Bombay High Court
Union Of India Thr. The Gen. Manager vs Sitabai W/O Rama Bele And Anr on 28 November, 2016
Author: S.B. Shukre
Bench: S.B. Shukre
J-fa866.10.odt 1/8
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL No.866 OF 2010
Union of India,
Through the General Manager,
South Central Railway,
Secunderabad. : APPELLANT
...VERSUS...
1. Sitabai w/o. Rama Bele,
Aged about 45 years,
Occupation : Household.
2. Shri Rama s/o. Ratan Bele,
Aged about 50 years,
Occupation : Labour.
Both R/o. C/o. P.V. Nandedkar,
New Monda, Nanded,
Taluka and Distt. Nanded. : RESPONDENTS
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Shri Nitin Lambat, Advocate for the Appellant.
Shri Sable, Advocate for the Respondents.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
CORAM : S.B. SHUKRE, J.
th
DATE : 28
NOVEMBER, 2016.
ORAL JUDGMENT :
1. This is an appeal preferred against the judgment and order dated 15.2.2010 delivered by the Member, Railway Claims Appellate ::: Uploaded on - 30/11/2016 ::: Downloaded on - 01/12/2016 00:39:15 ::: J-fa866.10.odt 2/8 Tribunal in Claim Petition No.136/2006 thereby allowing an application filed under Section 124-A of the Railways Act 1989 awarding compensation of Rs.4,00,000/- for the loss suffered on account of death of Suresh, son of the original applicants, who are the respondents in this case in an untoward incident.
2. The facts leading to filing of this appeal are stated in brief as under :
On 18.6.2006, deceased Suresh, son of the respondents, was traveling by train No.319 from Rapalie to Secunderabad. He had purchased a valid railway ticket for such travel. As the train reached at the distance measuring stone, KM 40/14-25, lying in between railway station Ramanpeth and Veligunda, the deceased who had gone to the end of bogie for using the toilet, accidentally fell off the train as the door of the train was left open and the bogie had suffered from jerks resulting in causing imbalance to the deceased. Some time thereafter, one Gangman or the Keyman of the railway by name Lingaya discovered a dead body of a unknown man lying about 5 meters away from the railway track. He reported the incident to the Station master, who reported the incident to GRP. An accidental case was registered and necessary inquiry was carried out by the Police and inquest panchanama was drawn out. After noticing the fact that there were signs of rolling over near the spot where the dead body was lying and the scratch marks ::: Uploaded on - 30/11/2016 ::: Downloaded on - 01/12/2016 00:39:15 ::: J-fa866.10.odt 3/8 present over the legs of the dead body, it was thought that there was possibility of the dead body being rolled over the surface near the railway track. Later on, it was identified to be of Suresh, son of the respondents.
Considering these reports, respondents felt that their son died only because of accidental fall from the running passenger train No.319 and, therefore, they filed a claim application for compensation under Section 124-A of the Railways Act.
On merits of the case, learned Member of the tribunal found the claim to be having substance in it and therefore, allowed the claim application and granted compensation of Rs.4,00,000/- to the respondents together with interest at the rate of 7% p.a. by judgment and order dated 15.2.2010. It is the same judgment and order, which are under challenge in the present appeal.
3. I have heard Shri Nitin Lambat, learned counsel for the appellant and Shri Sable, learned counsel for the respondents. I have carefully gone through the record of the case including the impugned judgment and order.
4. The following points arise for my determination are :
i) Whether the deceased Suresh was the passenger
travelling by passenger train ?
ii) Whether he was the victim of untoward incident ?
5. It is the contention of the learned counsel for the appellant ::: Uploaded on - 30/11/2016 ::: Downloaded on - 01/12/2016 00:39:15 ::: J-fa866.10.odt 4/8 that essential ingredients of the entitlement to receive compensation under Section 124-A of the Railways Act have not been proved in any manner in this case by the respondents and, therefore, a grave error of fact and law has been committed by the learned Member of the Tribunal in passing the impugned judgment and order. On the other hand, learned counsel for the respondents states that there is a categorical finding recorded by the learned Member in the impugned judgment and order to the effect that the deceased Suresh was travelling by train No.319 as a passenger and that he met with an accidental death due to his sudden fall from this running train and that this finding, he further submits, is based upon the evidence available on record. He also submits that the railway i.e. the appellant failed to bring on record any other probability which might have been responsible for bringing about death of Suresh. Therefore, he further submits, there is no need to make any interference with the impugned judgment and order.
6. Upon careful consideration of the evidence available on record, I am of the view that there is great substance in the argument of learned counsel for the appellant and no merits in the argument of learned counsel for the respondents. The reasons for this conclusion are stated in forgoing paragraphs.
