Karnataka High Court
Mrs. Albino Mary vs Union Of India on 6 July, 2018
Author: S.N.Satyanarayana
Bench: S.N.Satyanarayana
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JULY 2018
BEFORE
THE HON'BLE MR.JUSTICE S.N.SATYANARAYANA
MISCELLANEOUS FIRST APPEAL No.425/2013(RCT)
BETWEEN
1. Mrs. ALBINO MARY,
W/O SOLOMN (LATE),
AGED ABOUT 53 YEARS,
RESIDENT OF No.185/F,
3RD CROSS, 1ST PHASE,
GIRINAGAR, BANGALORE-85.
2. Mrs. B.M.SHALINI
W/O S.PATRICK JOSEPH (LATE),
AGED ABOUT 31 YEARS,
3. MASTER SHISHIR CHANDR
S/O S.PATRICK JOSEPH (LATE),
AGED ABOUT 4 YEARS,
SINCE MINOR IS
REP.BY HIS MOTHER / NATURAL GUARDIAN
Mrs.B.M.SHALINI,
THE APPELLANT NO.2 HEREIN.
BOTH APPELLANT NOs.2 AND 3 ARE
RESIDENTS OF No.1111,
VIRABADRA NAGAR 3RD STAGE,
BANASHANKARI,
BANGALORE-85. ... APPELLANTS
(BY SRI TANVEER PASHA A S, ADVOCATE)
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AND
UNION OF INDIA
REPRESENTED BY ITS GENERAL MANAGER,
SOUTH WESTERN RAILWAYS.
HUBLI - 580 023. ... RESPONDENT
(BY SRI N S SANJAY GOWDA, ADVOCATE-VK NOT FILED)
THIS MFA IS FILED UNDER SECTION 23(1) OF THE
RAILWAY CLAIMS TRIBUNAL ACT, AGAINST THE ORDER
DT.26.09.2012 PASSED IN OA II U 155/2010 ON THE FILE OF
THE RAILWAY CLAIMS TRIBUNAL, BANGALORE BENCH,
BANGALORE, DISMISSING THE APPLICATION FOR
COMPENSATION.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though this matter is listed for admission, with the consent of the learned counsel appearing for the parties, it is taken up for final disposal.
2. The Applicants in O.A. II U 155/2010 on the file of the Railway Claims Tribunal (hereinafter referred to as 'the Tribunal'), Bangalore Bench, have come up in this appeal impugning the judgment and award dated 26.09.2012 in dismissing their application seeking compensation for the death of Sri S. Patrick Joseph, who is said to have died on -3- account of untoward incident of accidental fall from Mysore - Bangalore push-pull train while he was traveling as a passenger from Pandavapura to Bangalore in the said train on 03.09.2010.
3. The brief facts leading to this appeal are as under:
3.1 The case of the applicants before the Tribunal is that the first applicant is the mother and the second applicant is the wife of deceased Sri S. Patrick Joseph. The third applicant is the minor son of deceased S. Patrick Joseph and the second applicant. Patrick Joseph was doing business in Identity (I.D.) cards and at the instance of his friend, Lava Kumar, he traveled to Pandavapura on 03.09.2010 to secure orders for making I.D. cards. On the next day i.e., 04.09.2010, the first applicant was informed by Railway Police that her son, Patrick Joseph, had met with a railway accident near Jnanabharathi Railway Station and died. According to the applicants, Patrick Joseph was traveling from Pandavapura to Bangalore in Mysore - Bangalore push-pull train with a valid ticket on 03.09.2010 and due to overcrowding in the said -4- train, he had accidentally fallen down from the train at Jnanabharathi Railway Station, as a result of which, he sustained injuries and succumbed to the same. Hence, they filed claim application seeking compensation of Rs.4,00,000/-
from the respondent - South Western Railways towards the death of S. Patrick Joseph.
3.2 The respondent filed its reply statement contending that Patrick Joseph was not traveling as a passenger in the aforesaid train and his death was not due to any untoward incident as alleged by the applicants, but it was due to the negligence of deceased himself. The respondent pointed out that on 04.09.2010, the Station Master received a message from the key man to the effect that the dead body of a male person aged about 25 years was lying over the railway track at KM No.8/700 and no message was given either by the railway guard or the driver of the concerned train. The respondent further contended that the applicants were not the dependants of Patrick Joseph and they were not entitled for any compensation.
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3.3 The Tribunal, on the basis of the pleadings of the parties, framed the following issues:
"1. Whether was there any untoward incident?
2. Whether the deceased was a bona fide passenger?
3. Whether the applicants are the dependants of the deceased ?
4. Whether the applicants are entitled for the claim amount and interest as prayed for in the application ?
5. To what relief? "
3.4 On behalf of the applicants, Smt. B.M. Shalini, the wife of deceased Patrick Joseph, got examined herself as AW.1 and she examined another witness viz., S.R. Lava kumar as AW.2 and got marked the documents as per Exs.A1 to A14.
3.5 On behalf of the respondent - South Western Railway, official of the Railways department, was examined as RW.1 and he got marked the documents as per Exs.R1 and R2.
3.6 Smt. B.M. Shalini, wife of deceased Patrick Joseph, who was examined as AW.1 stated in her evidence that AW.2 -6-
- Lava Kumar had informed her that her husband had boarded the Mysore - Bangalore push-pull train on 03.09.2010, but he did not tell her the time at which he boarded the train.
3.7 Sri S.R. Lava Kumar, who was examined as AW.2, has deposed that he had known Patrick Joseph since a long time and at his instance, Patrick Joseph had come to Pandavapura on 03.09.2010. AW.2 further stated that on that day, he introduced Patrick Joseph to his friends for securing orders for preparing photo I.D. cards and after lunch at about 2:15 p.m., he took Patrick Joseph to Pandavapura railway station, where Patrick Joseph after purchasing railway ticket to travel to Bengaluru, boarded Mysore-Bangalore push-pull train. It is stated that since there was heavy rush of passengers in the said train, Patrick Joseph stood near the train door.
