Bombay High Court
Shilpa @ Shipra Wd/O Nilesh Chaudhari ... vs Union Of India, Thr. General Manager, ... on 23 March, 2018
Author: Z.A.Haq
Bench: Z.A.Haq
Judgment 1 fa1110.2017.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
FIRST APPEAL (FA) NO. 1110/2017
1] Shilpa @ Shipra Wd/o Nilesh Chaudhari,
Age 22 years, Occ. Labour
2] Shamal @ Shyamlal S/o Jayant Chaudhari,
Aged 60 years, Occ. Labour
3] Smt. Sudha W/o Shamal Chaudhari,
Aged 57 years, Occ. Housewife
All R/o Samata Nagar Near Ambedkar
Putala, Jalgaon, Tah. And Dist. Jalgaon
(Maharashtra)
.... APPELLANTS.
// VERSUS //
Union of India,
Through the General Manager,
Central Railway, C.S.T. Mumbai
.... RESPONDENT.
=====================================
Shri R.G. Bagul, Advocate for the appellants
Shri N.P. Lambat, Advocate for the respondent
=====================================
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Judgment 2 fa1110.2017.odt
CORAM : Z.A.HAQ, J.
DATED : MARCH 23, 2018
C.A.F. NO. 715/2018
Considering the facts of the case and the nature of
claim and as record and proceedings is received, the appeal is
taken up for hearing.
The civil application is allowed accordingly. No
costs.
FIRST APPEAL NO. 1110/2017
ORAL JUDGMENT : -
1] It is undisputed that Nilesh Chaudhari (husband of the appellant no. 1 and son of appellant nos. 2 and 3) was travelling in Train No. 12140 UP Sewagram Express, starting journey from Ballarshah on 17/02/2014 to Jalgaon Railway Station where the train reached on 18/02/2014 between 4 to 4:30 hrs. It is undisputed that Nilesh was travelling with the appellant no. 1 and minor son (Naitik). It is undisputed that Nilesh and the appellant no. 1 were bonafide passengers having undertaken the journey after purchasing valid tickets. It is established on record that Nilesh and minor Naitik died ::: Uploaded on - 12/04/2018 ::: Downloaded on - 21/05/2018 12:13:18 ::: Judgment 3 fa1110.2017.odt because of the injuries suffered by them while alighting from the train. It is undisputed that Nilesh, appellant no. 1 and Naitik were found on the off-side i.e. side other than side of the platform.
According to the appellants, Nilesh, appellant no. 1 and Naitik fell down because of the push given by the co- passengers while alighting from the train. According to the respondent, Nilesh alighted from the train from the off-side, then he helped Naitik in alighting from the train from the off- side and then the appellant no. 1 alighted from the train from the off-side. Nilesh and the appellant no. 1 failed to notice the rushing train coming on the adjoining track and Nilesh and Naitik got injured because of the fast moving train on the adjoining track.
3] The Tribunal has found that Nilesh and Naitik were not injured in an "untoward incident" contemplated by Section 123 (c) of the Railways Act, 1989 and therefore the present appellants are not entitled for compensation. ::: Uploaded on - 12/04/2018 ::: Downloaded on - 21/05/2018 12:13:18 :::
Judgment 4 fa1110.2017.odt
4] The points which arise for consideration are:-
(a) Whether it is established on record
that deceased Nilesh and Naitik died because of injuries suffered by them in an "untoward incident" contemplated by Section 123 (c) r/w Section 124A of the Railways Act, 1989.
(b) Whether the order passed by the
Tribunal is proper and sustainable.
5] The appellant no. 1-Shilpa has examined herself.
She has stated that when the train reached near Jalgaon Railway Station, due to heavy rush of the passengers who were trying to alight from and board the train, Nilesh, Naitik and she fell down from the train.
Shri Shankarrao S/o Babasaheb Sanas who was working as Deputy Station Master at Jalgaon Railway Station at the relevant time, is examined on behalf of the respondent. In examination-in-chief of Shri Shankarrao S/o Babasaheb Sanas there is nothing, on the basis of which it can be said the claim made by the appellant no. 1 that Nilesh, Naitik and the appellant no. 1 fell down from the train because of heavy rush, can be doubted. In para 4 of the affidavit in lieu of ::: Uploaded on - 12/04/2018 ::: Downloaded on - 21/05/2018 12:13:18 ::: Judgment 5 fa1110.2017.odt examination-in-chief of Shri Shankarrao S/o Babasaheb Sanas, he has stated that some passengers had informed him that a male, a female and a child had fallen down between up & down main line i.e. opposite side of the platform. I find that the respondent has failed to discharge the burden of proving that death of Nilesh and Naitik has not taken place in an "untoward incident" contemplated by Section 123 (c) of the Railways Act.
