Bombay High Court
The Union Of India, General Manager, ... vs Dhrupatabai W/O Kondiba Gomsale And Anr on 1 July, 2017
fa-j 305-10.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO. 305 OF 2010
The Union of India
General Manager
South Central Railway
Secunderabad. ....... APPELLANT
(Ori. Defendant)
...V E R S U S...
1] Dhurpatabai w/o Kondiba Gomsale
Age 50 years, Occ.: Housewife
2] Radha d/o Kondiba Gomsawale
Age 12 years, Occ.: Nil
Under the guardianship of Real
Mother Dhurpatabai Kondiba
Gomsale
Both R/o C/o P. V. Nandedkar
New Mondha, Nanded,
Taluka and District-Nanded. ....... RESPONDENTS
(Ori. Applicant)
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Shri. N. P. Lambat, Advocate for Appellant.
Shri. S. K. Sable, Advocate for Respondents.
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CORAM: DR. (SMT.) SHALINI PHANSALKAR-JOSHI, J.
DATE : 1 st
JULY, 2017.
ORAL JUDGMENT
This appeal is directed against the Judgment and Order dated 8.5.2009 passed by the Railway Claims Tribunal, Nagpur Bench, Nagpur in Claim Petition No. ::: Uploaded on - 26/07/2017 ::: Downloaded on - 28/08/2017 08:36:36 ::: fa-j 305-10.odt 2 47/AO-II/RCT/NGP/2006 thereby awarding the compensation of Rs.4,00,000/- along with interest at the rate of 7% per annum from the date of the order till realization, to respondents- claimants.
2] Brief facts of the appeal can be stated as follows:-
Respondent no.1 is the mother and respondent no.2 is younger sister of the deceased Suryakant. At the time of accident he was 18 years of age and was doing the work of selling milk-sachets, pepsy etc. in the trains. On 31.5.2005 he was travelling from Basmat to Nandpur by Train No. 582 selling these various articles. During the course of travel, he fell down from the running train due to jerk at KM Pole 890/7-8 in Nandpur Shivar. Due to the injuries sustained on account of fall from the train, he succumbed to death on the spot itself. Hence, respondents were constrained to approach the Railway Tribunal for compensation on account of his untimely death. The application was filed by the respondents under Section 16 of the Railway Claims Tribunal Act. 3] This application came to be resisted by the appellant herein submitting that the alleged accident took place due to own ::: Uploaded on - 26/07/2017 ::: Downloaded on - 28/08/2017 08:36:36 ::: fa-j 305-10.odt 3 criminal act of the deceased. It was submitted that it was a self- inflicted injury as the deceased has sustained dash of the train while he was trespassing on the railway track. The railway administration is therefore, not liable for the said accident and hence, the amount of compensation cannot be awarded to the respondents-claimants as the alleged accident is not an 'untoward incident' as covered under Section 123(c) or section 124-A of the Railways Act.
4] On these respective pleadings of the parties, the Tribunal framed necessary issues for its determination. In support of her case, respondent no.1 examined herself, whereas on behalf of respondents, the driver of the concerned Train, namely, Syed Pasha Syed Bashir Ali was examined.
5] On appreciation of their oral evidence and the other documentary evidence produced on record by the parties, the Tribunal was pleased to hold that cause for death of the deceased was accidental fall from the running train. Accordingly, the Tribunal held the railway administration liable to pay the statutory compensation of Rs.4,00,000/- to the respondents. ::: Uploaded on - 26/07/2017 ::: Downloaded on - 28/08/2017 08:36:36 :::
fa-j 305-10.odt 4 6] This judgment and order of the Tribunal is challenged in the present appeal by learned counsel for the appellant, by submitting that the Tribunal has committed an error in awarding compensation to the respondents, sans any evidence proving that deceased was a bona fide passenger of the train, having purchased the ticket for travel. It is submitted that respondent no.1, the mother of the deceased has admitted that she had not personally witnessed the deceased while purchasing the ticket. According to her, her neighbour Prakash has witnessed the deceased while purchasing the ticket. Prakash, however, has not been examined. Thus, it is submitted that if the deceased is not proved to be a bona fide passenger having purchased the ticket for travel, Railway administration cannot be held liable to compensate the respondents.
