Bombay High Court
The Union Of India, Gen. Manager vs Ganesh Nivrutti Hiwade And Anr on 22 April, 2024
Author: G. A. Sanap
Bench: G. A. Sanap
2024:BHC-NAG:5401
901.FA.233.2011 railway compensation judge.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FIRST APPEAL NO.233 OF 2011
The Union of India,
General Manager,
Central Railway, CST, Mumbai .... APPELLANT
// V E R S U S //
1 Ganesh Nivrutti Hiwade
Aged about 50 Yrs., Occu.: Nill
2. Sau. Bebibai Ganesh Hiwade,
Aged about 43 Yrs., Occu.: Household,
Both R/o. Pradhyapak Jogendra
Kawade Nagar, Sindhi Camp,
Khadan, Akola, T1 & Dist. Akola
... RESPONDENTS
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Ms Neerja Chaubey , Advocate for the appellant
None for the respondents
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CORAM : G. A. SANAP, J.
DATE : 22/04/2024
ORAL JUDGMENT :
1 Heard learned Advocate for the appellant. 2 In this appeal, filed under Section 23 of the Railway Claims Tribunal Act, 1987 (for short, 'the Act of 1987'), the challenge is to the judgment and order dated
901.FA.233.2011 railway compensation judge.odt 2 01.04.2010, passed by the Railway Claims Tribunal, Nagpur Bench, Nagpur (for short 'the Tribunal'), whereby the claim filed by the respondents/claimants for compensation under Section 16 of the Act of 1987 was allowed.
3 Background facts:
The claimants are the parents of the deceased.
They claim that on 11.04.2006, the deceased, while traveling from Akola to Badnera, fell from a moving train between Murtizapur and Mana Station and died due to the injuries sustained by him. Respondent No.1 had come to the railway station to see off the deceased. The deceased had purchased the ticket for Rs.11/-. The passenger train was late & therefore, respondent No.1 went back to his home. It is stated that the deceased fell from a moving train due to the sudden jerk to the train and died due to the injuries sustained by him. The ticket purchased by the deceased was lost in the accident. The deceased was a bona fide passenger. The death was in an
901.FA.233.2011 railway compensation judge.odt 3 untoward incident. Therefore, they claimed the compensation.
4 The appellant-railway filed the written statement and opposed the claim. It was contended that the ticket was not found either on the spot or at the time of conducting the spot and inquest panchanama. The deceased was not a bona fide passenger. It was further contended that the death was not in an untoward incident. The investigation conducted by the RPF reveled that the deceased might have committed suicide. It was further contended that the incident might have occurred due to the negligence of the deceased. According to the appellant, the death was not in an untoward incident. 5 Parties adduced evidence before the Tribunal. Respondent No.1-Ganesh Hiwade examined himself as AW-
1. The appellant-railway examined two witnesses. Learned Member of the Tribunal on consideration of the evidence found that the deceased was bona fide passenger travelling
901.FA.233.2011 railway compensation judge.odt 4 with the valid journey ticket and his death was in an untoward incident and ultimately, allowed the claim. The appellant- railway is in appeal against this judgment and order. 6 I have heard the learned Advocate Ms Neerja Chaubey for the appellant. Learned Advocate for the respondents has failed to attend the Court. 7 In the facts and circumstances, the following points fall for my determination:
(i) Whether the deceased died in an untoward incident as understood by the provisions of Section 123(c)(2) of the Railways Act, 1989?
(ii) Whether the deceased was a bona fide passenger travelling with a valid journey ticket?
