Gujarat High Court
Union Of India vs Shefaliben Vinodbhai Shah (Wife Of ... on 18 September, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/FA/111/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 111 of 2016
With
CIVIL APPLICATION NO. 1 of 2016
With
CIVIL APPLICATION NO. 1 of 2018
With
CIVIL APPLICATION NO. 2 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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UNION OF INDIA
Versus
SHEFALIBEN VINODBHAI SHAH (WIFE OF DECEASED)
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Appearance:
MS ARCHANA U AMIN(2462) for the PETITIONER(s) No. 1
MR KUNAL M SHAH(5588) for the RESPONDENT(s) No. 1
MR MAHESH B SHAH(1053) for the RESPONDENT(s) No. 1
MR PJ MEHTA(467) for the RESPONDENT(s) No. 1
NIRAVKUMAR P MEHTA(8300) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 18/09/2018
Page 1 of 15
C/FA/111/2016 JUDGMENT
ORAL JUDGMENT
1. This Appeal under Section 23 of the Railway Claims Tribunal Act, 1987 (for short 'the Act, 1987') is at the instance of the Western Railway and is directed against the award passed by the Railway Claims Tribunal, Ahmedabad Bench, dated 12.05.2015 in the Case No. OA 2012/0176.
2. It appears from the materials on record that the husband of the respondent herein- original claimant, namely Vinodbhai Amratlal Shah, was travelling on 13.05.2012 from Surat to Ahmedabad by Train No. 19131 [Bandra Terminus - New Bhuj Kutch Express]. According to the case put up by the claimant, her husband accidentally fell down from the train and sustained fatal injuries. In such circumstances, the widow of the deceased preferred the claim application under Section 16 of the Railway Claims Tribunal Act. The Tribunal accepted the claim application and awarded a sum of Rs. 4,00,000/- towards compensation with simple interest @ 6% per annum from the date of the application.
3. Being dissatisfied with the award passed by the Tribunal, the Western Railway is here before this Court with this Appeal.
Page 2 of 15C/FA/111/2016 JUDGMENT 4. Ms. Amin, the learned counsel appearing for the
appellant, vehemently submitted that the Tribunal committed serious error in allowing the claim application. According to Ms. Amin the deceased was not supposed to deboard the train at the Maninagar Railway Station because the concerned train had no official stop at the Maninagar Railway Station. If any passenger tries to deboard a train, more particularly, a running train on the platform where the train has no official stop and if such act of the passenger results in fatal injuries, then the dependants are not entitled to any compensation. Ms. Amin further submitted that at the time when the Inquest Punchnama was drawn, no valid ticket was found either from the luggage of the passenger or from the pockets of his clothes. In such circumstances, according to Ms. Amin, the deceased could not be said to be a bonafide passenger.
5. In such circumstances referred to above, Ms. Amin prays that there being merit in the Appeal, the same be allowed and the impugned award be quashed.
6. On the other hand, this Appeal has been vehemently opposed by Mr. Mehta, the learned counsel appearing for the respondent - claimant. According to Mr. Mehta, no error, not to Page 3 of 15 C/FA/111/2016 JUDGMENT speak of any error of law, could be said to have been committed by the Tribunal in passing the award. Mr. Mehta would submit that merely because a valid ticket was not recovered, by itself, is not sufficient to come to the conclusion that the deceased was not a bonafide passenger. Mr. Mehta would submit that the case does not fall within the proviso to Section 124A of the Act, and in such circumstances, the strict liability of the Railways under Section 124A would come into play.
7. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is, whether the Tribunal committed any error in passing the impugned order.
8. The Tribunal has recorded the following findings:
"ISSUES
1. Whether the deceased was travelling as a bonafide passenger in train no. 19131 Bandra Terminus - New Bhuj Kutch Express on 14.05.2012 ?
