Madhya Pradesh High Court

Rahul Jharaniya vs The Union Of India on 28 May, 2024

                                       1




              In The High Court Of Madhya Pradesh
                             At Jabalpur
                                    Before
             Hon'ble Shri Justice Duppala Venkata Ramana
                         On The 28th Of May, 2024

                       Misc. Appeal No. 7673 Of 2023

Between:-
Rahul Jharaniya S/o Shri Kaluram Jharaniya,
Aged About 22 Years, R/o H. No. 106, Ward No.
7, Gram Jhakalay Thua, Tehsil Seoni Malwa,
District-Hoshangabad (M.P.)

                                                               .....Appellant

(By Ms.Neha Bhatiya - Advocate)

And
The Union Of India Through The General
Manager West Central Manager5 District
Jabalpur (M.P.)

                                                             .....Respondent

(BY Shri Harshwardhan Singh Rajput - Advocate)
Reserved on : 09.05.2024
Pronounce on : .28.05.2024

      This appeal coming on for judgment this day, the court passed the

following:

                                  JUDGMENT

This appeal has been filed under the Railway Act, 1989 (for short "the Act of 1989") by the claimant/appellant praying for setting aside the judgment dated 11.09.2023 passed by the learned Railway Claims Tribunal

(hereinafter referred to as "the RCT") in case No. O.A/IIu/BPL/231/2019, whereby the claim application of the claimant/appellant has been dismissed.

2. For the sake of convenience, the parties are referred to as they arrayed before the RCT.

3. Briefly stated facts are as follows:- the appellant-Rahul Jharania is 22 years old labour submitted a claim application under Section 16 of the Railways Claims Tribunal Act, 1987, as a result of his own injury is an unexpected incident. It has been stated that on 02.10.2018 at about 09:30 pm, he purchased a second class general ticket from Itarsi to Jabalpur, he had boarded the general coach of Godan Express Train No.11055. When the train reached near Bagliya outer, due to heavy crowd in the compartment and jolting of the train, the appellant unexpectedly fell off from the running train resulting into amputation of his both the legs. He was shifted to DSPM, Itarsi, District Hospital, Hoshangabad and the Doctor, who was on duty, sent MLC (Medico Legal Case) intimation to the GRP Police, Itarsi (Ex.A/1).

4. That, the appellant-injured filed a claim application claiming compensation of Rs.8,00,000/- (Eight Lakhs Rupees) before the RCT at Bhopal on account of amputation of both the legs in an "untoward incident"

occurred on 02.10.2018 as defined under Section 123(c)(2) of the Act of 1989.

5. The respondent/Railway filed written statement through Deputy Chief Commercial Manager and denied all the averments in the claim petition, further averred that the claimant- Rahul Jharania was not a bonafide passenger and incident happened is not an untoward incident. The claim application submitted by appellant on false grounds. Therefore, the claim may be rejected.

6. In view of pleadings of the parties, the Tribunal framed the following issues on 06.02.2020:

1. Whether the applicant proves that he was a bonafide passengers of the Train in question when the alleged untoward incident occurred ?

2. Whether the applicant proves that the alleged untoward incident falls within the meaning of the section 123(c)(2) read with section 124-A of Railways Act, 1989 ?

3. Whether the applicant proves that he has suffered injuries as alleged ?

4. Whether the respondent railway administration is protected under the exemption clauses to Section 124-A of the Railways Act, 1989 and is not liable to pay any compensation to applicant ?

5. Relief and cost ?

7. In order to establish the claim at the time of inquiry, the injured-Rahul Jharania filed an affidavit examined as AW-1/A and cross-examined by respondent's counsel and got marked Ex.A-1 to A-12 on behalf of the appellant, no evidence led by respondent and DRM report (Ex.R-1) marked on behalf of the respondent.

