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2020 DIGILAW 242 (BOM)

Leelabai v. Union Of India

2020-01-31

M.G.GIRATKAR

body2020
JUDGMENT M.G. Giratkar, J. - Heard Shri A.B. Bambal, learned Counsel for the appellants and Shri N.P. Lambat, learned Counsel for the respondent. 2. This appeal is against the judgment of Railway Claims Tribunal, Nagpur Bench, Nagpur in Case No.OA(IIu)/NGP/2013/0194. Deceased Soma Ramchandra Naitam was travelling from Sirpur Kagajnagar to Wirur Railway Station on 24-2-2013 by Train No.57121 (Kazipeth-Ballarshah Passenger). He fell down near Makudi Railway Station and died on the spot. The Station Master, Makudi informed about the untoward incident to the Government Railway Police. The Government Railway Police prepared an inquest panchanama. Dead body of deceased was sent for post-mortem. As per the post-mortem report, the death of deceased was due to injury to brain. There was head injury and other injuries on the part of body of deceased. The legal heirs i.e. the claimants filed claim petition before the Railway Claims Tribunal claiming compensation. The Railway Claims Tribunal came to the conclusion that there is a contradiction in between the inquest panchanama and joint investigation report. The Railway Claims Tribunal came to the conclusion that deceased was not a bona fide passenger. On that ground, rejected the claim of the appellants. 3. Shri A.B. Bambal, learned Counsel has pointed out documents on record. He has pointed out inquest panchanama at Page A-54 and submitted that at the time of inquest panchanama travelling ticket from Sirpur Kagajnagar to Wirur Railway Station was found in the pocket of baniyan of the deceased. Therefore, it is clear that deceased was bona fide passenger. Learned Counsel has submitted that the deceased was coming in Kazipet-Ballarshah Passenger train. He fell down from the train and died due to head injury. Learned Counsel has submitted that it is the burden on the Railway to disprove the claim of the appellants. The Railway Claims Tribunal wrongly recorded its findings. Learned Counsel has submitted that appeal be allowed and claim be granted as prayed. In support of his submission, he has pointed out following judgments : (i) Union of India vs. Rina Devi, (2018) ACJ 1441 , (ii) Union of India vs. Prabhakaran Vijaya Kumar and others, (2008) 9 SCC 527 , (iii) Union of India vs. Smt. Rani and others,2005 2 TAC 11(All.) (iv) Meharunisa wd/o Shaikh Kasam and another vs. Union of India in First Appeal No.502/2014, decided by this Court on 13-2-2015. (v) The Union of India vs. Kamla Ramdas Bhasme in First Appeal No.774/2012, decided by this Court on 22-4-2015. (vi) The Union of India vs. Dhurpatabai w/o Kondiba Gomsale and another in First Appeal No.305/2010 decided by this Court on 01-7-2017. (vii) Kavita wd/o Sanjay Awachare and others vs. Union of India in First Appeal No.307/2017 decided by this Court on 24-1-2018. 4. Shri N.P. Lambat, learned Counsel has submitted that deceased was not a bona fide passenger. Railway ticket was planted later on. The Head Constable Pawar who prepared inquest panchanama also signed on the joint investigation report. As per the joint investigation report, deceased was not the bona fide passenger. Learned Counsel has pointed out judgment of the Hon''ble Apex Court in the case of Kamrunnissa vs. Union of India, 2019 12 SCC 391 . 5. As per the record, information of incident was given by the Station Master, Makudi to the Government Railway Police stating that one dead body was lying on the railway track near Railway Station, Makudi. On the basis of information given by the Station Master, Head Constable Pawar went to the spot of incident and prepared crime detail form. As per this crime detail form, deceased was found lying dead on the railway track. Deceased was wearing dhoti and baniyan. One railway ticket was found in the pocket of baniyan. That ticket was from Sirpur Kaghaznagar to Wirur Railway Station. 6. Thereafter joint investigation was carried out and as per the observation, it is mentioned in column that deceased was not a bona fide passenger. It is pertinent to note that the Railway has examined only Railway Guard. It is the defence of the Railway that untoward incident had not taken place as claimed by the appellants. Railway Guard has stated in the affidavit that he has not seen any person falling from the train. But, in the cross-examination, he has stated that he could not see any person falling from the train. This particular admission shows that whatever he has deposed in his examination-in-chief cannot be relied on because he could not see any person falling from the train and then how can he see any person falling from the train. In view of the admission given by the Railway Guard, his evidence is not helpful to the Railway. 