Bombay High Court
Smt. Arati Wd/O Rahul Hiwrale And Others vs Union Of India Thr. The General Manager, ... on 11 March, 2024
Author: G. A. Sanap
Bench: G. A. Sanap
2024:BHC-NAG:3276
901.FA.823.2022 railway compensation judge.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FIRST APPEAL NO.823 OF 2022
1. Smt Arati Wd/o. Rahul Hiwrale,
Aged about 30 Yrs., Occu.: Household,
2. Kavyanjali d/o. Rahul Hiwrale,
(Through natural guardian mother)
Aged about 10 Yrs., Occu.: Student,
3. Vedant s/o. Rahul Hiwrale,
(Through natural guardian mother)
Aged about 9 Yrs., Occu.: Student,
4. Pranav S/o. Rahul Hiwrale,
(Through natural guardian mother)
Aged about 8 Yrs., Occu.: Student,
All R/o. At Post Village-Anbhora,
Tah. Murtizapur, Dist. Akola
Pin No. 444107
5. Smt. Venubai Wd/o. Panditrao Hiwrale,
Aged about 71 Yrs., Occu. : Nil,
R/o. At Post Village Satkhed,
Post Gondegaon, Tah. Darwah,
Dist. Yavatmal .... APPELLANTS
// V E R S U S //
The Union of India,
Through the General Manager,
Central Railway, Mumbai, CST. ... RESPONDENT
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Ms Gayatri Diwe, Advocate for the appellants
Ms Neerja Chaubey, Advocate for the respondent
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CORAM : G. A. SANAP, J.
DATE : 11/03/2024
901.FA.823.2022 railway compensation judge.odt
2
ORAL JUDGMENT :
1 Heard finally with the consent of learned Advocates for the parties. 2 In this appeal, filed under Section 23 of the
Railway Claims Tribunal Act, 1987 (for short, 'the Act of 1987), the challenge is to the judgment and order dated 24.12.2021, passed by the Railway Claims Tribunal, Nagpur Bench, Nagpur (for short 'the Tribunal'), whereby the claim filed by the appellants/claimants for compensation under Section 16 of the Act of 1987 was dismissed.
3 Background facts:
Appellant No.1 is the wife of the deceased-Rahul Hiwrale. Appellant Nos.2, 3 and 4 are the children of the deceased. Appellant No. 5 is the mother of the deceased. The appellants claim that on 06.09.2018, the deceased, after purchasing a valid journey ticket, was traveling from Pune to
901.FA.823.2022 railway compensation judge.odt 3 Murtizapur by an unknown superfast train. They have stated that due to a sudden jerk, the deceased fell from a running train near the down loop railway line at KM No. 621-4 near platform No. 2 of Murtizapur railway station and died due to the injuries sustained by him. The journey ticket was recovered. It is stated that he was a bona fide passenger. The death was an untoward incident.
4 The respondent-railway filed the written statement and opposed the claim. It was contended that the deceased was not a bona fide passenger. He was traveling without a journey ticket. It was further contended that the deceased, while de-boarding a running train at Murtizapur railway station, fell down and died due to the injuries sustained by him. The injuries sustained were self inflicted injuries inasmuch as the act of the deceased de-boarding a moving train was intentional and negligent.
901.FA.823.2022 railway compensation judge.odt 4 5 The parties adduced the evidence. The appellant No.1 examined herself as a sole witness. The respondent- railway has examined RPF constable -Vijay More, who was on duty at Murtizapur railway station on 07.09.2018. Learned Member of the Tribunal, on consideration of the evidence, found that the claim was without substance and dismissed the same. The appellants are before this Court against that judgment and order.
6 I have heard the learned Advocate Ms Gayatri Diwe for the appellants and the learned Advocate Ms Neerja Chaubey for the respondent. Perused the record and proceedings.
7 In the facts and circumstances, the following points fall for my determination:
(i) Whether the deceased died in an untoward incident as understood by the provisions of Section
901.FA.823.2022 railway compensation judge.odt 5 123(c)(2) of the Railways Act, 1989?