7. In order to prove the entitlement to receive the compensation under Section 124-A of the Railways Act, it is necessary for the claimant ::: Uploaded on - 30/11/2016 ::: Downloaded on - 01/12/2016 00:39:15 ::: J-fa866.10.odt 5/8 to prove two essential ingredients of such an entitlement and they are, i) the person receiving injury or dying must have been the passenger on board the passenger train, and ii) the injury or the death must have been the result of an untoward incident. The explanation to section 124-A of the Railways Act clarifies that for the purposes of this Section "passenger", inter-alia, include a person who has purchased a valid ticket for travelling by a train carrying passengers and become a victim of an untoward incident. Under Section 123(c) "untoward incident" interalia means the accidental falling of any passenger from a train carrying passengers. So, the first requirement for a person claiming compensation under Section 124-A of the Railways Act is to prove the fact that the person suffering injury or dying, was a passenger on board a train carrying passengers. The second requirement would be that the claimant brings on record sufficient evidence to enable the Tribunal to record a finding that such injury or death was the result of an accidental fall of the passenger from a train carrying passengers.
8. Upon carefully considering the evidence available on record, I find that the very first requirement of a claim case under Section 124-A of the Railways Act has not been fulfilled in this case. In support of claim, the respondents examined Sitabai i.e. the respondent No.1 vide Exh.-AW 1 and closed their evidence. Admittedly, as seen from the admissions given by AW 1 Sitabai, she had no personal knowledge about ::: Uploaded on - 30/11/2016 ::: Downloaded on - 01/12/2016 00:39:15 ::: J-fa866.10.odt 6/8 deceased Suresh purchasing railway ticket. In her examination-in-chief also, she has not stated any such thing as to enable the Court to term her being a witness to the pre-accident events. She has not stated that her son left home on 18.6.2006 or prior to that or at so and so time and that while leaving the house, her son told her that he was going to some place by some train. She has only stated that on 18.6.2006, her son purchased a railway ticket from Rapalie Railway Station and then was travelling from Rapalie to Secunderabad by train No.319. She has not disclosed in any manner the source of her such information. On the contrary, in her cross-examination, she admits that she did not have any personal knowledge about her son buying ticket for going to Secunderabad by boarding train No.319. AW 1 Sitabai also does not say that she was told by her son that he was intending to travel by train No.319 on the fateful day. No other circumstances have been brought on record in order to accept the case of the respondents by the rule of preponderance of probabilities that deceased Suresh had purchased a train ticket and on this ticket, he was travelling on board train No.319.
9. It is an admitted fact that no train ticket was recovered from either the person of deceased Suresh or from the spot where his dead body was found. Absence of railway ticket does not always mean that a person is not a passenger within the meaning of Section 124-A. It is only one of the factors which would go against the claimant. But, it is not ::: Uploaded on - 30/11/2016 ::: Downloaded on - 01/12/2016 00:39:15 ::: J-fa866.10.odt 7/8 such a factor as would push the claimant straight away out of the Court.
The claimants can still prove this fact by bringing on record other facts and circumstances. However, in the instant case, the claimants have utterly failed to do so and I have already pointed out this lacuna previously.
10. Then, there is also a doubt about deceased Suresh's such falling from the train No.319. The reason being that admittedly, as seen from the evidence of RW 2 Shivaji, Train No.319 had crossed railway station Valigonda at 5.09 hours of 18.6.2006 and whereas, dead body of Suresh was discovered as lying near the railway track on the same day about 11 hours thereafter i.e. at about 16.10 hour. RW 2 Shivaji states that, on that day 9 up-trains and 5 down-trains passed through the railway station Valigonda and yet neither the Locopilot nor guard nor any passenger of any of these trains reported the incident of a dead body lying near the railway track. This evidence would bring on record several other probabilities and in the absence of any other evidence being brought on record by the respondents, the probability of deceased Suresh accidentally falling from train No.319 becomes of very weak character and therefore, it has to be said that respondents could not prove their claim that deceased Suresh accidentally fell from train No.319.
11. The result of the aforesaid discussion would be that the respondents could not prove, even by the principle of preponderance of ::: Uploaded on - 30/11/2016 ::: Downloaded on - 01/12/2016 00:39:15 ::: J-fa866.10.odt 8/8 probability that their son, deceased Suresh was a passenger on board the train No.319 and that he was the victim of an untoward incident. All these facts and circumstances which give rise to the aforestated conclusion, I must say, have not been considered at all by the learned Member of the Railway Claims Tribunal. They are material in nature and change the whole tenor of the claim. Non-consideration of the material aspects is the illegality committed by the learned Member of the Railway Claims Tribunal in appreciating the evidence on record. Therefore, the findings recorded in respect of all issues are incorrect and illegal. The impugned judgment and order cannot be sustained in law and needs to be quashed and set aside. Both the points are answered accordingly.
12. The appeal is allowed.
13. The impugned judgment and order are quashed and set aside.
14. The claim application stands dismissed.
15. The parties to bear their own costs throughout.
16. The amount deposited in this Court be refunded to the appellant with accrued interest, if any, within four weeks.
JUDGE okMksns ::: Uploaded on - 30/11/2016 ::: Downloaded on - 01/12/2016 00:39:15 :::