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2007 DIGILAW 41 (BOM)

MEHAR PARVEEN wd/o ABDUL RAB v. Union of India

2007-01-12

A.P.LAVANDE

body2007
JUDGMENT :- Both the appeals are being disposed of by common Judgment since they arise out of the order dated 19th April, 1993 passed by the Railway Claims Tribunal, Nagpur Bench in Application No. 11/0A-II/RCT/NGP/92. 2. In nut-shell, the facts leading to filing of these two appeals are as under: On 19-11-1992, Abdul Kuddus s/o Sk. Mohiuddin and his wife Taslima Bi filed the application claiming compensation of Rs. 2 lacs under section 16 of the Railway Claims Tribunal Act, 1987 on account of death of their son Abdul who died in a train accident on account of derailment of 8033 DN Ahmedabad Howrah Express on 9-7-1992. During the pendency of the application Smt. Meher Parvin wd/o Abdul Rub for herself and on behalf of minor daughter Nilopher Parvin filed application for impleadment which was allowed and they were joined as respondents 2 and 3. The parties shall hereinafter be referred to as per their original status in the application. The application was contested by the respondent No. 1. Abdul Kuddus examined himself and respondent No.2 Meher Parvin widow of the deceased stepped into the box and also examined her cousin Saheb Khan. After appreciating the evidence, oral and documentary, led by the parties, the Tribunal dismissed the application. The Tribunal recorded the finding that deceased Abdul was travelling in the train which met with accident and that he died on account of the accident. The Tribunal further recorded a finding that the applicants and respondents 2 and 3 were dependents of the deceased. However, the Tribunal held that the deceased was not a bona fide passenger and consequently dismissed the application. During the pendency of the appeals, Abdul Quddus applicant No. 1 expired and his legal representatives have been brought on record. 3. I have heard Mr. Dahat, learned counsel on behalf of the applicants, Advocate Mr. Lambat for respondent No. 1 and Advocate Mr. Kanphade on behalf of respondents 2 and 3. 4. Mr. Kanphade, learned counsel appearing on behalf of the original respondents 2 and 3 submitted that the burden of proving that the deceased was not a bona fide passenger was on the respondent No. 1 which has not been discharged in the present case. Placing reliance upon sections 123, 124,137 and 155 of the Railways Act, 1989 (hereinafter referred to as the Act) Mr. Placing reliance upon sections 123, 124,137 and 155 of the Railways Act, 1989 (hereinafter referred to as the Act) Mr. Kanphade submitted that the applicants and respondents are entitled to compensation of Rs. 2 lacs inasmuch as the respondent No. 1 has not discharged the burden of proving that deceased was not a bona fide passenger. 5. Mr. Dahat, learned counsel appearing for the original applicants submitted that the burden of proving that the deceased was not a bona fide passenger was on the respondent No. 1 and the same was not discharged by the respondent No.1. He further submitted that the applicants were paid ex gratia compensation of Rs. 10,000/- which clearly proves that the deceased was travelling in the ill-fated train and that he was a bona fide passenger. In support of his submission, the learned counsel relied upon the following Judgments; i) Rajkumari and another vs. Union of India, ( 1993 ACJ 846 ); ii) Agam Shanthamma vs. Union of India, ( 2004 ACJ 713 ; iii) Unreported Judgment in First Appeal No. 603/92 dated 8-4-2004, Smt. Shahtabai Zamre and others vs. Union of India delivered by Justice S.T. Kharche, J. 6. Per contra, Mr. Lambat, learned counsel for the respondent No.1 relying upon several provisions of the Act submitted that though the burden to prove that the deceased was not a bona fide passenger is on the Railway Administration, having regard to the several circumstances which have been brought on record the burden has been discharged by the respondent No.1. He further submitted that the fact that no ticket was found on the body of the deceased is a strong circumstance to hold that the deceased was not a bona fide passenger. He further submitted that the story put up by the respondent No. 2 that the deceased was holding a second class ticket No. 24661 purchased at Badnera Railway Station for his journey to Nagpur not only has not been established but stands falsified by the evidence on record. He further urged that the applicants being parents could not be termed "dependents" as defined under section 123 of the Act and, therefore, in any case the applicants are not entitled to any compensation. He further urged that the applicants being parents could not be termed "dependents" as defined under section 123 of the Act and, therefore, in any case the applicants are not entitled to any compensation. He further urged that in the First Information Report or in the spot inspection note there is no mention of ticket number allegedly issued to the deceased which clearly proves that the deceased was not a bona fide passenger. In support of his submission, the learned counsel relied upon the following Judgments; i) Smt. Sundri and others vs. Union of India and another, AIR 1984 Allahabad 277. ii) Ramchandra Prasad Sinha vs. Union of India and another, AIR 1959 Patna 316. iii) Union of India, South Central Railways, Secunderabad vs. Kurukundu Balakrishnaiah, Dhone, 2004(1) ALT 100 . 7. I have considered the submissions made by the learned counsel for the parties. I have perused the records as well as the Judgments relied upon by the learned counsel for the parties. 