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2018 DIGILAW 1467 (BOM)

Ramesh Istari @ Istaru Kore v. Union of India

2018-06-21

M.S.KARNIK

body2018
JUDGMENT : 1. Heard. Admit. By consent, taken up for final hearing. 2. Perused Record and Proceedings. 3. By the present appeal, the claimant challenges the judgment and order dated 25th October, 2017 passed by the Railway Claims Tribunal, Nagpur thereby dismissing the claim application filed by the applicant. The case of the applicant in the claim application in brief is as follows: 4. The appellant was travelling from Saundad to Barabhati by GondiaBallarsha train on 24.2.2016 after purchasing a valid journey ticket. The train reached Gond Umri Railway Station where it took a brief halt. As the train started, appellant fell down from the running train due to rush and sudden jerk of the train. The left leg of the appellant was cut as he came under the train. His left leg had to be amputated above the knee. 5. The appellant therefore filed the claim for compensation. The Ticket vendor of Gond Umri Railway station informed the station master about the incident. The station master informed the GRP Saundad. The appellant was taken to a nearby hospital where after he was admitted at Indira Hospital at Nagpur. The claim petition was therefore filed for compensation to the tune of Rs. 3,20,000/alongiwth 9 % interest from the date of the incident. The respondent/Railway filed written statement opposing the appellants claim. According to respondent the applicant tried to alight from a running train and fell down. The act of the appellant therefore is an offence under the Railways Act, 1989. The alleged incident therefore is not due to accidental fall from the train, but it is covered by explanation to the Section 124 A of the Act of Railways Act, 1989. 6. The learned Claims Tribunal was pleased to frame following issues:- (i) Whether applicant was a bona fide passenger of the train on the relevant day with valid journey ticket? (ii) Whether the Applicant proves that on the relevant day he sustained injuries in the train, in an untoward incident, in terms of Section 123(c) of Railways Act, 1989? (iii) What relief ? What order? 7. The applicant was examined as AW1. Shri. Kailas Zingar Chandewar ticket seller of Gond Umri Railway Station was examined as RW1. Shri.Ajay Haridas Borkar, a passenger Guard also was examined. The guard General Book is marked as Exh.R.1. 8. (iii) What relief ? What order? 7. The applicant was examined as AW1. Shri. Kailas Zingar Chandewar ticket seller of Gond Umri Railway Station was examined as RW1. Shri.Ajay Haridas Borkar, a passenger Guard also was examined. The guard General Book is marked as Exh.R.1. 8. The learned counsel for the appellant submitted that the appellant was a bona fide passenger with a valid ticket travelling from Saundad to Barabhati by GondiaBallarsha train. In his submission when the train started from Gond Umri station, the appellant fell down from the running train due to rush and jerk of the train. The left leg of the appellant had to be cut above the knee. Learned counsel submitted that having purchased a valid ticket from Saundad to Barabbhati there was no reason for the appellant to have alighted from the running train at Gond Umri Railway Station. In his submission it is obvious that the appellant fell down accidentally from the running train. 9. Shri. Lambat learned counsel for the respondent on the other hand invited my attention to the provisions of Section 123(c) read with Section 124A of the Railways Act, 1989. In the submission of learned counsel the evidence of the eye witness RW1 Shri. Kailas Zingar Chandewar clearly records that the appellant tried to alight from the running train and despite warning him not to get down from the running train the appellant alighted. The appellant came under the wheels of the train while trying to alight from the running train. Learned counsel for the respondent therefore, contended that the act of the appellant comes under the scope of self inflicted injuries as explained in Section 124(1) (b) of the Railways Act, 1989. According to him in any case the act of the appellant is so rash and negligent that the same is squarely covered by the ambit of his own criminal act as per clause (c) of Section 124A of the Railways Act. He further submits that there is no reason to disbelieve the deposition of RW1 Kailas Chandewar. Learned Counsel submits that RW2 Ajaypal Borkar also supported the version of Respondent no.1 that the appellant got injured while he was alighting from the running train. 10. Having considering the submissions of the learned counsel, I am of the opinion that the present appeal deserves to be allowed. Learned Counsel submits that RW2 Ajaypal Borkar also supported the version of Respondent no.1 that the appellant got injured while he was alighting from the running train. 10. Having considering the submissions of the learned counsel, I am of the opinion that the present appeal deserves to be allowed. It is not in dispute that the appellant had valid journey ticket to travel from Saundad to Barabhati. It is also not in dispute that the alleged incident took place at Gond Umri Railway station. The appellant in his evidence has stated that due to rush and jerk of the train the appellant fell down from the running train near the platform. RW1 Kailas Chandewar in his examination-in-chief has stated that when one unknown person was alighting from the said train he shouted and told him not to alight from the train. The passenger did not listen and jumped from the train and came under the wheels of the train. RW1 Kailas Chandewar was duly cross-examined by the respondent. It has come in the cross-examination of the RW1 that the compartment from which the appellant jumped is at a distance of 200 meters from his office. The only other evidence on record is the deposition of RW2 Shri. Ajaypal Borkar who was working as guard of the train. RW2 is not the eye witness to the incident. 11. The only evidence on record about the incident therefore, is the version as narrated by the appellant and the one narrated by the RW1 Shri. Kailas Chandewar. RW1 Kailas Chandewar is working as ticket seller and has an office space at Gond Umri Railway station. In cross-examination he has stated that the compartment from which the applicant jumped is having a distance of 200 meters from his office. In my opinion it would not be safe to rely upon the version of RW1. RW1 Kailas is admittedly a ticket seller whose office is at Gond Umri Railway station. The said office is located at the distance of about 200 meters from the place where the incident took place. It is highly improbable for him to state with certainty as to whether the appellant accidentally fell from the train due to rush or he was trying to alight from the running train. 