6] The Tribunal has dismissed the claim petition, relying on the statement of the appellant no. 1 (Shilpa) recorded during the statutory investigation in which it is recorded that because of heavy rush, Nilesh alighted from the train from the off-side door and then got Naitik down and then helped the appellant no. 1 in alighting from the train from the off-side door and at that time, another train came on the adjoining track in high speed because of which the appellant no. 1 got unconscious and when she gained consciousness, she found herself in the ambulance, the policemen narrated her about the accident.
I find that the Tribunal has committed an error in relying on the alleged statement of the appellant no. 1-Shilpa ::: Uploaded on - 12/04/2018 ::: Downloaded on - 21/05/2018 12:13:18 ::: Judgment 6 fa1110.2017.odt said to have been recorded during the statutory investigation. The R.P.F. Personnel who recorded the alleged statement is not examined, depriving the opportunity of cross-examination to the appellants. The respondent has not produced any material on record to show which train arrived at the adjoining platform at the relevant time. This evidence could have been produced by the respondent. The Tribunal gave undue weightage to the alleged statement recorded during the statutory investigation overlooking the evidence of the appellant no.1-Shilpa and Shankarrao S/o Babasaheb Sanas which are recorded by it and the parties are given opportunity to cross-examine the witness.
7] The respondent has not been able to substantiate on record that the appellants are not entitled for compensation as death of Nilesh has not taken place because of accidental fall from the train.
8] In the facts of the case, I find that the impugned order is not sustainable as the relevant evidence of the appellant no. 1 is not considered and irrelevant evidence, that is alleged statement said to have been recorded during ::: Uploaded on - 12/04/2018 ::: Downloaded on - 21/05/2018 12:13:18 ::: Judgment 7 fa1110.2017.odt statutory investigation, is taken into consideration. It has to be held that the appellants are entitled for compensation from the respondent.
9] The appellants claim that they are entitled for compensation of Rs. 8,00,000/- as per the Gazette Notification dated 22/12/2016 and as per the judgment given by this Court in First Appeal No. 145/2010 (Dilip S/o Madhukar Ogle & ors. Vs. Union of India) and the judgment given in First Appeal No. 307/2017 (Kavita Wd/o Sanjay Awachare & ors. vs. Union of India) .
The advocate for the respondent has pointed out that the judgment given in F.A. No. 145/2010 is challenged by the Union of India in Special Leave Petition (CIVIL) Diary No. 2827/2018 and by order dated 06/03/2018, the operation of the judgment is stayed.
10] After giving conscious thought and considering the plight of the appellants (widow and parents of deceased- Nilesh), who are labourers, the following order is passed:- ::: Uploaded on - 12/04/2018 ::: Downloaded on - 21/05/2018 12:13:18 :::
Judgment 8 fa1110.2017.odt
ORDER
(i) The impugned order passed by the
Tribunal is set aside.
(ii) It is held that the appellants are entitled
for compensation from the respondent.
(iii) The respondent shall deposit
Rs. 4,00,000/- (Rs. Four Lakh) before the Tribunal alongwith interest @ 6% per annum from the date of filing of the claim petition till the amount is deposited, within two months.
On deposit of the amount by the respondent, the Tribunal shall pass appropriate orders regarding disbursement of the amount to the appellants. The Tribunal shall pass appropriate orders regarding disbursement/investment of the amount after the appellants pay the deficit Court fee or the Court fee shall be first recovered from the amount deposited by the respondent. The amount of deficit Court fee shall be transmitted to the Registry of this Court.
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(iv) The entitlement of the appellants for
further amount of Rs. 4,00,000/- towards
compensation as per the Gazette Notification dated 22/12/2016 shall be as per the judgment which would be delivered in Special Leave Petition (CIVIL) Diary No. 2827/2018.
(v) In the peculiar facts, the parties are granted liberty to file an application for appropriate orders after decision of the Hon'ble Supreme Court in Special Leave Petition (CIVIL) Diary No. 2827/2018 (Union of India vs. Dilip & ors.) The appeal is allowed in the above terms. In the circumstances, the parties to bear their own costs.
JUDGE Ansari ::: Uploaded on - 12/04/2018 ::: Downloaded on - 21/05/2018 12:13:18 :::