7] Secondly, it is submitted that respondents have not adduced the evidence of any eyewitness to show that the deceased has fallen from the running railway; conversely the evidence of the witness examined by the appellant, namely the driver of the Train Shri Syed Pasha, shows that no such incident has happened in the said train. Thus, according to learned counsel for the ::: Uploaded on - 26/07/2017 ::: Downloaded on - 28/08/2017 08:36:36 ::: fa-j 305-10.odt 5 appellant, the impugned order passed by the Tribunal holding the appellant responsible for the cause of accident is totally against the evidence on record. No Railway ticket was found on the person of deceased at the time of spot panchnama or seizure panchnama of the articles found with him and hence, the necessary inference should have been drawn that the accident took place while deceased was crossing the railway track; hence, it was a self-inflicted act. Thus, appellant needs to be exonerated from the liability of paying the compensation. 8] In the light of these rival submissions advanced by learned counsel for appellant and respondent, two points which necessarily arise for my determination, first is, whether it is proved that deceased has died on account of 'untoward incident'? As a corollary to this issue, another issue arising for consideration is, whether it is proved that deceased has purchased a valid ticket for travelling by train carrying passengers and therefore, was a bona fide passenger?
9] What amounts to an "untoward incident" is defined in section 123(c) of the Railways Act, 1989. It reads as follows:
2[(c) "untoward incident" means-::: Uploaded on - 26/07/2017 ::: Downloaded on - 28/08/2017 08:36:36 :::
fa-j 305-10.odt 6 (1)(i) the commission of a terrorist act within the meaning of sub-
section (1) of section 3 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 1987); or
(ii) the making of a violent attack or the commission of robbery or dacoity; or
(iii) the indulging in rioting, shoot-out or arson, by any person in or on any train carrying passengers, or in a waiting hall, cloak room or reservation or booking office or on any platform or in any other place within the precincts of a railway station; or (2) the accidental falling of any passenger from a train carrying passengers.
10] At this stage, Section 124A of the Railways Act which deals with the liability of payment of compensation on the part of railway on account of untoward incident also needs to be considered. Section 124A reads as follows:
124A. Compensation on account of untoward incident.
"When in the course of working a railway an untoward incident occurs, then whether or not there has been any wrongful act, neglect or default on the part of the railway administration such as would entitle a passenger who has been injured or the dependant of a passenger who has been killed to maintain an action and recover damages in respect thereof, the railway administration shall, notwithstanding anything contained in any other law, be liable to pay compensation to such extent as may be prescribed and to that extent only for loss occasioned by the death of, or injury to, a passenger as a result of such untoward incident.::: Uploaded on - 26/07/2017 ::: Downloaded on - 28/08/2017 08:36:36 :::
fa-j 305-10.odt 7 Provided that no compensation shall be payable under this section by the railway administration if the passenger dies or suffers injury due to-
(a) suicide or attempted suicide by him;
(b) self-inflicted injury;
(c) his own criminal act;
(d) any act committed by him in a state of intoxication or insanity;
(e) any natural cause or disease or medical or surgical treatment unless such treatment becomes necessary due to injury caused by the said untoward incident.
Explanation.- For the purposes of this section, "passenger" includes-
(i) a railway servant on duty; and
(ii) a person who has purchased a valid ticket for traveling, by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident.
11] Thus, as per this section, the liability of Railways to pay compensation to the relatives of the victim who has died by "untoward incident" is absolute, irrespective of any wrongful act, neglect or default on the part of the railway administration. The proviso to said section exempts the railway administration from the liability to pay the compensation only in case of five eventualities which are described in (a) to (e). Therefore, once it is proved that the passenger has died on account of suicide or ::: Uploaded on - 26/07/2017 ::: Downloaded on - 28/08/2017 08:36:36 ::: fa-j 305-10.odt 8 attempted suicide or by self-inflicted injury or his own criminal act or any act committed by him in a state of intoxication or insanity or any natural cause or disease or medical reason, then in any of these five situations, the railway administration cannot be liable to pay compensation.
