Smt. Gendakali vs Union Of India
2023 Latest Caselaw 1152 MP

                            1             S.A. No.2165/2021



IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                        BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
              ON THE 19th OF JANUARY, 2023
               MISC. APPEAL No. 2165 of 2021
BETWEEN:-

1.    SMT. GENDAKALI W/O LATE SHRI
      SHAMBHU PRASAD TIWARI R/O GRAM
      RATWAR THANA RAIPUR KARCHULIAN
      DISTRICT SIDHI (MADHYA PRADESH)



2.    ARUN SHAMBHU PRASAD TIWARI S/O
      SHAMBHU PRASAD TIWARI R/O GRAM
      RATWAR THANA RAIPUR KARCHULIAN
      DISTRICT SIDHI (MADHYA PRADESH)



3.    SANTOSH KUMAR S/O LATE SHAMBHU
      PRASAD TIWARI R/O GRAM RATWAR
      THANA RAIPUR KARCHULIAN DISTRICT
      SIDHI (MADHYA PRADESH)



                                          .....APPELLANTS
(BY SHRI ASHOK SHRIVASTAVA - ADVOCATE)

AND

1.    UNION OF INDIA THROUGH GENERAL
      MANAGER, WEST CENTRAL RAILWAY,
      JABALPUR (MADHYA PRADESH)



2.    SMT.PUSHPA MISHRA W/O ARUN MISHRA
      D/O LATE SHAMBHU PRASAD TIWARI,
      AGED ABOUT 40 YEARS, R/O D-9 DUTT
      SOCIETY   PALSNA    VARLI   SURAT
                                          2                   S.A. No.2165/2021


           VADODARA (GUJARAT) PIN 394327



                                                            .....RESPONDENTS
(SHRI SHYAM KRISHNA MISHRA - ADVOCATE FOR RESPONDENT NO.1)
            This appeal coming on for admission this day, the court passed the

following:

                                    JUDGMENT

1. This miscellaneous appeal under Section 23 of Railway Claims Tribunal Act, 1987 has been filed against the award dated 24.06.2021 passed by Member, Railway Claims Tribunal, Bhopal in Case No.OA/IIu/BPL/068/2019 by which the claim petition filed by the appellants for grant of compensation has been rejected mainly on the ground that the claim of the appellants is hit by Section 124-A of Railways Act, 1989 and secondly, the deceased was not travelling with a valid ticket.

2. Since the date of the incident and the death of the deceased are not in dispute, therefore, the only questions for consideration are:

(i) whether deceased Shambhu Prasad Tiwari was travelling with a validly issued ticket or not?

(ii) whether the claim is hit by Section 124-A of Railways Act, 1989?

(i) whether the deceased Shambhu Prasad Tiwar was travelling with a validly issued railway ticket?

3. It is the case that when the deceased was trying to deboard a moving train, he slipped on the platform, as a result, both of his legs were badly damaged. Since the deceased was all alone, therefore, his son was informed. A Roznamcha Sanha, A/1 was recorded by Sub-

Inspector, R.P.F. outpost Beohari on 26.06.2018. The said Roznamcha Sanha reads as under:

jsYos lqj{kk cy jkstukepk

eaMy JBP Dt. 26/02/2018 [email protected]@pkSdh-SIPF/BEHR rkjh[k bUnzjkt lkj fjiksVZ dk C;ksjk gLrk{kj vkSj uEcj le;

[email protected] 07 jkokuxh ,ao EkS iz/kku vkj-,u-ds-xkSre f'k¶V 8 to okilh gkLfiVy 20.00 Hrs. M;wVh ij rSukr Fkk nkSjkus C;kssgkjh M~;wVh le; 20.00 cts T.NO. 11651 tcyiqj flaxjkSyh bUVjflVh ,Dlizs'k [kM+h gksus okyh Fkh rHkh [kM+h gksus ls igys ,d O;fDr mrjus dk iz;kl fd;k rHkh ml O;fDr dk iSj vUnj pyk x;k o ykbu IysVQkeZ ds chp uhps pyk x;k ftlls nksuks iSj cqjh rjg ls t[eh gks x, ftldks jsYos Mk- dks cqykdj izkFkfed mipkj fd;k x;k ekSds ij s.s. C;ksgkjh o iz-vkj- K.K. Sen SiB ls jkelsu gh ik.Ms; ekStwn Fks ckn 108 ,Ecqy'sa k cqykdj lHkh ds lg;ksx ls ckgj ,Ecqy'sa k esa p<+ok;k x;k eS iz-vkj- ,u- ds- xkSre o SiB ls jkelusgh ik.Ms; flfoy vLirky ys tkdj bejtsUlh es On duty Mk- fu'kku flag ifjgkj }kjk mipkj fd;k x;k o rqjUr gh 108 xkM+h ls lgMksy ds fy, jsQj dj fn;k x;k ?kk;y O;fDr viuk uke 'kEHkw izlkn frokjh s/o Jh vej izlkn frokjh mez 67 o"kZ R/o fuoklh jrokj Fkkuk [kMqh ftyk lh/kh e-iz- tks fd ukxiqj ls tcyiqj dh fVdj ua- UFB 17629349 o tcyiqj ls C;ksgkjh fVdV ua- ULA52918404 Fkk ?kk;y O;fDr ds crkusa ij mlds yM+ds ds eksckby ua- 09373114174 ij mlds

