Bolla Sailu 3 Others vs The Union Of India
2022 Latest Caselaw 1592 Tel

HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

     CIVIL MISCELLANEOUS APPEAL No.250 of 2016

JUDGMENT :

1. This appeal is directed against the orders in O.A.A.No.185

of 2007, dated 30.05.2014 of the Railway Claims Tribunal,

Secunderabad Bench. Applicants before the Tribunal are the

appellants.

2. The appeal is filed on the ground that the order under appeal

is contrary to the facts, evidence on record and probabilities of the

case. It is stated that the Railway Claims Tribunal dismissed the

appeal on the ground that the appellants have failed to prove any

untoward incident on the alleged date i.e. 27.09.2006, which is

prima facie incorrect and that the findings on Issue No.3 are based

on surmises and conjunctures. It is further stated in the grounds of

appeal that the complainant is not examined to doubt or suspect the

genuineness of the contents of the FIR, which is not considered by

the learned Tribunal and that the Tribunal ought not to have taken

into consideration Ex.R-1/the letter dated 14.01.2008 which is not

GAC, J CMA.No.250 of 2016

supported by any record in respect of the incident which took place

on 27.09.2006. It is stated that the Tribunal has erroneously held

that even if the incident had happened by unknown train dashing

the deceased while crossing the track in the broad day light,

definitely it would have been noticed by some passengers or

Station Manager or Guard and the train would have been halted

and the Driver of that train would have reported the same.

3. Heard learned counsel for the appellants as well as the

learned Standing Counsel for Railways appearing for respondent

and perused the record.

4. The original application was filed by the

applicants/appellants who are the husband and three sons of the

deceased Smt. Bolla Lakshmi (hereinafter referred to as "the

deceased"), who was alleged to have travelled from Jammikunta to

Kothapalli by 321 passenger train with Ticket No.07605020 and

fell down accidentally due to sudden jerks of the said train,

sustained severe injuries on head and limbs and succumbed to

injuries on 28.09.2006 while undergoing treatment.

GAC, J CMA.No.250 of 2016

5. The respondent filed a detailed counter before the Tribunal

denying all the contentions of the applicants and contended that it

is not a case of accidental fall from the trian and therefore, petition

may be dismissed.

6. The Tribunal, basing on the pleadings, has framed the

following three issues:

"1. Whether the applicants are dependants of deceased;

2. Whether the deceased was a bona fide passenger of the train in question; and

3. Whether the deceased died as a result of an untoward incident of accidental fall from the said train."

7. The 1st appellant was examined as AW-1 and Exs.A-1 to A-

8 were marked on behalf of applicants. On behalf of respondent,

RW-1 was examined and Ex.R-1 was marked.

8. Issue No.1 was decided in favour of the appellants basing on

Ex.A-8/the Family Members Certificate dated 08.05.2013 issued

by the Tahsildar, Jammikunta Mandal, which certifies that as per

the inquiry made by the Revenue Inspector, the deceased was

GAC, J CMA.No.250 of 2016

survived by her husband and three sons, who are appellant Nos.1 to

4 respectively.

9. The Tribunal also gave a finding in favour of applicants on

Issue No.2 also, that the deceased was a bona fide passenger of the

train in question as the deceased travelled with Ticket bearing

No.07605020, which was marked as Ex.A-2 and which was issued

from Jammikunta to Kothapalli Station on 27.09.2006 at 05.50

hours in II Ordinary Class. However, issue No.3 i.e. whether the

deceased died as a result of untoward incident of accidental fall

from the said train, was decided against the applicants/appellants.

10. It is the contention of the learned counsel for appellants that

though issue Nos.1 and 2 are decided in favour of the appellants,

the Tribunal has not considered that the deceased had died as a

result of untoward incident of accidental fall from the train and

dismissed the claim petition of the appellants, which is highly

arbitrary and illegal and is against the evidence adduced by the

appellants. It is also contended that the incident took-place in the

year 2006, whereas, the Tribunal has relied on Ex.R-1/the letter

GAC, J CMA.No.250 of 2016

dated 14.01.2008 issued by the Guard of the train after lapse of

about one and half years and has come to the conclusion that the

train halted at Kothapalli Railway Station from 06.56 to 06.57

hours and that there was no unusual incident or accident at the

Station at that time. It is contended that relying on the said letter

and the evidence of RW-1, the Tribunal has come to an erroneous

conclusion that there was no untoward incident and if at all there

was any fall from the train from 06.56 to 06.57 hours in the

morning, definitely it would have been noticed by the passengers

of the train, Station Manager or Guard of the Train and the Train

must have been halted. It is urged by the learned counsel for the

appellants that it is a fit case to grant compensation to the

appellants basing on the findings of the Tribunal on Issue Nos.1

and 2 that the appellants are the family members of the deceased

and that the deceased was a bona fide passenger of the train in

question.