8 Learned Advocate for the appellant submitted that the initial burden to prove that the deceased was bona fide
901.FA.233.2011 railway compensation judge.odt 5 passenger was on the respondents and they have failed to adduce sufficient evidence to prove this fact. Learned Advocate submitted that the evidence of AW-1 cannot be believed for more than one reason. Learned Advocate submitted that AW-1 has not stated that the deceased boarded any train in his presence. Learned Advocate submitted that the ticket was neither found on the spot nor in the trouser or shirt pocket of the deceased. Learned Advocate for the appellant further submitted that there is no eye witness to the incident. Learned Advocate submitted that therefore the case put forth by the respondents that the deceased accidentally fell from a moving train and died due to the injury to head cannot be accepted. Learned Advocate submitted that there cannot be presumption as to the death in an untoward incident. Learned Advocate submitted that the learned Member of the Tribunal has failed to properly appreciate the evidence on record as well as the provisions of law.
901.FA.233.2011 railway compensation judge.odt 6 9 With the able assistance of the learned Advocate for the appellant, I have gone through the record and proceedings. Admitted facts having bearing with the issues involved in this appeal need to be stated at the outset. The deceased was resident of Akola. The dead body was found on railway premises between the Murtizapur and Mana station. The spot of incident is 46 km away from Akola railway station. The deceased had sustained serious injury to his head. There is no report of loco-pilot or guard of any train of run over of any person or dash to any person at the spot of the incident. The railway ticket was not found either at the spot or in the search of the dead-body. Except the injury to head there was no other major injury on the basis of which one can conclude that it was case of either run over or dash by fast moving rain. 10 The initial burden is on the respondents to prove that the deceased was a bona fide passenger. AW-1 is the father of the deceased. He has deposed that the deceased was
901.FA.233.2011 railway compensation judge.odt 7 doing a Diploma in Education at Pandharkawda College. The relevant documents to establish his identity were found at the time of the inquest panchanama. AW-1 has stated that he had accompanied the deceased to the railway station and he gave money to the deceased. The deceased purchased general ticket for Rs.11/- to go to Badnera from Akola. He has stated that as the train was running late, he went back. The case of the respondents with regard to loss of ticket has to be considered in juxtaposition with this evidence of AW-1. AW-1 was cross examined. Perusal of his cross examination would show that he has reiterated all these facts in his cross examination with regard to the purchase of the ticket by the deceased in his presence. The question is whether this evidence of AW-1 is sufficient to discharge the initial burden or not ? This statement has been made on affidavit by AW-1. In my view, for the purpose of addressing this issue the useful reference can be made to the decision of the Hon'ble Apex Court in the case
901.FA.233.2011 railway compensation judge.odt 8 of Union of India .v/s. Rina Devi 1. Para No. 29 is relevant for this purpose. It is extracted below:
"29. We thus hold that mere presence of a body on the Railway premises will not be conclusive to hold that the injured or deceased was a bona fide passenger for which a claim for compensation could be maintained. However, mere absence of a ticket with such an injured or deceased person will not negative the claim that he was a bona fide passenger. The 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."
11 The Apex Court has held that mere presence of the body on the railway premises will not be conclusive enough to hold that the injured or deceased was a bona fide passenger for which the claim for compensation could be maintained. It is further held that, however, mere absence of a ticket with such an injured or deceased person will not negative the claim that 1 (2019) 3 SCC 572
901.FA.233.2011 railway compensation judge.odt 9 he was a bona fide passenger. The initial burden will be on the claimant, which can be discharged by filing an affidavit of the relevant facts. The burden will then shift on the railway and the issue can be decided based on the facts shown in the attending circumstances. It is held that this issue will have to be dealt with from case to case on the basis of the facts found. 12 It needs to be stated that the learned Member of the Tribunal has observed that the evidence of AW-1 is credible. AW-1 in his evidence, has narrated the first hand account vis-a-vis the purchase of the ticket by the deceased. The evidence of AW-1 has been corroborated by one important circumstance. On the basis of this circumstance it can be safely concluded that after purchasing the ticket the deceased had boarded the passenger train to go to Badnera. Undisputedly, the deceased was resident of Akola and he was taking education at Pandharkawada. The deceased was found dead on the railway premises between Murtizapur and Mana
