Hon'ble Apex Court in Union of India .vs. Rina Devi, reported at
AIR 2018 SC 2362. Paragraph 17.4 of the decision would be relevant
for the purpose of deciding the issue. It is extracted below :-
"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."
10. In the teeth of the available material on record, the defence
of contributory negligence or negligence would not be available to the
Railway. The liability is based on the principle of 'no fault theory'. In
this case, therefore, the death of the deceased was in an untoward
incident.
11. The next important issue is whether the deceased was a
bona fide passenger travelling with valid journey ticket ? Undisputedly,
9 FA218.22 (J) final.odt
the co-passenger, who happens to be the brother-in-law of the deceased,
was not examined. The question is whether non-examination of co-
passenger would be sufficient to reject the case of the appellants. The
statement of co-passenger i.e. Shriram Pasi was recorded by the police
on 01.09.2016 and his statement by RPF was recorded on 24.09.2017.
In his statements, Shriram Pasi has categorically stated that they had
boarded Sewagram Express after purchasing the tickets at Manmad
railway station to go to Gorakhpur via Nagpur. The statements are part
of the record. The question is whether reliance can be placed on the
statement of Shriram Pasi without examining him as a witness ? It is
seen that the statements of Shriram Pasi have been made the basis to
draw final conclusion in DRM's report. On the point of negligence of
the deceased, the statements of Shriram Pasi have been accepted by the
Tribunal. The statement of Shriram Pasi that they were travelling with
valid journey ticket, has been conveniently discarded. It is seen that the
statement of Shriram Pasi has been relied upon to draw the conclusion
in the DRM's report. The statements are, therefore, converted into
evidence and the said evidence has been relied upon to draw the
conclusion favourable to the Railway on the point of death due to
negligent act on the part of the deceased. In my view, therefore, the
10 FA218.22 (J) final.odt
statements of Shriram Pasi cannot be discarded.
12. Relying upon the statements of Shriram Pasi, a specific
affidavit has been filed by the widow of the deceased on record, wherein
she has contended that the deceased and Shriram were travelling
together after purchasing journey ticket. She has stated that her husband
and Shriram had boarded Sewagram Express. The question is whether
this statement in the affidavit is sufficient to discharge the initial burden
cast on the appellants and to prove that the deceased was a bona fide
passenger travelling with valid journey ticket. The DRM's report and
particularly the conclusion drawn on the basis of the statements of
Shriram Pasi, can be made use of by the appellants to discharge the
onus. It is true that appellant no.1 was not travelling with the deceased.
She has made the statements in the affidavit on the basis of the papers
of the independent investigation conducted by the police as well as
independent enquiry conducted by DRM. The statement in the
affidavit has been supported by the material on record. In my view, the
statement on affidavit, which is based on the evidence collected during
the course of inquiry, cannot be discarded. It would be sufficient, in my
view, to discharge the burden. In this context it would be profitable to
11 FA218.22 (J) final.odt
consider the law laid down by the Hon'ble Apex Court in Rina Devi
(supra). Paragraph 16.6 of the decision would be relevant for this
purpose. It is extracted below :-
"16.6 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
(2017 (13) SCALE 652)laying down that plea of
negligence of the victim cannot be allowed in claim based
on 'no fault theory' under Section 163A 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 124A merely on the plea of negligence of the
victim as a contributing factor."
13. In my view, this proposition would be squarely applicable
to the facts of the case and supports the case of the appellants. The
appellants, on the basis of evidence on record have proved that the
deceased was a bona fide passenger. It is seen that the learned Member
of the Tribunal, on the basis of certain facts has drawn an inference that
Shriram Pasi was not a co-passenger. In order to draw this inference, his
subsequent conduct was taken into consideration. The deceased had
12 FA218.22 (J) final.odt
fallen from the train at Jalgaon Railway Station. It is observed that after
reaching his village, he was expected to inform his family members at
least about the fact of initiation of his journey with the deceased. In my
view, this could not be the sole ground to reject the evidence on record.
Such conduct is possible due to various circumstances/reasons. One of
the circumstance could be careless approach of a person. In the facts
and circumstances, I am of the view that the evidence on record is
sufficient to prove that the deceased was a bona fide passenger travelling
with a valid journey ticket. The burden cast on the appellants has been
discharged by them. The death of the deceased, as has been observed
above, was in an untoward incident. I, therefore, record my finding on
both the points in the affirmative.
14. In this case, the accident had occurred on 11.08.2016. In
view of the Notification issued by the Ministry of Railways (Railway
Board) dated 22.12.2016, came into effect from 01.01.2017, in case of
death claim, the claimant/s is/are entitled to get compensation of Rs.
8,00,000/- (Rupees Eight lakhs only). In view of the decision of the
Hon'ble Apex Court in Union of India .vs. Radha Yadav , reported at
(2019) 3 SCC 410, in case of old claim after this notification, the
13 FA218.22 (J) final.odt
claimants/appellants would be entitled to get compensation Rs.
8,00,000/-, without interest, if the compensation provided earlier with
interest is less than Rs. 8,00,000/-. Learned advocate submitted that the
compensation Rs. 4,00,000/- with interest would not be more than
Rs.8,00,000/-. Therefore, in this case, the appellants/ claimants would
be entitled to get Rs. 8,00,000 (Rupees Eight lakhs only) without
interest.
15. Accordingly, the First Appeal is allowed.
i] The judgment and order dated 24.07.2019 passed by the
Railway Claims Tribunal, Nagpur Bench, Nagpur, is set aside. The
claim petition is allowed.
ii] Respondent - Central Railway is directed to pay Rs.
8,00,000/- (Rupees Eight Lakhs only) towards compensation to the
appellants within four months from the date of uploading this
judgment.
iii] The amount shall be deposited directly in the bank
accounts of the appellants. The appellants are directed to provide their
bank account details to the respondent-Railway.
iv] The appellants will not be entitled to get any interest on
14 FA218.22 (J) final.odt
the amount of compensation to be paid by the respondent. However,
the appellants would be entitled to get interest @ 6% per annum from
the date of this judgment till realization of the amount, if the amount is
not deposited within four months.
v] Out of total compensation, appellant no.1 will be entitled
to get 50% amount ; appellant nos.2, 3 and 4 will be entitled to get 10%
each and appellant no.5 will be entitled to get 20% amount.
vi] 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: 25/01/2024 17:25:52
