Bombay High Court
Mohd. Osman S/O Late Abdule Gafoor ... vs Union Of India Through General Manager, ... on 20 June, 2024
Author: G. A. Sanap
Bench: G. A. Sanap
2024:BHC-NAG:6301
1 FA 707.19 (J)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
FIRST APPEAL NO. 707 OF 2019
APPELLANTS : Mohd. Osman S/o Late Abdule Gafoor,
Aged 39 years, Occu. Labour,
R/o Door No. 6-1-522/130,
Mahabharat Nagar, Khairatabad,
Hyderabad, A.P.
(Died during pendency of application on 08.04.2012)
through his Legal Representatives.
1(A) Ismail Bee W/o late Mohd. Osman,
Age about 41 years, Occu. Labour,
1(B) Tayaba D/o late Mohd. Osman,
Age about 19 years, Occu. Education,
1(C) Nazayha D/o late Mohd. Osman,
Aged about 17 years, Occu. Education,
1(D) Mohd. Javeed S/o late Mohd. Osman,
Age about 13 years, Occu. Education,
Appellant (legal representative nos.1(C) &
1(D) are minors, represented by their
natural guardian mother applicant no.1(A).
All R/o Door No. 6-1-522/130,
Mahabharat Nagar, Khairatabad,
Hyderabad, A.P.
VERSUS
RESPONDENT : Union of India,
through General Manager,
South Central Railway,
3rd Floor, Rail Nilayam,
Secunderabad - 500 071.
2 FA 707.19 (J)
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Mr. Vilas M. Deshpande, Advocate for the appellants
Mr. Pankaj V. Navlani, Advocate for the respondent
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CORAM : G. A. SANAP, J.
Judgment Reserved on : MAY 06, 2024.
Judgment Pronounced on : JUNE 20, 2024
JUDGMENT
1. In this appeal, filed under Section 23 of the Railway Claims Tribunal Act, 1987 (hereinafter referred to as "the Act of 1987" for short), challenge is to the judgment and order dated 25.07.2018 passed by the Railway Claims Tribunal, Nagpur Bench, Nagpur, whereby the claim filed by the appellant-claimant under Section 16 of the Act of 1987 for compensation was dismissed.
2. BACKGROUND FACTS :-
During pendency of the claim application, original applicant -
Mohd. Osman died. Present appellants are his legal representatives. It is the case of the appellants that on 25.11.2008, Mohd. Osman was travelling by train No. 12724 - A.P. Express from Hyderabad to Ballarshah with a valid journey ticket. The deceased while travelling, on account of heavy and violent jerks to the train, fell down at Kilometre no. 172/13-16 between Wirur-Makudi Railway Station. He sustained serious injuries to his legs. His legs were
3 FA 707.19 (J) amputated. The injured (now deceased), according to the appellants, was a bona fide passenger travelling with a valid journey ticket. He sustained injuries due to fall from a moving train at the spot of the incident.
3. The respondent -Railways filed the written statement and opposed the claim. It was contended that the injured was not a bona fide passenger. According to the Railways, the injured attempted to commit suicide on the railway track. At the spot of the incident, the deceased came on the railway track and lied down in front of a Goods train. The Loco Pilot of the goods train could not stop the train inasmuch as it was running at a speed of 70 KMPH. The Loco Pilot had reported the incident to the Station Master.
4. The parties have adduced evidence before the Tribunal. Evidence of injured Mohd. Osman was recorded before his death. The respondent- Railway examined two witnesses. Learned Members of the Tribunal, on consideration of the evidence, found that the ticket was not a valid journey ticket and the injuries sustained by the injured were not in an untoward incident. There was no substance in the claim and ultimately dismissed the claim. Being aggrieved by the dismissal of the claim, the appellants are before this Court in appeal.
4 FA 707.19 (J)
5. I have heard Mr. Vilas M. Deshpande, learned Advocate for the appellants and Mr. Pankaj Navlani, learned advocate for the Respondent. Perused the record and proceedings.
6. In the facts and circumstances, following points fall for determination :-
1. Whether injured-Mohd. Osman was a bona fide passenger travelling by the train in question with a valid journey ticket ?
2. Whether the injuries sustained by injured Mohd. Osman were in an untoward incident as understood by Section 123
(c)(2) of the Railways Act, 1989 ?