901.FA.233.2011 railway compensation judge.odt 10 Station. The spot of incident is 46 km away from Akola railway station. The deceased otherwise had no reason to go to the spot of the incident for committing suicide. AW-1 has stated that schedule time of the passenger train was 11 p.m. But it was running late and therefore, he went back leaving the deceased at railway station to undertake his journey. The dead body was found at 2:10 a.m. in the night by the loco-pilot of another train, who has been examined as witness. In my view, this circumstance is sufficient to conclude that after purchasing the ticket in presence of AW-1, the deceased had boarded the train and on the way fell from the moving train and died on the spot. The railway has not adduced any evidence in rebuttal. The cross-examination of AW-1 conducted on behalf of the railway is not sufficient to discard and disbelieve his evidence. Therefore, I conclude that the learned Member of the Tribunal was right in holding that the deceased was a bona fide passenger travelling with the valid
901.FA.233.2011 railway compensation judge.odt 11 journey ticket. It is to be noted that the possibility of loss of journey ticket in such an incident can't be ruled out. The loss of a ticket can be presumed on the basis of the positive evidence of purchase of ticket. Therefore, on this ground I do not see any reason to interfere with the finding of fact recorded by the learned Member of the Tribunal.
13 As far as the second point is concerned, the railway has come forward with two fold defence. First defence is that the deceased had committed suicide. The second defence, on the basis of the conclusion drawn by the DRM in his report, is that the deceased might have fallen from a moving train due to his own negligence. In my view, on both aspects the learned Member has considered the evidence on record and has rejected this defence. On going through the evidence and available record I do not see any reason to interfere with this finding.
901.FA.233.2011 railway compensation judge.odt 12 14 As per Section 123(c)(2) of the Railways Act, 1989 (for short 'the Act of 1989'), the accidental falling of any passenger from a train carrying passengers is an untoward incident. The railway is liable to pay the compensation irrespective of any fault or wrongful act etc. on the part of the Railway Administration. The railway cannot be held responsible to pay the compensation if the case falls under any of the clause to the proviso to Section 124-A of the Act of 1989. In this case no evidence has been adduced about the suicide by the deceased. There was no eye witness to the incident. The incident occurred during night. The appellant- railway has contended that the deceased might have been negligent and therefore, due to his negligence he would have fallen down from the train. AW-1 has categorically stated that the deceased fell from a moving train due to a sudden jerk to the train at the spot of the incident and died due to the injury sustained by him. The major injury sustained by the deceased
901.FA.233.2011 railway compensation judge.odt 13 was to his head. The injury sustained by the deceased to his head clearly indicates that the death was due to fall from a moving train. The injury to head could be possible in a fall from a moving train. It is not the case of the railway administration that the deceased was either run over or dashed by any train. There is no report of either the loco-pilot of any train or guard of any train about the run over of any passenger or dash to any passenger at the spot of the incident. The dead body was found by the side of the track. The injury was sustained to the head. Therefore, the case will not be covered by the clauses of the proviso to Section 124-A. The case would rather fall under first part of Section 124-A. 15 As far as the defence of negligence is concerned, it would be apposite at this stage to refer to the decision in the case of Rina Devi (supra) . Para No. 25 is relevant for this purpose. It is extracted below:
901.FA.233.2011 railway compensation judge.odt 14 "25. We are unable to uphold the above view as the concept of 'self inflicted injury' would require intention to inflict such injury and not mere negligence of any particular degree. Doing so would amount to invoking the principle of contributory negligence which cannot be done in the case of liability based on 'no fault theory'. We may in this connection refer to judgment of this Court in United India Insurance Co. Ltd. versus Sunil Kumar laying down that plea of negligence of the victim cannot be allowed in claim based on 'no fault theory' under Section 163-A of the Motor Vehicles Act, 1988. Accordingly, we hold that death or injury in the course of boarding or de-
boarding a train will be an 'untoward incident' entitling a victim to the compensation and will not fall under the proviso to Section 124-A merely on the plea of negligence of the victim as a contributing factor."