11. On the other hand, the learned Standing Counsel for

respondent contended that Ex.R-1 clearly discloses that no

GAC, J CMA.No.250 of 2016

untoward incident took place at Kothapalli Railway Station on the

alleged date, and further, as per Ex.A-1/FIR, the incident was

not reported to the Station Staff and apparently, the relatives of the

deceased took the deceased to the hospital and later on, came back

to report the incident to the Station Master only at 15.40 hours on

27.09.2006, though the alleged incident had occurred at around

06.55 hours. It is contended that the Tribunal has rightly dismissed

the claim application and accordingly, prayed to dismiss the

appeal.

12. On perusal of the entire record, the admitted facts before the

Tribunal are that Appellant Nos.1 to 4 are the family members of

the deceased as per Ex.A-8/Family Members Certificate. It is also

an admitted fact before the Tribunal that the deceased had travelled

in the train in question i.e. 321 Passenger Train from Jammikunta

to Kothapalli with a valid journey ticket Ex.A-2 bearing

No.07605020 and later she died on the railway track near

Kothapalli Railway Station. Ex.A-1 is the FIR which discloses that

the deceased/Bolla Lakshmi, aged 35 years, had fallen from the

GAC, J CMA.No.250 of 2016

train i.e. 321 Passenger Train at Kothapalli halt Station, got injured

and was joined at Karimnagar Civil hospital by her relatives and

the said complaint was given by Kothapalli Grama Sarpanch, for

which, a case was registered in Crime No.187 of 2006 under

Section 174 Cr.P.C. on 27.09.2006 at 15.40 hours. As per the oral

evidence of AW-1, on 27.09.2006, his brother-in-law by name Raja

Narsu informed him that the deceased suffered severe injuries due

to accidental fall from Ramagiri Passenger Train (321) at

Kothapalli Railway Station and she was admitted in the

Government Hospital at Karimnagar. The evidence of AW-1

corroborates with Ex.A-1/FIR on all aspects as to the manner in

which the accident took place and also as to the death of the

deceased. Ex.A-2 is the train journey ticket dated 27.09.2006 from

Jammikunta to Kothapalli for a fare of Rs.8/- which clearly

disclose that the deceased traveled on the said train. As discussed

above, the mode of journey of the deceased in the said train is not

at all in dispute. Ex.A-3 is the attested copy of the Inquest Report,

which discloses that Mr.D.Subba Reddy, who was the Station

Superintendent of Peddapalli Railway Station, was one of the

GAC, J CMA.No.250 of 2016

witnesses for the inquest panchanama. Column No.9 of Ex.A-3/

Inquest Report discloses that the manner in which the dead body

was found i.e. that the deceased had fell down while boarding

down the Passenger 321 Up Train at Kothapalli Railway Station,

even as per the complaint. Though there is a contra version in the

statement of AW-1 i.e. the brother of the deceased that the

deceased, after boarding down the train, while crossing the tracks,

was hit by another train, it is not supported by either oral or

documentary evidence. The post-mortem report/Ex.A-4 clearly

discloses that the deceased sustained head injury and fracture to

both the legs and that the cause of death also disclose that she

succumbed to injuries. Thus, Ex.A-4/post-mortem report

corroborates with Ex.A-1/FIR and it further partly corroborates

with the inquest report/Ex.A-3. The cause of death mentioned in

the "Death Report" is that the deceased had fallen from the train

accidentally, which was issued by the Sub-Inspector of Police,

GRP, Bellampalli, dated 30.11.2006.

GAC, J CMA.No.250 of 2016

13. It is pertinent to mention that Ex.R-1 dated 14.01.2008, is

the letter issued by Senior Goods Guard to the Chief Claims

Officer. On a perusal of Ex.R-1, it could be understood that it is an

explanation submitted by RW-1 to the Chief Claims Officer stating

that no unusual incident took place at Kothapalli Railway Station

on 27.09.2006. It is also relevant to mention here that the incident

took place in the month of September 2006, whereas, the

explanation/Ex.R-1 was given by RW-1 after the lapse of almost

one and half years. Further, the cross-examination of RW-1

discloses that the original rough journal of 321 Passenger Train

dated 27.09.2006 was mis-placed by him when kept in his house.

