Bombay High Court
Ramesh Bhimrao Salunkhe And Another vs Union Of India, Through The General ... on 6 March, 2020
Author: M. G. Giratkar
Bench: M. G. Giratkar
jud FA 1028.2019.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
FIRST APPEAL NO. 1028 OF 2019
1. Ramesh Bhimrao Salunkhe,
age 68 years, Occ. Nill
2. Latabai w/o Ramesh Salunkhe,
Age 59 years, occ. Labour
Both R/o Laxmi Nagar,
Behind Bus Stand,
Chalisgaon, Tah. Chalisgaon,
Dist. Jalgaon. ..... Appellants
.....Vs.....
Union of India,
through the General Manager,
Central Railway, Mumbai CST. ..... Respondent
---------------------------------------------------------------------------------------
Shri R. G. Bagul, Advocate for the appellants.
Shri N. P. Lambat, Advocate for the respondent
---------------------------------------------------------------------------------------
CORAM : M. G. GIRATKAR, J.
DATED : 06/03/2020
ORAL JUDGMENT
This is an appeal under Section 23 of the Railway Claims Tribunal Act, 1989 against the judgment of Railway Claims Tribunal, Nagpur (for short the "Tribunal") in Case No. OA(IIu)/NGP/139/2016.
2. The claimants/appellants i.e. legal heirs of the deceased Ganesh @ Vinod S/o. Ramesh Salunkhe filed claim application claiming ::: Uploaded on - 11/03/2020 ::: Downloaded on - 24/03/2020 21:16:35 ::: jud FA 1028.2019.odt 2 amount of compensation of the death of deceased in an untoward incident.
3. As per the case of the appellants, on 31.03.2014, deceased was travelling from Jalgaon to Chalisgaon by unknown train by purchasing railway ticket from Jalgaon to Chalisgaon. As there was heavy rush in the train, the deceased was standing near the door of the General Bogie, but due to sudden jerk, he was pushed by the other passengers and fell down from the running train and died on the spot.
4. The respondent-Railway contested the claim by filing written statement and submitted that there was no untoward incident as defined under Section 123(c) of the Railways Act, 1989 (for short the "Act"). Deceased might have died due to his own negligence and, therefore, it is covered by the exception to Section 124A of the Act.
5. The Tribunal after recording evidence of the respective parties came to the conclusion that deceased was not a bona fide passenger. He was not having any valid journey ticket. Documents prepared by the Railway Authority are imaginary and, therefore, the Tribunal not relied on the documents prepared by the Railway Authority and came to the conclusion that deceased was residing near the place of incident i.e. at about 1 k.m. from the spot of incident. He might have committed suicide and, therefore, came to the conclusion that the ::: Uploaded on - 11/03/2020 ::: Downloaded on - 24/03/2020 21:16:35 ::: jud FA 1028.2019.odt 3 Railway has proved the defence as carved out under clauses (a) to (e) of the proviso to Section 124A of the Act and, therefore, rejected the claim of the appellants. Hence, the present appeal by the claimants/appellants.
6. Heard learned Advocate Shri Bagul for the appellants. He has pointed out documents prepared by the Railway Authority. He has pointed out Spot Panchnama, Inquest Panchnama and Statutory Report prepared by the Railway Authority. Learned Advocate has submitted that as per those documents, deceased fell down from the running train and, therefore, it is untoward incident as defined under Section 123(c) of the Act.
Learned Advocate has submitted that ticket might have been lost in the incident that cannot be a ground to reject the claim. Learned Advocate has pointed out decision of the Hon'ble Apex Court in the case of Union of India Vs. Rina Devi reported in 2018 ACJ 1441. He has pointed out decision of Punjab and Haryana High Court in the case of Suman Sharma Vs. Union of India reported in I (2019) ACC 327 (P&H).
7. Learned Advocate Shri Lambat for the respondent strongly supported the impugned judgment. He has pointed out documents prepared by the Railway Authority and submitted that the documents are imaginary. The Tribunal applied its mind and came to the proper ::: Uploaded on - 11/03/2020 ::: Downloaded on - 24/03/2020 21:16:35 ::: jud FA 1028.2019.odt 4 conclusion. Learned Advocate has submitted that deceased was not a bona fide passenger as per Section 123(c) of the Act. Ticket was not found with the body of the deceased. Deceased might have hit by unknown train. He was residing near the spot of incident at the distance of about 1 k.m. and, therefore, the Tribunal rightly applied its mind and rightly rejected the claim of the appellants.
