Research › Search › Judgment

Bombay High Court · body

2017 DIGILAW 1820 (BOM)

Shobhabai w/o Ganesh Gaikwad v. Union of India

2017-09-05

INDIRA K.JAIN

body2017
JUDGMENT : Indira Jain, J. This appeal takes an exception to the judgment and order dated 12/03/2015 passed by the Railway Claims Tribunal, Nagpur Bench (hereinafter referred to as 'Tribunal' for short) in Claim Application No.OA(llu)/NGP/2012/0272. By the said judgment and order, application for compensation preferred by parents of deceased Kishor came to be dismissed by the Tribunal. 2. For the sake of convenience, appellants shall be referred in their original status as applicant Nos. 1 & 2. 3. The facts giving rise to the appeal may be stated in nutshell as under : (i). On 04/06/2012, Kishor son of applicants purchased Railway ticket from Nanded to Aurangabad and boarded in a passenger train. As there was heavy rush in the compartment, Kishor stood near the door. Due to rush and jerk of the train, he fell down from running train near Msala Shivar on Partur to Ranjani railway line. Kishor sustained severe injuries on his head and died on the spot. (ii). It was the case of applicants that ticket has been lost during incident. It was submitted that deceased was victim of an untoward incident and, therefore, applicants were entitled to compensation under Section 124-A of the Railways Act, 1989. They claimed compensation of Rs. 4.00 lacs with 9% interest thereon. (iii). Respondent resisted the claim by filing written statement. It was submitted that deceased did not suffer any injury in an untoward incident. The submission is that at every station, there is always an announcement that passengers should not stand near the door or travel on foot-board of the coach. If the victim was standing near the door in the coach, there was no possibility of his falling down due to jerk. It was submitted that no ticket was found with the deceased though money, mobile and a bus-ticket came to be recovered from his pocket. This clearly indicates that he was a ticket-less passenger. Respondent submitted that victim died due to his gross negligence and on account of self-inflicted injury. As it was not an accident falling under section 123(c)(2) of the Railways Act, applicants are not entitled for compensation. It was submitted that applicants could not prove an untoward incident covered under Section 124-A of the Railways Act and prayed to dismiss the application. (iv). From the rival pleading of the parties, Tribunal framed the following issues. As it was not an accident falling under section 123(c)(2) of the Railways Act, applicants are not entitled for compensation. It was submitted that applicants could not prove an untoward incident covered under Section 124-A of the Railways Act and prayed to dismiss the application. (iv). From the rival pleading of the parties, Tribunal framed the following issues. S.N. Issues S.N. Issues 1 Whether the applicants prove that they are the dependents of the deceased within the meaning of section 123(b) of the Railways Act? 2 Whether the respondent Railway proves that deceased was not a bona fide passenger of the train on the relevant day with valid journey ticket? 3 Whether the applicants prove that the death of the deceased had occurred as a result of an untoward incident as alleged in the claim application? 4 To what order/relief? (v). To substantiate the claim, applicant No. 1-Shobhabai Gaikwad, mother of deceased, examined herself. Respondent examined Bhima Dagdu Salwe, Trackman, Partur Railway Station to substantiate it's defence. Both the parties placed reliance on the documents particularly police papers. Considering the oral and documentary evidence adduced by the parties, Tribunal came to the conclusion that death of Kishor was not on account of untoward incident and as he was not a bona fide passenger of any train carrying passengers, applicants are not entitled to get any relief. Accordingly, application for compensation came to be dismissed. Being aggrieved by the order of Tribunal, parents of the deceased have preferred this appeal. 