Bombay High Court
Smt. Vanita Wd/O Somaji @ Suraj ... vs Union Of India, Thr. The General ... on 5 March, 2024
Author: G. A. Sanap
Bench: G. A. Sanap
2024:BHC-NAG:3354
1 901-J-FA-722-22.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO. 722 OF 2022
APPELLANTS 1. Smt. Vanita wd/o Somaji @ Suraj
(Orig. Claimants) Khobragade, Age about 31 years,
On R.A. Occ. Housewife (wife of deceased)
2. Master Vivek s/o Somaji @ Suraj
Khobragade, Age about 05 years,
Occ. Education.
3. Master Sujal s/o Somaji @ Suraj
Khobragade, Aged 02 years,
Occp. Nil.
(Applicant no.2 & 3 being minor
through their natural guardian
mother).
4. Vijay s/o Bhahgwan Khobragade,
age about 62 years, Occ. Labour
(Father of deceased) (Since Died)
5. Smt. Mainabai wd/o Vijay Khobragade
Age about 57 years, Occ. Housewife
(Mother of deceased)
All R/o Shivaji Nagar, Ward No.8,
Rajura, Tah. Rajura, Dist. Chandrapur
(M. S.)
// V E R S U S //
RESPONDENT : Union of India,
On R. A. Through The General Manager,
(Orig. Respondent) Central Railway, CST Mumbai.
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Shri R. G. Bagul, Advocate for appellants.
Ms. Neerja Chaubey, Advocate for respondent-sole.
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CORAM : G. A. SANAP, J.
DATED : 05/03/2024
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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 16/12/2015 passed by the Railway Claims Tribunal, Nagpur
Bench, Nagpur, whereby the claim filed by the appellants under
Section 16 of the Act of 1987 for compensation was dismissed.
2. Background facts :-
The appellant No.1 is the wife of the deceased. The
appellant Nos.2 and 3 are the children of the deceased. The
appellant No.5 is the mother of the deceased. The appellants claim
that on 27/07/2011, the deceased while travelling from
Ballarshah to Tirupati by some unknown train accidentally fell
from the running train between kilometers 201/30-32 at Sirpur
Kagaznagar Railway Station Yard of down line. He sustained
injuries to his vital organs and died on the spot. The appellants
claim that the deceased was going to Tirupati Balaji for offering
prayers. Due to heavy rush in the general compartment of the
train, he fell down and died. The ticket was lost in the incident.
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3. The respondent - Railway has filed the written
statement and opposed the claim. It was contended that the
deceased was not a bonafide passenger. The journey ticket was
not recovered from the person of the deceased at the time of
panchnama. The death was not in an untoward incident. The
deceased was negligent while travelling in the train. The
possibility of the suicide by the deceased cannot be ruled out.
4. The parties adduced the evidence before the
Tribunal. AW-1 is the appellant No.1. RW-1 is Deputy Station
Superintendent, Sirpur Kagaznagar Railway Station. The learned
Member of the Tribunal, on analysis of the evidence, dismissed the
claim. The appellants are, therefore, before this Court in appeal.
5. I have heard learned Advocates for the parties.
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 ?
4 901-J-FA-722-22.odt
7. Learned Advocate for the appellants submitted that
AW-1 has categorically deposed that the deceased was travelling
by unknown train to Tirupati Balaji. Learned Advocate submitted
that the spot of incident is 500 kms away from the native place of
the deceased. Learned Advocate submitted that the deceased had
no reason to go to the said place in the ordinary circumstances.
Learned Advocate submitted that the person undertaking journey
from Ballarshah to Tirupati Balaji, which is about 950 kms would
not dare to travel without ticket. Learned Advocate submitted that
if he had travelled without ticket, then during his journey for 500
kms, he would have been caught. Learned Advocate further
submitted that the dead body was noticed after passing of Train
No.6360 i.e. Patna-Ernakulam Express through Sirpur Kagaznagar
Railway Station. Learned Advocate submitted that it is not the
case of the Railways that the death was due to run over or dash by
unknown train to the deceased. Learned Advocate submitted that
the injuries sustained by the deceased could be possible due to fall
from slow moving train.