(ii) Whether the deceased was a bona fide passenger travelling with a valid journey ticket?
8 Learned Advocate for the appellants submitted that even if it is accepted that Azad Hind Express Train had no scheduled halt at Murtizapur railway station, it cannot be said that the deceased was an unauthorized passenger inasmuch as he was traveling with a journey ticket that was recovered at the time of the panchanama. Learned Advocate submitted that the ticket was valid for a journey by the said train. Learned Advocate submitted that, therefore, the finding recorded by the Tribunal that the deceased was not a bona fide passenger cannot be sustained. Learned Advocate submitted that the accidental falling of the passenger while boarding or de- boarding a moving train is covered by the definition of an untoward incident. Learned Advocate submitted that even if it is accepted that the Azad Hind Express had no scheduled halt
901.FA.823.2022 railway compensation judge.odt 6 at Muritzapur, there is no evidence to prove beyond doubt that the train was moving at a high speed through the Murtizapur railway station. Learned Advocate submitted that the possibility of the stoppage of the said train due to the stop signal given before entering the train at the platform cannot be ruled out. Learned Advocate submitted that the circumstances which are in favour of the appellants need to be appreciated properly. Learned Advocate submitted that the evidence of RW-1 cannot be accepted as gospel truth because a person of ordinary prudence would not jump from a fast moving train at a railway station in the manner stated by RW-1. Learned Advocate submitted that there are two possibilities. The first possibility is that the train might have slowed down for one reason or the other at Murtizapur railway station and while de- boarding the said train at slow speed, the deceased might have fallen down. The second possibility is that after realizing that the train had no scheduled halt at Murtizapur railway station,
901.FA.823.2022 railway compensation judge.odt 7 the deceased might have standing near the door of the compartment and spending anxious moments and in the anxious state of mind, the possibility of losing his balance and falling down from the train cannot be ruled out. Learned Advocate in order to seek support to her submissions has relied upon two decisions of the Hon'ble Supreme Court in the case of Union of India .v/s. Prabhakaran Vijaya Kumar and others 1 and Union of India .v/s. Rina Devi 2 9 Learned Advocate for the respondent-railway submitted that the ticket was not valid for the journey by Azad Hind Express, which had no scheduled halt at Murtizapur railway station. Learned Advocate submitted that even if it is assumed that the journey ticket was valid for Azad Hind Express, the evidence on record proves beyond doubt that the deceased jumped from a moving train at Murtizapur railway station and came under the wheels of the train and died. 1 2009(1) Mh.L.J.27 2 (2019) 3 SCC 572
901.FA.823.2022 railway compensation judge.odt 8 Learned Advocate submitted that the injuries sustained by the deceased were self inflicted injuries on account of his negligence. Learned Advocate submitted that taking a jump from a moving train at a platform where the train has no scheduled halt could not be said to be an accidental falling of a passenger from a moving train. Learned advocate submitted that it would not fall within the definition of an 'untoward incident'.
10 I have gone through the record and proceedings. Perusal of the record would show that at the time of the panchanama a second class journey ticket of a superfast train was recovered from the trouser pocket of the deceased. The ticket was otherwise valid for a journey by Azad Hind Express, which had no scheduled halt at Murtizapur. The ticket could not be said to be invalid, merely because the train had no scheduled halt at Murizapur. The deceased traveled by the said train from Pune to Murtizapur. The ticket was valid for a
901.FA.823.2022 railway compensation judge.odt 9 journey from Pune to Murtizapur. Therefore, the finding recorded by the learned Tribunal that the deceased was not a bona fide passenger cannot be sustained.