7. Mr. Vilas Deshpande, learned advocate for the appellants submitted that the journey ticket was recovered from the diary of the injured, which was lying on the spot. Learned advocate submitted that the ticket was purchased for a journey from Hyderabad Deccan to Ballarshah on 25.11.2008. Learned advocate submitted that learned Members of the Tribunal have failed to properly appreciate the oral and documentary evidence in the form of railway ticket, which is placed on record. Learned advocate submitted that it is not the case of the Railways that this ticket was manipulated or planted to support the claim of the injured. Learned advocate further submitted that the Loco Pilot Book, where an entry of the incident was made by the Loco Pilot of the goods train, was not produced. Learned advocate submitted that the Loco 5 FA 707.19 (J) Pilot was required to enter the substance of the incident with other particulars in the Loco Pilot Book in terms of the Railway Passengers (Manner of Investigation of Untoward Incidents) Rules, 2003. Learned advocate submitted that production of Loco Pilot Book with this entry was necessary. Learned advocate further submitted that the explanation placed on record by the Loco Pilot (RW1) to the effect that it is not traceable, cannot be accepted. Learned advocate further submitted that failure to produce the Loco Pilot Book was a serious lapse in this case and therefore, learned Members ought to have rejected the evidence of RW1. Learned advocate submitted that the time of purchase of journey ticket is not legible and therefore, the contention of the Railways that the ticket was purchased at 12.00 am on 25.11.2008 cannot be accepted. Learned advocate submitted that considering the distance from Hyderabad to the spot of the incident and time of arrival of concerned train at the spot of the incident, the case of the respondent-Railways that the injured committed suicide on the spot of the incident, cannot be accepted. Learned advocate submitted that the statement of the injured was recorded, wherein he has stated the first hand account of the incident. Learned advocate submitted that therefore, the case of attempt to commit suicide by the injured at the spot of the incident, cannot be believed. Learned advocate submitted that in the absence of contemporaneous documents, the evidence of the Loco Pilot cannot be believed.
6 FA 707.19 (J)
8. Mr. Pankaj Navlani, learned advocate for the respondent-Railway has supported the impugned judgment and order passed by the Tribunal. Learned advocate submitted that the first hand account of the incident placed on record by RW1 - Loco Pilot of the goods train, cannot be disbelieved. Learned advocate submitted that the oral evidence of RW1 has been corroborated by the contemporaneous document in the form of recording of information by the Station Master received from the Loco Pilot of the goods train. Learned advocate submitted that the Members of the Tribunal have properly appreciated the evidence on record and therefore, the judgment and order does not warrant interference.
9. In order to appreciate the rival submissions, I have gone through the record and proceedings. It needs to be stated at the outset that the injured died after recording his evidence. At the time of the statutory inquiry, statement of the injured was recorded on 21.10.2010. In his statement, he had narrated the incident. The journey ticket was found in a diary, which was lying on the spot. This fact has been recorded in the spot panchanama, which was carried out on 26.11.2008. The journey ticket is placed on record. As far as the time of purchase of the ticket is concerned, it is not legible. The ticket was purchased on 25.11.2008 for journey from Hyderabad Deccan to Ballarshah. The journey ticket was not sent for verification. It was the responsibility of the 7 FA 707.19 (J) Railways to establish by cogent evidence that this journey ticket was not a valid journey ticket. The injured, as can be seen from the record, was shifted to the hospital from the spot of the incident. He had sustained injuries to his legs. It is undisputed that his legs were amputated. The respondent-Railway was required to aver and prove that this ticket was manipulated or planted. Perusal of the record would show that the possibility of manipulation or plantation of ticket has been completely ruled out. His statement was recorded in October, 2010. The injured was resident of Ballarshah. The spot of the incident is far away from Ballarshah. It is not the case of the respondent- Railways that the family members of the injured had come to the spot and planted the ticket. The police officer, who conducted the spot panchanama, had no reason to plant the ticket. The incident, admittedly occurred on 25.11.2008. The ticket was purchased for a journey from Hyderabad Deccan to Ballarshah on 25.11.2008. The oral evidence of the injured has been corroborated by the documentary evidence. The evidence is sufficient to prove that the deceased was a bona fide passenger travelling with a valid journey ticket.
