Bombay High Court
Mrs. Madhura Mohan Bhagwade vs The Union Of India Represented By The ... on 4 December, 2024
2024:BHC-AS:46697
901-as-fa-46-2015.doc
Vina Khadpe
(P.S.)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Digitally
signed by
VINA
VINA
ARVIND
FIRST APPEAL NO.46 OF 2015
ARVIND KHADPE
KHADPE Date:
2024.12.04
14:32:40
+0530
1. Mrs. Madhura Mohan Bhagwade
Widow of deceased .. Appellants
2. Master. Shravan Mohan Bhagawade
Son of Deceased
3. Mr. Bhau Anna Bahgwade
Father of Deceased
4. Mrs. Bharati Bhau Bhagawade
Mother of the Deceased
Applicant No.2 being minor apply his
mother and next friend and guardian i.e.
Appellant No.1
Versus
Union of India
represented by the General Manager,
Central Railway, C.S.T. Mumbai .. Respondent
....................
Mr. Balasaheb Deshmukh a/w Mr. Aditya Vijay Sawant for
the Appellants.
Mr. T. J. Pandian a/w Mr. Gautam Modanwal and Ms.
Noorjahan Khan for the Respondent.
...................
CORAM : FIRDOSH P. POONIWALLA, J.
JUDGEMENT RESERVED : 29 NOVEMBER, 2024
JUDGEMENT PRONOUNCED : 4 December, 2024
JUDGEMENT:
1. This Appeal has been filed under Section 23 of the Railway Claims Tribunal Act, 1987 impugning the Judgement dated 28th March, 2014 passed by the Railway Claims Tribunal, Mumbai Bench, Mumbai ("Tribunal") in Claim Application No. OA(IIu)/MCC/2011/1166 preferred by the Appellants whereby 1 of 15 ::: Uploaded on - 04/12/2024 ::: Downloaded on - 05/12/2024 01:28:32 ::: 901-as-fa-46-2015.doc the Tribunal dismissed the Claim Application of the Appellants.
2. It is the case of the Appellants that the deceased Mohan Bhau Bhagwade was residing at Bhandup and working in DTDC Courier Service at Thane. It is further the case of the Appellants that the deceased was regularly travelling on the local train between Thane and Bhandup. On 13 th June 2011, the deceased had gone to his job at Thane. After finishing his duty hours, he came to Thane Railway Station for travelling to go to Bhandup Railway Station to reach his home. At about 00:55 hrs, when the local train reached in between Thane Railway Station and Mulund Railway Station, the deceased accidentally fell down from the local train and died on 14 th June, 2011. It is also the case of the Appellants that the deceased was holding a Second Class Railway Season Ticket to travel between Bhandup and Thane and back. However, the said Season Ticket was lost during the untoward incident. It is the case of the Appellants that the deceased was a bona fide passenger at the time of the said untoward incident.
3. The Tribunal framed three substantial issues which are as under:-
(i) Whether the deceased met with an untoward incident within the meaning of Section 123(c) 2 of 15 ::: Uploaded on - 04/12/2024 ::: Downloaded on - 05/12/2024 01:28:32 ::: 901-as-fa-46-2015.doc (2) of the Railway Act during the journey by train.
(ii) Whether the deceased was bona fide passenger.
(iii) Whether the Appellants were dependents of the deceased.
ON ISSUE NO.1
4. As far as the issue No.1 is concerned, the Tribunal decided in favour of the Appellants. The said finding of the Tribunal is not challenged by the Respondent. Therefore, the finding of the Tribunal that the deceased met with an untoward incident, within the meaning of Section 123(C)(2) of the Railway Act, during his journey by the train, has became final.