8. On appreciation of evidence of AW-1/A and placing reliance on Ex. A-1 to A-12 and Ex.-R-1 (DRM report), the learned Claims Tribunal came to a conclusion that the incident does not fall under the category of 'untoward incident'. Further observed that the injured is not a bonafide passenger, therefore, the respondent is not liable to pay compensation and the claim petition was rejected.

9. Aggrieved by and dissatisfied with the judgement passed by the learned Tribunal, the appellant/claimant has preferred the present appeal seeking to

set aside the judgement dated 11.09.2023 passed by the learned Claims Tribunal and adequate amount of compensation may be awarded.

10. The learned counsel appearing for the appellant would submit that the learned Tribunal ought to have awarded compensation instead of dismissing the claim application. Further would submit that he reiterated the grounds raised in the memo of appeal by contending that the learned Tribunal has not only committed grave error in disbelieving the evidence of AW-1 and reached an erroneous conclusion that the injured was neither bonafide passenger nor the incident in question was an 'untoward incident'. Further argued that the incident happened on 02.10.2018 and on the day of incident, the Doctor sent MLC intimation to the concerned GRP police, Itarsi and they did not complete the investigation within 60 days from the date of incident complying the sub-clause 2 of Rule 6 of the Railway Passengers (Manner of Investigation of Untoward Incident) Rules, 2020. Conveniently, they filed investigation report on 31.10.2019 with delay of 12 months and subsequently, DRM report was filed on 18.11.2019 with delay of 13 months from the date of incident dated 02.10.2018. The delay in initiating the enquiry and submitting DRM report is fatal to the facts of this case. Further submit that there is ample evidence available on record in order to prove that the "untoward incident" took place while the injured travelling in train, he fell down from the running train and both of his legs were amputated. Counsel for the appellant placing the reliance on the judgment rendered by the Hon'ble Supreme Court in the case of Union of India vs. Rina Devi, 2018 ACJ 1441(SC), submits that the claim could not be declined merely on the ground that journey ticket was not produced by the injured, further argued that the respondent has failed to discharge its burden to prove that it was not an "untoward incident". Therefore, the respondent cannot be denied the benefits

under the welfare legislation and, therefore, the accident in question clearly falls under Sections 124 and 124-A of the Act of 1989, hence, the claimant/appellant would be entitled to compensation and the Railway Administration would be liable to pay compensation.

11. Learned counsel for the Railway, on the other hand, while supporting the impugned order has argued that there is no illegality or infirmity in the impugned order passed by the learned Claims Tribunal. Further he contended that the appellant failed to prove that he was a bonafide passenger and the incident covered as an "untoward incident" while the injured travelling in the train. Therefore, the learned Tribunal rightly dismissed the claim application and needs no interference by this Court and prays for dismissal of the appeal.

12. Now the question arises for determination in the instant appeal is;

"whether the incident happened in the train accident and covered by Sections 124 and 124-A of the Railway Act or not ?"

13. In order to assess the sustainability of the said finding, it is necessary to refer to Chapter-XIII of the Railways Act, 1989, which sets out the liability of the Railway Administration for death or injury causes to the passengers due to accident.

"Accident" is defined as an accident of the nature described in section 124 of the Act, "untoward incident" is another term which is defined in the said Chapter and it includes the accidental falling of any passenger from any train carrying passengers.

Section 124 determines as under:

"Extent of liability: When in the course of working a railway, an accident occurs, being either a collision between trains of which one is a train carrying passengers or the derailment of or other accident to a

train or any part of a train carrying passengers, then whether or not there has been any wrongful act, neglect or default on the part of the railway administration such as would entitle a passenger who has been injured or has suffered a loss to maintain an action and recover damages in respect thereof, the railway administration shall, notwithstanding anything contained in any other law, be liable to pay compensation to such extent as may be prescribed and to that extent only for loss occasioned by the death of a passenger dying as a result of such accident, and for personal injury and loss, destruction, damage or deterioration of goods owned by the passenger and accompanying him in his compartment or on the train, sustained as a result of such accident."