4. Learned Counsel for appellants submitted that absence of ticket would not ipso facto mean that deceased was not a bona fide passenger. The submission is that the fact of bona fide passenger can be proved by oral evidence. The learned Counsel submits that evidence of appellant-Shobhabai clearly indicates that deceased was travelling in a train as a bona fide passenger. On the law relating to absence of ticket, learned Counsel relied upon the following judgments. (i). Sakhia Naik and another v. Union of India - 2006(1) T.A.C. 29 (Ori.) (ii). Union of India v. Leelamma - 2009 (2) T.A.C. 385 (Ker.) (iii). Mithun Kumar v. Union of India - II (2017) ACC 697 (Jhar.) 5. Another contention raised by learned Counsel for appellants is that burden of proof to establish that deceased was not a bona fide passenger is on the respondent. Union of India v. Leelamma - 2009 (2) T.A.C. 385 (Ker.) (iii). Mithun Kumar v. Union of India - II (2017) ACC 697 (Jhar.) 5. Another contention raised by learned Counsel for appellants is that burden of proof to establish that deceased was not a bona fide passenger is on the respondent. It is submitted that plea of negligence as alleged on the part of deceased has also not been proved by respondent. The submission is that in the absence of evidence to the contrary, Tribunal ought to have placed reliance on the evidence of applicant No. 1 and awarded compensation. On burden of proof on respondent, learned Counsel placed reliance on : (i). Union of India v. Prabhakaran Vijaya Kumar and others - 2008 ACJ 1895 (S.C.) (ii). Bandana Mishra v. Union of India - II (2017) ACC 484 (DB) (Cal.). (iii). Shankar Narayan Rathod v. Union of India in First Appeal No. 1147/2016 of this Court. 6. On merits, it is submitted on behalf of appellants that an amount of Rs. 230/- was given by applicant No. 1 to her son, and mobile and Rs. 240/- were found from the pocket of the deceased. A grievance is made that the evidence of Shobhabai has not been appreciated in a proper perspective and wrong finding came to be recorded that in the absence of ticket, applicants could not prove that deceased was a bona fide passenger in a running train. 7. The next contention pertains to inquest-panchnama indicating that deceased had fallen down from the passenger train. It is submitted that the contents of panchnama showing that deceased had fallen down from the train were totally ignored by Tribunal. According to appellants, the Act is a beneficial piece of legislation and where two views are possible, view favourable to applicants has to be taken. It is submitted that police papers were not properly read in evidence and on the wrong appreciation of oral and documentary evidence, Tribunal held that applicants are not entitled to compensation. 8. Per contra, learned Counsel for respondent supports the judgment and submitted that initial burden to prove that deceased died in an untoward incident is on the applicant and soon the burden is discharged by applicants, onus shifts on the railway to prove that deceased was travelling without ticket and was not a bona fide passenger. 8. Per contra, learned Counsel for respondent supports the judgment and submitted that initial burden to prove that deceased died in an untoward incident is on the applicant and soon the burden is discharged by applicants, onus shifts on the railway to prove that deceased was travelling without ticket and was not a bona fide passenger. According to the learned Counsel, dead body was found not actually on the track, but away from the track. It is submitted that witness examined by respondent and spot-panchnama proved by applicants clearly indicate that deceased had not fallen down from the running train and the death was not on account of untoward incident. In support of submission, learned Counsel relies upon : (i). Jetty Naga Lakshmi Parvathi & others v. Union of India - 2013 ACJ 1061 (AP). (ii). Union of India v. Lakshmi and others - 2014 ACJ 2505 (Karnataka). (iii). Gurcharan Singh & ors. v. Union of India in FAO No. 507/2011 of Delhi High Court. (iv). Amareswar Mallik v. Union of India - 2015 (1) T.A.C. 629 (Ori.). (v). Fatemabi Rahis Shah and others v. The Union of India, through General Manager in First Appeal No. 1844/2012 of this Court at Aurangabad Bench. (vi). Satya Dev Goswami & anr. v. Union of India - 2016(1) T.A.C.28 (Del.) (vii). Smt. Sunita wd/o Gyaneshwar Upase & ors. v. Union of India in First Appeal No. 137/2015 of this Court at Nagpur Bench. (viii). Latabai wd/o Vasant More & others v. Union of India in First Appeal No. 123/2015 of this Court at Nagpur Bench. (ix). Shri Dnyaneshwar (Budha) Pandurang Pawar and another v. The Union of India in First Appeal No. 1350/2012 of this Court at Aurangabad Bench. (x). The Union of India v. Jagganath Shankarrao Piske and another in First Appeal No. 337/2010 of this Court at Nagpur Bench. 