ON ISSUE NO.2
5. As far as Issue No.2 is concerned i.e. whether the deceased was a bona fide passenger, the Tribunal's findings are as under :-
"No Railway Ticket has been found with the deceased nor any details of identity Card has been mentioned anywhere in the OA. MST was held has been mentioned in OA, but purchased from where to where and date of validity etc. not mentioned. Inquest Panchanama also does not state recovery of ticket. The deceased was a bona fide passenger is not established.
3 of 15 ::: Uploaded on - 04/12/2024 ::: Downloaded on - 05/12/2024 01:28:32 ::: 901-as-fa-46-2015.doc The issue is therefore decided against the applicants."
6. Mr. Deshmukh, the learned Counsel appearing on behalf of the Appellants has challenged the said finding of the Tribunal on Issue No.2. It is the case of Mr. Deshmukh that the deceased was working at DTDC Courier Service whose office is at Thane whilst the deceased was residing at Bhandup. Therefore, the deceased was regularly travelling from Bhandup to Thane and back. Mr. Deshmukh submitted that, therefore, it would be presumed that the deceased would have the Railway Season ticket for travelling from Bhandup to Thane and back.
7. Mr. Deshmukh submitted that the finding of the Tribunal that the Inquest Panchanama did not state any recovery of the ticket has to be seen in the light of the fact that the accident occurred at around 1.00 am and the panchanama was started at 3.30 am and was completed at 4.25 am. He submitted that there was a time gap between the accident and the Panchnama, during which the Railway Season Ticket could have been lost.
8. Further, Mr. Deshmukh submitted that the law on this point is quite well settled. He submitted that it is settled law that the initial burden regarding the passenger carrying a ticket could be discharged by the Applicant by filing of a relevant affidavit 4 of 15 ::: Uploaded on - 04/12/2024 ::: Downloaded on - 05/12/2024 01:28:32 ::: 901-as-fa-46-2015.doc and then the burden would shift on the Railways. In support of this submission, he relied upon the Judgements of the Hon'ble Supreme Court in Union of India Vs. Rina Devi 1 and in Doli Rani Saha Vs. Union of India 2 and on the Judgements of this Court in Mrs. Raziya Abdul Kadir Shaikh Vs. Union of India 3 and in Smt. Rekha Dilip Sapkale Vs. Union of India 4 .
9. Relying on this position on law, Mr. Deshmukh submitted that in the affidavit of evidence filed by the Appellant No.1, Mrs. Madhura Mohan Bhagwade, who is the wife of the deceased, she had categorically stated that the deceased was travelling between Thane and Bhandup and that the deceased was holding a Second Class Railway Season Ticket for travelling between Thane and Bhandup and back. Mr. Deshmukh submitted that, by Appellant No.1 so deposing in her affidavit of evidence, the Appellants had discharged the initial burden regarding the deceased having a ticket and being a bona fide passenger, and, thereafter, the burden had shifted to the Respondent to establish that the deceased was not a bona fide passenger. He submitted that the Respondent had failed to discharge this burden. In this context, he referred to the cross- examination of Appellant No.1 and pointed out that, despite 1 [2018] 4 SCR 417 2 [2024] 8 SCR 391 3 First Appeal No.939 of 2019 order dated 24.01.2022 4 First Appeal No.1097 of 2017 order dated 23.03.2021 5 of 15 ::: Uploaded on - 04/12/2024 ::: Downloaded on - 05/12/2024 01:28:32 ::: 901-as-fa-46-2015.doc Appellant No.1 having categorically stated in her affidavit of evidence that the deceased was holding a Second Class Railway Season Ticket, no question regarding the same was asked to her in the cross-examination. He submitted that even a case was not put to Appellant No.1 that her said deposition was false. Mr. Deshmukh submitted that, in these circumstances, the Appellants had proved that the deceased was a bona fide passenger carrying a Monthly Season Ticket.