11 Undisputedly, the appellant No.1 is not an eye witness to the incident. She has deposed before the Tribunal in support of the claim on the basis of the police case papers. RW-1 is the only witness examined by the railway to place on record the first hand account of the incident. On 07.09.2018, he was on duty at Murtizapur railway station. He has stated that the down Azad Hind Express, which had no scheduled halt at Murtizapur, passed through the down loop line of platform No.2. He has stated that at that time he noticed that one person, while de-boarding, jumped from the train on the platform. He has stated that the passenger fell down in the gap between the platform and track and sustained serious injuries and died on the spot. He has stated that he reported the incident to Deputy Station superintendent, Murtiazapur. As
901.FA.823.2022 railway compensation judge.odt 10 far as this witness is concerned, he has stated that the deceased tried to de-board the running train and therefore, he fell down.
12 RW-1 has not stated in his evidence the approximate speed of the train at the spot of the incident. He has not made a positive statement in his evidence that the said train passed through Murtizapur Railway Station without a stop signal. The TSR of this train has not been placed on record. The report of the loco pilot of the said train or the guard of the said train about the approximate speed of the train at the spot of the incident has not been placed on record. In my view, such evidence was necessary because, in ordinary circumstances, a person of ordinary prudence placed in the position of the deceased would not either dare or think of jumping from the fast moving train on the platform. The passenger, after realizing that the train in question has no scheduled halt at his destination, is bound to spend anxious
901.FA.823.2022 railway compensation judge.odt 11 moments. The passenger can take a chance to de-board such a train if the train slows down at the railway station. A passenger caught in such a situation is likely to explore the possibility of de-boarding a train when the speed of the train slows down. In this situation, the possibility of the deceased de-boarding the train on slowing down the train can't be ruled out. In my view, all these facts are required to be considered while deciding the claim application. The deceased after undertaking a journey from Pune to Murtizapur for about 600 km is not likely to jump from the train at the platform. 13 It is to be noted that if the deceased knew that the train had no scheduled halt at Murtizapur, he would have alighted at Akola, which is an earlier station. The distance between Akola and Murtizapur is hardly 40 km. In these circumstances, the deceased would not have taken the risk of jumping from the fast moving train. The evidence of RW-1 that the passenger jumped from the train at Murtizapur railway
901.FA.823.2022 railway compensation judge.odt 12 station therefore cannot be accepted as gospel truth in the circumstances and the material available on record. 14 The next station where the train would have halted was Badnera. The deceased was a resident of village Satkhed, Taluka Darwah. The deceased would have alighted at Badnera railway station, which is at a distance of 47 km from Murtizapur. Therefore, the case put forth by RW-1 that the deceased jumped from a running train at a high speed cannot be accepted.
15 In this context, it would be necessary to consider the law laid down by the Apex Court in the case of Prabhakaran (supra) . As per Section 123(c)(2) of the Railways Act, 1989 an accidental falling of any passenger from a train carrying passengers is an untoward incident. In the case of Prabhakaran (supra) , the passenger fell down while boarding a moving train and died. In this case, the deceased fell from a
901.FA.823.2022 railway compensation judge.odt 13 moving train which had no scheduled halt at Murtizapur. The Apex Court has held that the expression "accidental falling of a passenger from a train carrying a passengers" includes accidents when a bona fide passenger is trying to enter a railway train and falls down during the process. It is held that in such a case where the expression is possible of two interpretations, then the interpretation which is in favour of the claimant shall be adopted. It is held that the interpretation which advances the object of the statutes and serves it purpose should be preferred. It is further held that Section 124-A of the Railways Act, 1989 lays down a strict liability or no fault liability in case of a railway accident. It is held that if a case comes within the purview of Section 124-A it is wholly irrelevant as to who was at fault.
16 The Apex Court in the case of Rina Devi (supra) has held that the negligence or contributory negligence could not be a ground to deny the claim when the death is an
901.FA.823.2022 railway compensation judge.odt 14 untoward incident. Para No. 25 is relevant for this purpose. It is extracted below:
"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 judgment of this Court in United India Insurance Co. Ltd. versus 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."
17 The Apex Court has held that for the purpose of causing self-inflicted injury the intention would be required. It is held that mere negligence or negligence of a particular degree, could not be considered in such a case. It is held that
901.FA.823.2022 railway compensation judge.odt 15 doing so would amount to invoking the principle of contributory negligence, which cannot be done in the case of liability based on the no fault theory. In this case, the Apex Court has held that death or injury in the course of boarding or de-boarding a train will be an untoward incident entitling a victim to 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.