7. Inquest panchanama prepared by Head Constable Pawar is on record. In view of the admission given by the Railway Guard, his evidence is not helpful to the Railway. 7. Inquest panchanama prepared by Head Constable Pawar is on record. It is prepared by the Government Railway Police. This document cannot be denied by the Railway. Head Constable Pawar was not called by the respondent to examine before the Railway Claims Tribunal. The claimants have proved the documents i.e. inquest panchanama etc. Deceased was travelling from Sirpur Kagajnagar to Wirur Railway Station. These documents cannot be denied by the respondent. These documents show that deceased was a bona fide passenger. Even the deceased was not having any ticket, then also claim cannot be denied only on that ground. The circumstantial evidence is to be seen while deciding the claim. The Hon''ble Apex Court in Union of India vs. Rina Devi has held in paragraph 17.4 as under : "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." 8. It is the burden on the Railway to disprove the claim. The Allahabad High Court in the case of Union of India Vs. Smt. Rani and others has held that "the burden lies on the Railways to prove any of the circumstances, which may fall within the exceptions. In the absence of any proof by the Railway Administration, it shall be presumed that the accident occurred on account of untoward incident." This Court in First Appeal No.502/2014 has observed in paragraph 8 as under : "Further, the Tribunal has itself recorded that there are lot of contradictions in the case pleaded by the appellants and the record produced by the respondent. After recording this, the Tribunal has erroneously granted the benefit of the proviso below Section 124-A of the Railways Act, 1989 to the respondent. In my view, the claimants can be deprived of the claim for compensation on the basis of the proviso below Section 124-A of the Railways Act, 1989 only if the respondent pleads and proves that the passenger suffered injury or died because of the incident as stated in the clause (a), (b), (c), (d) and (e) of the proviso below Section 124-A of the Railways Act, 1989. The burden to prove that the case falls under the proviso below Section 124-A of the Railways Act, 1989 is on the respondent. In the present case the respondent has not been able to establish that the case falls under the proviso below Section 124-A of the Railways Act, 1989." 9. The Hon''ble Apex Court in the case of Union of India vs. Prabhakaran Vijay Kumar and others has observed that "we are of the opinion that it will not legally make any difference whether the deceased was actually inside the train when she fell down or whether she was only trying to get into the train when she fell down. In our opinion in either case it amounts to an "accidental falling of a passenger from a train carrying passengers". Hence, it is an "untoward incident" as defined in Section 123(c) of the Railways Act." 10. There is no dispute that dead body was found near Makudi Railway Station on railway track. As per the inquest panchanama, the railway ticket was found with the dead body and, therefore, it cannot be said that deceased was not a bona fide passenger. It is the burden on the Railway department to disprove the claim of the appellants. This Court in First Appeal No.307/2017 has observed in paragraph 9 as under : "The tribunal has analysed the aforesaid material on record to arrive at the conclusion that since paragraph 12 of the spot panchanama was blank, the seizure of the ticket recorded in the inquest panchanama was not believable. This Court in First Appeal No.307/2017 has observed in paragraph 9 as under : "The tribunal has analysed the aforesaid material on record to arrive at the conclusion that since paragraph 12 of the spot panchanama was blank, the seizure of the ticket recorded in the inquest panchanama was not believable. It is held by the tribunal that since there is no eyewitness to show that the deceased had indeed purchased the said ticket and because recovery of other articles, apart from the ticket, has not been mentioned in the spot panchanama, the said ticket is manipulated and procured in connivance with unscrupulous elements. The tribunal has held that since nothing was recorded to have been seized in the spot panchanama, it was intriguing that only journey ticket was found on the body of the deceased. The aforesaid findings of the Tribunal appear to be based