Bombay High Court
Sunil Kanhaiyyalal Jeswani vs Secretary, Ministry Of Railway, New ... on 9 May, 2025
Author: Avinash G Gharote
Bench: Avinash G Gharote
2025:BHC-NAG:5084-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Writ Petition No.334/2020
1. Sunil Kanhaiyyalal Jeswani,
Aged 47 years, Occ.-Business,
Resident of Sindhi Camp, Akot,
Tq. Akot, Dist. Akola.
2. Sanjay s/o Panjabrao Deshmukh, (Amended as per Court's
Aged about 52 years, Occ-Private, order dated 08-01-2024)
R/o- Near Shani Mandir, Takpura,
Akot, Tal-Akot, Dist-Akola-444101. .... Petitioners.
Versus
1. Secretary, Ministry of Railway,
256-A, Raisina Road, Rajpath Area,
Central Secretariat, New Delhi,
Delhi 110001.
2. Additional Divisional Railway Manager,
Nanded Mandal, Nanded, Tq. & Dist.
Nanded. .... Respondents.
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Mr. A.B. Moon, Advocate for Petitioners.
Mr. N.P. Lambat, Advocate for respondents.
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CORAM : Avinash G Gharote & Abhay J. Mantri, JJ
Pronounced on : 09-05-2025
J u d g m e n t (Per Abhay J. Mantri, J.)
Heard. Rule. Heard finally with the consent of learned
Counsel for the respective parties.
2. The petitioners are seeking direction against the
respondents' Authorities to provide compensation to them for the
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death of their sons aged about 13 years and 12 years old, due to
drowning in a pond/pit (hereinafter referred to as the 'Pit') in the
railway premises.
3. Petitioner no.1 is the father of deceased Hitesh, and
Petitioner no.2 is the father of deceased Viraaj, who were 13 years
and 12 years old respectively at the time of the tragic incident, and
lost their lives by drowning in the pit, which was dug by the
Railways in the railway premises in open land having a size 13.70 x
13 x 1.50 Meters.
4. It is contended that the respondents' authorities dug the
pit. The pit was not protected with fencing around it to prevent any
untoward and unfortunate incidents or any living beings from
wandering towards it, lest any harm be caused to them. Similarly,
no security guards were deputed at the site. The respondents'
Authorities have not taken appropriate steps to erect/install the
safety measures at the site to prevent untoward incidents. No
signboards were placed at the site.
5. On 19-07-2016, deceased children Hitesh and Viraaj
were passing through the railway premises. At that time, they fell
into the pit and drowned in the water accumulated there, and lost
their lives by drowning in a pit. Accordingly, AD No.24/2016 was
initially registered at the Akot Police Station. Police have conducted
an inquest panchanama and spot panchanama. Then, the petitioner
No. 1 lodged the report at Police Station Akot (City). Based on the
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report, an offence bearing Crime No.24/2016 was registered
against the railway Authorities.
6. On 14-03-2017, the petitioner no.1 made a
communication to the Hon'ble Railway Minister and requested to
provide monetary aid to him due to the loss of his 13-year-old son
by drowning in the unfenced pit within railway premises. The
Hon'ble Railway Minister did not take cognizance of or pay
compensation to him. Therefore, on 31-10-2018, he issued a
reminder letter to the Hon'ble Railway Minister.
7. Due to the tragic incident on 19-07-2016, the
respondents' Authorities conducted the fact-finding inquiry on
22-07-2016 and accordingly submitted their report. The
Additional Divisional Railway Manager, Nanded Division, vide
communication dated 01-02-2019, informed the petitioner no.1
that "this matter is beyond the purview of the Divisional
Administration, please" and failed to provide any compensation to
him. Therefore, initially, the petitioner No. 1 approached this
Court. During the pendency of the petition, by order dated
08-01-2024, petitioner no.2 came to be added in the petition as
petitioner no.2.
8. Learned Advocate for the petitioners vehemently
contended that the pit was dug in the premises of the respondents'
Authorities. However, the Authorities failed to take care to fence
the said pit or depute a security guard at the site to prevent the
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untoward incident and thereby neglected to discharge their duty.
Therefore, the respondent authorities are liable to compensate the
petitioners. In fact, it was incumbent on the part of the respondent
Authorities to take proper care to prevent unwanted or unfortunate
incidents.