8. Learned Advocate for the respondent - Railway
submitted that the ticket was not found at the time of the
panchnama. Learned Advocate pointed out that other articles
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belonging to the deceased were found. Learned Advocate
submitted that the evidence is not sufficient to discharge the initial
burden that the deceased was a bonafide passenger. Learned
Advocate submitted that both the legs of the deceased were cut in
the accident and therefore, the Tribunal was right in concluding
that it was a case of run over. Learned Advocate in short
supported the Judgment and order.
9. With the able assistance of learned Advocate for the
parties, I have gone through the record and proceedings. AW-1 is
the wife of the deceased. She has filed affidavit of evidence. She
has stated that on 27/07/2011, the deceased had gone to Tirupati
Balaji by boarding a train at Ballarshah. She was not a witness to
the purchase of ticket by the deceased as well as the boarding of
the deceased in any train. Her evidence is sufficient to accept the
contention that on the given date, the deceased was travelling
from Ballarshah to Tirupati by a train. She has stated that the
deceased was travelling after purchasing a journey ticket at
Ballarshah Railway Station. The initial burden is on the appellants
to prove that the deceased was a bonafide passenger travelling
with valid journey ticket. The burden has to be discharged by
leading evidence.
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10. The nature of the evidence adduced to prove this
fact may vary from case to case. The direct evidence as well as
circumstantial evidence can be taken into consideration. In this
case, the evidence of AW-1 is sufficient to prove that on the given
date, the deceased was going to Tirupati Balaji by unknown train.
The dead body was found at shifting point of loop line at Sirpur
Kagaznagar Railway Station. The dead body was found on the
railway premises. The spot of incident is at a distance of 500 kms
from Ballarshah. The deceased otherwise had no reason to go to
the spot of incident. The evidence on record clearly indicates that
the deceased had boarded at Ballarshah to go to Tirupati and on
the way, he died in the incident. A person travelling such a long
distance by a train would not take risk of journey without ticket. It
is a common knowledge that every compartment of the train is
scrupulously monitored and checked by the Ticket Checkers. The
passengers travelling without ticket are required to pay the fine /
penalty. The possibility of the deceased taking risk to travel
without ticket a distance of 950 kms is not acceptable. If he had
travelled such a long distance without ticket, then he would have
been caught by the Ticket Checker. It is not the case of Railway
that on the said railway line, there was no routine checking of the
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unauthorized passengers. In my view, this fact is in favour of the
appellants.
11. There is one more circumstance which is in favour
of the appellants. The panchnama is part of record. The valuable
articles were found from the trouser pocket of the deceased. The
panchnama is silent about the examination of the shirt pocket. The
panchnama is silent about the inspection of the spot. The incident
occurred at about 20:30 hours of 27/07/2011. The spot
panchnama was drawn on 28/07/2011 at about 10 a.m. The
perusal of the panchanam would show that there is no specific
mention of careful examination of the spot of incident. The
possibility of loss of a ticket in the incident on the spot cannot be
ruled out. In order to negative the case of loss of a ticket, there
must be a specific mention in the panchnama about the careful
inspection of the spot of incident. It is further seen that the trouser
pockets of the deceased were examined. The shirt pocket was not
examined. The record is silent about the disposal of the clothes on
the person of the deceased. It is not stated anywhere that the
clothes were handed over to any member of the family of the
deceased. In my view, all these facts are in support of the
contention of the appellants that journey ticket was lost. In this
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context, it would be appropriate to make reference to the decision
in the case of Union of India .vs. Rina Devi, reported at AIR 2018
SC 2362. Paragraph No.17.4 is relevant for deciding the issue in
this case. 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."
