Research › Search › Judgment

Bombay High Court · body

2019 DIGILAW 2133 (BOM)

Gopal v. Union of India

2019-09-16

MANISH PITALE

body2019
JUDGMENT : Manish Pitale, J. By this appeal, the appellants have challenged judgment and order dated 16.10.2018 passed by the Railway Claims Tribunal, Nagpur, whereby claim application filed by the appellants herein stood dismissed, primarily on the ground that the victim in the present case was not a bona fide passenger. The Tribunal also gave a finding that the victim could not be said to have been involved in an "untoward incident" as defined under Section 123 (c)(2) of the Railways Act,1989. 2. The incident in the present case took place on 25.08.2013. As per the appellants, the victim was travelling from Nagpur to Badnera by Sewagram Express along with his sister. It is claimed that while the victim was trying to board the train at about 8 p.m., he fell from the train and both his legs were seriously injured by the moving train. It was stated that the victim was shifted by the Government Railway Police to the Railway Hospital and thereafter he was shifted to the Government Medical College and Hospital, Nagpur. Initially the claim was filed by the victim himself seeking compensation of Rs.4,00,000/- with 12% interest P.A. but during the pendency of the application, the victim expired and that is how the appellants herein have pursued the claim before the Tribunal as well as this Court. 3. In the claim petition filed under Section 124-A of the aforesaid Act, it was stated that the ticket was lost at the time of the accident. It is not disputed that due to the injury suffered in the accident, both legs of the victim were amputated and that later he died. The claim of the appellants that such injury was suffered as a consequence of untoward incident as defined under the provisions of the said Act, was disputed by the respondent. Before the Tribunal, an affidavit was filed by the appellant no.1 stating that the victim had purchased tickets and that they were kept in the trouser pocket, which were lost during the accident and the treatment given thereafter. The victim did not file any affidavit before the Tribunal and as noted above, he expired during the pendency of the proceedings. Before the Tribunal, an affidavit was filed by the appellant no.1 stating that the victim had purchased tickets and that they were kept in the trouser pocket, which were lost during the accident and the treatment given thereafter. The victim did not file any affidavit before the Tribunal and as noted above, he expired during the pendency of the proceedings. The respondent examined the Guard of the said train, who disputed the claim made on behalf of the appellants and it was stated that no such accident of any passenger falling from the train was noticed and that the timing of the arrival and departure of the said train from Railway Station at Wadha was materially different from the claim made on behalf of the appellants. 4. The tribunal in the impugned judgment and order held that neither could the appellants prove that the victim was a bona fide passenger nor could they prove that the victim had suffered the injuries as a consequence of an untoward incident as defined under the provisions of the said Act. On this basis, the claim application was rejected. 5. Ms. Hemlata Dhande, learned counsel appearing for the appellant no.1 and Mr. S.K. Sable, learned counsel appearing for the appellant nos.2 and 3, submitted that the findings recorded by the Tribunal were not based on proper appreciation of the material on record. Both the counsel relied upon judgment of the Hon'ble Supreme Court in the case of Union of India .vs. Rina Devi, (2019) 3 SCC 572 to contend that the burden on the appellants to show that the victim was a bona fide passenger was sufficiently discharged and that the aforesaid judgment also covered the aspect of "untoward incident", categorically holding that an incident which occurred while boarding or alighting from a train was covered under the expression "untoward incident" under Section 123 (c) (2) of the aforesaid Act. The learned counsel for the appellants referred to various documents on record to contend that there were sufficient attending circumstances to prove the claim and that the Tribunal committed an error in rejecting the application filed on behalf of the appellants. 6. Mr. The learned counsel for the appellants referred to various documents on record to contend that there were sufficient attending circumstances to prove the claim and that the Tribunal committed an error in rejecting the application filed on behalf of the appellants. 6. Mr. M.M. Agnihotri, learned counsel for the respondent, submitted that a proper interpretation of the law laid down by the Hon'ble Supreme Court in the case of Union of India .vs. Rina Devi (supra) would show that in the present case the initial burden on the appellants (original claimants) was not at all discharged in order to prove that the victim was a bona fide passenger and that, therefore, no interference was warranted in the impugned judgment and order passed by the Tribunal. It was further pointed out that the respondent had not conceded to the fact that the present case was a case of untoward incident. It was emphasized on behalf of the respondent that in the present case there was no affidavit filed by the victim himself before the Tribunal as the claim application was only on verification and further that the most crucial person who could have filed an affidavit in support of the claim application, was the sister of the victim, who was also a co-passenger. It was further submitted that the evidence of the Guard examined on behalf of the respondent demonstrated that there was serious doubt about the manner in which the incident was claimed by the victim to have taken place. On this basis, it was submitted that the appeal deserved to be dismissed. 