Bombay High Court
Kishor S/O Vishnu Bondre vs Union Of India Thr. General Manager, ... on 20 February, 2024
Author: G. A. Sanap
Bench: G. A. Sanap
2024:BHC-NAG:2239
1 FA 447.22
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
FIRST APPEAL NO. 447 OF 2022
APPELLANT : Kishor S/o Vishnu Bondre,
Aged about 38 years, Occu. Present Nil
R/o C/o Pradip Pundlik Khadke,
Gayatri Nagar, Balapur Naka,
Near Hanuman Mandir, Akola,
Tq. & Distt. Akola - 444 002.
VERSUS
RESPONDENT : Union of India,
through the General Manager,
South East Central Railway,
Bilaspur.
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Mr. R. S. Suryawanshi, Advocate for the appellant
Ms. Ashwini S. Athalye, Advocate for the respondent.
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CORAM : G. A. SANAP, J.
DATED : FEBRUARY 20, 2024.
ORAL JUDGMENT
1. In this appeal, filed under Section 23 of the Railway Claims Tribunal Act, 1987 (hereinafter referred to as "the Act of 1987" for short), challenge is to the judgment and order dated 07.12.2017 passed by the Railway Claims Tribunal, Nagpur Bench, Nagpur, whereby the claim filed by the 2 FA 447.22 appellant-claimant under Section 16 of the Act of 1987 for compensation on account of injuries sustained by him was dismissed.
2. Background facts :-
The appellant claims that on 06.02.2012, the appellant and his friend by name Mangesh Neware, after purchasing the journey ticket, boarded train no. 18474 Dn Jodhpuru - Puri Express to go to Raipur. It is stated that while travelling by the said train, when the train was passing through Dongargarh Railway Station, due to sudden jerk, he fell from moving train.
He was rolled over by the wheels of the train. His friend jumped from the train to save him. The appellant sustained severe injuries. In the hospital, his left leg below knee was amputated. Similarly his right foot was also amputated.
It is stated that the journey ticket was lost in the accident.
3. The respondent-Railway filed written statement and opposed the claim. According to the Railway, the appellant and his friend were travelling by Jodhpuri-Puri Express, which had no scheduled halt at Dongargarh Railway Station. In order to get down at Dongargarh, they jumped from the running train. They sustained injuries. The appellant sustained serious injuries. According to the Railway, the injuries sustained were due to criminal negligence of the appellant. The injuries were not sustained in an untoward 3 FA 447.22 incident. It was further stated that the journey ticket was not found. The injured was not a bona fide passenger.
4. The parties have adduced evidence before the Tribunal. Learned Member of the Tribunal, on consideration of the evidence, found that the evidence was not sufficient to prove the basic facts pleaded by the appellant and therefore, the claim was dismissed. Being aggrieved by the judgment and order, the appellant is before this Court in appeal.
5. I have heard Mr. R. S. Suryawanshi, learned advocate for the appellant and Ms. A. S. Athalye, learned advocate for the respondent. Perused the record and proceedings.
6. In the facts and circumstances, following points fall for my determination :-
i] Whether the injured was a bona fide passenger travelling by the train in question with valid journey ticket ?
ii] Whether the injured sustained injury in an untoward incident within the meaning of Section 123 of the Railways Act, 1989 ?
