Gujarat High Court
Pintubhai S/O Babubhai Sarvaiya vs Union on 17 August, 2012
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
PINTUBHAI S/O BABUBHAI SARVAIYA....Appellant(s)V/SUNION OF INDIA THROUGH GENERAL MANAGER....Defendant(s) C/FA/2917/2012 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL NO. 2917 of 2012 With FIRST APPEAL NO. 2918 of 2012 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA : Sd/- ======================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ======================================================= PINTUBHAI S/O BABUBHAI SARVAIYA....Appellant(s) Versus UNION OF INDIA THROUGH GENERAL MANAGER....Defendant(s) ======================================================= Appearance: MR PJ MEHTA, ADVOCATE for the Appellant(s) No. 1 MR RAVI KARNAVAT, ADVOCATE for the Defendant(s) No. 1 ======================================================= CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA Date : 04/03/2013 COMMON ORAL JUDGMENT
First Appeal No.2917 of 2012 has been filed by the appellant/applicant, who is the victim of the incident under Section 23 of the Railway Claims Tribunal Act being aggrieved with the judgment and order passed by the Railway Claims Tribunal, Ahmedabad in Case No.OA 0600145 dated 17.08.2012 on the grounds stated in the appeal.
First Appeal No.2918 of 2012 has been filed by the appellants/applicants, who are the heirs of the deceased, Bharatbhai Sarvaiya under Section 23 of the Railway Claims Tribunal Act being aggrieved with the judgment and order passed by the Railway Claims Tribunal, Ahmedabad in Case No.OA 0600142 dated 17.08.2012 on the grounds stated in the appeal.
The facts of the case briefly stated are that Pintubhai Babubhai Sarvaiya (the appellant of First Appeal No.2917/2012) along with his elder brother viz., Bharatbhai (deceased) wanted to go from Rajkot to Daldi and, therefore, they had decided to reach by train bearing No.248-OKha-Ahmedabad Fast Passenger. They had purchased II Class Railway ticket of Daldi by payment of fair of Rs.24.00, however, when they asked one passenger about the train, they were replied that the said train would also go to Daldi and they had boarded the train No.7017 Rajkot-Secundrabad Express instead of train bearing No.248-OKha-Ahmedabad Fast Passenger. As there was no stoppage of train at Daldi station, they realized their mistake and, therefore, when the train at Lakhamanchi Railway Station was slowed down for want of clear signal, both had tried to get down, at that time, due to sudden jerk and jolt of the train, both fell down from the said train and dragged, as a result of which, Bharatbhai was died on the spot and Pintibhai was seriously injured and with the help of guard and others, he was taken to Than Railway Station, where Dr.Ashwin S. Satapara had given primary treatment and, thereafter, he was taken to other hospital as stated in the appeal memo.
Therefore, it has been contended that the Tribunal has failed to appreciate these aspects about the untoward incident that the appellants were not a bonafide passengers. Reference is made to the judgment of the Karnataka High Court in case of Vinodamma Vs. Union of India, reported in 2012 ACJ 306 and the judgment of the Delhi High Court in case of Harvinder Kaur Vs. Union of India, reported in 2012 ACJ 854. It is contended that the Tribunal has erred in interpreting Section 123(c)(2) read with Section 124(A) of the Railway Act, 1989 and has dismissed the applications, which has led to filing of the present appeals.
Heard learned counsel, Shri P.J. Mehta for the appellant and learned counsel, Shri Ravi Karnavat for the respondent.
As it transpires from the impugned judgment of the Tribunal, the approach is casual to say the least while considering the bonafide passengers. The Tribunal ought to have considered whether the injured and deceased were travelling as passengers in a train or not. If by inadvertence one has boarded another train, he may be subjected to the penalty but he does not cease to be a bonafide passenger, who has purchased the ticket. Therefore, the observations made by the Tribunal are as under :-
Moreover, the train for which they claimed to have purchased ticket and they were supposed to board i.e. 248 Okha-Ahmedabad Fast Passenger must have left at its scheduled time at 4.40 am and thus, their claim for being bonafide passenger of train No.7017 Rajkot-Secunderabad Express does not seem to be correct.
Further the observation also made by the Tribunal, which have been quoted with regard to the manner in which the accident has occurred is throughly misconceived. The Tribunal has observed that :-
This statement on record by way of pleading is with me for assessment of the intention of the applicant and his deceased brother. In this case, it appears that when they came to know that this train was not having scheduled stoppage at Daldi, both of them came near the entrance of the compartment of the said train, thereafter as per their say, when the train slowed down for one minute, at that time, they tried to alight from the train but unfortunately due to jerk and jolt of the train both of them fell down from the train. This part of the evidence is nothing but it is a created evidence on record to save their skin. As per evidence available on record, I have also noted in this case that the train was running at a speed of 99 to 90 KMPH, therefore, it is not possible that any prudent person would even think of alighting from the running train at such speed. But both these two brothers had come near the entrance gate and their contemplated act of alighting from the running train is nothing but an act on their part with knowledge that effort to get down, when the speed of the train was between 88 to 90 KMPH, was highly dangerous and thereby risking their life and limbs. In this case, I have also noted that there is report produced by the Track Supervisor who certified that there was no possibility of sudden jerk or jolt of the train at the particular place of incident.
