Bombay High Court
Hanuman Ram S/O Bhura Ram Bisnoi And ... vs Union Of India, Through Its General ... on 23 April, 2024
Author: G. A. Sanap
Bench: G. A. Sanap
2024:BHC-NAG:5714
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
FIRST APPEAL NO. 1014 OF 2019
APPELLANTS : 1. Hanuman Ram s/o Bhura Ram Bisnoi
(Original Claimants) Aged about 40 years, Occ. Labour
On R.A.
(Father of deceased).
2. Smt. Mirgadevi w/o Hanuman Ram
Bisnoi, Aged about 35 years, Occ.
Labour
(Mother of deceased)
Both R/o Moukhawa, Tah.
Gudhamalani, Dist. Badmer
(Rajasthan)
//VERSUS//
RESPONDENT : Union of India, through its
(Original Respondent) On General Manager, Central Railway,
R.A.
Mumbai CST.
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Mr. N.R. Mankar, Advocate for appellant
Ms. Neeraja Chaubey, Advocate for respondent.
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CORAM : G. A. SANAP, J.
DATED : 23.04.2024
ORAL JUDGMENT
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 01.02.2017 passed by the Railway Claims Tribunal, Nagpur Bench, Nagpur, whereby the -2- claim filed by the appellants under Section 16 of the Act of 1987 for compensation on account of death of their son in an untoward incident was dismissed.
2. Background facts:-
The appellants are the parents of the deceased. It is the case of the appellants that on 08.04.2013, the deceased was travelling from Ahmedabad to Secunderabad by Bikaner superfast express train No.7038 along with his uncle by name Ramlal Bhuraram Bisnoi and his aunt. It is stated that the uncle and aunt of the deceased had reservations in sleeper class viz. seat numbers six and eleven. The deceased had no reservation. He purchased a general class ticket bearing No.5910 at Ahmedabad for Rs.285. In the train, he purchased an excess fare ticket for Rs.460/- and was therefore, accommodated in the sleeper class. The appellants further stated that on 08.04.2013 the train was over crowded with passengers and as such, the deceased was sitting next to the emergency exit window. The window was out of order and could not be closed. According to them, when the train reached near Talni Railway Station, there was a sudden jerk to the train and the -3- deceased who was sitting near the window fell from the running train at Dhamangao to Talni railway track down line. He sustained serious injuries and died due to the injuries on the spot. The appellants stated that the deceased was a bona fide passenger. He fell from the moving train and therefore, the death was in an untoward incident. On these averments they claimed the compensation.
3. The respondent-railway filed the written statement and opposed the claim. It was contended that death was not in an untoward incident. The deceased was not a bona fide passenger with a valid journey ticket. The deceased was responsible for the incident. He was negligent while travelling.
4. The parties have adduced evidence before the Tribunal. Learned Member of the Tribunal found that there was no substance in the claim and therefore, dismissed the claim. Being aggrieved by the judgment and order, the appellants are before this Court in appeal.
5. I have heard Mr. N.R. Mankar, learned Advocate for -4- the appellants and Ms Neeraja Chaubey, learned Advocate for the respondent. Perused the record and proceedings.
6. In view of the facts and circumstances following points fall for my determination.
i) Whether the deceased was travelling in Bikaner superfast express train No.7038 as a bona fide passenger with a valid journey ticket?
ii) Whether the deceased died in an untoward incident as understood by the provisions of Section 123(c)(2) of the Railways Act, 1989?
7. Learned Advocate for the appellants submitted that the journey tickets were recovered at the time of the inquest panchanama from the trouser pocket of the deceased. Learned Advocate submitted that the Tribunal has disbelieved the tickets by recording innocuous reasons. Learned Advocate submitted that the reasons recorded by the Tribunal are contrary to the evidence available on record. Learned Advocate submitted that the date on the extra fare ticket as 06.04.2013 was considered to disbelieve the contention of the appellants that this ticket was issued during the -5- course of the journey. Learned Advocate submitted that in the totality of the facts and circumstances, it has been established that there was a mistake on the part of the ticket collector while mentioning the date on the extra fare ticket. Learned Advocate pointed out that this ticket was not sent for verification. Learned Advocate submitted that the general ticket was verified and it was found to be a valid journey ticket. Learned Advocate further submitted that evidence of Ramlal s/o Bhura Ram Bisnoi (AW-2) with whom the deceased was travelling cannot be discarded and disbelieved. Learned Advocate submitted that the incident and circumstances leading to the incident have been established on the basis of the evidence of AW-2. Learned Advocate submitted that the railway has not adduced any independent evidence to show that the exit window was not faulty and could be closed. Learned Advocate submitted that the learned Member of the Tribunal has committed grave error in discarding the concrete and cogent evidence adduced by the appellants. Learned Advocate submitted that the claim deserves to be allowed.