3.8 The Tribunal took up issue Nos.1 and 2 for consideration together and it has taken into consideration the evidence of AW.1 - Smt. B.M. Shalini and AW.2 - Sri Lava Kumar and the contents of inquest report, copy of which was -7- produced by the applicants as per Ex.A9, wherein it is stated that the victim (Patrick Joseph) had fallen down from the running train and as a result, his both legs were cut from thigh, his right hand was broken, his body was dragged on the lane and cement sleepers and his dead body was found at Jnanabharathi halt gate railway station and the post mortem report vide Ex.A10, which indicated that the death of Patrick Joseph was due to shock and haemorrhage as a result of multiple injuries sustained by him 3.9 Having regard to the evidence adduced by the parties, the Tribunal held that the applicants had proved that on 03.09.2010, Patrick Joseph was traveling from Pandavapura to Bangalore in Mysore - Bangalore push-pull train as a bona fide passenger with a valid ticket and that he accidentally fell down from the running train and died in an untoward incident.
3.10 However, with regard to issue Nos.3 and 4, the Tribunal has observed that since Patrick Joseph was married, his mother, the first applicant in the claim application, was not -8- a dependant as per Section 123(b)(i) of the Railways Act, 1989, and as such, she was not entitled to any compensation. The Tribunal has further observed that the applicants failed to produce any material to show that all the dependants of deceased Patrick Joseph entitled to compensation were brought on record and that there were no dependants other than applicant Nos.2 and 3 and in view of the same, they could not be held to be entitled for the entire compensation. The Tribunal has held that though compensation of Rs.4,00,000/- together with interest was payable towards death of Patrick Joseph, in the absence of conclusive evidence that there were no other dependants apart from applicant Nos.2 and 3, they were not entitled to succeed.
3.11 Accordingly, the Tribunal by its judgment dated 26.09.2012, dismissed the Application. Being aggrieved by the same, the applicants have preferred this appeal on the ground that the Tribunal has not taken into consideration the evidence adduced by the applicants to demonstrate that they -9- alone are the dependants of deceased Patrick Joseph and the Tribunal ought to have allowed their claim application.
4. Heard the learned counsel for appellants and learned counsel for the respondent. Perused the material on record.
5. The material on record discloses that Sri Rama Krishna, key man, Gang No.1, who was on vigil duty near the track at KM No.8/700 on 04.09.2010, informed the Station Manager, South Western Railway, Kengeri, that one male dead body aged about 25 years was found lying near the track at KM.8/700 i.e., near Jnanabharathi railway station. On the basis of the said information, case in UDR No.132/2010 was registered by Bangalore City Railway Police on the said day. Besides this, there is no other information either from the railway guard or the driver of the said train or from any person traveling in Mysore-Bangalore push-pull train of having seen Patrick Joseph falling from the train and / or such an accident having occurred in their presence. Admittedly, the body of deceased was not found near the said station, but it
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was found on the railway track between two stations i.e., Jnanabharathi railway station and Bengaluru city railway station. The records would indicate that deceased Patrick Joseph had come under the wheels of the train.
6. In the claim Application before the Tribunal, there was an attempt on the part of the applicants to demonstrate that on 03.09.2010, Patrick Joseph was traveling from Pandavapura to Bengaluru as a bona fide passenger in Mysore-Bangalore push-pull train. As there was heavy rush of passengers in the said train, Patrick Joseph was standing near the train door and when the train approached Jnanabharathi railway station, he lost his balance and accidentally, fell down from the running train and as a result, he suffered injuries and succumbed to the same, but the material available on record would indicate otherwise. If really Patrick Joseph had come under the wheels of the train, this Court is unable to understand how a person, who was standing near the train door after falling from the train could come under the wheels of the train, loose his legs and succumb to the injuries.
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7. Surprisingly, the Tribunal has accepted the case of the applicants that the accident occurred due to accidental fall of Patrick Joseph from the said train. However, the claim application is dismissed on the ground that the applicants failed to establish that all the dependants of deceased Patrick Joseph entitled to compensation were brought on record and that there were no dependants other than applicant Nos.2 and
3.
8. When the grounds urged in the appeal and the contents of documents, which are furnished by the learned counsel for the appellants, are looked into, it is clearly seen that the finding of the Tribunal that Patrick Jospeh died in an 'untoward incident' is not based on the record. In normal course of events, the accident would not have happened in the manner described in the claim Application filed by the applicants. It is seen that the Railway Department is also equally responsible in not pursuing the matter seriously as the claim Application is dismissed for some other reason i.e., applicants failed to establish that apart from them, there were no other dependants of Patrick Joseph.
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9. Be that as it may, on going through the material on record, this Court is unable to accept that the accident could have taken place in the manner it is explained in the claim Application and tried to be demonstrated before the Tribunal by adducing evidence through AW.1 - Smt. B.M. Shalini and AW.2 - Lava Kumar, who are admittedly not eye- witnesses to the incident. There is no independent eye- witness to the incident. There is nothing on record to demonstrate that Patrick Joseph was traveling in Mysore- Bangalore push-pull train on 03.09.2010 and due to overcrowding of passengers in the said train, he had accidentally fallen down from the said train and thereby, his death could be considered as an accident caused due to an untoward incident as contemplated under Section 123(c)(2) of the Railways Act, 1989. Therefore, this Court find that no justifiable grounds are made out to admit this appeal.
Accordingly, this appeal is dismissed.
Sd/-
JUDGE sma