10. The next important question is whether the injuries sustained by the injured were in an untoward incident or not? It is the case of the Railways that the injured attempted to commit suicide on the railway track. Accidental 8 FA 707.19 (J) falling of a passenger from a running train carrying passengers falls within the ambit of an 'untoward incident' as defined under Section 123(c)(2) of the Railways Act, 1989 (hereinafter referred to as "the Act of 1989") As per the provisions of Section 124-A of the Act of 1989, the liability to pay compensation is regardless of any wrongful act, neglect or default on the part of the Railway Administration. The Railways cannot be held liable to pay compensation in case death of a passenger or injury to a passenger is caused due to any of the reasons enumerated in clauses (a) to (e) of the proviso to Section 124-A. It is the case of the respondent-Railways that the injured all of a sudden came on the track and lied down on the track in front of a goods train. RW1 was the Loco Pilot of the goods train. Learned Members of the Tribunal have accepted the evidence of RW1 and concluded that the case was covered by the proviso to Section 124-A of the Act of 1989. The evidence of RW1 has been challenged by the appellants. In the submission of learned advocate for the appellants, in the absence of production of Loco Pilot Book, oral evidence of RW1 cannot be given much weightage. Perusal of evidence of RW1 would show that he has stated that the Loco Pilot Book was not traceable and therefore, he could not produce the same. It needs to be stated at this stage that maintenance of Loco Pilot Book and its presentation are very important aspects. As per the provisions of the Railway Passengers (Manner of Investigation of Untoward Incidents) Rules, 2003, a Loco Pilot is required to 9 FA 707.19 (J) note occurrence of an untoward incident and report the same to the nearest Station Superintendent. This issue has been considered by the coordinate bench of this Court in Motilila Wd/o Pruthviraj Gajbhiye and others vs. Union of India, reported at 2023(3) Mh.L.J. 537. Paragraphs 11 and 12 are relevant for addressing the issue. These paragraphs are extracted below :
11. Learned counsel further draws the attention of this Court to the Accident Manual to submit that in the case of an untoward incident, the Railway Passengers (Manner of Investigation of Untoward Incidents) Rules, 2003 as amended in 2007 (the "Railway passenger untoward Incidents Investigation Rules"), clearly require any railway servant including guard and Loco Pilot of the train on coming to know of occurrence of an untoward incident to report the incident immediately to the nearest station superintendent. He refers to page 202 of the said manual and submits that the guard and/or the Loco Pilot are duty bound to collect and enter in the memo book the particulars such as time and place when the body was found, position of the body, blood stains on the ballast, rail, sleeper etc., extent of injuries, whether inflicted by a train or otherwise and other personal details of the deceased. The said paragraph is usefully quoted as under:-
"(b) When life is extinct.
i) When a dead body is found on or near the railway track by any railway employee or any person is run over and killed by a train, the Guard and/ or Loco Pilot of the train or the railway employee concerned must ensure recording of all available evidence. The dead body should not be removed until the arrival of the police as the chances of some clues which may lead to detection of causes may be interfered with. However, to clear the line for the movement of subsequent trains, the dead body may be removed from the line, but in doing so, the movement should be minimum required. Handling of the dead body by many people should be avoided so as to keep the available finger prints undisturbed. Information of the fact must be given to the police authority and RPF without loss of time.
10 FA 707.19 (J)
ii) The following particulars must be collected and furnished in the memo by the Guard and/or Loco Pilot of the train or by the person who happens to find the body-
(a) time and place the body was found ;
(b) position of the body in relation to the track;
(c) blood strains on the ballast, rail, sleeper etc.,
(d) extent of injuries ;
(e) whether injuries inflicted by a train or otherwise;
(f) approximate age;
(g) sex;
(h) name, father's name and address if available;
(i) position of clothing and any other evidence found on or near track;
(j) the name of the informer, his father's name and full address." (emphasis supplied)
12. From the above, it is clear that not only collection, entry and furnishing of the aforesaid details of an untoward incident in the Loco Pilot's Diary is mandatory but also its maintenance as well as its preservation.