8. Learned Advocate for the respondent-railway supported the judgment and order passed by the Tribunal. -6- Learned Advocate submitted that the discrepancy as to the date on the extra fair ticket and the general ticket created a doubt in the mind of the learned Member of the Tribunal and therefore, by recording the reasons, he was constrained to discard the ticket. Learned Advocate submitted that the evidence of AW-2 was appreciated keeping in mind the date of the extra fare ticket. Learned Advocate submitted that there is hardly any evidence to prove that the deceased fell from the exit window and died due to the injuries sustained by him.
9. I have gone through the record and proceedings. On going through the record and proceedings, I am satisfied that the learned Member of the Tribunal has failed to properly appreciate the evidence and has misdirected himself. The evidence of Hanuman Ram (AW-2) on the point of journey with the deceased on 08.04.2013 from Ahmedabad to Secunderabad by Bikaner superfast express train No.7038 has been corroborated by contemporaneous documentary evidence. Learned Member, on flimsy grounds and reasons discarded the valid journey ticket. Ramlal (AW-2) the uncle of the deceased has categorically stated -7- that the deceased was travelling with him and his wife in the said train on 08.04.2013. He has stated that they had reservations in sleeper class and their seat numbers were six and eleven. He has stated that the deceased had no reservation. He was travelling with a general ticket of Rs.285/-. He has further stated that thereafter, in the train, deceased purchased an excess fair ticket of Rs.460/-. Both tickets were recovered at the time of panchanama. It is seen that on the excess fair ticket for Rs.460/-, the date mentioned was 6.04.2013. The general class ticket was purchased on 08.04.2013 at 4.35 a.m. The deceased and AW-2 boarded the said train at 6.50 a.m. on 08.04.2013. It is undisputed that the spot of the incident is 850 k.ms. from Ahmedabad, where the deceased with AW-2 had boarded the train. As far as the occurrence of the incident is concerned, there is hardly any dispute. It is also not the case of the railway that the deceased committed suicide at the spot of incident. It needs to be stated that the deceased otherwise had no reason to go to the spot of the incident. It is also not the case of the railway that at the spot of incident, the deceased was either run over or dashed by any train.
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10. The general ticket was sent for verification. The verification report on record clearly states that it was a valid general ticket. This ticket was found on the person of the deceased. This fact clearly proves that the deceased had commenced his journey on 08.04.2013 at 6.50 a.m. The learned Member, on the basis of the extra fair ticket and more particularly the date mentioned on the said ticket in the handwriting of the ticket collector, has observed that this extra fair ticket was taken well in advance without any reason and therefore, it creates doubt about the journey by the deceased with AW-2. In my view, this reasoning recorded by the learned Member is not consistent with the record. Even by applying robust commonsense, the conclusion arrived at by the learned Member cannot be reached. The observations made by the learned Member on this count would suggest that on 06.04.2013 the deceased commenced his journey from Ahmedabad to Secunderabad. This observation would further suggest that from Secunderabad the deceased went back to Ahmedabad and then again boarded the train in question with his uncle and aunt on 08.04.2013 at 6.50 a.m. In my view, the learned Member has failed to properly appreciate the evidence on -9- record. The extra fair ticket was not sent for verification. The extra fair ticket was manually prepared. The possibility of mistake while mentioning the date by the ticket checker cannot be ruled out. The extra fair ticket bears the serial number. This ticket could have been sent for verification. The report of the concerned ticket collector with the serial number of this ticket and other tickets could have been obtained to substantiate this contention. It needs to be stated that this extra fair ticket was for journey from Ahmedabad to Secunderabad. In my view, since both the tickets were found on the person of the deceased at the time of panchanama, the railway officials were required to send these tickets for verification. In the absence of verification of the said ticket the inference as to the mistake committed by the ticket checker while writing the date on the ticket has to be drawn. Both tickets were valid journey tickets for the journey from Ahmedabad to Secunderabad. The boarding of train by deceased with AW-2 has been categorically stated by him. The learned Member of the Tribunal has failed to properly appreciate the evidence on record and on this point has reached the wrong conclusion. The tickets were recovered from the deceased. The oral evidence has been -10- corroborated by the contemporaneous documentary evidence. The report of the incident was lodged by AW-2 at Dattapur Police Station. In his report, he has narrated all these facts. In view of this positive evidence, the railway was required to adduce the evidence and disprove that this ticket was not issued on 08.04.2013 as stated by AW-2. I therefore, conclude that the deceased was a bona fide passenger travelling with a valid journey ticket. Learned Member of the Tribunal was not right in holding that the deceased was not a bona fide passenger. Therefore, this finding cannot be sustained.