12] Therefore, the initial burden of proving that the deceased has died in "untoward incident" which includes the accidental falling from the train carrying passengers lies on the claimant. However, subsequent burden of proving that the death of person was on account of any of these five eventualities so as to bring the case within one of the exceptions lies on the railway administration.
13] Now to prove that at the time of accident deceased was travelling in the train and his death has occurred on account of accidental falling from train, respondent no.1 has examined herself. According to her evidence, deceased Suryakant was her son, who was working as hawker and selling eatable articles like milk sachets and Pepsi in the trains. On the date of incident, he was travelling in the train from Purna to Ajmer. It is deposed by her that he had purchased the ticket from Basmat to Nandapur ::: Uploaded on - 26/07/2017 ::: Downloaded on - 28/08/2017 08:36:36 ::: fa-j 305-10.odt 9 and he fell down from the running train due to jerk. This information was given to her by one Prakash Gajmal. Thus, admittedly, she is not an eye-witness to the incident or even to the purchase of railway ticket by the deceased. She has admitted this fact categorically in her cross-examination also. Further though she has deposed that her neighbour Prakash has witnessed the deceased purchasing the ticket and falling from the train, she has not adduced his evidence. Therefore, so far as respondentno.1- claimant is concerned, there is no oral evidence to prove that deceased had purchased the ticket; hence, he was a bona fide passenger and his death was on account of accidental fall from the running train.
14] Appellant herein has also then examined the witness by name Sayed Pasha Sayed Bashir who was the driver of the concerned train. According to him, no accident has taken place in between Basmat to Nandapur station on the said passenger train. He has produced on record the copy of the driver's book dated 31.5.2005 to prove it. However, in his cross-examination he has admitted that being a driver of the train, he was required to see the front side and therefore, he cannot be aware if any passenger ::: Uploaded on - 26/07/2017 ::: Downloaded on - 28/08/2017 08:36:36 ::: fa-j 305-10.odt 10 falls down from the running train on the track. Therefore, his evidence is also not much of help, either to applicant-claimant or the railway administration to prove the occurrence of the incident as such.
15] In the absence of this oral and direct evidence on record, one has to rely upon the documentary evidence which is in the form of written information about the incident given by Station Master of Nandapur Railway Station, Madhav Punjaji. The copy of said information is produced at Exh.AW-1/1. This information is given by Station Master to Police Inspector of Kalmanuri Police Station and in this information he has clearly stated that on that day one boy aged 18 of years has fallen down from the running train No. 582 of Purna to Ajmer and his dead body was found near the railway track at KM No. 890/7-8. 16] No doubt this information given by the Station Master to Police Inspector of Kalmanuri police station is based on the information given to him by the Gangman Jon Salna. Learned counsel for appellant has relied upon the statement of Jon Salna recorded on 1.7.2006 to submit that in the said statement he has nowhere stated that he saw any person falling from the running ::: Uploaded on - 26/07/2017 ::: Downloaded on - 28/08/2017 08:36:36 ::: fa-j 305-10.odt 11 train and his statement is merely to the effect that he saw the dead body of one person lying near that particular Pole No. 890/7-8 and accordingly, he has informed the Station Master of Nandapur. The submission learned counsel for appellant is that if Jon Salna is stating that he has not seen any person falling from the running train, the information given by the Station Master on the basis of statement of Jon Salna is not correct. It is not explained by Station Master as to how he has stated that one person has fallen from the running train and succumbed to death. 17] Though this submission of learned counsel for appellant appears to be persuasive, however on closely scrutiny it cannot be accepted for the two reasons; the first being, this Gangman Jon Salna is not examined by the appellant. To prove his statement of which was recorded on 1.7.2006, it was necessary for appellant to examine him. As he is not examined, the said statement is not proved on record and therefore, cannot be admitted or read in evidence. Secondly and most importantly, this statement is recorded about one year after the incident. The incident taken place on 31.5.2005, whereas the statement of Gangman Jon Salna recorded on 1.7.2006. As against this, the ::: Uploaded on - 26/07/2017 ::: Downloaded on - 28/08/2017 08:36:36 ::: fa-j 305-10.odt 12 information given by Station Master to the police on the basis of information received by him from this witness Jon Salna, is immediately on the same day i.e. 31.5.2005. Therefore, the said information which gives the immediate version of the accident and is therefore the contemporaneous document of the incident needs to be relied upon than the statement of Jon Salna, which is recorded after more than one year and that too when it is not proved for reading it in evidence.