2. Whether the deceased met with an untoward incident within the meaning of Section 123 (c)(2) of the Railways Act during his journey by train ?Page 4 of 15
C/FA/111/2016 JUDGMENT
3. Whether the applicants are the dependants of the deceased ?
4. Relief ?
My Findings:-
On the basis of oral as well as documentary evidence, my findings are as under:-
1. In affirmative.
2. In affirmative.
3. In affirmative.
4. As per final order - Application is allowed.
5. During the enquiry and trial, the applicant Sefaliben Vinodbhai Shah was examined as AW-1 and has placed on record documents Exhibits A-1 to A-11.
As against this, the respondent railway administration has examined one Pankaj Parmar, on duty Constable at Maninagar Railway station on 14.05.2012 as RW-1.
6. Heard the counsels appearing on behalf of the parties and carefully perused the entire material placed on record by the parties.
7. I shall now proceed to consider the claim of the applicants on its merit with reference to the issues raised in the case.
Page 5 of 15C/FA/111/2016 JUDGMENT Regarding Issues No.1 & 2: 8. These two issues are taken up for consideration simultaneously for the sake of
convenience and also as they are inter-related.
9. It is contended by the Applicants in the Claim Application that on 13.05.2012, in the night, her husband wanted to go to Ahmedabad from Surat by travelling train no. 19131 Bandra Terminus - New Bhuj Kutch Express. He reached Surat railway station and had purchased a valid second class railway travelling ticket from Surat to Ahmedabad but the said ticket was lost in the incident. After purchasing the ticket, he boarded the train no. 19131 Bandra Terminus - New Bhuj Kutch Express for his journey to Ahmedabad and due to heavy rush, he was standing near the entrance door of the compartment. During the course of journey, on 14.05.2012, when the said train reached at Maninagar railway station, her husband fell down from the said train due to an unexpected jerk and jolt as well as push of the passenger at Maninagar railway station, sustained injuries and subsequently died on the spot.
To substantiate the said facts, the Applicant has filed her affidavit in evidence in which she has stated the said facts are true and correct as stated in the claim application. The Respondent have not cross examined applicant to discard testimony of the applicant. The evidence of the applicant therefore Page 6 of 15 C/FA/111/2016 JUDGMENT goes unchallenged.
Memo at Exh. A/1 shows that, on 14.05.12, Shri Pankaj Parmar, Constable had informed to Station Master - Kankaria that an unknown person was run over by train no. 19131 at KM no. 492/01 at south end of the Platform of Maninagar Station. Inquest panchnama at Exh.A/2 shows that, in the opinion of the panchas, the deceased died due to injuries sustained by him due to falling person had fallen down from the train no. 19131 Kutch Express while alighting from the said train. It is further mentioned in the said inquest panchnama that a person named Kiritbhai Harshadbhai by caste Shah aged 66 years had identified the dead body of the deceased as Vinodbhai Amaratbhai Shah. Panchnama of place of incident at Exh. A/3 also shows that a person named Vidnodbhai Amratbhai by caste Shah aged 38 years had accidentally fallen down from Kutch Express while getting down from the train at Maninagar railway station and sustained injuries and died on 14.05.12. It is further mentioned that the police have not seized anything from the place of incident for the purpose of investigation. Post Mortem Report at Exh.A/4 shows that the cause of death of the deceased Vinodbhai Amratbhai Shah was due to shock and hemorrhage due to multiple injuries over body.
RW-1 Pankaj Parmar has disclosed in his affidavit that on 14.05.2012, he was on duty as a Page 7 of 15 C/FA/111/2016 JUDGMENT Constable at Maninagar railway station in shift 00.00 hrs. to 08.00 hrs. It is further stated that on 14.05.2012 at about 01.30 hrs. when Kutch Express was passing slowly through Maninagar railway station Platform no.1, in the meantime, while alighting from the running train, an unknown person had fallen down from the said train and run over by the said train and died. He immediately informed to Station Superintendent- Kankaria South Cabin for further necessary action.