on erroneous appreciation of the evidence and material on record. The Tribunal has erred in placing emphasis on paragraph 12 of the spot panchanama being blank and that seizure of the ticket was not recorded therein. It has also erred in holding that since there was no eyewitness to the fact that the deceased had actually purchased the said ticket or that the appellant no.1, in her cross-examination stated that the wallet of the deceased was given to her by the Police, it was evident that the aforesaid ticket and its recovery were manipulated. The said findings of the tribunal are unsustainable because the ticket purchased at 12.17 p.m. on 30.03.2012 was very much produced on record in the evidence. The inquest panchanama clearly recorded that it was seized or recovered from the pocket of the pant that was worn by the deceased. Merely because the seizure of the same was not mentioned in the spot panchanama, would not render the same suspicious. In fact, in paragraph 8, it is recorded in the spot panchanama that the body of the deceased was already sent to the Rural Hospital Bodwad and that, therefore, there was nothing worth seizure found at the place of incident. The approach of the Tribunal is not only erroneous but hyper technical, because it cannot be that in all such cases of claims filed before the Railway Claims Tribunal there would be an eyewitness to the actual fact of purchase of journey ticket by the deceased. The approach of the Tribunal is not only erroneous but hyper technical, because it cannot be that in all such cases of claims filed before the Railway Claims Tribunal there would be an eyewitness to the actual fact of purchase of journey ticket by the deceased. In this case, the time of issuance of ticket, stated on the ticket, which was placed on record and which was recovered from the body of the deceased, clearly demonstrated that the deceased was indeed travelling between Bodwad and Bhusawal at the time of the incident." 11. The inquest panchanama, the information given by the Station Master clearly show that the deceased was travelling from Sirpur Kagajnagar to Wirur Railway Station. He fell down from the train near Makudi Railway Station. He sustained head injury and died. Inquest panchanama also shows the injuries on the dead body. The post-mortem report shows that the cause of death was due to injury on head. Therefore, it is clear that the deceased fell down from the train and died. It is an untoward incident as defined under Section 123(c) of the Railways Act. Exception under Section 124-A of the Railways Act is not proved by the Railway. Learned Counsel Shri N.P. Lambat has pointed out decision of the Hon''ble Apex Court in Kamrunnissa vs. Union of India. The facts in the cited decision is very much different. The Hon''ble Apex Court held that "it was not possible to accept that the railway accident had taken place when the deceased was boarding the train on railway station. Further the report also revealed that besides a pocket diary the deceased was not in possession of any other article. Also, the first information report showed that the deceased was seen coming from the direction of Bangalore, and while crossing the railway track, he having not noticed the oncoming train, was overrun by the train. In view, thereof, held there was no justification in entertaining a challenge to the orders passed by the Railway Claims Tribunal, as also, by the High Court, rejecting the claim of the petitioner." 12. In the present case, dead body of deceased was found on the railway track. The deceased was travelling from from Sirpur to Kagajnagar to Wirur Railway Station. He was a bona fide passenger. Ticket was found in pocket of the baniyan. In the present case, dead body of deceased was found on the railway track. The deceased was travelling from from Sirpur to Kagajnagar to Wirur Railway Station. He was a bona fide passenger. Ticket was found in pocket of the baniyan. Therefore, the judgment cited by the side of respondent is not applicable to the case in hand. 13. In view of the above facts, and the cited judgments by the side of the appellants, appeal is allowed. The impugned judgment of the Railway Claims Tribunal is quashed and set aside. The application for claim is allowed. The respondent/Railway is directed to pay compensation of Rs.8,00,000/- (Rupees Eight Lakhs) to the appellants within a period of eight weeks from today. The amount of compensation be deposited before the Railway Claims Tribunal with a period of three months. After depositing the said amount of compensation, the same be distributed in equal shares to all the appellants/claimants.