Bombay High Court
Sunita Wd/O Ravindra Mahajan And ... vs The Union Of India, General Manager ... on 4 March, 2024
Author: G. A. Sanap
Bench: G. A. Sanap
2024:BHC-NAG:3248
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
FIRST APPEAL NO. 694 OF 2022
APPELLANT : 1] Sunita Wd/o Ravindra Mahajan,
Age 39 years, Occu. Housewife
2] Gaurav S/o Ravindra Mahajan,
Age 21 years, Occu. Education,
3] Janabai Wd/o Onkar Mahajan,
Age 77 years, Occu. Nil
(Deleted as per order dated 10.01.2019)
R/o. Vidya Nagar, Tal. Bhusaval,
Dist. Jalgaon.
VERSUS
RESPONDENT : Union of India,
General Manager, Central Railway,
CSTM, Mumbai.
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Ms. Sumesha R. Chaudhari-Borkar, Advocate for the appellants
Ms. Neerja Choube, Advocate for the respondent.
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CORAM : G. A. SANAP, J.
DATED : MARCH 04, 2024.
ORAL JUDGMENT
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),
challenge is to the judgment and order dated 17.01.2019 passed by the Railway
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Claims Tribunal, Nagpur Bench, Nagpur, whereby the claim filed by the
appellants-claimants under Section 16 of the Act of 1987 for compensation
was dismissed.
2. BACKGROUND FACTS :-
The appellant no.1 is the wife and appellant nos.2 is the son of
deceased Ravindra Onkar Mahajan. The appellants claim that on 16.03.2016,
the deceased, while travelling from Jalgaon to Bhusaval by train no. 59013
Surat-Bhusaval passenger, due to rush in the train and sudden jerk to the train,
fell from moving train near starter signal of Bhusaval Railway Station. He
sustained injuries and died on the spot. The journey ticket was purchased by
the son of the deceased and he had seen him boarding the train. The ticket was
lost in the incident. The deceased was a bona fide passenger. The death was in
an untoward incident.
3. Respondent-Railway filed written statement and opposed the
claim. It was contended that the deceased was run over by a train at the spot of
the incident while crossing railway line. The body was cut into two parts. The
journey ticket was not found either on the spot or on the person of the
deceased. The deceased was not a bona fide passenger.
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4. The appellants examined three witnesses and the respondent-
Railway examined three witnesses. Learned Member of the Tribunal, on
analysis of the evidence, found that the claim was without substance and as
such dismissed the same. The appellants are before this Court in appeal.
5. I have heard Ms. Sumesha Chaudhari, learned advocate for the
appellants and Ms. Neerja Choube, learned advocate for the respondent.
Perused the record and proceedings.
6. In the facts and circumstances, following points fall for my
determination :-
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 of the Railways Act, 1989 ?
7. Ms. Chaudhari, learned advocate for the appellants submitted that
AW2 Gaurav, son of the deceased, had purchased the journey ticket for the
deceased at Jalgaon Railway Station and in his presence, the deceased boarded a
passenger train to go to Bhusaval. Learned advocate submitted that the
condition of the dead body has been mentioned in the inquest panchanama. It
is pointed out that the dead body was cut into two parts. The clothes were also
cut and damaged. Learned advocate submitted that therefore, the possibility of
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loss of ticket on the spot has been fully established. Learned advocate
submitted that there is no witness to the alleged incident of run over of the
deceased by any train at starter signal of Bhusaval Railway Station. Learned
advocate submitted that there was no report of the Guard or Loco Pilot of any
train about run over of any passenger or dash to any passenger at the spot of
the incident. Learned advocate submitted that the inference of run over
cannot be drawn simply because of the fact that the dead body was cut into two
parts. Learned advocate submitted that a passenger falling from a slow moving
train can get stuck in any part of the train and can come under the wheels of a
moving train. Learned advocate submitted that the spot where the incident
occurred is the starter signal and invariably at starter signal, the train moves
slowly at the railway station. Learned advocate submitted the dead body of the
deceased was found on the railway premises and therefore, the presumption of
occurrence of death in an untoward incident is in favour of the appellants.
Learned advocate submitted that learned Member of the Tribunal has
committed error in rejecting the evidence adduced by the appellants. Learned
advocate submitted that the impugned judgment and order passed by the
Tribunal cannot be sustained.
8. Ms. Choube, learned advocate for the respondent, in short,
supported the judgment and order passed by the learned Member of the
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Tribunal. Learned advocate submitted that evidence of AW2 cannot be
believed. Learned advocate submitted that his evidence has been completely
shaken in his cross-examination. Learned advocate submitted that the
deceased was resident of Bhusaval and residing in the vicinity of the railway
station. It is submitted that the possibility of his crossing railway line at the
spot of the incident and being run over by a train, cannot be ruled out.
Learned advocate submitted that if the journey ticket was purchased by the
deceased, then the said ticket ought to have been recovered at the time of
inquest and spot panchanamas.
