Bombay High Court
Union Of India, Its General Manager, ... vs Smt.Sushila Bhave & Ors on 26 October, 2018
fa372.07.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
FIRST APPEAL NO.372/2007
APPELLANT : Union of India,
(Original Through its General Manager
Respondent South East Central Railway, Bilaspur.
on R.A.)
...VERSUS...
RESPONDENTS: 1. Smt. Sushila Bhave
(Original Aged 50 years, Occ. Household.
Applicant)
2. Prakash s/o Ganesh Bhave
Aged about 24 years, Occu. : NIL
3. Vilas s/o Ganesh Bhave
Aged about 18 years, Occu : Nil.
All R/o in front of M.K. Kapse
Control Shop, Ambedkar Ward,
Prabhag Number 10, Gondia,
Tq. & Distt. Gondia.
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Shri P.S. Lambat, Counsel for appellant
Shri S.K. Sable, Counsel for respondents
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CORAM : ARUN D. UPADHYE, J.
Date of reserving the judgment : 17/10/2018
Date of pronouncing the judgment : 26/10/2018
J U D G M E N T
1. Being aggrieved by the judgment and order dated 20/4/2006 passed by the Railway Claims Tribunal in O.A. ::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 03:51:50 ::: fa372.07.odt 2 No.39/OA-II/RCT/NGP/2004 the appellant/original respondent has filed this appeal. (parties are referred as per their original status). The respondents are original applicants. The respondents have filed claim for compensation of Rs.4,00,000/-. According to them, deceased Ganesh Bhave died in an untoward incident on 8/7/2003 while travelling by train No.2410 Nagpur to Gondia. According to them, when the said train was reaching cabin of Gondia Railway Station the deceased was standing near the door of the compartment and due to sudden jerk the deceased Ganesh fell down from the train and sustained injuries. He was taken to Gondia Railway Station where first aid was given to him and then he was shifted to Government KTS Hospital, Gondia. He sustained grievous fracture injuries on his person and then referred to Government Medical College, Nagpur where he died.
2. According to them, the deceased was holding railway ticket No.4930-4028 from Nagpur to Gondia. The applicant no.1 is widow and applicant nos.2 and 3 are sons of the deceased. The particulars of the claim are given in the application. According to them, Murg No.00/05 was registered under Section 174 of the Code of Criminal Procedure at Police Station Gondia. The police also ::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 03:51:50 ::: fa372.07.odt 3 drawn inquest panchanama of the dead body as well as recorded statements of the witnesses. They calculated the amount of compensation to the tune of Rs.4,00,000/-. Hence, this petition.
3. The appellant - Union of India through its General Manager South East Central Railway Bilaspur filed written statement and resisted the claim of the applicants. It is contended that as per the particulars of the application it is not possible to fell down from the train as contended by the applicants. According to the respondent - Union of India the deceased was standing on the door of the compartment which was gross violation of the safety rules and therefore, the said accident might have occurred due to the negligence on the part of the deceased. It is further submitted that the claimants were put to strict proof to prove the cause of death of deceased Ganesh. Lastly, it is submitted that the petition be dismissed.
4. After recording the evidence in the matter and on hearing both the sides, the learned Tribunal has allowed the petition and directed the respondent - Union of India to pay the compensation of Rs.4,00,000/- to the applicants within 60 days from the date of order failing which the applicants are entitled to ::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 03:51:50 ::: fa372.07.odt 4 recover the said amount with interest @ 6% per annum till final payment.
5. Feeling aggrieved by the said judgment and order, the respondent has preferred this appeal amongst the other grounds mentioned in the appeal memo.
6. From the aforesaid facts and circumstances of the case following points arise for my consideration and I record my findings thereon with reasons as under :-
POINTS FINDINGS
(i) Whether the applicants prove that
the deceased Ganesh died due to fall from the train as per the provisions of Section 123 (2) of the Railways Act, 1989 ?
Yes.
(ii) Whether the applicants are entitled
for compensation as claimed ?
Yes.
(iii) Whether the impugned judgment
No.
and order requires interference ?
(iii) What order ? As per final
order.
