Bombay High Court
Shri. Mohd Isrsail Kha And Anr vs Union Of India Thorugh General Manager, ... on 11 February, 2025
2025:BHC-AS:6740
FA-343-2020.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 343 OF 2020.
1) Shri. Mohd Israil Khan ]
Age- 53 Years ]
2) Smt. Hakikunissa Israil Khan ]
Age- 46 Years ]
Both Residing at : Indira Nagar Chawl No. ]
2, Room No. 141, Near Bari Khaberstan ]
TALLE L.B.S. Road, Kurla West Mumbai- 400 070 ] ... Appellants
SHUBHAM Versus
ASHOKRAO
Digitally signed by
TALLE SHUBHAM 1) Union of India, Through The General ]
ASHOKRAO
Date: 2025.02.11 Manager, Central Railway, Mumbai CSMT ] ... Respondent
19:28:34 +0530
Mumbai - 400 001 ]
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Mr. Mohan Rao for the Appellants.
Mr. T. J. Pandian, Mr. Gautam Modanwal and Ms. Noorjahan Khan for the
Respondent.
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Coram : Sharmila U. Deshmukh, J.
Reserved on: January 30, 2025.
Pronounced on : February 11, 2025.
JUDGMENT :
1. The Appeal has been preferred at the instance of the
Original Claimant whose claim for compensation filed under Section
16(1) r/w Section 13(1-A) of Railway Claims Tribunal Act, 1987 r/w
Section 124-A of the Railways Act, 1989 on account of death of their
son in an incident of 19th September, 2014 has been dismissed by the
Railway Claims Tribunal by the impugned Judgment dated 19 th July
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2019.
2. The facts of the case are that an Application came to be
filed by the present Claimants before the Accident Claims Tribunal
pleading that their son was travelling from Kurla to Reay Road on
19.09.2014 and accidentally fell down from the running train near Kurla
Station and sustained head injuries and expired on 24.09.2014. It was
further pleaded that the deceased was travelling in II nd class
compartment holding valid IInd class return ticket from Kurla to Reay
Road and that the same was lost in accident. In support of the
Application the Applicants produced the copy of Station Master memo,
copy of Police Report, copy of Inquest Panchanama, copy of police
Statement, copy of Death Certificate, copy of Ration Card, copy of
Aadhar Card, and copy of bank Pass Book and relied upon the spot
panchanama and the postmortem report.
3. The defence of the Railways was that the alleged incident
is not an untoward incident and that the deceased was not bonafide
passenger. The Respondent produced the DRM's Report on record.
4. In support of their case the Claimants examined the
mother and brother of the deceased. The mother deposed that on
19.09.2014, the deceased along with younger brother was going to
Reay road dargah for prayer and at about 15.50 hours she received
telephone from railway police Kurla railway station that her son had
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fallen down from the running train near Kurla railway station and was
taken to the Sion hospital. She has further deposed that the deceased
was travelling in IInd class compartment holding IInd class return journey
ticket and the same was lost in the accident.
5. In the cross-examination she has admitted that she has no
personal knowledge of the incident and that the police had informed
her about the deceased being admitted in injured condition to Sion
hospital.
6. AW-2 Vahid Raza Mohd. Israil Khan deposed that on 19 th
September, 2014 he along with the deceased had taken permission
from their mother to go to Reay Road dargah for prayer. He further
deposed that their mother had given money to the deceased to
purchase railway tickets and the deceased had purchased two return
tickets from ticket counter from Kurla to Reay Road railway station, out
of which the deceased kept his railway ticket in his shirt pocket and
gave AW-2's ticket to him and thereafter they both boarded the
harbour local train. He has further deposed that when the said train
left Kurla station due to heavy rush the deceased's hand slipped and he
fell down from the running train. He has further deposed that he got
down at Chunnabhati Railway Station and came back to Kurla railway
station and had seen the railway police take him to Sion hospital for
medical treatment and that he immediately rushed home and told his
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mother about the incident of his brother and in the meantime the
railway police had informed his mother of the said incident and that
they both rushed to Sion hospital.
7. In the cross-examination he has admitted that he was
travelling with the deceased but his statement to the police is not on
record. He has deposed that they had purchased two return tickets for
Rs. 40/- and has admitted that the present rate of return ticket from
Kurla to Reay Road is Rs. 10/- and therefore five years back the cost
could not have been Rs. 40/-. He has deposed the incident had occurred
between the 3.30 to 4.00 p.m.
8. The Trial Court after framing the necessary issues including
the issue as to whether the deceased was bonafide passenger and had
died in an untoward incident, by the impugned Judgment and order
answered the issue as regards the deceased being bonafide passenger
against the Applicant. The claim came to be denied by holding that the
deceased was not bonafide passenger at the time of the accident.
9. Learned Counsel appearing for the Appellant submits that
the Claim has been denied only on the ground that deceased was not
bonafide passenger. He submits that the Claimants had examined the
younger brother of the deceased who has deposed as to the relevant
facts which proves that money was given by their mother for purchase
of tickets and the deceased had purchased the tickets.