9. In view of the aforesaid contentions, following points arise for determination in this appeal. S. No. Points Findings 1 Whether the claimants have established that the death of Kishor occurred in an untoward incident defined under Section 123(c)(2) of the Railways Act, 1989? In the negative 2 Whether the respondent/Railways has established that deceased was not a bona fide passenger travelling in a train running from Nanded to Aurangabad? In the affirmative 10. The only witness examined by appellants is Shobhabai, mother of deceased Kishor. In the negative 2 Whether the respondent/Railways has established that deceased was not a bona fide passenger travelling in a train running from Nanded to Aurangabad? In the affirmative 10. The only witness examined by appellants is Shobhabai, mother of deceased Kishor. She is not an eye witness to the accident. She admitted in cross-examination that she does not know how her son had fallen down from the running train. She produced copies of spot-panchnama, inquest-panchnama, postmortem report, death certificate and other documents. Inquest-panchnama prepared under section 174 of the Code of Criminal Procedure, 1973 contains the opinion of panchas in column 12 as under : xxx xxx "It appears that deceased sustained injuries by stones on his head due to fall from railway." 11. Similar is the opinion expressed in postmortem report. None of the persons, who prepared inquest-panchnama and postmortem report have been examined by the claimants. It is not the case of applicants that panch-witnesses to inquest-panchnama were the eye witnesses to the accident. In the absence of evidence to establish that deceased had fallen down from the running train, Tribunal was right in holding that the plea that deceased died as a result of untoward incident, has not been established. 12. So far as the decisions referred by the learned Counsel for parties are concerned, they reiterate well settled propositions of law. Needless to state that initial burden to establish that deceased died in an untoward incident is on the applicants and soon the applicants prove that the death was the result of untoward incident, onus shifts on railways to establish the defence that deceased was travelling without a ticket and was not a bona fide passenger. In the present case, Tribunal has held that ticket for travel was also not recovered from the body of the deceased. Tribunal has further held that deceased was not a bona fide passenger. It is an undisputed fact that ticket was not recovered from the dead body. The spot-panchnama indicates that cash of Rs. 240/-, mobile and a bus-ticket were found from the pocket of the deceased. Applicants have come with a case that ticket was lost during the incident. It is submitted that burden to prove that deceased was travelling without a ticket is on the respondent. The spot-panchnama indicates that cash of Rs. 240/-, mobile and a bus-ticket were found from the pocket of the deceased. Applicants have come with a case that ticket was lost during the incident. It is submitted that burden to prove that deceased was travelling without a ticket is on the respondent. True, the burden lies on the railways to show that deceased was a passenger travelling without a ticket and he was not a bona fide passenger. The question is whether in the absence of evidence to show that the death was a result of an untoward incident, onus would shift on the railways to establish that deceased was a passenger without a ticket. 13. In the decisions relied upon by the learned Counsel for appellants, factum of death of deceased as a result of untoward incident was established. Therefore, it was held that onus to prove that injured/deceased were the passengers travelling without a ticket was on the respondent. In the present case, as discussed above, appellants-claimants have failed to establish that deceased died in an untoward incident as defined under section 123(c)(2) of the Railways Act. In view of the failure of the claimants to prove that the death was a result of an untoward incident, the other question does not deserve consideration. As such, the onus would not shift on the respondent as the initial burden on appellants is not discharged. 14. Considering the above, no case for interference is made out. The above points are, therefore, answered accordingly. Hence, the following order : ORDER I. First Appeal No. 914/2016 stands dismissed. II. No costs.