Naseemabi vs Union Of India
2022 Latest Caselaw 11296 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 8TH DAY OF AUGUST, 2022

                       BEFORE

      THE HON'BLE MS. JUSTICE JYOTI MULIMANI

 MISCELLANEOUS FIRST APPEAL No.732 OF 2014 (RCT)

BETWEEN :

1.   NASEEMABI,
     W/O LATE AMEER KHAN,
     AGED ABOUT 41 YEARS,
     OCCUPATION HOUSE WIFE.

2.   MAHAMED RAFIQ,
     S/O LATE AMEER KHAN,
     AGED ABOUT 26 YEARS,
     R/AT 6TH MAIN ROAD,
     GCR COLONY, TUMKUR.

3.   MAHAMMED SHAFIZ @
     MOHAMMED SHAFIQ,
     S/O LATE AMEER KHAN,
     AGED ABOUT 24 YEARS,
     BUSINESS.

4.   MOHAMMED THOFIQ @
     THOFIQ KHAN,
     S/O LATE AMEER KHAN,
     AGED ABOUT 22 YEARS,
     R/AT 2ND CROSS, GCR COLONY,
     TUMKUR.

5.   MOHAMMED ASIF @ ASIF,
     S/O LATE AMMER KHAN,
     AGED ABOUT 21 YEARS,
     BUSINESS.
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6.     SIMRAN BANU,
       D/O LATE AMEER KHAN,
       AGED ABOUT 20 YEARS,

7.     MOHAMMED THOUSEEF @
       TAUSEEF PASHA,
       S/O LATE AMEER KHAN,
       AGED ABOUT 16 YEARS.
       STUDENT.

8.     MUSKAN BANU @ MUSKAN,
       D/O LATE AMEER KHAN,
       AGED ABOUT 13 YEARS,
       STUDENT.

9.     MOHAMMED ATHEEQ @ ATHEEQ,
       S/O LATE AMEER KHAN,
       AGED ABOUT 11 YEARS,
       STUDENT.

APPELLANT NO.7 TO 9 ARE MINORS,
REPRESENTED BY THEIR NATURAL
GUARDIAN MOTHER BY NAME
NASEEMBAI.

APPELLANTS NO.7 TO 9 ARE MINORS
ARE R/AT BABASAB COLONY,
WARD NO.21, ARASIKERE TOWN,
KARNATAKA STATE.                       ... APPELLANTS

(BY SRI.HALESHA R.G.,ADVOCATE)

AND:

UNION OF INDIA,
REPRESENTED BY ITS GENERAL MANAGER,
SOUTH WESTERN RAILWAY,
HUBLI - 580 020.                      ...RESPONDENT

(BY SRI.SATISH KUMAR N., ADVOCATE)
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     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 23(1) OF RAILWAY CLAIMS TRIBUNAL ACT, 1987.

     THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
FINAL HEARING, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                         JUDGMENT

Sri. Halesha R.G. learned counsel for appellants and

Sri. Satish Kumar N., learned counsel for respondent have

appeared in person.

2. For the sake of convenience, the ranking of the

parties is referred to as per their ranking before the

Railway Claims Tribunal Bangalore Bench at Bangalore.

The applicants filed application under Section 16 of

the Railway Claims Tribunal Act, 1987 read with Section

124-A of Railways Act, 1989 seeking compensation of

Rs.8,00,000/- (Rupees Eight Lakhs only) with interest for

the death of deceased Ameer Khan who is said to have

died in untoward incident.

The first applicant is the wife and applicants 2 to 5, 7

to 9 are sons and applicants 6 and 8 are the daughters of

the deceased.

The applicants narrated the incident that deceased

Ameer Khan travelling from Chikkabanavar to Tumkur by

purchasing railway ticket for Rs.10/- vide ticket

No.11587381 dated 21.01.2012 due to heavy rush in the

train, he must have sat and stood near by the door of the

train and near Tumkur Railway Station he accidentally fell

down from the train and got grievous injuries to his legs

and other parts and immediately shifted by 108 ambulance

and on the way he died. The applicant attributing the

above incident as "untoward incident" filed a claim

application before the Tribunal seeking compensation from

the Railway Department.

The Railway Department filed their reply statement

and they denied all the averments made in the application

and they sought for the dismissal of the application. They

also contended that the application does not come under

the ambit of Section 123 (c) or Section 124-A of the

Railways Act 1989. They further contended that it is a

case of "Volenti non fit injuria" damage suffered by

consent not a cause of action and "Nullus Commodum

Capere Protest De Injuria Sun Propria" i.e., No man can

take advantage of his own wrong. The deceased was not a

bona fide passenger. It was specifically contended that the

details of the ticket particulars furnished in the application

at para seven are false.