14. Section 124-A of the Railway Act, 1989, reads thus :

"124-A. Compensation on account of untoward incidents.--When in the course of working a railway an untoward incident occurs, then whether or not there has been any wrongful act, neglect or default on the part of the Railway Administration such as would entitle a passenger who has been injured or the dependant of a passenger who has been killed to maintain an action and recover damages in respect thereof, the Railway Administration shall, notwithstanding anything contained in any other law, be liable to pay compensation to such extent as may be prescribed and to that extent only for loss occasioned by the death of, or injury to, a passenger as a result of such untoward incident:

Provided that no compensation shall be payable under this section by the Railway Administration if the passenger dies or suffers injury due to--

(a) suicide or attempted suicide by him;

(b) self-inflicted injury;

(c) his own criminal act;

(d) any act committed by him in a state of intoxication or insanity;

(e) any natural cause or disease or medical or surgical treatment unless such treatment becomes necessary due to injury caused by the said untoward incident.

Explanation.--For the purposes of this section, 'passenger' includes--

(i) a railway servant on duty; and

(ii) a person who has purchased a valid ticket for travelling, by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident."

15. "Untoward incident" has been defined under section 123(c) of the Railways Act, 1989 which read as under: -

"123(c) - "untoward incident ''means -

1. (i). the commission of a terrorist act within the meaning of sub-

section (1) of section 3 of the terrorist and Disruptive Activities (Prevention) Act 1997 (28 of 1987):- or

(ii)The making of a violent attack or the commission of robbery or dacoity; or

(iii)The indulging in rioting shoot-out or arson, by any person in or any train carrying passengers, or in waiting hall, cloak room or reservation or booking office or on any platform or in any other place within the precincts of a railway station, or, (2) The accidental falling of any passenger from a train carrying passengers."

16. A plain reading of the above referred definitions of an "untoward incident" includes the accidental fallen of any passenger from the train carrying passengers, in the instant case, the injured was travelling in Godan Express from Itarsi to Jabalpur, the accident occurred in the mid-night near Bagaliya outer and amputated his both the legs and shifted to the hospital and MLC requisition sent to the GRP Police, Itarsi and registered a Marg No.04/injured person.01/2019 subsequent to filing of claim petition dated 05.03.2019 to fill up their latches and causes delay for investigation.

17. The aspect of belated filing/preparation of DRM report had come up before the Hon'ble Apex Court in Kalandi Charan Sahoo Vs. General

Manage, South Eastern Central Railway 1,, wherein while holding the appellants entitled to compensation, it was observed as under:

"3. Though Rule 7 of the Railway Passengers (Manner of Investigation of Untoward Incidents) Rules, 2003 (hereinafter referred to as 'Rules') mandates the railway authorities to investigate into such an untoward incident. Admittedly, no such inquiry was conducted immediately after the incident. It is only when the Appellants filed the claim before the RCT on 27.2.2009 that investigation into the incident was ordered on 23.4.2009....

5. ......Going by the aforesaid provisions and in the peculiar facts of this case, where no inquiry as mandated by the Rules was conducted immediately after the incident had occurred, we are of the view that the Appellants shall be entitled to compensation payable Under Section 124-A of the Railways Act, 1989........"

18. Another decision in Bhola Vs. Union of India2, has held delay in initiation of DRM inquiry to be fatal to the facts of the case, as what needs to be essentially gathered is what happened on the date of accident. In this captioned case, it has been opined in para-4 and 5 are as follows :

4. The claim petition was filed on 27.07.2014, the DRM Inquiry was initiated thereafter and a report was filed 7 months later.

The delay in initiating an inquiry is fatal to the facts of the case because what essentially needs to be gathered is what happened on the date of accident. The medical reports and the police records show that an accident happened on 08.10.2012 and the cause of the accident was, the appellant having been fallen from a moving train. The DRM Report does not address any of these aspects. On the contrary it says that since no ticket was produced to support the claim of the appellant, of him being a bona fide passenger, therefore by conjecture, he could have well suffered a self-inflicted injury while crossing the railway tracks. Reliance was placed upon the judgment of the Supreme Court in Kalandi Charan Sahoo v. General Manager, South-East Central Railways, Bilaspur in Civil Appeal No. 5608/2017.