yMds dks lwpuk nh xbZ vHkh ifjtu ugh vk, Fks yM+ds dk uke larks"k frokjh gSA ckn okil pkSdh vkdj [kSfj;r ntZ fd;k o loZlacfU/kr dks lwpuk fn;k fjiksVZ ntZ gSA jkstukepk lR;kfir

4. From the aforesaid document, it is clear that the ticket numbers which the deceased was carrying are specifically mentioned. It is also clear from the Roznamcha Sanha that the deceased was all alone and his children were informed by mobile. Since the deceased was in a badly injured shape and he was not accompanied by any of his family members, therefore, it was not expected for the injured/deceased to keep the tickets in a safe custody. Furthermore, from the Roznamcha Sanha, it is clear that before writing the Roznamcha Sanha the injured/deceased was sent to the hospital whereas the Roznamcha Sanha must have been written in the police station/outpost. The manner in which the Roznamcha Sanha has been written it is clear that at the time of writing the Roznamcha Sanha, the Sub-Inspector, R.P.F. was in possession of the tickets which the deceased was carrying with him. Thus, if the claimants could not file the tickets before the Claims Tribunal, then no adverse inference can be drawn against the claimants, even otherwise the respondent has not disputed that the ticket numbers mentioned in the Roznamcha Sanha were not issued at all.

5. Thus, this Court is of the considered opinion that by putting the reverse burden of proof on the claimants in the face of the Roznamcha Sanha written by Sub-Inspector, R.P.F., the Claims Tribunal has committed a material illegality. The claimants had discharged their

initial burden of proof to show that the deceased was travelling with a validly issued railway ticket.

(ii) Whether the respondent is not liable to pay compensation in view of Section 124-A of Railways Act, 1989

6. It is true that the case of the parties is that the deceased slipped from the train while he was trying to deboard from a moving train. Therefore, the next question for consideration would be as to whether the deceased himself was responsible for the untoward incident or not.

7. The question is no more desintegra.

8. The Supreme Court in the case of Union of India Vs. Rina Devi reported in (2019) Vol. 3 SCC Page 572 has held as under:

"25. We are unable to uphold the above view as the concept of "self-inflicted injury" would require intention to inflict such injury and not mere negligence of any particular degree. Doing so would amount to invoking the principle of contributory negligence which cannot be done in the case of liability based on "no fault theory". We may in this connection refer to the judgment of this Court in United India Insurance Co. Ltd. v. Sunil Kumar laying down that plea of negligence of the victim cannot be allowed in claim based on "no fault theory" under Section 163-A of the Motor Vehicles Act, 1988. Accordingly, we hold that death or injury in the course of boarding or de- boarding a train will be an "untoward incident" entitling a victim to the compensation and will not

fall under the proviso to Section 124-A merely on the plea of negligence of the victim as a contributing factor."

9. The counsel for the appellants could not point out any provision of law to show that any attempt to deboard a moving train is an offence. Therefore, section 124-A of Railways Act, 1989 would not apply in the facts and circumstances of the case. Furthermore, the Supreme Court in the case of Rina Devi (supra) has also held that an attempt to deboard a moving train will not fall under proviso to Section 124-A of Railways Act, 1989.

10. Under these circumstances, this Court is of the considered opinion that the Claims Tribunal committed a material illegality by rejecting the claim of the claimants on the ground that the deceased was not travelling in a train with a validly issued railway ticket and his claim is hit by Section 124-A of Railways Act. Accordingly, it is held that the claimants are entitled to seek compensation.

11. So far as to the question of quantum is concerned, the said question has not been considered by the Claims Tribunal. Therefore, instead of deciding the said question by itself, this Court thinks it appropriate to remand the matter back to the Railway Claims Tribunal to decide the question of quantum of compensation.

12. It is made clear that except the quantum of compensation, no other question shall be considered by the Railway Claims Tribunal.

13. Accordingly, the order dated 24.06.2021 passed by Member, Railway Claims Tribunal, Bhopal in Case No.OA/IIu/BPL/068/2019 is hereby set aside. The matter is remanded back to decide the question of quantum of compensation.

14. The parties are directed to appear before the Claims Tribunal on 27th February, 2013. No further notice is required to be issued to any of the parties.

15. The appeal succeeds and is hereby allowed.

(G.S. AHLUWALIA) JUDGE

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VARSHA CHOURASIYA 2023.01.20 17:07:16 +05'30'