DRM investigation report shows that, as per investigation of GRP/Ahmedabad, on 14.05.2012, while getting down from the running train no. 19131, the deceased Vinodbhai Amratbhai aged 38 years had accidentally fallen down from said train at Maninagar railway station and was run over and died. It is further mentioned in the said investigation report that as per the statement of the Driver as well as the Guard of the said train, they had no information about anybody fell down from their train on the day in question. It is also mentioned that as per the investigation Panchnama, neither any travelling ticket nor any travelling authority was found with the deceased. Therefore, the deceased was not a bonafide passenger of the train in question. It is further mentioned in the said DRM report that the incident occurred due to negligence and carelessness of the deceased. Therefore, Railway Administration is not responsible for the said incident.
Page 8 of 15C/FA/111/2016 JUDGMENT It is not the contention of the respondent that the deceased was knocked down while trespassing. In absence of such evidence there is no legal impediment in coming to the conclusion that the deceased must have fallen down from the train. At this stage, I would like to quote the judgment of the Hon'ble High Court of Bombay -FA mo. 1270 of 2010 decided on 02.8.2013 in case of the Union of India vs. Anuradha & Anr. Wherein the Court held that "a reference is also made to the ruling in Jameela v. Union of India, VI (2010) SLT 276 =III (2010) ACC 800(SC) = 2010 ACJ 2453 (SC), to argue that when railway administration is unable to prove any of the exceptions available to it, e.g., victim died as a result of suicide or self-inflicted injury, the presumption must go with the victim, who had accidentally fallen down from the train. In a given case, it may be rash and negligent act to stand at the open door of the compartment of train. But certainly it is not a criminal act so as to exempt railway administration from paying compensation in such cases. In another ruling in Union of India v. Prabhakaran Vijaya Kumar, I (2009) ACC 270 (SC) = 2008 ACJ 1895 (SC), it is also held that railway administration was held liable to pay compensation for untoward incident because it will not make any difference whether deceased was actually inside the train or trying to get into such train when he fell down. Thus, if victim died as a result of accidental falling from the train, he is covered within the meaning of untoward incident for which Railways is liable to compensate the Page 9 of 15 C/FA/111/2016 JUDGMENT dependents of the victim. In case of compensation for death claim in Prabhakaran's case the rule of strict liability of the railway administration was considered on the ground that since railway administration undertakes hazardous activity, it must bear the burden of risk of damage which such activity may generate.
10. Relying upon the above observation, question of negligence on the part of the deceased dose not arise. Hence, I have no hesitation in coming to the conclusion that the deceased must have fallen down accidentally from the train.
11. In-so-far-as bona fide passenger is concerned according to the applicant; the deceased was holding a valid railway travelling ticket but the same was lost in the incident. At this stage I would like to quote the Judgment of the Hon'ble High Court of Delhi - FAO no. 167 of 2012 decided on 07.05.2014 in case of Surendra Prasad Verma & ANR v/s Union of India wherein the Court held that merely because no train ticket has been filed or proved will not be determinative of fact that deceased should be held not to be bonafide passenger. It has also been held by the Courts in innumerable judgments that facts of each case have to be seen to determine as to whether not finding of the ticket on the person of the deceased is enough for holding that the deceased was not a bonafide passenger in as much as it is very much possible that in a train accident in which a Page 10 of 15 C/FA/111/2016 JUDGMENT passenger falls from a train, the ticket is and can be lost. Therefore, merely because no train ticket has been filed or proved will not be determinative of the fact that deceased should be held not to be a bonafide passenger.
In the instant case, the petitioner had claimed that the deceased was travelling with a valid ticket but the said ticket was lost in the incident. There is no cogent evidence from the respondents to rebut the above claim of the applicant. Therefore, there are no legal impediments in coming to the conclusion that the injured was travelling as a bonafide passenger on the day of incident.