11. The next important issue is as to whether death was in an untoward incident. It is not the case of railway that on the spot of the incident, the deceased was either run over or dashed by any train. The evidence of AW-1 and AW-2 is sufficient to prove that on 08.04.2013 at 6.50 a.m., the deceased boarded the train in question at Ahmedabad to go to Secunderabad. On the way, as narrated in detailed by AW-2 while sitting near the exit window, he fell from the exit window and died due to the injuries sustained by him. It has come on record that the deceased had no -11- reservation. AW-2 was travelling with a sleeper class reservation. AW-2 has mentioned the numbers of the seats. The railway has not denied this fact. As far as the nature of the incident is concerned, it was specifically narrated in the first information given to the police. This report is at page A-32, dated 09.04.2013. He has deposed that there was a rush in the train. The deceased had no place to sit and therefore, he was sitting near the exit window. He has stated that exit window was faulty. It could not be closed. He has stated that under spell of sleep, the deceased fell from the said window and died due to the injuries sustained by him.
12. As far as the time and place of the incident is concerned, there is hardly any dispute. AW-2 who was travelling with the deceased has narrated the first hand account of the incident. There is no reason to discard and disbelieve the version of AW-2 as to the occurrence of the incident. In my view, in this case, the evidence on record is sufficient to prove that the deceased fell from the exit window of the bogie, which was faulty and could not be closed. In my view, therefore, the case of the appellants would fall under the first part of Section 124-A of the Railways -12- Act, 1989 (for short, the Act of 1989). The case will not be covered under any of the clauses to the proviso to Section 124-A of the Act of 1989. The accidental falling of a passenger from a moving train is an untoward incident as defined under Section 123(c) (2) of the Act of 1989. It needs to be stated that under Section 124-A of the Act of 1989 the liability to pay compensation is regardless of any wrongful act, neglect or default on the part of the railway administration. The proviso to Section 124-A states that railway administration would have no liability to pay any compensation in case death of the passenger or injury to passenger was caused due to any of the reasons enumerated in clauses (a) to
(e) to proviso to Section 124-A of the Act of 1989. Legal position on this point has been enunciated in the decisions of the Hon'ble Apex Court in the case of Jameela and others vs. Union of India reported at AIR 2010 SC 3705 and Union of India vs. Rina Devi, reported at AIR 2018 SC 2362. In view of this, I conclude that on the basis of the cogent and concrete evidence, it has been proved by the appellants that their son died due to fall from a moving train. In view of this, I answer both the points in the affirmative. As such, the appeal deserves to be allowed.
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13. In this case, the accident had occurred on 08.04.2013. Learned Advocate for the respondent-railway 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 vs. Radha Yadav reported at (2019) 3 SCC 410 in the case of the old claim, the claimants would be entitled to get compensation of Rs.8,00,000/- without interest, if the compensation awarded earlier with interest is less than Rs.8,00,000/-. Therefore, in this case, the claimants would be entitled to get Rs.8,00,000/- without interest.
14. Accordingly, I pass the following order:
15. First Appeal is allowed.
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16. The order passed by Railways Claims Tribunal, Nagpur Bench, Nagpur dated 01.12.2017 is quashed and set aside.
17. The claim petition filed by the appellants is allowed.
i) The respondent i.e railway is directed to pay compensation of Rs.8,00,000/- (Rs. Eight Lakhs Only) to the appellants.
ii) The appellant Nos. 1 and 2 shall be paid 50% amount of compensation each.
iii) The amount of compensation be deposited within four months from the date of uploading of this judgment.
iv) The amount of compensation of Rs.8,00,000 (Rs. Eight Lacs Only) be transferred directly in the bank account of the appellants. The appellants shall provide the details with regard to their bank accounts to the respondent.
17. The first appeal stands disposed of. No order as to costs. Pending applications, if any, stand disposed of.
(G. A. SANAP, J.) manisha Signed by: Mrs. Manisha Shewale Designation: PA To Honourable Judge Date: 15/05/2024 11:32:07