7. Learned advocate for the appellant submitted that the appellant himself stepped into the witness box and narrated the relevant facts related to the accident and loss of journey ticket. Learned advocate submitted that in this 4 FA 447.22 case, the spot panchanama has not been placed on record. Learned advocate submitted that the record is silent about the date of drawing of spot panchanama or actual drawing of the spot panchanama. Learned advocate pointed out that from the spot of the incident, the appellant was shifted to the hospital. He had sustained injuries to his legs. Learned advocate pointed out that the record of the investigation is silent as to what happened to the clothes of the injured when he was admitted in the hospital. Learned advocate submitted that the facts stated in his affidavit of examination-in-chief are sufficient to discharge the initial burden that he was a bona fide passenger. As far as the nature of the incident is concerned, learned advocate submitted that the appellant has placed on record his affidavit and narratted the first hand account of the incident. Learned advocate pointed out that when the statement of the appellant was recorded for the first time, he had stated that he and his friend were travelling from Gondia to Raipur and at Dongargarh Railway Station, due to sudden jerk, he lost his balance and fell down. Learned advocate submitted that the appellant had no reason to alight at Dongargarh Railway Station when he was travelling to Raipur. Learned advocate further submitted that no witness is examined by the Railway to rebut the first hand account of the accident stated in the affidavit of the appellant. Learned advocate further submitted that even if it is assumed that the appellant was negligent, the Railway would still be liable to pay compensation. Learned 5 FA 447.22 advocate submitted that the case of the appellant would be covered by the first part of Section 124-A of the Railways Act, 1989 (hereinafter referred to as "the Act of 1989") and not by the Proviso to the said section. In order to seek support to his submission, learned advocate has relied upon the decisions of the Hon'ble Apex Court in Union of India .vs. Rina Devi, reported at AIR 2018 SC 2362. and Jamila and others .vs. Union of India, reported at (2010) 12 SCC 443.
8. Learned advocate for the respondent-Railway submitted that the friend of the appellant, who was travelling with him, was not examined. Learned advocate submitted that if the appellant and his friend were travelling with valid journey ticket, then the journey ticket would have been found with the injured and his friend. Learned advocate submitted that the statement made by the appellant on affidavit is not sufficient to discharge the initial burden. Learned advocate submitted that when the friend of the appellant approached the Railway authority, he informed that they had jumped from running train at Dongargarh Railway Station and in the said accident, his friend was rolled over by the wheels of the train and sustained injuries. Learned advocate submitted that investigation conducted by the police revealed that the appellant and his friend jumped from running train. Learned advocate 6 FA 447.22 submitted that therefore, the injuries suffered by the appellant would be self- inflicted injuries, covered by the Proviso to Section 124-A of the Act of 1989.
9. It is undisputed that the appellant sustained injuries at Dongargarh Railway Station. The train, at the relevant time, was passing through loop line. The record reveals that the train had proceeded ahead of the platform. It is undisputed that the left leg and right foot of the appellant have been amputated. The spot panchanama is not on record. Similarly, the record does not reveal that any spot panchanama was drawn. The clothes of the injured were not seized. The police investigation report is silent about the clothes of the deceased. Undisputedly, the Railway has come before the Court with a case that the injuries sustained by the injured were due to his criminal negligence and therefore, he is not entitled to get compensation.
10. The investigation was conducted. The Statutory report of the investigation is part of the record. The report is silent about drawing of spot panchanama. Similarly, it is silent about the date of drawing of spot panchanama. The statutory report is also silent about the inspection of the spot after the accident. The spot of the incident is not in dispute. The clothes of the injured, after admission in the hospital, were not seized. According to the appellant, two tickets were kept by him in his trouser pocket and those tickets were lost in the incident. The injured and his friend, as can be seen from the 7 FA 447.22 record, were travelling from Gondia to Raipur. Dongargarh Railway Station is at about 78 kilometers from Gondia. It needs to be stated that ticket checking is one of the priorities of the Railway to curb the journey by unscrupulous passengers without ticket. If the injured and his friend had travelled without ticket for 78 kilometers , then certainly they would have been caught by the Ticket Checker. It is not the case that ticket checking activity was not undertaken on this train on the given date. The distance of 78 kilometers is not a small distance. If the appellant and his friend had travelled without ticket, then with certainty they would have been caught by the Ticket Checker. In my view, on this count, an inference needs to be drawn in favour of the appellant that he and his friend were travelling with valid journey ticket, otherwise they would have been caught by the Ticket Checker and prosecuted.