12. Once it emerges that the deceased was a bonafide passenger and he has died on account of a fall from the train, the incident squarely falls within the definition of untoward incident u/s. 123(c)(2) of the Railways Act. Moreover, it is now well settled that Sec. 124-A lays down strict liability or no fault liability in case of railway accidents and hence, if a case comes within the purview of Section 124-A, it is wholly irrelevant, as to who was at fault. In the instant case, I find from the material placed on record that the accident in which the deceased had died is clearly not covered by the proviso to Section 124A and that the incident does not occur because of any of the reasons mentioned in the clauses (a) to (e) of the proviso to Section 124-A. Hence, in my opinion, the present case is clearly covered by the Page 11 of 15 C/FA/111/2016 JUDGMENT main body of the Section 124-A of the Railways Act, and, not by its proviso.
13. Therefore, on the facts and circumstances of the case, I have no hesitation in holding that the deceased was travelling as a bonafide passenger on the train and he has died as a result of the injuries sustained by him in an untoward incident. Hence, my findings on Issue No.1 & 2 are in the affirmative."
9. Ms. Amin, the learned counsel appearing for the appellant made an attempt to persuade this Court to take the view that the act of the deceased passenger in deboarding the train on a platform where the train had no official stop constitutes an offence under the Railways Act. If the death of a passenger is due to his own criminal act then the case would fall within the proviso to Section 124A of the Act. I called upon Ms. Amin to point me out the particular provision in the Act in this regard. Ms. Amin placed reliance on Sections 154 and 156 of the Act.
Section 154 of the Act reads as under:
"Endangering safety of persons travelling by railway by rash or negligent act or omission.- If any person in a rash and negligent manner does any act, or omits to do what he is legally bound to Page 12 of 15 C/FA/111/2016 JUDGMENT do, and the act or omission is likely to endanger the safety of any person travelling or being upon any railway, he shall be punishable with imprisonment for a term which may extend to one year, or with fine, or with both."
Section 156 of the Act reads as under:
"Travelling on roof, step or engine of a train.- If any passenger or any other person, after being warned by a railway servant to desist, persists in travelling on the roof, step or footboard of any carriage or on an engine, or in any other part of a train not intended for the use of passengers, he shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both and may be removed from the railway by any railway servant."
10. I am afraid it is not possible for me to accept the submission of Ms. Amin. The Act of the deceased passenger in deboarding the train at the Maninagar Railway Station, though there was no official stop at the said station, does not amount to offence either under Section 154 or Section 156 of the Act, 1989. Once the case does not fall within the proviso to Section 124A, the liability of the Railways would come into play.
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11. As regards the issue whether the passenger was a bonafide passenger or not, the law is well settled that merely because a ticket is not recovered, by itself, is not sufficient to arrive at the conclusion that the deceased was not a bonafide passenger. (See Union of India v. Rina Devi, reported in Civil Appeal No.4945 of 2018 - Special Leave Petition (Civil) No. 10223 of 2018, decided on 9th May 2018).
12. In the overall view of the matter, I am convinced that no error, not to speak of any error of law, could be said to have been committed by the Tribunal in passing the impugned order. No interference is warranted in this Appeal.
13. In the result, this appeal fails and is hereby dismissed.
14. The appellant Railways shall now pay the amount of compensation in accordance with law. The amount of compensation shall now be disbursed in accordance with the principles explained by the Supreme Court in the case of Union of India v. Rina Devi (Civil Appeal No. 4945 of 2018 -
Special Leave Petition (Civil) No. 10223 of 2018, decided on 9 th May 2018). Applying the principles laid down in Rina Devi (supra), the original claimants, i.e. the appellants herein, are Page 14 of 15 C/FA/111/2016 JUDGMENT held entitled to Rs.8 Lakh in terms of the Railway Accidents & Untoward Incidents (Compensation) Amendment Rules, 2016, which prescribes compensation of Rs. 8 Lakh in case of death, with effect from 1.1.2017.
15. The claimants shall open a savings bank account in a bank near to their residence. Once such bank account is opened, the details of the same, together with a copy of the Aadhar Card, shall be furnished to the Railway administration.
Upon receipt of such details, the Railway administration shall disburse the amount in favour of the claimants.
16. As the First Appeal is dismissed, the connected Civil Applications filed by the claimant are also disposed of.
(J.B.PARDIWALA, J) MAYA Page 15 of 15