12. There are no other eye witnesses to the incident. It is not in dispute that the appellant was a bonafide passenger. It is highly improbable for him to state with certainty as to whether the appellant accidentally fell from the train due to rush or he was trying to alight from the running train. 12. There are no other eye witnesses to the incident. It is not in dispute that the appellant was a bonafide passenger. There was no reason for the appellant to have alighted from the running train. It is the case of the Railways that as a result of the appellant trying to alight from the running train that self inflicted injury is caused as a result of his rash and negligent act. In the absence of there being any cogent evidence on record and in the light of the fact that the appellant had a valid ticket from Saundad to Barabhati the appellants' falling down from train will have to be regarded as accidental. 13. It would be material to refer to the decision of the Hon'ble Supreme Court in the Case of Jameela and Ors. Vrs. Union of India reported in 2010 ACJ 2453 . A profitable reference could be had to the Relevant portion of which reads thus: 8. Coming back to the case in hand, it is not the case of the Railways that the death of M. Hafeez was a case of suicide or a result of self-inflicted injury. It is also not the case that he died due to his own criminal act or he was in a state of intoxication or he was insane, or he died due to any natural cause or disease. His falling down from the train was, thus, clearly accidental. 9. The manner in which the accident is sought to be reconstructed by the Railways, the deceased was standing at the open door of the train compartment from where he fell down, is called by the Railways itself as negligence. Now negligence of this kind which is not very uncommon on Indian trains is not the same thing as a criminal act mentioned in clause (c) to the proviso to section 124-A. A criminal act envisaged under clause (c) must have an element of malicious intent or mens rea. Standing at the open doors of the compartment of a running train may be a negligent act, even a rash act but, without anything else, it is certainly not a criminal act. Standing at the open doors of the compartment of a running train may be a negligent act, even a rash act but, without anything else, it is certainly not a criminal act. Thus, the case of the Railways must fail even after assuming everything in its favour.'' 14. In the statement of the appellant recorded by GRP the appellant has stated that as a result of the push given by one of the passengers he fell down. In my opinion, based on the materials on record it is not possible for me to arrive at a finding that the act on the part of the appellant is a criminal act. As observed by their Lordships, standing on the foot board near the open doors of the compartment of the running train may be a negligent act, even a rash act but, without anything else, it is certainly not a criminal act. 15. The claims Tribunal believing the evidence of the RW1 arrived at a finding that the appellant was trying to alight from a running train. The Tribunal was therefore of the opinion that the act of the appellant is a criminal act so as to attract the provisions of Section 124-A of the Railways Act. Section 124-A of the Railways Act provides that no compensation shall be payable under this section by the Railway 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. In my opinion, present is not a case of either self-inflicted injury or criminal act on the part of the appellant. The order of the Tribunal therefore calls for interference. The order passed by the Tribunal is set aside. 16. In so far as the compensation payable to the appellant is concerned vide notification dated 22.12.2016 in exercise of the powers conferred by Section 129 of the Railways Act, 1989, the Central Government has made the rules to further amend the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990, namely '' The Railway Accidents and Untoward incidents (Compensation) Amendment Rules, 2016.'' As per the schedule the amount of compensation payable in respect of injury of the nature suffered by the appellant is provided in clause 17 which reads thus:- 17. For amputation below hip with stump not exceeding 5'' in length measured from tip of great trenchanter but not beyond middle thigh. 6,40,000 17. An objection is raised by the learned counsel for the Railways about the applicability of the Rules. According to him, the Rules came into force on 22nd December 2016. He submits that the compensation as provided in said Rules is not payable to the appellant as the accident in question took place on 24.2.2016. The learned counsel for the appellant relied upon the decision of the Hon'ble Supreme Court in the case of Rathi Menon V. Union of India reported in 2001 ACJ 721 and the case of Union of India. Vrs. Rina Devi, in the Civil Appeal No.4945 of 2018. Their Lordships in Rathi Menon (supra) quoted from an earlier decision of the Hon'ble Supreme Court in which it is held that “Keeping in view of the Scheme of the Act the only interpretation which can be given to the amendment is that if any benefit is conferred on the workman and the said benefit is available on the date when the case is finally adjudicated, the said benefit should be extended to the work men.'' The decision of the Hon'ble Supreme Court squarely covers the case of the appellant. 18. The learned counsel also relied upon the decision of the Calcutta High Court, in the case of Bandana Mishra. Vrs. Union of India reported in (2017) ACC 484 (DB) Kavita. (Cal.) in support of his submission that in respect of the quantum payable the amended rules are applicable. 19. Hence, the following order: (A) The respondents to pay the compensation of Rs. 6,40,000/to the appellant with interest @ 7.5% per annum from the date lodging of claim application before the Tribunal till the date of the payment. (B) The appropriate court fees be deducted from the compensation amount to be deposited by the respondent before the Tribunal and the balance amount with accrued interest if any be paid over to the claimant. (C) Appeal allowed with no order as to costs.