Bombay High Court
The Union Of India vs Smt.Surekha Wd/O Suresh Limaye on 13 August, 2010
Author: A.P.Bhangale
Bench: A.P.Bhangale
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
FIRST APPEAL NO: 1061 /2009
The Union of India,
Through General Manager,
Central Railway, Mumbai CST ... ...APPELLANT
v e r s u s
1) Smt.Surekha wd/o Suresh Limaye
Aged 35 years, occu: Houserhold
2) Master Suraj s/o Suresh Limaye
Aged 12 years, occu: Education
under guardian Respondent No.1-mother
3) Ku. Sweta d/o Suresh Limaye
Aged 10 years, occu: Education
under guardian Respondent No.1-mother.. ...RESPONDENTS
............................................................................................................................
Mr. P S Lambat, Advocate for appellant
Mr Vilas Deshpande, Advocate for Respondents
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CORAM: A.P.BHANGALE, J.
DATED : 13th August, 2010
ORAL JUDGMENT :
1. Heard submissions at the Bar.
2. By means of this appeal, the appellant -Union of India is challenging the judgment and award passed in Claim Application No.03/OA
-II/RCT /NGP/2006 decided by learned Member (J), Railway Claims Tribunal, Nagpur Bench Nagpur ( in short "the Tribunal") on 19.2.2009 ::: Downloaded on - 09/06/2013 16:17:34 ::: 2 whereby compensation was awarded in the sum of Rs. 4,00,000/- in favour of the respondents-claimants.
3. In support of the appeal, Mr. P. S. Lambat, learned counsel for the appellant, contended that the Tribunal erred in law in awarding compensation as burden of proof was not discharged on behalf of the claimants to establish that deceased was a bona fide passenger and met with an untoward incident as contemplated under section 123 ( c) read with Section 124-A of the Railways Act, 1989 ( in short "the said Act"). It is contended that photostat copies of ration card and school leaving certificate ought not to have been considered by the Tribunal as they were not duly proved. It is further submitted that the documentary as well as oral evidence led on record was overlooked by the Tribunal and with the result, the Tribunal reached a wrong conclusion that deceased had met with an untoward incident, which led to award of compensation in the sum of Rs.
4,00,000/-. Learned Advocate for the appellant sought to rely upon the decision in Union of India vs. Kurukundu Balakrishnaiah : 2004 (1) ALT 100, to argue that if a person is trying to board or alight from a running train or standing near the door, jumped from the compartment, crossing the railway track or leaning out of the carriage; and during the course of such circumstances had fallen down and was either injured or had died, was not entitled to compensation from the Railways under section 124-A of the said Act. It is, therefore, contended that since the claimants in the present case did not discharge burden of proof to show that deceased was a bona fide ::: Downloaded on - 09/06/2013 16:17:34 ::: 3 passenger travelling in Railway compartment and met with an untoward incident, the compensation ought not to have been awarded.
4. Learned counsel for the respondents/claimant stridently opposed the submissions and contended that burden of proof solely rested upon in the Railway administration and it ought to have discharged the burden to establish that deceased was not a bona fide passenger travelling by train before deceased met an untoward incident. My attention has been invited to section 124-A of the said Act 1989 which runs as under :-
"124-A: Compensation on account of untoward incidents : 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 dependent 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:
Provided that no compensation shall be payable under this section by the railway ::: Downloaded on - 09/06/2013 16:17:34 ::: 4 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.
It is submitted with reference to the provisions above, that Railway administration is required to lead necessary evidence to establish that its case is coming within any of the exception stated in proviso to section 124-A. The section lays down a rule that whenever an untoward incident occurs in the course of working of a railway which irrespective of any wrongful act neglect or default and notwithstanding anything contained in any other law Railway administration is liable to pay compensation as may be prescribed in case of any injury to the passenger or to dependents of deceased victim who met an untoward incident. Thus, unless Railway administration can categorically point out that the case is within any of the above exceptions covered by the provision it cannot avoid its responsibility to pay the statutory compensation. Reference is made to the ruling in Narshimha Annaji Purohit and another vs. Union of India : 2005 (4) All.M.R.189 ; in which this ::: Downloaded on - 09/06/2013 16:17:34 ::: 5 Court had observed in Paragraph 13 : " since the burden is always on the Railways as has been held in the aforesaid cases and since that burden has not been discharged by the Railways, it has to be held that the deceased was a bona fide passenger". The ratio stated is attracted in the facts and circumstances of the present case also as it appears that on behalf of the Railway administration only one witness, namely, Babarao Daulatrao Shingade, a Booking Supervisor sworn an affidavit which contains three paragraphs and states only about procedure of issuing monthly season ticket, quarterly season ticket and vendor's ticket. According to Shingade, if any person wants to avail the facility of monthly season ticket, or quarterly season ticket, or vendor's ticket, he is required to obtain identity card issued by Railway Booking Office for which Re.1 /- is charged and such identity card is valid for a period of five years and that such person is required to carry his identity card while travelling with pass. Thus, in the affidavit mentioned above, the procedure as to obtaining Railway pass and identity card and requirement of the passenger to carry such identity card is mentioned but nothing more is in evidence for the appellant to substantiate their contentions. On the other hand, widow of the deceased was examined on behalf of the claimants as also one Manohar Shankarrao Vaidya and Parag Madhukar Kulkarni as witnesses for applicant/claimant to depose about the fact of death of deceased Suresh Moreshwar Limaye who died at Ajni Railway Station near platform. It is also brought on record on behalf of the claimants that on 7.1.2005 deceased had came to attend his office at Ajni ::: Downloaded on - 09/06/2013 16:17:34 ::: 6 Square and left the premises at about 7.30 p.m. and on 8.1.2005 witness
-Parag came to know about accidental death of deceased Suresh at Ajni Railway platform. Thus, the claimants relied upon evidence of employer as well as evidence of widow, father-in-law of the deceased as also documentary evidence which was brought on record, such as, spot panchnama, Inquest panchnama,. PM notes, accident report etc. In the absence of any further evidence on the part of Railway administration and looking into the documentary evidence i.e. spot panchnama and inquest panchnama, it does prima facie appear that the body of the deceased was lying on the Railway line near Platform No.2 of Ajni Railway Station. The post-
mortem notes also indicate that the dead body was carried for PM along with inquest and requisition and cause of death was mentioned as "injury to vital organs". The submission on behalf of the appellant that no Railway ticket or season pass or identity card was found on the body of the deceased would be of no consequence in the absence of any evidence on behalf of the Railway administration to prove that deceased Suresh was not bona fide passenger travelling by a Railway compartment. The documentary evidence on record as referred above, do furnish a ground for presumption that deceased met with an untoward incident and unless there is evidence in rebuttal to the contrary which, in the present case, was not led by the Railway administration. Railway adminsitration has to thank itself for not leading necessary evidence to avoid the liability to pay compensation for untoward incident and no fault can be found with it.::: Downloaded on - 09/06/2013 16:17:34 ::: 7
6. For the reasons stated herein-above, I do not find any merit in the appeal. The Appeal being devoid of merit, is liable to be dismissed and the same is dismissed.
JUDGE sahare ::: Downloaded on - 09/06/2013 16:17:34 :::