The provision of Section 124A of the Railways Act, 1989 refers to the compensation on account of untoward incident. Chapter 13 of the Railway Act provides Liability of Railway Administration for death and injury to passengers due to accident. The word passenger has been defined in Section 2(29) as follows the passenger means a person travelling with a valid pass or ticket. The word accident has been defined in this chapter 123(a), which means an accident of the nature prescribed in Section 124.
The provision of Section 124 of the Act refers to the extent of the liability, which reads as under:-
124. 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.
Therefore, the provision of Section 124 read with Section 124(a) refers to the liability of the railway administration that when in course of working of a railway, an accident occurs and the passenger has suffered, the railway administration would be liable and passenger, who is injured, is entitled to claim compensation. Section 124(a) clearly provides that no compensation shall be payable under certain circumstances specified thereunder.
Therefore, when the Act provides for the liability of the railway administration in case of an accident to a passenger, the Tribunal is required to examine whether they were bonafide passengers or not. As discussed above, word passenger has been defined to mean one, who has a valid pass or ticket for travelling. In the facts of the case, both passengers were having a valid pass or ticket and, therefore, the Tribunal has erroneously proceeded on wrong presumption that they were not bonafide passengers. Further even in respect of the accident, the observations have been made in context of the statement, which is recorded without reference to the record, which has been called for from the Tribunal. It is evident from the record that there is a telephonic vardhi given by Constable, Karimbhai Kasambhai from Surendranagar Railway Station specifically mentioning the exact location of the accident, name of the appellant (Pintubhai) that he has received the injury while alighting from the train. With this telephonic message from the Surendranagar Railway Police Station, said Pintibhai has been taken to the doctor at Than. Further, there is a report to the Medical Officer, Rajkot by the Unarmed Head Constable, Surendranagar Railway Police Station for providing treatment, which reads as under :-
In the matter of Surendranagar Railway Police Station s Station Diary Entry no. 1/06 dated 13.2.06, injured person named Pintubhai Babubhai Sarvaiya, aged 21 years, occupation-labour, resident of Rajkot fell down from running train between Lakhamanchi and Daldi Railway Station and the injured was given primary treatment at Than by Dr. Shri Satapara Saheb and for the purpose of further treatment the injured is referred to you Sir. Please impart him treatment and issue certificate regarding treatment given. Dt. 13/2/06.
On perusal of the said notice, it is evident that the doctor has made an endorsement, which also refers to the facts that the appellant-patient (Pintubhai) was brought as per the police yadi wherein it has been recorded that patient Pintubhai Babubhai from Rajkot was brought by two persons viz., Ravjibhai and Ashokbhai with history of falling from the railway compartment near Daldi. This is a note to the Station Master, Than. There is another injury certificate of Dr.Rajesh Gandhi, which refers to the fact that patient, Pintubhai was brought to the hospital and he has also recorded the history of falling from the train while on a journey. We may not refer to other documents with regard to the treatment.
Reference is made in the written statement and it has been claimed by the railway administration in the written statement that :-
As per statement recorded by Guard of 7017 UP on 13/2/2006 Shri Govindbhai Madhabhai Patel before Surendranagar Railway Police on 13/2/2006 that his duty was as a Guard in 7017 UP Rajkot-Secunderabad Express, he was accompanied by the Driver of the train, Shri Upendra G. Tripathi. We had started train at 5.05 hours from Rajkot. Our train was to reach directly at Surendranagar stoppage and signal was not given at Lakhamanchi, train had slowed down for about one minute and our train had arrived at Surendranagar at 7.00 hours. But he has no knowledge if any person, which you are naming about fell down from out train and died .
The contention is also raised that the applicants are not entitled to any compensation in a self inflicted injury as defined under Section 124A(b) of the Railway Act. It is required to be noted that in the written statement, which has been filed, it has been prayed in para no.20 that after the receipt of the detailed investigation report, the respondent-railway administration may modify the written statement, meaning thereby, the written statement has been filed without verification of any such report.