11. The spot panchanama was not drawn. The statutory report is silent about the spot pancnanama. It is not the case of the Railway that after the incident, the spot was either inspected by the Railway Police personnel or by the Railway officials. If the spot had been inspected immediately after the accident and the journey ticket was not found, then the case of the Railway would have become probable. Similarly, the clothes of the injured were not seized. The record is silent as to what happened to those clothes. According to the appellant, the journey ticket was kept by him in his trouser pocket. In the 8 FA 447.22 absence of examination of trouser pocket of the injured by Railway officials or police in the hospital, it is not possible to accept the contention of the railway. In my view, the above stated undisputed facts support the contention of the appellant. In this context, it would be appropriate to consider the decision of Hon'ble Apex Court in Rina Devi (supra), where the Hon'ble Apex Court has laid down a dictum as to the burden of proof. Paragraph 17.4 of the said decision would be relevant for the purpose of addressing this issue. It is extracted below:
"17.4. We thus hold that mere presence of a body on the Railway premises will not be conclusive to hold that injured or deceased was a bona fide passenger for which claim for compensation could be maintained. However, mere absence of ticket with such injured or deceased will not negative the claim that he was a bona fide passenger. 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."
12. The Hon'ble Apex Court has held that mere presence of body on the railway premises will not be conclusive 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 mere absence of ticket with such injured or deceased will not negative the claim that he was a bona fide passenger. It is held that the initial burden is on the claimant and it can be discharged by filing an 9 FA 447.22 affidavit of relevant facts and the burden will then shift to the railways, and the issue can be decided on the basis of the facts shown or the attending circumstances. It is held that this will have to be dealt with from case to case on the basis of the facts found.
13. In this case, the appellant, who was injured in the accident, has filed an affidavit. In his affidavit, he has categorically stated that he had purchased the journey ticket at Gondia Railway Station and after purchasing the ticket, he and his friend boarded Jodhpure- Puri Express to go to Raipur. He has narrated the first hand account of the incident. He has stated that the journey ticket was lost in the accident. Perusal of his cross-examination, in my view, would be sufficient to lend credence to his examination-in-chief. He has deposed that he had purchased two separate journey tickets at approximate cost of Rs. 80/- per ticket. In my view, this admission in the cross-examination, which speaks about the purchase of tickets, would be relevant and as such would corroborate the version of the appellant. In his cross-examination, he has categorically stated that he and his friend were travelling from Gondia to Raipur by Jodhpur-Puri Express. In my view, this evidence is sufficient to conclude that the appellant has successfully discharged the initial burden. The respondent-Railway has not adduced any evidence in rebuttal to dispel the presumption on the basis of the said evidence in favour of the appellant. As 10 FA 447.22 such, I conclude that on this point, learned Member of the Tribunal was not right in recording a finding against the appellant. This finding cannot be sustained.