9. He further drew our attention to the spot panchanama
conducted by the Police Authorities and canvassed that the spot
panchanama clearly indicates that the pit was neither fenced nor
protected by a wall or any fencing; also, no security guard was
deputed there. Therefore, he urged that the tragic incident occurred
due to the negligence on the part of the respondents. Thus, the
respondent authorities are liable to compensate the petitioners.
10. To buttress his contention, he has relied on the following
judgments :-
1. Court on its own motion vs Govt. of NCT of Delhi and others, 2018 SCC
OnLine Del 10283,
2. Chairman, Railway Board vs Chandrima Das, AIR 2000 SC 988,
3. M.S. Grewal and another vs Deep Chand Sood, (2001) 8, SCC 151, C.
4. Thyagarajan and another vs Corporation of the City, 2002 ACJ 1282,
5. Kamla Devi vs Govt. of NCT of Delhi and another, 2004 SCC OnLine Del
721,
6. Virender Prasad vs B.S.E.S. Rajdhani Power, 2012 SCC OnLine Del 339
7. Sharafat Khan and another vs Northern Railway and another, 2023 SCC
OnLine Del 3594.
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11. Per contra, Mr. Lambat, learned Counsel for the
respondent Authorities, during the argument on 17-03-2025, does
not dispute the occurrence of the incident dated 19-07-2016 in the
premises owned by the railways, in which Hitesh and Veeraj aged
about 13 and 12 years old respectively lost their lives by drowning
in a pit which was dug by the railways in its own land/premises. He
also does not dispute that, except for the excavated material being
laid on the boundaries of the pit, no other protective fencing
existed at the relevant time, but only poles were standing, as some
miscreants removed wires/cables.
12. To buttress his contention, he has relied on the judgment
of the Delhi High Court in the case of Mohd. Quamuddin and others
vs Union of India, reported in 2015 SCC OnLine Del 10229, and
pointed out paragraph Nos. 2, 21 and 38. Hence, he urged that in
view of the law laid down in the said decision, the petitioners are
not entitled to the compensation as claimed.
13. We have appreciated the rival contentions of the parties
and perused the record and the judgments relied upon by the
respective parties.
14. Before dealing with the controversy between the parties,
we would like to reproduce the findings recorded in the Fact
Finding Inquiry conducted by the respondent Authorities on
22-07-2016. The three members of the Committee have
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conducted the said inquiry. In the said report, it was categorically
observed that on 19-07-2016 at about 3.00 pm, two children,
namely Chi. Hitesh Sunil Jeswani, aged about 12 years, and Chi.
Veeraj Sanjay Deshmukh, aged about 12 years, fell into a rainwater
harvesting pit that existed at the railway premises and lost their
lives. In the said report, they recorded the joint findings, which thus
read as under:-
"JOINT FINDINGS
1. Since the Rainwater harvesting pit was constructed in the
Railway premises, protected by the Railway track on the
right side and the Railway boundary wall on the left side,
no separate protection arrangements were made.
2. There are no prescribed guidelines for providing
protection for rainwater harvesting pits .
3. Railway premises are protected areas. Therefore,
entries of outsiders are restricted.
4. A rail fence provided in this area was demolished by
outsiders."
15. A conjoint reading of the spot panchanama (page 25) and
the fact-finding report of the authorities of the respondents
categorically indicates that no separate guidelines were provided for
the protection of the rainwater harvesting pit. Outsiders
demolished the fencing provided in the said area. It is apparent that
the water accumulated in the pit.
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16. Thus, considering the spot panchanama, fact finding
report and submission of learned Advocate for the respondents it is
evident that the respondents does not dispute the occurrence of the
incident dated 19-07-2016 in the premises owned by the railways,
in which two minor children namely Hitesh and Viraaj aged about
13 and 12 years old respectively lost their lives by drowning in the
pit which was dug by the railways in its own premises/land. It is
also not disputed that, except for the excavated material being laid
on the boundaries of the pit, no other protective fencing or wall
exists, nor was any signboard fixed at the spot to indicate a pit. It
also appears that the protective fencing did not exist at that relevant
time, but it was removed by some outsiders/miscreants.
17. That being the position, the liability of the respondents'
Authorities- Railways to compensate the petitioners, on account of
the loss of lives, may not be disputable.
18. The only question that arises is the determination of the
quantum of compensation.