Therefore the statements of the father and brother recorded by the railway police are not consistent with other records in asmuchas because on one hand, it is stated that inspite of the fact that the brother had fallen down, the appellant of First Appeal No.2917/2012 boarded another train and goes to the doctor for getting the treatment and would not bother for his brother, who fallen down. Therefore, it is not believable coupled with the fact that as stated above, Dr.Gandhi as well as the Constable at Surendranagar Railway Police Station has clearly made the vardhi. Therefore, it is evident from the records that the deceased died on the spot on account of falling down from the train and the appellant in First Appeal No.2917/2012 received injuries. Similarly, the appellants in First Appeal No.2918/2012, who are the heirs of the deceased have clearly established that the deceased, Bharatbhai was accompanied by his brother (appellant in First Appeal No.2917/2012) and both i.e. victim and deceased were travelling with a valid ticket as per their say. If they were travelling with a valid ticket, the contention that they were not bonafide passengers merely because they boarded wrong train cannot be accepted. The train for which the ticket is purchased for travelling and boarding another train with ticket would not disentitle a person for claiming a person that he was not bonafide passenger. The fact remains that both have has fallen down and evidence which ought to have been brought on record with regard to the negligence has not been placed on record. In fact boggy sought to be raised by the railway administration by recording the statements, which cannot be accepted at the face value. It is unequivocal that when a person has fallen down, his father and brother would continue with journey though they themselves would have injured and they would not have bothered or cared for the deceased brother. Therefore, the statements, which have been recorded, prima facie suggest that they are all recorded without any ring of truth particularly when it is examined in context of other documentary evidence like injuries certificate of doctor, medical evidence and even the vardhi given by railway police at Surendranagar. Therefore also, the contentions raised by the railway cannot be accepted. Therefore once it is established that they were bonafide passengers and when there is no evidence with regard to the negligence of the deceased passenger in First Appeal No.2918/2012 and the injured passenger in First Appeal No.2917/2012, the impugned order cannot be sustained.
Reference to the untoward incident is defined under Section 123(2)(c) of the Railway Act, which is required to be considered. The finding recorded that when train bearing No.248-OKha-Ahmedabad Fast Passenger, which has been wrongly boarded, has been arrived at Surendranagar and no accident of any person having fallen down or having died has been reported. As against that, there is a telephone vardhi by Surendranagar Railway Police Station with the name of deceased and others that an accident has occurred. The telephonic memo/vardhi was given by one Karim Kasam, Police Constable from Than Out Post. He said to have stated that while getting down from train bearing No.248-OKha-Ahmedabad Fast Passenger train, person has fallen down. The Medical Officer, Rajkot has been informed by the Head Constable, Surendranagar Railway Police Station referring to the entry that an accident has occurred. It is in these circumstances, the impugned order passed by the railway claims tribunal cannot be sustained and deserves to be quashed and set aside.
However in view of the documents produced with regard to the injuries sustained by the deceased and considering the aspect of dependency, it is evident that the deceased was aged about 30 years. Therefore taking his income at Rs.6,000/- deducting 4/5 for him would come to Rs.4,800/- and taking multiplier of 10 years, the appellant herein would be entitled to Rs.4,80,000/-. However the claim is restricted to Rs.4,00,000/-.
However, so far as First Appeal No.2917/2012 is concerned, the appellant, who is the injured of the accident, has suffered injuries, for which, the medical papers are produced and the treatment is also received by him at the General Hospital. However, other papers with regard to the details of injury to the appellant, Pintubhai are also produced on record with certificate of Citizen s Co-Operative Hospital, Ltd., Mumbai and also certificate of Department of Clinical Neurophysiology EMG & Evoked Potentials Bombay Hospital dated 17.04.2006 that he was required to undergo a prolong treatment including even surgery. Therefore, the appellant would not have been able to do any work for long period. There is no evidence as to his earning. Therefore considering the fact that he would be doing some work, his notional income could be Rs.4,000/- per month and, hence, actual loss of income for two years could be awarded Rs.96,000/-.
Rs.50,000/- could be awarded towards the pain shock and suffering looking to the injury. Further Rs.40,000/- could be awarded for the medical expenses. Thus, the appellant is entitled for compensation at Rs.1,80,000/- approximately. Therefore, both appeals deserve to be allowed awarding compensation to the aforesaid extent.
In the circumstances, the impugned judgment and orders passed by the Railway Claims Tribunal, Ahmedabad in Case Nos.OA 0600145 & OA 0600142 dated 17.08.2012 are hereby quashed and set aside. The appellant of First Appeal No.2917/2012 is entitled for compensation at Rs.1,80,000/- and the appellants of First Appeal No.2918/2012 are entitled for compensation at Rs.4,00,000/- at the rate of 6% per annum from the date of application. The Railway Tribunal is directed to disburse the amount of compensation to the original claimants.
With the above, both First Appeals stand allowed accordingly to the aforesaid extent. Award be drawn accordingly.
Sd/-
(RAJESH H.SHUKLA, J.) Gautam Page 16 of 16