9. The initial burden to prove that the deceased was a bona fide
passenger will be on the appellants. They have to discharge this burden by
leading evidence. The Court has to consider as to whether the evidence
adduced is sufficient to discharge the initial burden and the probative value of
the said evidence. Before proceeding to appreciate the evidence of the
witnesses on this point, it is necessary to consider the settled legal position
from the decision of the Hon'ble Supreme Court in Union of India .vs. Rina
Devi, reported at AIR 2018 SC 2362. Paragraph 17.4 would be relevant for
the purpose of addressing this 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
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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. The Hon'ble Apex Court has held that the initial burden will be
on the injured/claimant to prove that the injured/deceased was a bona fide
passenger. The said initial burden can be discharged by filing an affidavit of
relevant facts and the burden will then shift on the railways, and the issue can
be decided on the basis of the facts shown or the attending circumstances. It is
held that mere presence of body on the railway premises will not be conclusive
to hold that the injured or deceased was a bona fide passenger for which claim
for compensation could be maintained. It is further held that mere absence of
ticket with such injured or deceased will not negative the claim that he was a
bona fide passenger. It is held that this will have to be dealt with from case to
case on the basis of the facts found. In view of this settled legal position, the
Court has to see whether any evidence has been adduced by the appellant to
discharge the burden. The Court has to consider the quality and credibility of
the said evidence.
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11. Admittedly, the journey ticket was not found on the spot at the
time of drawing inquest and spot panchanamas. As held by the Hon'ble Apex
Court, mere absence of ticket with such injured/deceased will not negative the
claim that he was a bona fide passenger. The possibility of loss of ticket in the
incident cannot be ruled out. The police officer conducting spot panchanama
as well as inquest panchanama may not notice the ticket on the spot. In this
case, AW2 in his statement to the police had stated that he purchased the ticket
for his father and in his presence his father boarded the train to go to Bhusaval.
The statement recorded by the police is part of the record. Despite searching
cross-examination, no material has been elicited in his cross-examination to
demolish his evidence on the point of purchase of journey ticket for his father
and boarding a train by his father in his presence. In my view, this evidence is
sufficient to satisfy the requirements to discharge the initial burden. I do not
see any reason to discard and disbelieve this evidence. The evidence of AW2 is
sufficient to prove that he had purchased the journey ticket for his father and in
his presence his father boarded a train at Jalgaon Railway Station to go to
Bhusaval.
12. The next important issue is whether the death of the deceased was
in an untoward incident or not ? In my view, the finding on the above point
would be of some significance while answering this issue. On the basis of the
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evidence of AW2, it has been proved that the deceased boarded a train at
Jalgaon Railway Station in his presence. The moment evidence of AW2 on this
point is accepted, the defence of the Railway that the deceased was run over by
some train near starter signal, will not assume any significance. A case is
sought to be made out that the deceased was run over inasmuch as his body
was cut into two parts. In my view, simply because of this, a case of run over
cannot be accepted. It is to be noted that if a passenger or a person is dashed or
run over at a starter signal of a Railway station, where the train moves slowly,
the Loco Pilot is bound to notice such an incident. It is not the case of the
Railway that Loco Pilot or Guard of any train reported about run over of any
person on the spot of the incident on the given date and time. If the deceased
was run over by any train on the spot, then the Loco Pilot would have reported
the said incident to the Station Master. It is further pertinent to note that the
starter signal is very close to the platform. If such an incident had occurred on
the given date at the spot of the incident, then the same would have been
noticed by number of passengers waiting at the platform.
13. A person while falling from a moving train at slow speed can be
rolled over by the wheels of the train. This possibility cannot be ruled out. A
person falling from a slow moving train if get stuck to some part of the train,
then can come under the wheels of the train. This may not be possible in a fast
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moving train. In case of fast moving train, a person would fall at some distance
from the train and would roll over. In the process, such a person is bound to
suffer multiple fractures. In this case, therefore, the possibility of the deceased
falling from the train moving at slow speed and coming under the wheels of
the train, cannot be ruled out. The absence of report of the Loco Pilot about
run over of any person on the spot of the incident is the important
circumstance to accept the contention of the appellants. In my view, therefore,
on both counts, learned Member of the Tribunal was not right in rejecting the
claim. The appellant has proved that the deceased, after purchasing valid
journey ticket, boarded a passenger train at Jalgaon Railway Station to go to
Bhusaval. It is proved that he fell from a moving train at starter signal of
Bhusaval Railway Station and died in the incident. The death was in an
untoward incident. Therefore, I record my finding on both the points in the
affirmative.
16. In this case, the accident occurred in 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
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this notification, the claimants/appellants would be entitled to get
compensation of 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 provided earlier i.e. 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.
17. In the result, the First Appeal is allowed.
i] The judgment and order dated 17.01.2019, passed by the Railway
Claims Tribunal, Nagpur Bench, Nagpur, in case No. OA(IIu)/NGP/
170/2016, is set aside. The claim petition is allowed.
ii] Respondent - South 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 this judgment.
iii] Out of the said amount, appellant no.1 would be entitled to get
75% amount and appellant no.2 would be entitled to get 25% amount.
iv] The amount be deposited directly in the bank account of the
appellants. The appellants are directed to provide their bank account details to
the respondent-Railway.
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v] The appellants will not be entitled to get any interest on 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 the said period.
vi] The First Appeal stands disposed of in the aforesaid terms. No
order as to costs. Decree be drawn up accordingly.
( G. A. SANAP, J. )
Diwale
Signed by: DIWALE
Designation: PS To Honourable Judge
Date: 15/03/2024 20:22:22