19. According to Mr. Moon, learned Counsel for the
petitioners, compensation may be determined as per the formula
given under the Motor Vehicles Act. Accordingly, the petitioners
have filed their respective affidavits calculating the quantum of
compensation of Rs. 43,58,666/- in respect of the death of the son
of petitioner no.1 and the amount of Rs. 25,28,066/- in respect of
death of son of petitioner no.2. He relies upon the judgments as
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cited above. He further argued that the facts in the case of Sharafat
Khan and another (supra) are similar to those in the case in hand.
Therefore, the compensation may be granted on the basis of the
law laid down in the case of Sharafat Khan and another, followed by the
mandate of Kamla Devi (supra).
20. As against this, the learned Advocate for the respondents
submitted that the children died due to a fall into the pit and their
death was not caused by a motor vehicle accident; therefore, the
provisions of the Motor Vehicles Act do not apply to the case at
hand. Similarly, no specific rules or regulations are framed for the
grant of compensation in such types of cases. In the absence of the
rules and regulations, it would not be proper to grant compensation
to the petitioners. However, he submitted that as per the Railway
Accidents and Untoward Incidents (Compensation) Rules, 1990
(for short 'the Rules, 1990') stipulates to grant the compensation for
the occurrence of the accident as described in Section 124 of the
Railways Act, 1989. As per the schedule under Rule 3 of the Act of
1999, for the death, the amount of compensation was prescribed as
Rs. 8 Lakhs. However, the facts in the case do not denote that the
accident occurred as specified in Section 124 of the Act, and
therefore, the petitioners are not entitled to the compensation as
claimed.
21. That being so, we reproduce Rule 3 of the Rules, 1990 as
under:-
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"3. Amount of compensation.- (1) The amount of compensation
payable in respect of death for injuries, shall be as specified in the
Schedule.
(2) ...................
(3) ........................
(4) Where compensation has been paid for any injury which is less
than the amount which would have been payable as compensation if the
injured person had died and the person subsequently dies as a result of
the injury, a further compensation equal to the difference between the
amount payable for death and the already paid shall become payable.
(5) ...........................................
22. Rule 3 would indicate that the Railway Authorities are
liable to pay compensation in respect of death or injuries suffered
by a person.
As per Rule 4, the total compensation payable under Rule
3 shall in no case exceed Rs. 8 Lakhs in respect of any one person.
23. It is apparent from the record that the tragic incident
occurred within the railway premises owned by the respondents'
Authorities so also the respondents' Authorities have not taken
proper care nor erected/installed safety measures at the site i.e. a pit,
to prevent any untoward and unfortunate incident, like one which
resulted in death of two minor children. Similarly, the respondents
were neither vigilant nor sensitive in taking appropriate safety
measures at the site to avoid unfortunate accidents. The
respondents were duty-bound to take proper caution and care at
the site to prevent accidents or untoward incidents. Thus, the
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respondents were found negligent in taking safety measures at the
site to avoid any accident. The respondents neither deputed any
security guard at the site nor erected/installed fencing around the
pit to prevent any living being from wandering towards it, lest any
harm be caused to innocent persons. Similarly, the said land/railway
premises were used as a playing ground, and the children used the
same to play the game. It was the responsibility of the railway
authorities to take care of and exercise proper caution at the site to
avoid any accident.
24. The young boys aged about 13 and 12 years old do not
know the difference between the railway land and the land of other
civic agencies. For children, all open areas/lands and fields are for
games, running, fun and frolic. The said fatal mischief occurred due
to negligence on the part of the respondents' authorities, as they
have not provided safety measures around t1he pit to avoid the
untoward incident. In such circumstances, the respondents'
authorities cannot be absolved of their liability for taking proper
safety measures at the site even after awarding the contract to the
contractor. Consequently, the respondents' authorities cannot be
absolved of their liability to compensate the parents of the victims.
25. Now, the question arises as to how compensation can be
determined in the absence of any specific rules or regulations.
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It is worth noting that, in the tragic incident that occurred
in the case at hand, no specific rules or regulations or formulas or
methods are prescribed by the railways, nor any provision is
prescribed under the Railways Act, 1989 and Rules, 1990, in that
regard, as prescribed under the Motor Vehicles Act. In such
circumstances, determining compensation is a difficult task in the
absence of the rules. Even assuming that no specific regulations or
formulas are prescribed to determine the compensation that would
not absolve the respondents' Authorities from paying the
compensation to the petitioners but, as indicated in Rule 3 of the
Rules of 1990, this Court can grant the compensation to the
petitioners and therefore this Court in exercise of the jurisdiction
under Article 226 of the Constitution of India has not only the
power and jurisdiction but an obligation to grant such relief to the
victims or the heirs of the victims for such negligent act on the part
of the respondents.