1 2019 (12) SCC 387 2 (2018) SCC Online Del 13486

5. The delay in intimation of the DRM Inquiry, the silence about the specifics of the accident makes the DRM Report of no consequence.

19. In alike facts and circumstances of the case, in the light of the above judgments, placing the DRM report dated 18.11.2019 which was filed after period of 13 months from the date of incident dated 02.10.2018, in contrary to sub rule (2) of the Rule 6 of Railways Passengers (Manner of Investigation of Untoward Incidents), Rules, 2020 as such the DRM report is of no avail. The DRM report is of no value and prepared for the purpose to overcome from its liability, is nothing but an afterthought and the DRM report is of no use and cannot be taken into consideration.

20. Admittedly, there was no eye witnesses. The incident occurred at the mid-night and even if the co-passengers are the eye witnesses to the incident, they may not be available to give evidence. They want to reach their destination while they were in journey, incident occurred and there was no possibility to give statement or inform the same to the Station Manager, further the injured-Rahul Jharania filed an affidavit in lieu of examination-in- chief has reiterated the facts and he stated that while he was travelling in Godan Express he boarded in the compartment and when the train reached near Bagalia outer, due to heavy crowd and jolting of the train, he unexpectedly fell down from the running train and his both the legs were amputated, further admitted fact that somebody informed to his father-in-law on the information furnished by him, he came and took him to the DSPM, Itarsi, District Hospital for treatment and on information the Doctor sent MLC requisition to the GRP Police, Itarsi at 00:45 hours and the said memo marked as Ex.A-1 and on receipt of the memo, the GRP registered a Marg-04/injured person.01/2019. In spite of receipt of MLC requisition, the Railway police not acted upon, according to sub-Rule 2 of Section 6 of Railway Act investigation

has to be completed within 60 days from the date of the incident. In the present case the incident occurred on 02.10.2018 and investigation report submitted on 31.10.2019, DRM report submitted on 18.11.2019, there was delay of 12/13 months in completion of investigation from the date of incident. The claim petition filed on 05.03.2019, subsequent to filing of claim petition the respondent authorities commenced the investigation and on the basis of MLC memo issued by Doctor, registered a Marg No.01/2019 which shows the negligence on the part of the respondent authorities to commence the investigation and to overcome from its liability, they took a plea that the injured was not a bonafide passenger and incident not covered under the "untoward incident".

21. The Apex Court in the case of Union of India Vs. Prabhakar Vijayakumar, 3

while considering the definition of "untoward incident" with respect to the expression "accidental falling of a passenger from a train carrying passengers" in section 123(c) of the Act of 1989, has observed that if we attach a restrictive meaning to the said expression, we will be depriving a large number of railway passengers from getting compensation in railway accident and, therefore, a purposive and not literal interpretation should be given to the said expression. Paragraph-11 and 14 of the said decision is usually quoted as under:-

11. No doubt, it is possible that two interpretations can be given to the expression 'accidental falling of a passenger from a train carrying passengers', the first being that it only applies when a person has actually got inside the train and thereafter falls down from the train, while the second being that it includes a situation where a person is trying to board the train and falls down while trying to do so. Since the

3 2008 ACJ 1895

provision for compensation in the Railways Act is a beneficial piece of legislation, in our opinion, it should receive a liberal and wider interpretation and not a narrow and technical one.......

14. In our opinion, if we adopt a restrictive meaning to the expression 'accidental falling of a passenger from a train carrying passengers' in Section 123(c) of the Railways Act, we will be depriving a large number of railway passengers from getting compensation in railway accidents. It is well known that in our country there are crores of people who travel by railway trains since everybody cannot afford traveling by air or in a private car. By giving a restrictive and narrow meaning to the expression we will be depriving a large number of victims of train accidents (particularly poor and middle class people) from getting compensation under the Railways Act.