18] Moreover, this information given by Station Master to Police Inspector, of Kalamnuri P.S. gets support and corroboration from the spot panchnama, in which there is averment that deceased has fallen from the running train and hence succumbed to the injury. Post mortem report also gives the same history of deceased falling form the running train and sustaining injuries to which he succumbed. Therefore, the documents produced on record by the railway administration themselves prove that the cause of death was the deceased accidentally falling from the running train. The case put up by railway administration, in its written statement filed to the claim petition, in para-5(ii) that deceased was hit by the train while trespassing on the railway ::: Uploaded on - 26/07/2017 ::: Downloaded on - 28/08/2017 08:36:36 ::: fa-j 305-10.odt 13 track is not at all proved by the railway administration. Even the evidence of driver Syed Pasha shows that as a driver though he was required to see front side, he has not seen any person crossing the railway track and, therefore, being hit by the train. In such circumstances, the inference drawn by the Tribunal which is also based on the evidence on record is inevitable that the death of deceased was on account of accidental falling from running train. Hence it is covered within the meaning of 'untoward incident', as defined in Section 123(c)(2) of the Railways Act. Moreover, it also does not fall in any of the exceptions provided in Clause (a) to (e) of Section 124A of the Railways Act.
19] Now the next question posed for my consideration is whether deceased was a bona fide passenger? Explanation(ii) of Section 124 defines passenger to mean a person who has purchased a valid ticket for travelling, by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident. On this aspect, admittedly there is no evidence on record because respondent no.1 who is the mother of the deceased, has admitted that she has not witnessed the deceased purchasing the ticket. She has relied upon the ::: Uploaded on - 26/07/2017 ::: Downloaded on - 28/08/2017 08:36:36 ::: fa-j 305-10.odt 14 information given by Prakash, however, he is not examined. The other circumstantial evidence on record is the fact that deceased was a hawker and selling eatables in the train. It is, therefore, submitted by learned counsel for the appellant that it is not possible to presume or accept that deceased has purchased the ticket. Therefore, it has to be held that he was travelling without ticket. It is also urged that as per the spot panchnama, articles like Pepsi and sachets were found near his dead body. However, railway ticket was not found therein. Hence, it is submitted that, in the absence of any evidence proving that deceased has purchased or was having a valid railway ticket, he cannot be called as a bona fide passenger.
20] Per contra, by relying upon the judgment of Rajasthan High Court in the case of Union of India Vs Hari Narayan Gupta and another, 2008 ACJ 822, it is submitted by learned counsel for respondents, that merely because the ticket was not found, it cannot be said that deceased was travelling without valid ticket. In this judgment it was held that the normal presumption is that a passenger in a railway holds a valid ticket. Hence, the burden is upon the railway administration to prove ::: Uploaded on - 26/07/2017 ::: Downloaded on - 28/08/2017 08:36:36 ::: fa-j 305-10.odt 15 that he was not having a valid ticket. It was held that when a person dies in an accident by falling from running train, it is not possible for the legal representatives to produce the ticket. Hence, in absence of production of ticket also it can be held that deceased was a bona fide passenger. Thus, once evidence on record proves that deceased had accidentally fallen from the train which resulted into his death, then the presumption will follow that he was travelling with valid ticket. Naturally the burden stands shifted on the railway administration to prove otherwise. 21] In the present case evidence on record had proved that the cause of death was accidental fall from the running train and therefore, presumption is that deceased was a bona fide passenger having a valid ticket. The burden was then shifted on the railway administration to prove that deceased was travelling without ticket. The railway administration has not led any evidence to rebut that presumption. As observed by the Tribunal in this respect, there is ticket checking staff and railway police to apprehend the persons who are travelling without ticket. The evidence of such staff has not been led. Merely because deceased was a hawker selling articles in the train, it would not be proper ::: Uploaded on - 26/07/2017 ::: Downloaded on - 28/08/2017 08:36:36 ::: fa-j 305-10.odt 16 to infer that he was travelling without ticket. When the burden is on the party to prove a particular fact, the burden is to be discharged by the party by adducing evidence. Hence, merely on the assumption and presumption, it cannot be said that deceased was not a bona fide passenger.