26. In Mohd. Quamuddin (supra) the facts were that the victims
therein who were run over by a train and have lost their lives on the
railway track while they were trying to catch "cut off kites" and the
material was brought before the Court that the railway tracks at the
incident site have been laid at an elevated level which clearly
indicates that there is a railway tracks. Therefore, the Court held
that the railway Authorities were not negligent for the occurrence
of the tragic incident and consequently rejected the claim of the
petitioner therein. However, in the case at hand, the respondents'
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authorities have not disputed the occurrence of the tragic incidents
in a pit located on their premises. They have not provided safety
measures around the pit to avoid an untoward incident. Similarly,
the respondents were neither vigilant nor sensitive in taking
appropriate safety measures at the site to prevent unfortunate
accidents. Thus, the respondents were found negligent in taking
safety measures at the site to avoid an untoward incident.
Therefore, the observations made in the said judgment are of
hardly any assistance to the respondents.
27. On the contrary, the dictum laid down in the case of
Sharafat Khan and another (supra) applies to the case at hand.
28. The other judgments on which the learned Counsel for
the petitioners rely, the facts in the said cases were relating to the
accidents arising the motor vehicle, for dealing with the question of
compensation specific statute is enacted and therefore in our
considered opinion the facts in the said cases are distinct from the
case at hand and hence, what has been held in the said judgments is
not helpful for the petitioners in support of their case.
29. By order dated 07-03-2025, this Court granted an
opportunity to the respondents to submit any additional affidavit if
found to be necessary shall be placed on record to work out the
matter based on the said material and if in case it is not so placed
then, the matter will be worked out on the basis of material placed
on record. Despite the said order, the respondents have not filed an
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additional affidavit nor produced any material on record.
Therefore, considering the facts of the case at hand and the
prescribed Rules of 1990, we would like to determine the
compensation in the present case.
30. Thus, to sum up the aforesaid discussion, it is evident that
on 19-07-2016 the tragic incident occurred in the premises owned
by the railways, in which two minor children namely Hitesh and
Viraaj aged about 13 and 12 years old respectively lost their lives by
drowning in the pit which was dug by the railways in its own
premises/land. Similarly, it is not in dispute that the respondents'
authorities did not take appropriate care, caution, and safety
measures at the site to prevent untoward and unfortunate incidents.
Thus, the respondents' Authorities were found negligent in taking
safety measures at the site to prevent any accident, and therefore,
the respondents' Authorities are responsible for the death of the
two minor children. Thus, in absence of any specific rules and
regulations it cannot be said that they were absolved from their
liabilities to pay the compensation but based on Rule 3 of the Rules
1990, the authorities/Railways are liable to pay the compensation
to the legal heirs of the victims i.e. the petitioners for the death of
their minor sons on account of the negligent act on the part of the
respondents. Rule 3 read with Section 124A of the Act prescribed
liability on the railway authorities/respondents to pay
compensation for any untoward incident occurred, then whether or
not there has been any wrongful act, neglect or default on the part
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of the railway administration, the railway administration is liable to
pay compensation to the tune of Rs.8 Lakhs for the loss of life of
the person to his/her dependent/legal heirs. Therefore, we have no
hesitation in holding that the respondents are liable to pay
compensation to both petitioners to the tune of Rs. 8 Lakhs each.
As a result, we answer the question partly in the affirmative in the
above terms.
31. In the background above, we partly allow the petition.
The respondents are directed to pay compensation to the tune of
Rs. 8 Lakhs each to petitioner no.1 and petitioner no.2 for the loss
of lives of their 13-year-old and 12-year-old sons, respectively,
within 8 weeks from the date of receipt of the copy of this order.
Respondents, if fail to comply with the order within the prescribed
time, are liable to pay interest @ 7% p.a. on the compensation
amount.
32. Rule is made absolute in the above terms. No costs.
(Abhay J. Mantri, J.) (Avinash G. Gharote, J.)
Deshmukh
Signed by: Mr. S.Deshmukh
Designation: PS To Honourable Judge
Date: 09/05/2025 19:00:47