Hence, in our opinion, the expression 'accidental falling of a passenger from a train carrying passengers' includes accidents when a bona fide passenger i.e. a passenger traveling with a valid ticket or pass is trying to enter into a railway train and falls down during the process. In other words, a purposive, and not literal, interpretation should be given to the expression.

22. In the light of the above judgment, the accident in which injured -Rahul Jharania is clearly not covered by proviso to section 124-A. The accident did not occur because of any of the reasons mentioned in clauses (a) to (e) of the proviso to section 124-A of the Act of 1989. Hence this Court is of the opinion in the present case is clearly covered by main body of section 124-A of the Railways Act not its proviso. Therefore, in my view the incident covered by under section 124-A and 123(c)(2) of the Act of 1989 is an "untoward incident" as bonafide passenger. The claimants would be entitled to compensation.

23 In the instant case, the respondent took a plea that the injured does not possess valid ticket while travelling in Godan Express from Itarsi to Jabalpur and the incident occurred, therefore, the appellant-injured is not a bonafide

passenger. The contention of the Railway is too hyper technical that no specific plea in that behalf was raised in the claim petition and I find that the parties are fully alive to the issue that the evidence led by the claimant that he was a bonafide passenger.

24. At this juncture, it is relevant to refer a decision rendered by a Division Bench of this Court in the case of Union of India Vs. Satish Patidar4; wherein it is held :

"27. This brings us to point No. 4. Learned Counsel for the appellants contended that the deceased was not a bona fide passenger, as the claimants could not establish that he purchased the ticket. The burden to prove that the deceased had a valid ticket during his journey which he proceeded cannot be placed on dependents. Obviously, such burden of proof is impossible to be discharged by the dependents who can have no means of knowledge whether the deceased before boarding the train had purchased the valid ticket. It is likely that such a deceased passenger had a valid ticket but the same was lost in accident. To place the onus of proof dependents would amount to denial of the benefit of legislation to them for reasons beyond their control. In the case before us, the presumption has to be drawn that the deceased was a bona fide passenger. Therefore, we affirm the finding of the Tribunal that the deceased was a bona fide passenger.

25. The Railway has failed to examine any of its witnesses to establish the fact that the injured was travelling without ticket and since the injured had boarded the train, the presumption would be that he had valid authority to

4 . 2003 (4) M.P.L.J. 306

travel, the learned Tribunal, therefore, was not justified in holding that the deceased was not a bonafide passenger.

26. A decision reported in Union of India Vs. Rina Devi5, the Apex Court in para 17 has observed as under:- ,

"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 benafide 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."

27. In view of the said legal position and on the basis of pleadings and the material placed on record before the claims Tribunal and the finding given by the learned Tribunal that the injured was not a bonafide passenger on the ground that the journey ticket was not produced by him. In contrary, the travel ticket might have been lost in the incident and that cannot be a ground to reject the claim. The above finding is contrary to the judgment of Rina Devi's case (supra). Therefore, the finding of the claim Tribunal is not bonafide and perverse.

28. A decision of Hon'ble Supreme Court in Kalandi Charan Sahoo (supra), wherein in para-4 reads as thus:

5 2018 ACJ 1441(SC)

".............we find that it is not even necessary to go into the issue as to whether it was the fault of the deceased or that he accidentally fell down. Learned counsel for the appellants has drawn our attention to the provisions of Section 124A of the Railways Act, 1989, which warrants payment of compensation whenever untoward incident occurs whether or not such an incident has occurred by any wrongful act, neglect or default on the part of the Railway administration. Going by the aforesaid provisions and in the peculiar facts of this case, where no inquiry as mandated by the Rules was conducted immediately after the incident had occurred, we are of the view that the appellants shall be entitled to compensation payable under Section 124A of the Railways Act, 1989. We are informed that, at the material time, compensation payable under the said provision was Rs.4 lakhs."