10. On the other hand, Mr.Pandian, the learned counsel appearing on behalf of the Respondent, submitted that the Appellants had not discharged the initial burden to prove that the deceased was a bona fide passenger carrying a Monthly Season Ticket. He submitted that no ticket or season ticket number was furnished. Further, no certificate was furnished from the employer of the deceased stating that he was employed at Thane. He further submitted that the Appellants had not even produced the earlier monthly season ticket of the deceased. He submitted that, in these circumstances, the initial burden required to be discharged by the Appellants had not been discharged by them. He submitted that the Tribunal was right in arriving at its finding on Issue no.1.
11. I have heard the learned Advocate for the parties and 6 of 15 ::: Uploaded on - 04/12/2024 ::: Downloaded on - 05/12/2024 01:28:32 ::: 901-as-fa-46-2015.doc perused the documents on record.
12. In Rina Devi (supra), the Hon'ble Supreme Court has held that mere absence of a ticket with the injured or a deceased would not negative the claim that he was a bona fide passenger. The Hon'ble Supreme Court further held that the initial burden would be on the claimant and can be discharged by filing an affidavit of the relevant facts and then the burden would shift on the Railways and the issue can be decided on the facts shown or the attending circumstances. Paragraph 17.4 of the said Judgement is relevant and is reproduced herein under :-
"17.4 We thus hold that mere presence of a body on the Railway premises will not be conclusive to hold that injured or deceased was a bona fide passenger for which claim for compensation could be maintained. However, mere absence of ticket with such injured or deceased will not negative the claim that he was a bona fide passenger. Initial burden will be on the claimant which can be discharged by filing an affidavit of the relevant facts and burden will then shift on the Railways and the issue can be decided on the facts shown or the attending circumstances. This will have to be dealt with from case to case on the basis of facts found. The legal position in this regard will stand explained accordingly."
13. In the present case, Appellant No.1, who is the wife of 7 of 15 ::: Uploaded on - 04/12/2024 ::: Downloaded on - 05/12/2024 01:28:32 ::: 901-as-fa-46-2015.doc the deceased, has filed an affidavit of evidence dated 16 th July, 2013. In the said affidavit of evidence, she has categorically deposed that the deceased was residing at Bhandup and had an office at Thane and was regularly travelling by local train between Bhandup and Thane and back. Appellant No.1 has also categorically deposed that the deceased was holding a Second Class Season Ticket for travelling between Bhandup and Thane and back. By deposing that the deceased had his residence at Bhandup and his office at Thane, that the deceased would regularly travelling from Bhandup to Thane and back and that the deceased was holding a Second Class Railway Season Ticket which had been lost in the untoward incident, the Appellants had clearly discharged the initial burden to show that the deceased was carrying a ticket and was a bona fide passenger. The burden then shifted on to the Respondent - Railways to show that the deceased was not carrying any such ticket. The Respondent could have discharged that burden by cross- examining Appellant No.1 on this issue. However, no question, whatsoever, has been put to Appellant No.1 in cross-examination in respect of the deceased being a bona fide passenger carrying a Second Class Railway Season Ticket. As rightly submitted by Mr. Deshmukh, in cross-examination, not even a case has been put to Appellant No.1 that her statement that the deceased was 8 of 15 ::: Uploaded on - 04/12/2024 ::: Downloaded on - 05/12/2024 01:28:32 ::: 901-as-fa-46-2015.doc carrying such a ticket was false or incorrect. In my view, in these circumstances, the Appellants have discharged the initial burden of proving that the deceased was a bona fide passenger, and once this burden shifted to the Respondent, it failed to establish otherwise.