On the above pleadings, the Tribunal framed issues.

In support of their claim, the applicants got examined the

sixth applicant - Simran Banu as AW-1 and got marked 12

documents as A-1 to A-12. The respondents did not

adduce any oral evidence, but filed DRM'S report which is

marked as Ex R-1.

On summary of the action, the Tribunal rejected the

application. Hence this appeal is filed on several grounds

as set out in the Memorandum of Appeal.

3. Sri.Halesha.R.G., learned counsel for

appellants submits that the Tribunal has erred in rejecting

the claim application.

Next, he submitted that the deceased Ameer Khan

had purchased the Train Ticket at the time of travelling, in

the train and Railway Police had collected, recovered the

ticket from the deceased and the same has been

mentioned in the investigation and inquest report prepared

by the railway department.

A further submission is made that the deceased was

a bona fide passenger. However, the Tribunal has failed to

appreciate the said facts.

Learned counsel vehemently contended that the

respondent did not lead any evidence and have also not

produced any documents to disbelieve the incident. Hence,

self-assumption of the Tribunal is not to be considered and

hence the rejection of the application is bad in law.

Lastly, he submitted that the incident is untoward

incident and hence this is a fit case to grant compensation

to the applicants. Among other grounds, he submitted that

the order passed by the Tribunal is un-sustainable in law.

hence, he sprayed that the appeal may be allowed.

4. Sri.Satish Kumar N., learned counsel for

respondents justified the order passed by the Railway

Claims Tribunal Bangalore.

Next, he submitted that the applicants have failed to

establish that the incident is untoward incident.

A further submission is made that the deceased was

not a bona fide passenger.

Learned counsel vehemently contended that the

details of the ticket particulars furnished in the application

is false.

Lastly, he submitted that the Tribunal has taken into

consideration of the evidence on record and rightly

dismissed the application. Accordingly, he submitted that

the appellants have not made out any good grounds to

interfere with the order passed by the Tribunal and hence

prayed for the dismissal of the appeal.

5. Heard the contentions urged on behalf of

respective parties and perused the records with care.

6. The simple point which requires consideration

is whether the Tribunal is justified in rejecting the claim of

the applicants?

Suffice it to note that the Department relied upon

the conclusion drawn in DRM'S Investigation Report which

is unmarked and the same is reproduced by the Tribunal

as under:

"From the above enquiry, it is ascertained that there were no eyewitnesses to say that Sri.Ammer Khan travelled by train and fell down from it. At time of inquest, RPASI/TK was recovered 02 No.s railway ticket No. E 00485170 Ex.ASK-TK issued at ASK at 15.48 hrs. of 21.01.12 & No. E 11587381 Ex.BAW -TK is issued at BAW at 22.00 hrs of 21.01.12. The deceased person's journey ticket was up to Tumkur. But the

dead body was found after Tumkur station at LC gate No.42. Hence, he is not bonafide passanger. Here the Railway department is not at fault and no way responsible for incident. Hence, there is no liability on railway to pay compensation to the complainants."

Suffice it to note that one Simran Banu claiming to

be the daughter of the deceased has stated that during the

course of evidence they lived in Arasikere for six years. On

21.01.12, deceased came to Arasikere at 3.00 hrs.

Deceased was there for a day. Deceased left home on

22.01.12. During re-examination, she has stated that her

father had come on 20.01.12 and left Arasikere to Tumkur

on 20.01.12 and she has further stated that her father left

Arasikere to Tumkuru on 21.01.12 at 3.00 hrs.

It is noticed that the Tribunal has taken note of the

time of issue of tickets i.e., No.11587381 Ex.BAW to TK

issued at BAW at 22.06 hrs. of 21.1.12 (white fluid on date

of issue & correction was unattested) and No.00485170

Ex.ASK-TK issued at ASK at 15.48 hrs of 21.1.12 (second

line of Booking Supervisor's endorsement erased with

white fluid and no attestation made for this erasion). But

message of SM/Tumkur to ASI/GRP/Tumkur dtd.22.1.12

was at 10.50 hrs. on 22.1.12.

It is significant to note that there is no eye witness

to the incident. It is further relevant to note that the

Railway or police authorities noticed nothing untoward.

Hence it was concluded that the applicants have failed to

corroborate the date of travel of the deceased by evidence.

The Tribunal in extenso referred to the material on

record and found that the deceased was not a bonafide

passenger and ultimately dismissed the claim application.

I find no reason to interfere with the finding of fact

recorded by the Tribunal.

Resultantly, the appeal is dismissed.

Sd/-

JUDGE

TKN