14. The next important aspect is as to whether the deceased had fallen from a moving train accidentally or he and his friend jumped from running train at Dongargarh Railway Station? The appellant has examined himself as sole witness. In his evidence, he has narrated the first hand account of the incident. He has stated that he had gone to wash basin and while giving way/space to his friend to go to wash basin, due to sudden jerk to the train, he lost his balance and fell down. He has stated that in order to save him, his friend also jumped from the train. His friend sustained minor injuries. He has denied the suggestion in his cross-examination that since the train had no scheduled halt at Dongargarh Railway Station and he and his friend had to get down at Dongargarh, they jumped at the said railway station and as such the incident occurred. It is the case of the Railway that the act committed by the appellant and his friend was of criminal negligence and therefore, the injuries sustained by them would be self-inflicted injuries. The Railway has not examined any witness to prove that this incident was witnessed by the Railway staff or employee. The witness examined by the Railway has not stated that he had seen the actual incident. He has stated that after the incident, he was informed by somebody and on the basis of said information, the matter was 11 FA 447.22 reported to the RPF. The important question is whether the version of the appellant is believable, which has been tested by cross-examination or the defence of railway without any supporting evidence can be accepted. The evidence is sufficient to prove that the appellant and his friend had boarded the train in question at Gondia Railway Station. It is also undisputed that the spot of the incident is just ahead of the platform of Dongargarh Railway Station. It is admitted that the train was passing through the loop line. It has come on record that the train was passing through said railway station at slow speed. The spot of the incident is ahead of the platform of Dongargarh Railway Station. The appellant and his friend if wanted to de-board the train at Dongargarh, then they would have made an attempt to de-board at platform and not at the spot of the incident where there was possibility of causing serious harm to them. In my view, this fact is in favour of the appellant. The first hand account of the incident narrated by the appellant in his examination- in-chief, has not been shaken in his cross-examination. He has flatly denied the suggestion in the cross-examination that in order to get down at Dongargarh Railway Station, he and his friend had jumped from the train. In this case, the appellant had sustained injuries and he has aduced evidence about it. The Railway has not adduced any evidence. It is further seen that in the statement of the appellant as well as the statement of his friend, who travelled with him, they have consistently stated that the appellant accidentally 12 FA 447.22 fell from moving train at Dongargarh Railway Station. The result of the investigation, which is placed on record, does not indicate that any material was collected to form an opinion that the injured and his friend had jumped from a running train.
15. It is the case of the Railway that the act of jumping from a running train, is a criminal act, resulting in self-inflicted injuries by the appellant and his friend. In my view, this defence of the Railway cannot be accepted for more than one reasons. The first and foremost, the evidence adduced by the appellant is sufficient to prove that he accidentally fell from a moving train. If it is assumed that at the time of incident the appellant was standing near the wash basin and there was some carelessness or negligence on his part, then also, in my view, this cannot be the ground to reject the claim. At this stage, it would be necessary to refer the decision in Union of India .vs. Prabhakaran Vijaya Kumar and others, reported at AIR 2009 SC (Supp) 383, In this case, the Hon'ble Apex Court has held that the provision for compensation in the Act of 1989 is a beneficial piece of legislation and therefore, it should receive liberal and wider interpretation and not narrow and technical one. It is held that the expression "accidental falling of a passenger from a train carrying passengers" under Section 123(c) of the Act of 1989, includes the accidents when a bona fide passenger i.e. passenger travelling with a valid ticket or pass is 13 FA 447.22 trying to enter into the railway compartment and falls down during the process. It is held that if restricted meaning is given to the expression "accidental falling of a passenger from a train carrying passengers", then large number of railway passengers would be deprived from getting compensation in railway accident. In other words, a purposive, and not literal, interpretation should be given to the expression.
16. The issue of negligence or contributory negligence has been sufficiently dealt with in Rina Devi (supra) as well as in Jamila and others (supra). Paragraph 16.6 from the decision in Rina Devi (supra) would be relevant for the purpose of addressing the issue of negligence. It is extracted below :
"16.6 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. v. Sunil Kumar (2017 (13) SCALE 652) laying down that plea of negligence of the victim cannot be allowed in claim based on 'no fault theory' under Section 163A 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 124A merely on the plea of negligence of the victim as a contributing factor."
14 FA 447.22
17. The Hon'ble Apex Court has held that the concept of self- inflicted injury would require intention to inflict such injury and not mere negligence of any particular degree. It is held that the principle of contributory negligence cannot be invoked in case of liability based on 'no fault theory'. It is held that the death or injury in the course of boarding or deboarding a train will be an 'untoward incident', entitling a victim to compensation and will not fall under the Proviso to Section 124-A of the Railway Act merely on the plea of the victim as a contributing factor. The Hon'ble Apex Court has considered the provisions of Section 124A of the Railways Act.