14. My aforesaid view is further buttressed by the Judgement of this Court in Mrs. Razia Abdul Kadir Shaikh (supra) in which this Court, in similar circumstances, held that the Claimant therein had discharged its burden and the Respondent had by not controverting the evidence given by the Claimant therein had failed to show that the deceased therein was not a bona fide passenger. Paragraphs 15 to 18 of the said Judgement are relevant and read as under :-
"15. A profitable reference, in this context, can be made to the Judgment of the Supreme Court in the case of Union of India vs. Rina Devi, wherein the Supreme Court inter alia considered the question of burden of proof when body was found on the railway premises in the context of the definition of the passenger. After referring to the previous pronouncements, including the judgment of the Supreme Court in the case Kamrunnissa vs. Union of India, on which strong reliance was placed by Mr. Pandian, the learned Counsel for the respondent, the Supreme Court expounded the legal position as under :
29. We thus hold that mere presence of a body on the Railway premises will not be conclusive to hold 9 of 15 ::: Uploaded on - 04/12/2024 ::: Downloaded on - 05/12/2024 01:28:32 ::: 901-as-fa-46-2015.doc that injured or deceased was a bona fide passenger for which claim for compensation could be maintained. However, mere absence of ticket with such injured or deceased will not negative the claim that he was a bona fide passenger. Initial burden will be on the claimant which can be discharged by filing an affidavit of the relevant facts and burden will then shift on the Railways and the issue can be decided on the facts shown or the attending circumstances. This will have to be dealt with from case to case on the basis of facts found. The legal position in this regard will stand explained accordingly."
(emphasis supplied)
16. The Supreme Court thus laid down in clear and explicit terms that mere absence of ticket would not negative the claim that the injured or the deceased was a bona fide passenger. Initial burden to establish that the injured / deceased was the bona fide passenger would be on the claimant. Once such an initial burden is discharged, then it is for the respondent to prove to the contrary, and the question of bona fide passenger is required to be determined on the basis of the evidence adduced in the given case.
17. Ind the case at hand, the applicant Mrs. Raziya (AW-
1) categorically affirmed that the deceased was travelling from Andheri to Dadar on a valid second class ticket. The applicant put oath behind the said statement. It is imperative to note that during the course of the cross- examination of Mrs. Raziya (AW-1), no endeavour was made to controvert the said assertion. Nay, even a suggestion was not given to Mrs. Raziya (AW-1) that the 10 of 15 ::: Uploaded on - 04/12/2024 ::: Downloaded on - 05/12/2024 01:28:32 ::: 901-as-fa-46-2015.doc deceased was travelling without a valid ticket.
18. As the claim of the Mrs. Raziya (AW-1) that the deceased was travelling on a valid ticket went uncontroverted, it cannot be said that the respondent succeeded in discharging the burden, which shifted upon it, to show that the deceased was not a bona fide passenger. The Tribunal did not advert to this aspect of the matter. The mere fact that in the contemporaneous documents it was recorded that no valid ticket was found on the person of the deceased, in the absence of challenge to the testimony of Mrs. Raziya (AW-1), could not have been thus relied upon to negative the claim of the applicant."
15. In these circumstances, the finding arrived at by the Tribunal, that it was not established that the deceased was a bona fide passenger, is erroneous, and will have to be overturned.
16. For all the aforesaid reasons, I hold that it has been established that the deceased was a bona fide passenger.
ON ISSUE NO.3
17. As far as, issue no.3 is concerned, the findings of the Tribunal thereon are as under :-
"The Ration Card indicates relationship of the applicant No.1, but in Marriage Certificate dt. 25- 11-2007, name of Mohan Bhau Bhagwade is 11 of 15 ::: Uploaded on - 04/12/2024 ::: Downloaded on - 05/12/2024 01:28:32 ::: 901-as-fa-46-2015.doc written as Brahmadande Damyanth Chandrakant, whereas in Claim Application wife's name is Mrs. Madhuri Mohan Bhagwade. Thus relationship of the wife of the deceased, within the meaning of Sec.123(b) of the Railways Act is not clear.
The relationship of the claimants is not established.
The issue is hence decided against the applicants ."