7. Heard learned counsel appearing for the rival parties and perused the material on record. 8. In order to establish that the victim was a bona fide passenger, there cannot be any doubt that the initial burden would be on the claimants i.e. the appellants herein. It is significant that in the present case the claim application was originally filed by the victim himself as an injured person and he later died during the pendency of the claim application before the Tribunal. The question is whether in the present case there was sufficient material on record to conclude that the initial burden on the claimants as regards the bona fide status of passenger i.e. the victim was discharged, for the respondent to then show that the victim was not a bona fide passenger. The question is whether in the present case there was sufficient material on record to conclude that the initial burden on the claimants as regards the bona fide status of passenger i.e. the victim was discharged, for the respondent to then show that the victim was not a bona fide passenger. In this context, there is detailed discussion in the aforesaid judgment of the Hon'ble Supreme Court in the case of Union of India .vs. Rina Devi (supra) wherein conflicting opinions were taken into consideration and it was concluded in paragraph 29 as follows:- "29. 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." 9. It is relevant that before concluding in the above quoted manner, the Hon'ble Supreme Court also took into consideration judgment of the Madhya Pradesh High Court wherein it is recorded that the provisions in Railways Act, 1989 show that when a person was found injured or dead in the railway premises, it was to be presumed that such a person was a bona fide passenger so as to maintain a claim for compensation and specific reference to Sections 55 and 137 of the said Act was made. After taking into consideration such aspects, the Hon'ble Supreme Court has laid down in the above quoted paragraph, the manner in which initial burden is to be discharged by the claimants to show that the victim was indeed a bona fide passenger. 10. After taking into consideration such aspects, the Hon'ble Supreme Court has laid down in the above quoted paragraph, the manner in which initial burden is to be discharged by the claimants to show that the victim was indeed a bona fide passenger. 10. A perusal of the above quoted portion shows that the initial burden on the claimants would stand discharged after an affidavit is filed stating the relevant facts and then the burden would shift on the respondent i.e. Railways and further that the issue could then be decided by the Tribunal on the facts shown or attending circumstances. In the present case, the appellant no.1 indeed filed an affidavit stating that the victim had purchased ticket which was then lost during the accident and the treatment given to him thereafter. Therefore, there was indeed an affidavit on record in the present case stating relevant facts insofar as the status of the victim as a bona fide passenger was concerned. 11. In this regard, the learned counsel appearing for the respondent sought to draw a distinction between the facts before the Hon'ble Supreme Court in the case of Union of India .vs. Rina Devi (supra) and the facts in the present case. It was pointed out that in the case before the Hon'ble Supreme Court there was an affidavit filed by a co-passenger stating that the victim had purchased ticket before boarding the train and that he had fallen from the train due to rush of passengers. It was submitted that in the present case, even according to the appellants as also the victim who had submitted the claim application before the Claims Tribunal, sister of the victim was a co-passenger and yet her affidavit was not placed on record before the Tribunal. It was further pointed out that the application in the present case, which was filed by the victim himself was only on verification and that there was no affidavit of the victim on record to state the relevant facts regarding his status as bona fide passenger. On this basis, it was submitted that the affidavit filed by the appellant no.1 was not sufficient and it did not meet the requirement as laid down by the Hon'ble Supreme Court in the case of Union of India .vs. Rina Devi (supra). 12. On this basis, it was submitted that the affidavit filed by the appellant no.1 was not sufficient and it did not meet the requirement as laid down by the Hon'ble Supreme Court in the case of Union of India .vs. Rina Devi (supra). 