11. It is evident that the Loco Pilot Book is not on record. The reason has been stated for non-production of the same. It needs to be stated that when such an incident occurs, the Loco Pilot is required to be more careful while preserving the Loco Pilot Book. He is required to take care. The railway police, who conducted the investigation, were supposed to collect a copy of the Loco Pilot Book. The deceased was a bona fide passenger travelling with a valid journey ticket by A.P.Express from Hyderabad Deccan to Ballarshah. The injured had travelled all the way from Hyderabad to the spot of the incident. There was no reason for the deceased to get down at the spot of the 11 FA 707.19 (J) incident and attempt to commit suicide. The deceased travelled all the way from Hyderabad to the spot of the incident, which clearly indicates that he was in a fit state of mind and health. There is no evidence collected during the police investigation that there was any reason for the deceased to commit suicide. The injured was a family man. There is no contemporaneous documentary evidence to corroborate the oral evidence of the Loco Pilot. The mandatory requirement of maintenance of Loco Pilot Book has not been complied with. Therefore, in my view, much weightage cannot be given to the evidence of the Loco Pilot (RW1). The claim could not have been dismissed by placing implicit reliance on the evidence of the Loco Pilot.
12. The evidence of the injured was recorded. The injured was subjected to cross-examination. A statement of the injured was recorded during the course of the inquiry. At the time of recording his evidence, he had placed on record the first hand account of the incident. I do not see any reason to discard and disbelieve the evidence of the injured. His cross- examination would show that he has not given a single admission to fortify the defence of the respondent-Railways. It is pertinent to note at this stage that if the incident had occurred as narrated by the Loco Pilot, then the possibility of injury to the legs of the injured would have been remote. He has stated that the injured stood on the railway track and with folded hands he was looking at 12 FA 707.19 (J) him. He has stated that in the same position he lied down on the track. In this situation, injury to the legs was not possible. I do not see any reason to discard and disbelieve the evidence of the injured that while travelling by train, he fell from a running train and sustained injuries. In the facts and circumstances, I conclude that the injuries sustained by the injured were in an untoward incident.
13. The next issue is about the quantum of compensation. The photograph of the injured is on record. It is evident on perusal of the photograph that both legs of the injured were amputated. In my view, therefore, the case of the injured would fall under clause (3) of Part-II of the Schedule appended to the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990. In view of the above, I record my finding on both the points in the affirmative.
14. In this case, the accident occurred on 25.11.2008. Learned advocate for the appellants/claimants submitted that after issuance of Notification dated 22.12.2016, by the Ministry of Railways (Railway Board), the compensation payable under the various entries of the Schedule to the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990, have been revised with effect from 01.01.2017. In view of the amendment of the 13 FA 707.19 (J) Schedule, in case of double amputation through leg or thigh or amputation through leg or thigh on one side and loss of other foot, the claimant/s is/are entitled to get compensation of Rs.8,00,000/- (Rupees Eight lakhs only). However, in view of the decision of the Hon'ble Apex Court in Union of India vs. Radha Yadav, reported at (2019) 3 SCC 410, in case of old claim, after this notification, the claimants/appellants would be entitled to get compensation of Rs.8,00,000/-, without interest, if the compensation provided earlier with interest is less than Rs.8,00,000/-. Learned advocate for the claimants submitted that the compensation provided earlier i.e. Rs.4,00,000/- with interest would not be more than Rs.8,00,000/-. Therefore, in this case, the appellant/ claimant would be entitled to get Rs.8,00,000/- (Rupees Eight Lakhs only), without interest.
15. Accordingly, the First Appeal is allowed.
i] The judgment and order dated 25.07.2018, passed by the Railway Claims Tribunal, Nagpur Bench, Nagpur, in Claim No. OA(IIu)/NGP/2010/ 0243, is set aside. The claim petition is allowed.
ii] Respondent - South Central Railways is directed to pay Rs. 8,00,000/- (Rupees Eight Lakhs only) towards compensation to the appellants within four months from the date of uploading of this judgment.
14 FA 707.19 (J) iii] Out of total compensation, appellant no.1(A) is entitled to get 50% amount and balance amount shall be paid in equal shares to appellant nos.1(B), 1(C) and 1(D).
iv] The amount be deposited directly in the respective bank accounts of the appellants. The appellants shall provide their bank account details to the respondent-Railways.
v] The appellants are not entitled to interest on the amount of compensation to be paid by the respondent. However, the appellants would be entitled to get interest @ 6% per annum from the date of this judgment till realization of the amount, if the amount is not deposited within four months.
vi] The First Appeal stands disposed of in the aforesaid terms. No order as to costs. Decree be drawn up accordingly.
( G. A. SANAP, J. ) Diwale Signed by: DIWALE Designation: PS To Honourable Judge Date: 20/06/2024 20:01:14