29. Following the above judgments read together, the injured was a bonafide passenger and the railway could not able to prove the same with an irretrievable evidence and it is a case of fallen down from the running train. The Railway could not even able to establish the "untoward incident", injured was admittedly a bondfide passenger in the cross-examination by the Court, he stated that he purchased a ticket at around 09:30 pm in the night worth of Rs.110/-. After purchasing ticket, he kept it in his purse, the investigation also discloses that while he was undergoing treatment, he lost his bag containing purse and ticket. Therefore, it can be safely inferred that the injured was a bonafide passenger, therefore, the benefit of welfare legislation cannot be denied to the claimant. The respondent/railway authority has fail to discharge its burden in bringing the case within the purview of clauses (a) to (e) of Section 124-A of the Railways Act. Therefore, the welfare scheme of compensation cannot be denied to the victims/appellants. Therefore, the accident in question comes under Section 124-A of the Act of 1989. The accidental falling of the passenger from the running train carrying the passengers is governed by "untoward incident", therefore, in my opinion the

claim made by the appellant is fully covered under provisions of Section 124- A of the Act of 1989 as the injured who was bonafine passenger and the incident covered is an "untoward incident".

30. The Tribunal has committed patent irregularity in placing implicit reliance upon so called investigation report and DRM report to arrive at the conclusion that the injured was not a bonafide passenger and the incident was not covered in the "untoward incident". These findings, therefore, needs to be discarded in toto as they are perverse and in total ignorance of the settled legal position. The learned Tribunal has erroneously expressed its opinion that the injured was not possessing the journey ticket and not a bonafide passenger, the incident not covered under Section 123(c)(2) of the Act in contrary to the law settled legal position stated supra.

31. In view of the above discussion, the observation of the learned Tribunal contained in the impugned order and the contents of the Railway cannot be sustained and, therefore, in view of that the injured was a bonafide passenger who suffered amputation of his both legs and the incident covers under "untoward incident", when the case of injured is not coming within the enumerated reasons under clauses (a) to (e) of Section 124-A of the Act, the appellant is entitled for compensation under Section 124-A of the Act of 1989 and the impugned order dated 11.09.2023 passed by the learned Claims Tribunal, Bhopal in case No.O.A/IIu/BPL/231/2019, rejecting the claim of compensation by the respondent/Railway on account of that the injured was not a bonafide passenger and injury does not fall under the expression of "untoward incident" dated 02.10.2018, is hereby set-aside. The appellant would be entitled to sum of Rs.8,00,000/- (Eight Lakh Rupees) as compensation in accordance with the prevailing law.

32. Accordingly, and as per the above discussion, this appeal is, thus, allowed and set-aside the impugned judgment dated 11.09.2023 passed by the Railway Claims Tribunal, Bhopal in Case No.O.A/IIu/BPL/231/2019, consequently, the claim application is allowed. The appellant is entitled compensation to the tune of Rs.8,00,000/- (Rupees Eight Lacs Only). The amount of compensation be satisfied by the respondent/railways within a period of eight weeks from the date of this order. No order as costs.

DUPPALA VENKATA RAMANA, J rk......

In The High Court Of Madhya Pradesh At Jabalpur Before Hon'ble Shri Justice Duppala Venkata Ramana On The 28th Of May, 2024

Misc. Appeal No. 7673 Of 2023

Between:-

Rahul Jharaniya S/o Shri Kaluram Jharaniya, Aged About 22 Years, R/o H. No. 106, Ward No. 7, Gram Jhakalay Thua, Tehsil Seoni Malwa, District-Hoshangabad (M.P.)

.....Appellant

(By Ms.Neha Bhatiya - Advocate)

And The Union Of India Through The General Manager West Central Manager District Jabalpur (M.P.)

.....Respondent

(BY Shri Harshwardhan Singh Rajput - Advocate)

DATE OF JUDGMENT PRONOUNCED : 28.05.2024

SUBMITTED FOR APPROVAL :