12. The Hon'ble Apex Court has held that initial burden
is on the claimants to prove that the deceased or injured was a
bonafide passenger. The burden can be discharged by filing the
affidavit of the relevant facts. It is held that mere absence of a
ticket with such injured or deceased will not negative the claim
that he was a bonafide passenger. It is held that the issue can be
decided from the facts shown or attending circumstances. This will
have to be dealt with from case to case, on the basis of the facts. In
my view, the evidence of the appellant No.1 coupled with the
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undisputed circumstances, as stated above, are sufficient to
discharge the initial burden. No evidence has been adduced by the
Railway to rule out the possibility of loss of a ticket. As such, I
conclude on this point. The learned Member was not right in
rejecting the contention of the appellants.
13. The next important point is with regard to death in
an untoward incident. The finding as above is sufficient to
conclude that the deceased had boarded the train at Ballarshah to
go to Tirupati Balaji. The evidence is sufficient to prove that he has
travelled by unknown train from Ballarahah for Tirupati Balaji.
The spot of incident, as stated above, is at 500 kms away from
Ballarshah. The deceased had no reason to go to the spot of
incident. This fact supports the claim of the appellants that the
deceased while travelling by unknown train, fell from moving
train on the spot and died due to the injuries sustained by him.
14. The incident occurred at the shifting point. It is
common knowledge that while passing through shifting point on a
loop line to approach the main line, the train moves at a slow
speed. This fact is required to be borne in mind while appreciating
the materials on record.
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15. The deceased had sustained multiple injuries. His
both legs were cut. On the basis of the injuries sustained by the
deceased, it is contended that the death was not in an untoward
incident, but it was due to run over. In my view, this contention
cannot be accepted. It is not the case of the Railway that at spot of
incident, any person was run over or dashed by any train. There is
no report of Loco Pilot of any train of such incident on the spot of
incident. RW-1 has admitted in his cross-examination that the
dead body was noticed immediately after the passing of the Train
No.6360 i.e. Patna-Ernakulam Express proceeding towards
Tirupati. In my view, this admission of the RW-1 is sufficient to
lend an assurance to the claim of the appellants. If the deceased
was run over by Patna-Ernakulam Express, then the Loco Pilot
would have reported the same to the Deputy Station Master of
Sirpur Kagaznagar Railway Station. Therefore, in this case, the
possibility of run over or dash to the deceased by unknown train is
completely ruled out. On the basis of injuries sustained by the
deceased, inference cannot be drawn that the deceased was run
over or dashed by any other train. A person falling from the slow
moving train can come under the wheels of the train. A person
falling from slow train if gets stuck in any part of the train, then he
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can come under the wheels of the train. In this case, the possibility
of accidental fall of the deceased on the spot is highly probable.
The train at the shifting point is slow as there is curve to the line
while crossing the shifting point. Therefore, the possibility of a
person standing at the door of the train loosing his balance is
eminent. Therefore, in my view, the material on record is
sufficient to conclude that the death was not due to run over of
the deceased by a train. The evidence and circumstances clearly
suggest that the deceased at the shifting point of a loop line, fell
from moving train and came under the wheels of the train and
died due to injuries sustained by him. The death was, therefore, in
an untoward incident. In my view, therefore, on this point also,
the learned Member was not right in rejecting the claim. As such, I
record my findings on both points in the affirmative.
16. In this case, the accident occurred on 27/07/2011. 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
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old claim, after 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. Accordingly, the first appeal is allowed.
i] The judgment and order dated 16/12/2015,
passed by the Railway Claims Tribunal, Nagpur Bench,
Nagpur, in Claim Application No.
OA(IIu)/NGP/2011/0347, is set aside. The claim
petition is allowed.
ii] Respondent - 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] The amount be deposited directly in the bank
account of the appellants within four months from
today. The appellants are directed to provide their bank
account details to the respondent-Railway.
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iv] The appellant no.1 shall be entitled to get 60%
amount, appellant nos.2 and 3 shall be entitled to get
10% each of the amount of compensation and the
appellant No.5 shall be entitled to get 20% amount.
18. The first appeal stands disposed of in the aforesaid
terms. No order as to costs.
[G. A. SANAP, J.]
Choulwar
Signed by: V.M. Choulwar (VMC)
Designation: PS To Honourable Judge
Date: 19/03/2024 17:50:04
