Bombay High Court
Manisha Wd/O Mukesh Jain & Ors vs Union Of India on 22 February, 2017
Author: A.S.Chandurkar
Bench: A.S.Chandurkar
1 FA324.05(J)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FIRST APPEAL NO.324 of 2005
1. Smt. Manisha wd/o Mukesh Jain, ...APPELLANTS
Aged about 28 years, Occ. Business,
2. Master Ritik s/o Mukesh Jain,
Aged about 3 years, Occ. Nil.
3. Master Ronak s/o Mukesh Jain,
Aged about 8 months. Occ. Nil.
Appellant nos. 2 and 3 being minors represented through their
natural guardian - mother Smt. Manisha wd/o Mukesh Jain.
All R/o. Opposite Attorney's Wada, Sambhaji Kasar Mohalla,
Maskasath, Itwari, Nagpur.
--Versus ---
Union of India, ..RESPONDENT
Through the General Manager,
South-East-Central Railway, Bilaspur (CG)
------------------------------------------------------------------------------------------------------
Shri M.R.Johrapurkar, Advocate for appellants.
Shri Nitin Lambat, Advocate for respondent-sole.
CORAM : A.S.CHANDURKAR,J.
DATED : 22.02.2017
ORAL JUDGMENT
By this appeal filed under Section 23 of the Railway Claims Tribunal, 1987, the appellants have challenged the judgment dated 30 th September, 2004 ::: Uploaded on - 01/03/2017 ::: Downloaded on - 02/03/2017 00:15:10 ::: 2 FA324.05(J) by which the claim application filed by the appellants has been rejected.
2. It is the case of the appellants that one Mukesh Jain, husband of appellant no.1 and father of appellant nos. 2 and 3, while traveling by Train No.8226 from Bhatapara to Bilaspur on 08.05.2003, fell down from the train. On that basis, the claim for compensation for an amount of Rs. 4,00,000/- came to be filed. The respondent took the stand that the deceased did not have fall from any train and therefore, the appellants were not entitled for any compensation. The Claims' Tribunal after considering the evidence on record held that the incident in question was not covered under Section 123 (c) of the Railways Act, 1989 and hence, dismissed the proceedings.
3. Shri M.R.Johrapurkar, learned counsel for the appellants submitted that Mukesh Jain had suffered an accidental fall from the train bearing No.8226 and therefore, as a result of this untoward incident, the appellants were entitled for compensation. He referred to the averments in the written statement to indicate the stand taken that the deceased had been travelling in the train and it was likely that he had an accidental fall. He referred to the evidence on record and submitted that the documents filed by the appellants had not been countered. He also referred to the reports submitted by the police authorities. He placed reliance upon the following decisions.
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3 FA324.05(J) (1) Union of India Vs. Bimala reported in 2012 BCI 899 and 2012(3) Mh. L J 883 (2) Sanjay Vs. Union of India reported in 2005 BCI 81 (2005 AIR Bom
409) (3) Vaishali Vs. Union of India reported in 2010(4) Bom Cr 506 (2010(5) Mh.L J 415)
4. Shri N.P.Lambat, learned counsel for the respondent supported the impugned judgment. He denied that any stand had been taken in the written statement that the deceased had been travelling in the train in question. According to him, there was no evidence on record to indicate the occurrence of the accident and therefore, it could not be said that the death occurred on account of an untoward incident. He submitted that the Tribunal rightly rejected the claim. He placed reliance on the following decisions. (1) Umadevi Vs. Union of India in FA 441/2014 dated 28.01.2016 (Nagpur Bench) (2) Union of India Vs. Magbobbee in FA No.162/2012 dated 18.02.2014 (Nagpur Bench) (3) Union of India Vs. Sitadevi in FA No.866/2010 (Nagpur Bench) (4) Jaimala Vs. Union of India in FAO 46/2014 Delhi High Court.
5. With the assistance of the learned counsel for the parties, I have perused records of the case and I have given due consideration to their respective ::: Uploaded on - 01/03/2017 ::: Downloaded on - 02/03/2017 00:15:10 ::: 4 FA324.05(J) submissions. The following point arises for consideration:
Whether the claimants are entitled for compensation?
6. Before the Claims Tribunal the appellant no.1 examined herself. She deposed that her husband had purchased ticket for his journey from Bhatapara to Bilaspur. However, the said ticket was lost or misplaced when the accident took place. She also relied upon the documents pertaining to the enquiries made by the police authorities. She admitted that she had not witnessed the accident. The respondent examined its Guard as well as Assistant Guard. They stated that there was no scheduled halt of Train No.8226 at Dadhapara Railway Station. In absence of any such report of any untoward incident, they stated that the claim was liable to be rejected.
7. In the written statement filed by the respondent, a stand was taken that the deceased was not travelling in any train nor was any railway ticket purchased. It was also stated that the train No.8226 was the train that proceeds from Bilaspur to Bhatapara and not the other way as pleaded by the claimant. In the claim application, the direction of travel of the deceased was given as travelling from Bhatapara to Bilaspur. The documents on record do not indicate recovery of any railway ticket from the deceased though the stand was taken that the deceased had purchased a railway ticket. There is no eye witness examined in support of the case. In such a situation, when the material on record placed by ::: Uploaded on - 01/03/2017 ::: Downloaded on - 02/03/2017 00:15:10 :::
5 FA324.05(J) the respondent is taken into consideration, it is seen that there is absence of any report of any untoward incident being made. The evidence of the Guard and Assistant Guard has been led. Considering the nature of evidence led by the appellants and the respondent, merely because the dead body was found near railway track, it cannot be straightway inferred that the death occurred on account of accidental fall from the train. Thus, considering the amount of evidence available on record, it is found that the same is not sufficient to hold that the deceased died on account of accidental fall from the train. The decisions relied upon by the learned counsel for the respondent support his stand.
8. The decisions relied upon by the learned counsel for the appellants are rendered on the basis of evidence on record. In the present case, the evidence placed on record is found to be insufficient to conclude that the deceased an had accidental fall from the train, resulting his death. The boarding and travel in train no.8226 as well as accidental fall is in doubt. The Claims Tribunal after considering the entire evidence rightly came to the conclusion that the appellants had not proved that said Mukesh had expired on account of untoward incident and that he was a bonafide passenger of the Railways. The point as framed is answered by holding that the judgment of the Claims Tribunal does not deserve to be interfered with.
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6 FA324.05(J)
9. In the result, I do not find any merit in the appeal. The same is accordingly dismissed, with no order as to costs.
JUDGE Andurkar ::: Uploaded on - 01/03/2017 ::: Downloaded on - 02/03/2017 00:15:10 :::