8. Mr. Lambat, learned counsel appearing on behalf of the respondent No. 1 has not disputed the fact that the deceased was travelling in the ill-fated train but what is disputed is that he was travelling as a bona fide passenger. 9. Having regard to the submissions made by the learned counsel for the parties and the finding given by the Tribunal, the following point arises for consideration in the present appeal; "Whether the deceased Abdul Quddus was travelling as a bona fide passenger in the train on 9-7-1992 which met with an accident resulting his death"? 10. At the outset, having regard to the submissions made by the learned counsel for the parties and more particularly Mr. Lambat on behalf of the respondent No. 1 it can be taken as fairly established that the deceased was travelling in the train which met with an accident on 9-7-1992. The only question which arises for consideration is whether he was a bona fide passenger and not a trespasser or ticketless traveller. In the case of Rajkumari (supra) the Division Bench of the Madhya Pradesh High Court speaking through Justice D. M. Dharmadhikari (as he then was) held that in case of railway accident compensation is payable to the dependents of a bona fide passenger and not for the death of any trespasser or ticketless traveller. In the case of Rajkumari (supra) the Division Bench of the Madhya Pradesh High Court speaking through Justice D. M. Dharmadhikari (as he then was) held that in case of railway accident compensation is payable to the dependents of a bona fide passenger and not for the death of any trespasser or ticketless traveller. It was further held that the burden to prove that the person who died in the accident was not a bona fide passenger lies on the Railway Administration inasmuch as it is impossible for the dependents to discharge the burden to prove that the deceased was a bona fide passenger. The Division Bench further held that in view of the sections 68, 113 and 122 of Railways Act, 1890 the ticket-less travel is an illegal act which exposes traveller to penal action which raised a presumption against boarding the train without ticket. Under section 55 of the Railways Act, 1989 the travelling in railway without a proper pass or ticket or without obtaining permission of a railway servant authorised in that behalf has been prohibited. Section 137 of the Act provides for punishment for travelling without a pass or ticket. Since there are similar provisions under the 1989 Act, in my opinion, the ratio laid down by the Division Bench of Madhya Pradesh High Court is clearly applicable in the present case. I am in respectful agreement with the ratio laid down by the Division Bench of the Madhya Pradesh High Court. Since it is impossible for the dependents of the person travelling in a train to prove that he was travelling pursuant to a valid ticket, the burden would necessarily lie on the Railway Administration to prove that the person who died in Railway Accident was not a bona fide passenger. Similar ratio has been laid down by the Andhra Pradesh High Court in the case of Agam Shanthamma (supra) relying upon the Division Bench Judgment of the same Court in Union of India vs. B. Koddekar, 2003 A CJ 1286. Insofar as the Judgment given by the learned Single Judge of this Court in Shantabai Zamre's case (supra) the ratio is not attracted in the present case inasmuch as in that case deceased Krushnaji who was serving as Khalasi had died in the accident which occurred on 5-9-1986. The Deceased was having pass which was valid up to 3-9-1986. Insofar as the Judgment given by the learned Single Judge of this Court in Shantabai Zamre's case (supra) the ratio is not attracted in the present case inasmuch as in that case deceased Krushnaji who was serving as Khalasi had died in the accident which occurred on 5-9-1986. The Deceased was having pass which was valid up to 3-9-1986. The learned Single Judge held that in the peculiar circumstances of the case the fact that the deceased had not renewed his pass could not absolve the Railway Administration of its liability to pay compensation to the dependents of the deceased. 11. I shall now deal with the authorities relied upon by Mr. Lambat on behalf of respondent No. 1. In Smt. Sundri's case (supra) the Full Bench of Allahabad High Court held that "expression passenger does not include . trespasser or person travelling without ticket, pass or authority and, therefore, compensation is not payable in case of death of such person in train accident. The ratio laid down in the Full Bench decision is clearly not attracted in the present case since the issue before this Court is whether the deceased was a trespasser or a bona fide passenger. In Ramchand Sinha's case (supra) the Division Bench of Patna High Court held that the heirs of such a trespasser in case where he meets with death in an accident to the train through which he happens to be travelling are not entitled to claim compensation from the railway. The Division Bench of Allahabad High Court in Sudha Srivastava's case (supra) has held that in case the claimants fail to prove that the deceased was a bona fide passenger in the train which met with the accident resulting in his death the claimants are not entitled to any compensation. In the said case the claimants had failed to prove that the deceased was actually travelling by the ill-fated train and that he died as a result of the accident and further that he was a bona fide passenger. The ratio laid down in both these Judgments obviously are not attracted in the present case. In the said case the claimants had failed to prove that the deceased was actually travelling by the ill-fated train and that he died as a result of the accident and further that he was a bona fide passenger. The ratio laid down in both these Judgments obviously are not attracted in the present case. The Full Bench of the Andhra Pradesh High Court in Kurukundu Balakrishnaiah Dhone' case dealt with the expression "untoward incident" in section 124A of the Act and held that the Railway Administration is not liable to pay any compensation in case of death or injuries to a passenger travelling in a railway due to his negligence or default. The facts in the said case are clearly distinguishable and as such the Judgment does not advance the case of the respondent No.1. 