It is also admitted by RW-1 that he received letter from the Chief

Claims Officer on 14.01.2008 calling for explanation from him, for

which, he has given reply under Ex.R-1, and in the said

explanation also, he has not stated about the missing of the rough

journal. Surprisingly, the oral evidence of RW-1 disclose that an

incident had happened at Kothapalli Railway Station on

27.09.2006, which is contrary to the recitals of Ex.R-1. Further, it

GAC, J CMA.No.250 of 2016

was clearly deposed by RW-1 that he has never seen an Inquest

Report in his service.

14. On a perusal of the entire order of the Railway Claims

Tribunal, it can be construed that the Tribunal has relied on the oral

evidence of RW-1 and the documentary evidence i.e. Ex.R-1 and

rejected the claim of the appellants by believing the version of the

respondent that the deceased died while crossing the track due to

hit by another train. Admittedly, there is no whisper by any of the

Railway Authorities, as to any accident or any other train hitting

any person on the said date i.e. 27.09.2006. Further, the inquiry

report of the Deputy Divisional Railway Manager was not marked

before the Tribunal for the reasons best known to the Railway

Authorities. The oral evidence of AW-1 corroborates with the

documentary evidence i.e. Exs.A-1 to A-5 on all aspects as to the

manner in which the accident had occurred.

15. The dead body of the deceased was recovered at Kothapalli

Railway Track. None of the Railway Authorities were examined to

prove the case of the Railways that after boarding down the train,

GAC, J CMA.No.250 of 2016

the accident took place while the deceased was crossing the track.

In the absence of proper evidence on behalf of respondent-

Railways as to the nature of the accident, the claim of the

appellants cannot be rejected. It is pertinent to mention that the

finding of the Tribunal, that there is a delay of Six hours in

reporting the crime and that the appellants have not reported

immediately to the Police is fatal, cannot be accepted as it is a

human psychology that if an incident takes place, the injured shall

be immediately shifted to hospital for treatment, but not to go to

Police Station for reporting. Hence, the delay in lodging the FIR is

not at all fatal to the case of the appellants.

16. In this connection, it is relevant to refer to the law laid down

by the Hon'ble Supreme Court in Jameela & others v. Union of

India1. In para 5 of the said judgment, it is held as under :

"Section 124A of the Act provides as follows:

"124A. Compensation on account of untoward incident. - When in the course of working a railway an untoward incident occurs, then whether or not there has been any wrongful act, neglect or

1 2010 ACJ 2453

GAC, J CMA.No.250 of 2016

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."

17. Further, para 9 of the said judgment reads as under :

GAC, J CMA.No.250 of 2016

"9. The manner in which the accident is sought to be reconstructed by the Railway, the deceased was standing at the open door of the train compartment from where he fell down, is called by the railway itself as negligence. Now negligence of this kind which is not very uncommon on Indian trains is not the same thing as a criminal act mentioned in clause (c) to the proviso to section 124 A. A criminal act envisaged under clause (c) must have an element of malicious intent or mens rea. Standing at the open doors of the compartment of a running train may be a negligent act, even a rash act but, without anything else, it is certainly not a criminal act. Thus, the case of the railway must fail even after assuming everything in its favour."

18. For the aforesaid reasons, the appeal is allowed and the order

passed by the Railway Claims Tribunal, Secunderabad Bench in

O.A.A.No.185 of 2007, dated 30.05.2014 is hearby set aside.

19. As per the Schedule given by the Ministry of Railways vide

Notification dated 22nd December, 2016, the Railways are liable to

pay compensation of Rs.8,00,000/- for the death of its passengers.

Therefore, the appellants are entitled to compensation of

Rs.8,00,000/- for the death of the deceased Smt.Bolla Lakshmi,

GAC, J CMA.No.250 of 2016

payable by the respondent within a period of two months from the

date of receipt of a copy of this judgment.

20. As a sequel, pending miscellaneous applications, if any, shall

stand closed.

_______________________________ G. ANUPAMA CHAKRAVARTHY, J Date: 29.03.2022

ajr