18 In this case, the deceased was travelling by Azad Hind Express from Pune to Murtizapur with a valid journey ticket. The ticket could not be said to be invalid merely because the said train had no scheduled halt at Murtizapur. The deceased was bona fide passenger travelling with valid journey ticket by Azad Hind Express when the incident occurred. The possibility of the deceased falling while spending an anxious moments after realizing that the train had no scheduled halt at Murtizapur cannot be ruled out. The
901.FA.823.2022 railway compensation judge.odt 16 possibility of the deceased jumping from a fast moving train on a platform cannot be accepted. The possibility of the deceased taking a chance to de-board the train when it was slowed down at Murtizapur Railway Station has been established on the basis of the material on record. This is the only possible inference one can draw on the absis of the material. No evidence is adduced by the railway to establish that before arrival of Murtizapur railway station, the said train was not stopped at the stop signal. There is no evidence about the approximate speed of the train at the spot of the incident. Therefore, in my view, the learned Advocate is fully justified in relying upon the above decisions in support of her contentions. The accidental falling of a passenger while de- boarding a train in this manner could be said to be an untoward incident. Perusal of the record would show that the learned Member of the Tribunal has not properly appreciated the evidence and the circumstances. Accordingly, I conclude
901.FA.823.2022 railway compensation judge.odt 17 that the deceased was a bona fide passenger travelling with a valid journey ticket. The death, in the facts and circumstances, was in an untoward incident. As such, I record my findings on both points in the affirmative.
19 Learned Advocates for the parties submit that, in view of the Notification issued by the Ministry of Railways (Railway Board) dated 22.12.2016 which came into effect from 01.01.2017, in case of a death claim, the claimants are entitled to get compensation of Rs.8,00,000/- (Rupees Eight Lacs only). The claimants are entitled to get the interest on this amount. The Court has discretion to quantify the interest. The interest can be awarded from the date of the incident or from the date of the application depending upon the facts of the case. It needs to be stated that this claim is filed under the Act, which is a beneficial piece of legislation. As far as possible, under such legislation the Court has to exercise the discretion
901.FA.823.2022 railway compensation judge.odt 18 in favour of the claimants. The discretion cannot be exercised in favour of the claimants if there is a delay in filing the claim application. Ordinarily the interest needs to be awarded from the date of the incident. In this case, the date of incident is. 07.09.2018. The claim was filed within limitation. In the facts and circumstances, the claimants would be entitled to get the interest on the amount of compensation @ of 6% p.a. from the date of incident.
20 Accordingly, I pass the following order.
ORDER
(i) The first appeal is allowed.
(ii) The judgment and order dated 24.12.2021 passed
by the Railway Claims Tribunal, Nagpur Bench, Nagpur in Claim Application No. OA(IIu)/NGP/195/2019 is quashed and set aside. The claim application is allowed.
(iii) The respondent-railway is directed to pay Rs.8,00,000/- (Rupees Eight Lacs Only) towards compensation
901.FA.823.2022 railway compensation judge.odt 19 to the appellants with interest @ 6% per annum from the date of the incident i.e. 07.09.2018, till its realization.
(iv) The appellant No.1 shall be entitled to get 50 % of the amount of compensation.
(v) The appellant No.2, 3 and 4 together shall be entitled to get 30 % of the amount of compensation.
(vi) The appellant No.5 shall be entitled to get 20 % of the amount of compensation.
(vii) The amount shall be deposited within four months with the Registry of this Court. On deposit of the amount same shall be paid over to the respondents.
21 The First appeal stands disposed of, accordingly in the aforesaid terms. No order as to costs. Pending applications, if any, stand disposed of.
(G. A. SANAP, J.) Namrata Signed by: Miss Namrata Suryawanshi Designation: PA To Honourable Judge Date: 16/03/2024 17:42:35