12. Perusal of the Judgment and order passed by the Tribunal discloses that the finding of the Tribunal that the deceased was a bona fide passenger was arrived primarily on the ground of variance in the evidence of Taslimabi and her cousin Sahebkhan. According to Taslimabi the deceased was travelling with second class ticket bearing No. 24661 which was informed her by her cousin brother Sahebkhan, whereas Sahebkhan deposed that he was not aware of the number of the ticket which was purchased by the deceased. No doubt the version of Taslimabi that deceased was travelling on a ticket having particular number has not been established. The First Information Report also did not disclose the name of the deceased. These facts by themselves, in my opinion, are not sufficient to hold that respondent No. 1 has discharged its burden of proving that the deceased was not a bona fide passenger. It is pertinent to note that in the present case it is not disputed that the deceased was travelling in the ill fated train. Therefore, the burden of proving the fact that he was not a bona fide passenger lies on the Railway Administration merely because widow of the deceased probably in anxiety to claim compensation from respondent No. 1 has come out with a version which is not established by itself would not be sufficient to deprive the dependents, of compensation on account of death of deceased in the accident. As stated above, the ratio of the decision given by the Division Bench of the Madhya Pradesh High Court with which I respectfully concur is squarely attracted in the present case. In my opinion, the evidence on record is not sufficient to hold that the respondent No. 1 has discharged its burden of proving that deceased was not a bona fide passenger. I, therefore, hold that the Tribunal was not justified in dismissing the application for compensation filed by the applicants. 13. Respondent No.1, therefore, is liable to pay compensation of Rs. 2 lacs on account of death of Abdul Rub in Railway accident which' occurred on 9-71992 and further liable to pay interest thereon at the rate of 6% p. a. from the date. 14. The next question arises for consideration is whether the applicants are not the dependents of deceased as contended by Mr. Lambat, learned counsel for respondent No.1. At the outset, I fail to understand as to how respondent No. 1 can contend in these appeals that the applicants are not the dependents of the deceased inasmuch as the Tribunal has given a finding that the applicants are the dependents of the deceased in terms of section 123 of the Act. The respondent No.1 having not filed any cross-objection in appeals preferred by the applicants and respondents 2 and 3, in my opinion, the respondent No. 1 is not entitled to urge that the applicants are not the dependents of the deceased. Be that as it may, even if the argument of Mr. Lambat is considered in the light of section 123 of the Act, I do not find any infirmity in the finding recorded by the Tribunal that the applicants are also the dependents and they are also entitled to share in the compensation. At this stage, I would like to mention that Mr. Dahat, learned counsel appearing for the widow and minor daughter of the deceased has fairly conceded that the applicants are also the dependents and as such they are entitled to a share in the compensation. 15. The next issue is about the apportionment of compensation between the applicants and respondents 2 and 3. In my opinion, the legal representatives of applicant No.1, the applicant No.2 and respondents 2 and 3 are entitled to the compensation of Rs. 2 lacs along with interest thereon in equal shares. 16. 15. The next issue is about the apportionment of compensation between the applicants and respondents 2 and 3. In my opinion, the legal representatives of applicant No.1, the applicant No.2 and respondents 2 and 3 are entitled to the compensation of Rs. 2 lacs along with interest thereon in equal shares. 16. For the aforesaid reasons, the impugned order passed by the Railway Tribunal is quashed and set aside. The respondent No. 1 is held liable to pay compensation of Rs. 2 lacs along with interest thereon at the rate of 6 % per annum from the date of filing of the application i.e. 19-11-1992 till the date of deposit to the legal representatives of the applicant No.1, applicant No.2 and respondents 2 and 3 in equal shares. That the respondent No. 1 shall deposit the compensation and the interest before the Claims Tribunal, Nagpur within a period of 12 weeks. After the deposit is made the Tribunal shall pay the compensation along with corresponding interest in terms of this Judgment to the parties except to respondent No. 3 who is still a minor. The compensation payable to respondent No.3 shall be deposited in any Nationalised Bank for such period as the Tribunal thinks fit until the respondent No. 3 attains majority and till such time the interest due on such amount shall be paid to the respondent No~ 2 who is the guardian of respondent No.3. The appeals are disposed of in the aforesaid terms with no order as to costs. Order accordingly.