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fa372.07.odt
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R E A S O N S
7. I have heard the learned Counsel for the parties at length. Shri Lambat the learned Counsel for the appellant - Union of India has submitted that the learned Tribunal did not consider the evidence adduced on behalf of the Department and wrongly allowed the petition filed by the claimants. He further submitted that the claimants have failed to prove that the deceased died in an untoward incident in terms of provisions of Section 123 (c) of the Railways Act, 1989 as well as provisions of Section 124 - A of the said Act. He further submitted that as per the documents on record the person was injured by Cattle Guard and therefore, it cannot be accepted that he fell down from the train. He also submitted that the learned Tribunal has overlooked the material evidence on record and allowed the claim. The first appeal therefore be allowed. The learned Counsel for the appellant has relied upon the judgment dated 3/9/2018 passed by this Court in First Appeal No.1294/2017 in support of his submissions.
8. Shri Sable, the learned Counsel for the claimants has submitted that Murg report on record shows that the deceased fell down from the train. The deceased was holding valid ticket of ::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 03:51:50 ::: fa372.07.odt 6 railway and due to sudden jerk he fell down from the train and sustained severe injury and while taking treatment he died in the hospital. The case of the deceased falls under Section 123 (2) of the Railways Act and not under Section 124 -A of the said Act. The learned Tribunal has considered the material on record and rightly granted compensation to the applicants/claimants. He further submitted that the amendment application filed by the Railway Department was rejected and therefore, the evidence adduced on behalf of the Railway Department is not relevant as there is no pleading to that effect. The first appeal therefore be dismissed.
9. Considering the submissions of both sides and having gone through the material placed on record, I am of the view that the impugned judgment and award does not require interference of this Court. It is to be noted that in the pleadings the respondent - Union of India has only denied the averment made in the claim petition and contended that it is not possible to fall down from railway as per the particulars given in the petition. Admittedly, the amendment application filed by the respondent - Union of India was rejected by the Tribunal and therefore, the evidence adduced by the respondent - Union of India that the deceased was injured by Cattle ::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 03:51:50 ::: fa372.07.odt 7 Guard and therefore did not fall down from the railway cannot be considered. The Tribunal has rightly discarded the evidence without pleadings on record to that effect. The submission put forth on behalf of the respondent - Union of India that the learned Tribunal has not considered the evidence on record in proper perspective therefore cannot be accepted.
10. The learned Counsel has strongly relied upon the letter (Exh.52) on record which is memo issued by Station Manager of South East Central Railway, Gondia. In the said letter it is mentioned that Doctor stated that person was injured by Cattle Guard. However, the respondent - Union of India has not examined the person who has issued the memo and therefore, the said contents cannot be said to be proved. On the contrary, in this case Murg was registered by police and matter was enquired under Section 174 of the Code of Criminal Procedure. In the Murg report it is clearly mentioned that Ganesh Bhave fell down from the train. Said Murg was registered on the basis of report received from the concerned Doctor (C.M.O.) Medical College Police Booth, Nagpur. Moreover, the evidence of the claimants based upon documentary evidence goes unchallenged. The applicant no.1 is widow of the ::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 03:51:50 ::: fa372.07.odt 8 deceased and applicant nos.2 and 3 are sons and dependents on the deceased.
11. It is also not disputed that the incident took place on 8/7/2003 and the deceased was injured in the said incident and therefore, he died in the hospital. The respondent - Union of India has only contended that the applicants - claimants were put to strict proof by filing their written statement. The deceased was a bona fide passenger and also was holding valid ticket is also established by adducing the evidence. The learned Tribunal has considered the evidence in proper perspective and arrived at right conclusion. The findings recorded by the learned Tribunal are based upon the relevant and admissible evidence. The interference of this Court therefore does not require. The applicants/claimants thus are entitled for the compensation as claimed. In the facts and circumstances of the case, the judgment relied upon by the learned Counsel for the appellant is not applicable to the case at hand. In the instant case, the deceased fell down from railway and sustained injuries and therefore, his case is covered under the definition of Section 123 (c) (2) of the Railways Act, 1989. In the result, I answer point nos.(i) and (ii) in the affirmative and point no.(iii) in ::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 03:51:50 ::: fa372.07.odt 9 the negative and proceed to pass the following order.
O R D E R The first appeal is hereby dismissed. No order as to costs.
JUDGE Wadkar, P.S. ::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 03:51:50 :::