18. In respect of the finding of the Tribunal on Issue no.3, Mr. Deshpande referred to Section 123(b) of the Railway Act which defines "dependent" and pointed out that all Appellants fell within the definition of a 'dependent' contained therein. Further, Mr. Deshmukh referred to the affidavit of evidence of Appellant No.1 wherein Appellant No.1 has set out the names of the Appellants and as to how they are related to the deceased. They are the wife, son, father and mother of the deceased. Mr. Deshmukh submitted that therefore Appellant No.1 had clearly deposed that the Appellants were dependent on the deceased. Further, Mr. Deshmukh submitted that the only reason why the Tribunal answered Issue no.3 in the negative is that, in the Marriage Certificate, the name of Appellant No.1 was different. Mr. Deshmukh referred to the Marriage Certificate which clearly showed that marriage had taken place between the deceased and Appellant No.1 and that her name in the Marriage 12 of 15 ::: Uploaded on - 04/12/2024 ::: Downloaded on - 05/12/2024 01:28:32 ::: 901-as-fa-46-2015.doc Certificate was different as that was her name before the marriage. Mr. Deshmukh submitted that, as against this, in evidence, the Appellants had produced the ration card of the family of the deceased which clearly showed the names of the deceased and his father, mother and wife (who are Appellants before me). Mr. Deshmukh submitted that the said ration card clearly showed that Appellant No.1 was the wife of the deceased. Further, Mr. Deshmukh also referred to a pass-book of the State Bank of India which clearly showed the name of Appellant No.1 as Madhura Mohan Bhagwade, thereby demonstrating that she was the wife of the deceased. Mr. Deshmukh submitted that, in the light of this evidence, it was clearly established that the Appellants were related to the deceased and were dependents of the deceased. On the other hand, Mr. Pandian supported the order of the Tribunal and submitted that the Tribunal had rightly rejected the claim as the proper name of Appellant No.1 was not shown on the Marriage Certificate.
19. In my view, there is sufficient evidence on record to show that all Appellants are relatives of the deceased and are dependents within the meaning of the said term as defined under Section 123(b) of the Railway Act. The ration card of the family of the deceased clearly shows the relationship between the Appellants and the deceased, and that they are members of 13 of 15 ::: Uploaded on - 04/12/2024 ::: Downloaded on - 05/12/2024 01:28:32 ::: 901-as-fa-46-2015.doc one family. Even the pass-book of State Bank Of India produced by the Appellants shows the name of Appellant No.1 as Madhura Mohan Bhagwade thereby clearly showing that she is the wife of the deceased. Further, in her affidavit of evidence, Appellant No.1 has clearly deposed that the Appellants are relatives of the deceased i.e. the wife, son, father and mother of the deceased and are dependents of the deceased. Again this evidence of Appellant No.1 has gone unchallenged in cross- examination. In these circumstances, the Appellants have clearly established that they are dependents of the deceased. In my view, the mere fact that the name of Appellant No.1 in the Marriage Certificate was a different name cannot displace the other ample evidence produced by the Appellants in this regard. Further, it is well known that, in India, wives have different names before marriage and change both their first name and surname after their marriage. In these circumstances, and for the aforesaid reasons, I hold that the Appellants are dependents of the deceased.
20. In the light of the aforesaid findings and for the aforesaid reasons, the Appeal needs to be allowed. Hence the following order:-
ORDER
(i) The Appeal stands allowed.
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(ii) The impugned Judgement dated 28th March, 2014 stands quashed and set aside.
(iii) The Original Application preferred by the Appellants stands allowed.
(iv) The Respondent is directed to pay to each of the Appellants as compensation a sum of Rs.2,00,000/-, within a period of eight weeks from the date on which the Appellants intimate to the Respondent the details of their respective bank accounts.
(v) If the said amounts are not paid within a period of eight weeks as aforesaid, then the Appellants will be entitled to interest at the rate of 7% p.a. on the said amounts from the expiry of the said period of eight weeks till payment / realization.
(vi) There shall be no order as to costs.
Vina Khadpe [ FIRDOSH P. POONIWALLA, J. ]
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