8. There is no dispute that deceased died in a railway accident. Following points arose for the consideration:
(a) Whether deceased was a bona fide passenger?
(b) Whether deceased died in an untoward incident as defined under Section 123(c) of the Act?
9. In respect of bona fide passenger the Hon'ble Apex Court in the case of Rina Devi (cited supra) has held that mere absence of ticket cannot negate the claim of the petitioner/claimant. Burden is on the claimant which can be discharged by filing an affidavit and then burden shifts on the Railway.
10. In the present case, the appellants have examined mother i.e. appellant no. 2. She has stated in her evidence that deceased purchased ticket and was going from Jalgaon to Chalisgaon. Then burden shifts on the Railway to disprove the claim. The Hon'ble Apex Court in the case of Union of India Vs. Prabhakaran Vijaya Kumar and ::: Uploaded on - 11/03/2020 ::: Downloaded on - 24/03/2020 21:16:35 ::: jud FA 1028.2019.odt 5 others reported in 2008 (5) ALL MR 917 has held that:
"It is a strict liability on the Railway as per Section 124A of the Act. It is as like no fault liability. The Railway has to discharge the burden to negate the claim of the appellants/claimants. Burden is always on the Railway to disprove the claim".
11. In view of the judgment of the Hon'ble Apex Court in the case of Rina Devi (cited supra), the Tribunal ought not to have rejected the claim only on the ground that no ticket was found with the deceased. It is a matter of common sense that in an accident ticket might have lost and that could not have been traced out at the time of Spot Panchnama and, therefore, it cannot be a ground to reject the claim of the claimants/appellants.
12. In respect of untoward incident, the Tribunal has wrongly applied its mind without any evidence on record. On the other hand, documents prepared by the Railway Authority i.e. Spot Panchnama, Inquest Panchnama and Statutory Report (material documents prepared by the Railway) show that deceased fell down from running train. All these documents prepared by the Railway Authority show that deceased was travelling in a train. He fell down from running train. It is untoward incident as defined under Section 123(c) of the Act and, therefore, Railway is liable to pay amount of compensation. The Tribunal not applied its mind properly. On the other hand, wrongly came to the ::: Uploaded on - 11/03/2020 ::: Downloaded on - 24/03/2020 21:16:35 ::: jud FA 1028.2019.odt 6 conclusion by discarding the material documents on record. Documents were prepared by the Railway Authority itself. Those documents i.e. Spot Panchnama, Inquest Panchnama and Statutory Report goes to show that deceased was travelling in a train. He fell down from running train and, therefore, it is untoward incident as defined under Section 123(c) of the Act.
13. Learned Advocate Shri Lambat has pointed out the evidence on record and submitted that deceased was resident at the distance of 1 k.m. from the spot of incident and, therefore, it cannot be said that he was a passenger in the train. This Court in First Appeal No. 774/2012 (The Union of India Vs. Kamla Ramdas Bhasme and another) has held that:
"Even the body was lying near the spot of the residence of the deceased that cannot be a ground to reject the claim".
The facts in the cited decision in the case of Kamla Ramdas Bhasme and facts submitted by learned Advocate Shri Lambat appear to be near about the same. This court in the decided appeal came to the conclusion that even though dead body was found near the residence of deceased that cannot be a ground to come to the conclusion that deceased might have hit by unknown train.
::: Uploaded on - 11/03/2020 ::: Downloaded on - 24/03/2020 21:16:35 :::
jud FA 1028.2019.odt 7
14. In that view of the matter, following order is passed:
(i) Appeal is allowed.
(ii) Impugned judgment is hereby quashed and set aside.
(iii) The respondent-Railway is directed to pay amount of
compensation of Rs.8,00,000/- (Eight Lakh only) to the appellants within a period of three months.
(iv) After depositing amount of compensation by the respondent-Railway, amount be distributed in equal shares to the appellant nos. 1 and 2.
Accordingly, appeal is disposed of with no order as to costs.
JUDGE SMGate ::: Uploaded on - 11/03/2020 ::: Downloaded on - 24/03/2020 21:16:35 :::