16 The Hon'ble Apex Court has held that for the purpose of accepting the case of self inflicted injury, there must be intention to inflict the injury and not mere negligence of any particular degree. In such a case the defence of negligence or contributory negligence cannot be invoked. It is held that the liability in the claim is based on the principle of strict liability or no fault theory. It is It is further held that the
901.FA.233.2011 railway compensation judge.odt 15 death or injury in the course of boarding and de-boarding a train will be an 'untoward incident' entitling a victim to the compensation and will not fall under the proviso to Section 124A merely on the plea of negligence of the victim as a contributing factor.
17 In my view, the facts and circumstances brought on record and supported by the evidence can lead to the only conclusion that deceased after boarding the train at Akola railway station fell from a moving train at the spot of the incident and died due to the injury sustained by him. Death in this case, as such, was in an untoward incident. It is to be noted that such a claim has to be decided on the principle of preponderance of probability. The evidence on record makes the claim of the respondents probable. The possibility of a suicide or attempt to commit a suicide by the deceased at the spot of the incident has been completely ruled out. The railway has not adduced sufficient evidence to prove otherwise.
901.FA.233.2011 railway compensation judge.odt 16 I, therefore, conclude that the learned Member on this point as well has not committed any mistake or illegality. Accordingly, I answer above points in the affirmative. In view of this, the appeal deserves to be dismissed.
18 Learned Advocate for the appellant-railway in all fairness 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 Schedule to the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990 has been revised with effect from 01.01.2017. In view of the amendment of the schedule, in case of a death claim, the claimants are entitled to get compensation of Rs.8,00,000/-. However, in view of the decision of the Hon'ble Apex Court in the Case of Union of India .v/s. Radha Yadav2 in the case of the old claim, the claimants would be entitled to get compensation of 2 (2019) 3 SCC 410
901.FA.233.2011 railway compensation judge.odt 17 Rs.8,00,000/- without interest, if the compensation awarded earlier with interest is less than Rs.8,00,000/-. Learned Advocate for the appellant submitted that the compensation awarded earlier i.e. Rs.4,00,000/- with interest, would not be more than Rs.8,00,000/-. Therefore, in this case, the claimants would be entitled to get Rs.8,00,000/- without interest.
19 Accordingly, I pass the following order:
(i) The first appeal stands dismissed.
(ii) The judgment and order dated 01.04.2010
passed by the Railway Claims Tribunal, Nagpur Bench, Nagpur in Claim Application No.48/OA-II/RCT/NGP/ 2007 stands modified.
(iii) The appellant-railway is directed to pay Rs.8,00,000/-(Rupees Eight Lacs Only) towards
901.FA.233.2011 railway compensation judge.odt 18 compensation to the respondents.
(iv) It is pointed out that in terms of the order of this Court, the appellant has deposited Rs. 4,16,953/- (Rs. Four Lacs Sixteen Thousand Nine Hundred and Fifty Three only) in this Court. Now the appellant- railway would be required to deposit the balance compensation amount of Rs.3,83,047/- (Rs. Three Lacs Eighty Three Thousand and Forty Seven only).
(v) The balance amount of Rs.3,83,047/- shall be deposited with the registry of this Court within four months from the date of the judgment. If the amount is not deposited within four months, the amount shall carry interest @ of 7% p.a. from the date of this order till realization of the amount.
(vi) The amount of compensation shall be paid equally to the respondents.
(vii) After depositing the balance amount, the respondents are permitted to withdraw the balance
901.FA.233.2011 railway compensation judge.odt 19 amount and the amount lying deposited in this Court, with accrued interest, if any.
20 The first appeal stands disposed of. No order as to costs. Pending applications, if any, stand disposed of.
(G. A. SANAP, J.) Namrata Signed by: Miss Namrata Suryawanshi Designation: PA To Honourable Judge Date: 07/05/2024 19:06:28