12. In the present case there is no doubt about the fact that the affidavit on record was only of the appellant no.1 who was indeed not a co-passenger and that co-passenger in the present case did not choose to file an affidavit. But, the question is whether the aforesaid position laid down by the Hon'ble Supreme Court would or would not apply to a case where there is no affidavit either of the victim or co-passenger but only that of the claimant before the Tribunal. If the contention raised on behalf of the respondent is to be accepted, then in the situation where there is no co-passenger with the victim and there is obviously only the affidavit of the claimant, the initial burden would not stand discharged by the affidavit of the claimant and that something further would be required on the part of the claimants to maintain an application for compensation under the provisions of the said Act before the Tribunal. 13. This Court is unable to accept the said contention raised on behalf of the respondent because what is laid down by the Hon'ble Supreme Court is that the initial burden would stand discharged by filing of an affidavit and the initial burden is clearly stated to be on the claimant. It is also emphasized by the Hon'ble Supreme Court that the issue as to whether the victim was a bona fide passenger or not, was to be discharged on facts shown or attending circumstances. In the opinion of this Court, the affidavit of the appellant no.1 was sufficient to discharge the initial burden and then it was upon the respondent to support its claim that the victim was not a bona fide passenger. Therefore, it cannot be said that only because affidavit in the present case on record before the Tribunal was that of the appellant no.1 (one of the original claimants), the claim could not be granted or that the victim could not be said to be a bona fide passenger. 14. The attending circumstances in the present case are documents at Exhs. A-23 and A-25. 14. The attending circumstances in the present case are documents at Exhs. A-23 and A-25. Document A-23 is the station diary entry recorded, which states that according to information received from Police Station Wardha, GRP Police, the victim suffered injuries and his legs were cut in the incident on 25.08.2013 at about 8 p.m. This is a contemporaneous document. Document A-25 is a discharge card of the Government Medical College and Hospital, Nagpur, which also records the fact that such an accident took place and that a traumatic injury was suffered by the victim, which led to amputation of both the legs. Such attending circumstances read with the affidavit on record, according to this Court, were sufficient to prove the case of the appellants that the victim was indeed a bona fide passenger. Hence the finding rendered by the Tribunal on this issue is found to be erroneous and it is set aside. 15. As regards the question as to whether the present incident could be said to be an untoward incident, as defined under Section 123 (c) (2) of the aforesaid Act, the question is no more res integra as the Hon'ble Supreme Court in the very same judgment in the case of Union of India .vs. Rina Devi (supra) has held in categorical terms that the incidents where victim suffered injuries while boarding or alighting from train, are covered under the expression "untoward incident". Therefore, the said finding rendered by the Tribunal is also unsustainable and it is accordingly set aside. 16. In this situation when the grounds on which the application of the appellants stood dismissed, are found to be unsustainable and they are set aside, the appellants are found entitled to payment of compensation in terms of the said Act. The quantum of compensation claimed by the appellants was Rs.4,00,000/- with interest, as was payable when the incident took place. But, later with a notification issued by the Central Government, the quantum of compensation stood enhanced to Rs.8,00,000/-. In the aforesaid judgment in the case of Union of India .vs. Rina Devi (supra), the Hon'ble Supreme Court also considered the question as to the quantum of compensation payable when the incidents have occurred before the notification for enhanced compensation was issued and the Court considers grant of quantum of compensation after issuance of such notification. 17. In the aforesaid judgment in the case of Union of India .vs. Rina Devi (supra), the Hon'ble Supreme Court also considered the question as to the quantum of compensation payable when the incidents have occurred before the notification for enhanced compensation was issued and the Court considers grant of quantum of compensation after issuance of such notification. 17. It has been held in the aforesaid judgment that the quantum of compensation would have to be calculated at Rs.4,00,000/- with interest and if the amount so calculated is more than Rs.8,00,000/-, then such amount would be payable, otherwise the claimant would be entitled to payment of Rs.8,00,000/- without interest. 18. A rough and ready calculation in the present case would show that grant of compensation of Rs.4,00,000/- plus interest in the present case would be less than Rs.8,00,000/- and, therefore, applying the principle laid down by the Hon'ble Supreme Court in this context, it is held that the appellants are entitled to compensation of Rs.8,00,000/-. 19. Accordingly, the appeal is allowed. The impugned judgment and order of the Tribunal is quashed and set aside. The respondent shall pay the amount of compensation at Rs.8,00,000/- to the appellants within a period of six months from today, failing which the amount shall carry interest at the rate of 9% P.A.