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10. He would further point out the statement of mother
recorded on 24th September, 2014 by the police in which she has stated
that her son Vahid informed her that the deceased and he had come to
Kurla railway station and had purchased two II nd class ticket and
boarded the train from Platform No. 8. He would further submit that
the DRM's report is based upon the GRP's report that there was no
ticket which was found on the body of the deceased whereas it is well
settled position in law that mere absence of the ticket is not sufficient
to hold that the deceased was not bonafide passenger. Drawing
support from the decision in the case of Union of India vs. Rina Devi 1,
he submits that the Apex Court has held that the initial burden is upon
the Claimant which can be discharged by filing affidavit of relevant
facts and the burden will then shift on railways. He submits that in the
present case by reason of the affidavit filed by the mother as well as
the brother who was travelling with the deceased, the Claimants have
discharged their burden and the Railways have not led any evidence to
show that the deceased was not bonafide passenger.
11. Per contra, Mr. Pandian, learned Counsel appearing for the
Respondent-Railway would submit in order to discharge the burden,
the Railways have cross examined the deceased brother and has
established that the witness was planted witness as he claimed to have
1 2018 ACJ 1441
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purchased the return ticket for Rs. 40/- five years prior thereto
whereas the rate of the ticket at the time of leading of the evidence
which was in 2019 was Rs. 10/-. He therefore submits that there is no
evidence to show that the deceased had purchased valid ticket or that
the brother was travelling with the deceased.
12. The following point arises for determination:
(1) Whether the Claimants have discharged the burden of proving that
the deceased was bonafide passenger.
As to Point No. 1:
13. The claim for compensation has been dismissed on the
ground that the deceased was not a bonafide passenger. The
explanation to Section 124A of Railways Act provides that a passenger
includes a person who has purchased a valid ticket for travelling, by a
train carrying passengers on any date and becomes a victim of
untoward incident. AW-1-the mother of the deceased and AW-2-
brother of the deceased have deposed that AW-1 had given money for
purchasing tickets to the deceased and that AW-2 and the deceased
were travelling together on the fateful day. AW-2 has further deposed
as to the relevant fact of purchase of tickets by the deceased. In the
statement to the police, which was recorded on 24th September,2014,
barely five days after the incident, AW-1 has stated that she was
informed by the deceased and AW-2 that they were going to Reay Road
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dargah and she gave them money for purchasing tickets. She has stated
that she was informed by the police that her son had fallen down from
local train and while leaving for the hospital, AW-2 came there and
informed her that the deceased and he had purchased the tickets from
kurla station and thereafter boarded the train from platform no 8. The
deposition of AW-2 corroborates the evidence of AW-1. The evidence
establishes that on the fateful day, AW-2 was travelling alongwith the
deceased in the local train when the deceased fell down from the
running train.
14. In the cross examination, Aw-2 has stated that the tickets
were purchased for Rs 40/. The contradiction is sought to be
established by showing that in the year 2019 the price of return ticket
was Rs 10/ and therefore in 2014, the price could not have been Rs 40/.
Mr. Pandian would emphasize that the discrepancy would amount to
discharging of burden by the railways. It needs to be noted that in the
year 2019 Aw-2 was aged about 22 years and in the year 2014, his age
was about 17 years. He has specifically deposed that the deceased who
was his elder brother had purchased the tickets and had given him his
ticket. Aw-2 would therefore not be aware of the price at which the
deceased had purchased the tickets in the year 2014.
15. It is pertinent to note though Aw-1 had stated in her
statement to the police that AW-2 was travelling alongwith the
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deceased, the police did not record the statement of Aw-2. Considering
that the statement of Aw-1 was recorded by the police immediately on
death of the deceased , there is no reason to cast any doubt on the
statement. The evidence of Aw-1 has been corroborated by Aw-2 and
the mere discrepancy in showing the price of the ticket is not sufficient
to discharge the burden cast upon the Railways once the Claimants
have discharged their initial burden.
16. The Apex Court in Union of India vs. Rina Devi (supra) has
held that the initial burden can be discharged by filing of affidavit of
relevant facts and burden will then shift on the Railways and the issue
can be decided on the facts shown or the attending circumstances.
17. In my view, the oral evidence of AW-1 and AW-2 read with
the police statement of AW-1 sufficiently discharges the initial burden.
The discrepancy in the price of tickets was not sufficient to discharge
the onus which shifted upon the Railways when the attending
circumstances are seen as proved from the reports of investigation.
18. There is no discussion by the Tribunal on the oral and
documentary evidence on record and the issue of bonafide passenger
has been answered against the deceased by merely relying upon the
inquest panchnama where the GRP has not mentioned about recovery
of railway ticket. Admittedly the deceased had fallen down from
running train and there was possibility of ticket having been lost. As
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held by the Apex Court in the case of Rina Devi (supra), the mere
absence of ticket will not negative the claim that he was bonafide
passenger.
19. Based on pre-ponderance of probabilities, the Claimants
have established that the deceased was a bonafide passenger. The
incident having been held to be an untoward incident, the Claimants
are entitled to compensation under Section 124A of Railways Act.
Resultantly, the following order is passed:
ORDER:
(a) First Appeal is allowed.
(b) The impugned judgment dated 19th July, 2019 is
hereby quashed and set aside.
(c) The Respondent-Railways is directed to pay
compensation @ Rs 8,00,000/- within a period of 8 weeks
from the date of the Claimants furnishing their account
details to the concerned department of Railways.
(d) In event the compensation is not paid within the
period stipulated in Clause (c) above, the Railways shall be
liable to pay interest @6% p.a. from the due date till
payment or realisation.
[Sharmila U. Deshmukh, J.]
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