18. In Jamila and others (supra), it is held that under Section 124A of the Act of 1989, the liability to pay compensation is regardless of any wrongful act, neglect or default on the part of Railway Administration. It is held that the Railway Administration would have no liability to pay compensation in case death of the passenger or injury to him was caused due to any of the reasons enumerated under clauses (a) to (e) to Proviso to Section 124A. It is held that negligence on the part of a passenger cannot be held to be a criminal act as envisaged under clause (c) of the proviso to Section 124-A.
19. In this case, the first and foremost, the appellant has adduced sufficient evidence and proved that he accidentally fell from a moving train at 15 FA 447.22 Dongargarh Railway Station. Even if it is assumed for the sake of argument that the appellant and his friend tried to de-board the train at Dongargarh Railway Station and in the said process the appellant sustained injuries, in my view, in view of the law laid down in Prabhakaran Vijay Kumar (supra) as well as in Rina Devi (supra), such a case would also be covered by giving wider interpretation to the definition of "untoward incident". The error of a judgment could not be equated with criminal negligence. Therefore, in such a case, the act would be covered by the definition "untoward incident". In my view, in this case, learned Members of the Tribunal have failed to properly appreciate the material on record. The material on record is sufficient to support the claim of the appellant. As such, the findings recorded by the Tribunal on both the points cannot be sustained.
20. It would now necessary to decide the quantum of the compensation. It has come on record that left leg below knee of the appellant was amputated. The foot of right leg of the appellant was also amputated. It, therefore, goes without saying that both the legs of the appellant have been amputated. In my view, therefore, for the purpose of quantifying the compensation, it would be necessary to consider the compensation prescribed in the 'Schedule' in respect of death and injuries under the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990, (hereinafter referred to 16 FA 447.22 as "the Rules of 1990"). In my view, the case of the appellant would be squarely covered by Entry No.3 of Part-II of the Schedule to the Rules of 1990. For the purpose of ready reference, Entry No.3 is reproduced below :-
"Part-II - (1) .......
(2) .......
(3) For double amputation through leg or thigh or amputation through leg or thigh on one side and loss of other foot.
(4)........"
21. In this case, both legs of the appellant have been amputated. Entry No.3 provides for compensation in respect of double amputation through leg or thigh or amputation through leg or thigh on one side and loss of other foot. The claim pertains to the accident occurred in 2012. The Schedule was amended w.e.f. 1st January, 2017. Learned advocates for the parties submit that in view of the decision of the Hon'ble Apex Court in Union of India .vs. Radha Yadav, reported at (2019) 3 SCC 410, the appellant shall be entitled to get compensation as provided against Entry No.3 of Part-II of the Schedule, without interest. After amendment w.e.f. 01.01.2017, the compensation under is Rs.8,00,000/-. Therefore, the appellant shall be entitled to get compensation of Rs.8,00,000/- (Rupees Eight lakhs only), without interest. Accordingly, I record my finding on both the points in affirmative.
17 FA 447.22
22. In the result, the First Appeal is allowed.
i] The judgment and order dated 07.12.2017, passed by the Railway Claims Tribunal, Nagpur Bench, Nagpur, in case No. OA(IIu)/NGP/ 2014/0032, is set aside. The claim petition is allowed.
ii] Respondent - South East Central Railway is directed to pay Rs. 8,00,000/- (Rupees Eight Lakhs only) towards compensation to the appellant within four months from the date of this judgment.
iii] The amount be deposited directly in the bank account of the appellant. The appellant is directed to provide his bank account details to the respondent-Railway.
iv] The appellant will not be entitled to get any interest on the amount of compensation to be paid by the respondent. However, the appellant would be entitled to get interest @ 6% per annum from the date of this judgment till realization of the amount, if the amount is not deposited within the said period.
v] The First Appeal stands disposed of in the aforesaid terms. No order as to costs. Decree be drawn up accordingly.
( G. A. SANAP, J. ) Diwale Signed by: DIWALE Designation: PS To Honourable Judge Date: 27/02/2024 12:09:43