22] In the circumstances, the judgment and order of the Tribunal holding the appellant responsible for payment of compensation to the respondents needs to be upheld. 23] At this stage, learned counsel for respondent- claimants submitted that the Tribunal has awarded the compensation of Rs.4,00,000/- as per the rates prevailing at the time of its judgment. However, in view of Notification issued by the Ministry of Railways (Railway Board) dated 22.12.2016, in the case of death, the compensation now is enhanced to Rs.8,00,000/- w.e.f. 1.1.2017. Hence, according to learned counsel for respondents, this Court should enhance the compensation amount, which is awarded by the Tribunal at Rs.4,00,000/- to Rs.8,00,000/-.
24] Learned counsel for the appellant has strongly ::: Uploaded on - 26/07/2017 ::: Downloaded on - 28/08/2017 08:36:36 ::: fa-j 305-10.odt 17 resisted this submission by pointing out that, in this case as the appeal is not preferred by the claimant, hence there is no question of enhancing the amount of compensation. Further he has submitted that the accident has occurred in the year 2005, whereas this Notification of enhancing the amount of compensation is issued in December, 2016 and came into effect from January, 2017, therefore, the amount of compensation cannot be enhanced in this case.
25] In support of his submission, learned counsel for respondent has relied upon the decision of Calcutta High Court in Bandana Mishra Vs. Union of India, II(2017) ACC 484 (DB) (Cal.), wherein relying upon this Notification dated 22.12.2016 the claimants were held entitled to get the compensation of sum of Rs.8,00,000/-, with interest @ 7.50% per annum from the date of lodging of claim petition.
26] Learned counsel for the appellant has however, tried to distinguish this case on the count that in that case the claimant, has preferred the appeal; therefore, the enhanced amount of compensation was awarded.
::: Uploaded on - 26/07/2017 ::: Downloaded on - 28/08/2017 08:36:36 :::
fa-j 305-10.odt 18 27] However, in my considered opinion, whether the claimant or the Railway administration has preferred the appeal is not of relevance because it is the duty of the Tribunal and the Court to award the compensation which appears to be just, reasonable and legal. While arriving at such amount of compensation, it is duty of the Court to take note of the enhanced rate of compensation, as notified by the railway administration. Merely because at the relevant time, when the impugned order was passed by the Tribunal, the prevailing rate was of Rs.4,00,000/- and hence respondents have not preferred the appeal against the judgment of the Tribunal, they cannot be deprived of the amount of compensation to which they are entitled when the present appeal is being decided by this Court, especially considering that all these years, they are deprived from getting their due and reasonable amount of compensation because of the appeal preferred by railway administration and it being pending in this court. Therefore, as per the decision of the Apex Court in the case of Rathi Menon Vs Union of India reported in 2001 ACJ 721, the benefit of this new Notification needs to be extended to the respondents claimants also. ::: Uploaded on - 26/07/2017 ::: Downloaded on - 28/08/2017 08:36:36 :::
fa-j 305-10.odt 19 28] As a result, the appeal stands dismissed.
However, in view of the Notification dated 22.12.2016 coming into effect from 1.1.2017 the judgment and order of the Tribunal is modified and it is directed that respondent nos. 1 and 2 are entitled to get compensation Rs.8,00,000/- with interest @ 7.5 per annum from the date of lodging claim petition before the Tribunal till date of payment.
The entire compensation awarded by this Court together with interest shall be paid to the respondent No.1 who is the mother of the deceased.
Appellant shall deposit the cheque of compensation amount in the office of Registrar (Judicial) within four months from the date of this order. Thereafter, respondent no.1 shall be entitled to collect the same upon proving her identity and in accordance with law.
The appeal is disposed of in above said terms.
JUDGE RGIngole ::: Uploaded on - 26/07/2017 ::: Downloaded on - 28/08/2017 08:36:36 :::