Research › Search › Judgment

Bombay High Court · body

2022 DIGILAW 1964 (BOM)

Asha wd/o Sandesh Kale v. Union of India

2022-08-26

M.S.JAWALKAR

body2022
JUDGEMENT : 1. Heard. Heard finally by consent of the learned Counsel for both the parties. 2. Present appeal is filed by dependants of deceased Sandesh Kale challenging the order passed by the Railway Claims Tribunal, Member (Judicial) Nagpur in Claim Application No. OA/(IIu)/NGP/2013/0171 dated 17/01/2017. By this judgment, the claim of the petitioner was dismissed. 3. The brief facts arising to file claim petition is as under : That the deceased namely Sandesh Kale was travelling from Majari to Warora on 20/09/2012 by train by purchasing valid railway ticket. The deceased was standing near the door of the coach, when the train reach at Warora Railway Station on platform No.3 due to heavy rush, he fallen down from running train and sustained injuries and died during course of treatment in hospital at Chandrapur. 4. The claim was resisted by the respondent- Railway by filing the written statement and stated that it is not an untoward incident and the deceased was not bonafide passenger of the train. 5. It was observed by the learned Member of the Tribunal that the deceased has residence behind the Railway station and therefore before arrival of the train at its schedule halt, he tried to alight from running train and died. On the basis of the incident, the Tribunal dismissed the claim application of the appellants. Being aggrieved by the same the appellant filed the present appeal. 6. According to the learned Counsel for appellant, the deceased was a bonafide passenger and only after purchasing valid ticket for Majri to Warora he had travelled in the train and died in an untoward incident. The learned Counsel further submitted that the Tribunal failed to note that there is every possibility of losing the ticket in the accident. In support of his submission, relied upon the following decision- 1) Savila Khatun Vs. Union of India reported in I (2019) ACC 186 (Jhar.) 2) S. Vijayalakshmi and ors Vs. Union of India reported in I (2019) ACC 177 (Mad.) 7. On the contrary, learned Counsel for Union of India, Ms Neeraja Choubey vehemently opposed the contention, she has drawn my attention to the spot punchnama and inquest punchnama and submitted that it can be seen that nothing has been recovered from the person of the deceased and from the spot of incident. Which clearly proves that the deceased was not a bonafide passenger. Which clearly proves that the deceased was not a bonafide passenger. Mere found injured near the track or the body of a person was recovered from the track is not enough evidence to get the compensation from the respondent/Railway. 8. I have considered the rival contention of the parties and also gone through the judgment and documents placed on record, the inquest punchnama as well as spot panchanama prepared by the Railway Police clearly goes to show that the deceased sustained injuries in railway accident and succumbed to injuries. 9. The Railway Claims Tribunal held that to entitle claim of compensation, the passengers or its dependents are eligible. The case has to be covered as untoward incident as defined under Section 123-C of the Act. The word passenger has been defined under Section 2 Sub Clause 29 of the Act as a person traveling with a valid pass or ticket. It is held that the first requirement for the applicant is to prove that the deceased was a bonafide passenger of the train. The initial burden lies on the applicant to show that the deceased was a bonafide passenger. 10. The learned Tribunal concluded that deceased was not bonafide passenger as no ticket was recovered from the body of the deceased. Also relied on evidence of retired ASI RPF RW-2 Suresh Shahu who deposed that he was on duty at Warora Railway Station as Assistant Sub Inspector. He received message on walkie talkie from Shri Deshpande, Deputy SS that one person is lying towards Majri end on platform no.3. After receipt of information he immediately rushed to the spot along with head constable and notice that one person is injured up main line near platform set. He was shifted to Government Hospital Warora. This witness further deposed that he was admitted in emergency ward, on enquiry from the injured person he stated that his name is Sandip Kale. He was performing the journey by Nandigram Express from Majri to Warora and he was not possessing any journey ticket. He stated that his residence is behind Railway hospital. Therefore prior to arrival of the train at his schedule halt he tried to alight from the running train at the starting point of the platform. In that attempt he came under the wheels of the train. 11. He stated that his residence is behind Railway hospital. Therefore prior to arrival of the train at his schedule halt he tried to alight from the running train at the starting point of the platform. In that attempt he came under the wheels of the train. 11. Railway claims tribunal heavily relied on the statement without considering this fact that the injured was lying between the track and the platform having severe injuries to vital organs i.e. brain and fracture of bone. In such circumstances it would be impossible for him to give such statement to the railway person. Moreover, the said RW -2 retired ASI RPF in cross admitted that he has not seen the accident and he has not recorded statement of the injured. As such without there being any certificate of Doctor that injured was in a position of making such statement the learned Claims Tribunal ought to have discarded this piece of evident. If communication from Medical Hospital General Hospital Chandrapur dated 28/09/2012 is perused, the victim was brought dead to the General Hospital Chandrapur at 6.15 pm. In view of this letter also it is very difficult to rely on the statement made by the witness no.2. 12. Learned Counsel for appellant relied on judgment Savila Khatun (Supra) wherein the Jharkhand High court held in para 5 6 and 7 which reads as under : 5. Only on the reason of non-production of ticket, the claim of the claimant/appellant has been refused by holding that deceased was not a bonafide passenger. 6. Nobody can enter into the railway station or into the train without having a valid ticket as at all entry points, railway has deputed its staff to check authorised/unathourised person and even in train, Travelling Ticket Examiner has been employed to check such person, who does not possess a valid ticket. 7. Thus, if a person is travelling by a train, it is presumed that he/she is travelling with a valid ticket and onus lies upon the railway authority to prove that such person is not having a valid ticket and as such, he/she is not a bonafide passenger. Railway authority has failed to discharge his duty. Claim tribunal has proceeded wrongly by considering that onus lies upon the claimant. 13. Railway authority has failed to discharge his duty. Claim tribunal has proceeded wrongly by considering that onus lies upon the claimant. 13. The claim of the petitioner has been negated on the ground that deceased was trying to get down from the moving train and came under the train. The learned claims tribunal misinterpreted the judgment in Jameela’s matter and held that the negligence and criminal negligence is different and further observed that in the matter of Jameela it is clarified that where the death take place on account of criminal negligence of the passenger, the railway are not liable. 14. In view judgment in Rina Devi it is made clear that “there cannot be any criminal negligence or self inflicted injuries unless there was intention to inflict such injury.” The Hon’ble Apex Court held as under: “16.6 We are unable to uphold the above view as the concept of ‘self inflicted injury’ would require intention to inflict such injury and not mere negligence of any particular degree. Doing so would amount to invoking the principle of contributory negligence which cannot be done in the case of liability based on ‘no fault theory’. We may in this connection refer to judgment of this Court in United India Insurance Co. Ltd. v. Sunil Kumar laying down that plea of negligence of the victim cannot be allowed in claim based on ‘no fault theory’ under Section 163A of the Motor Vehicles Act, 1988. Accordingly, we hold that death or injury in the course of boarding or deboarding a train will be an ‘untoward incident’ entitling a victim to the compensation and will not fall under the proviso to Section 124A merely on the plea of negligence of the victim as a contributing factor.” 15. As such even alighting from the train if a person suffers any injury it will be covered under the parameter of an untoward incident. Learned Counsel for appellant relied on judgment S. Vijayalakshmi & ors (Supra) wherein the Madras High court held in para 20 and 21 reads as under : “20. When it is an admitted that the deceased died in an untoward incident on the fateful day while traveling in the train, the onus is strictly on the Railways to prove that the deceased was not a bona fide passenger, since the normal presumption is that a passenger in a train holds a valid ticket. When it is an admitted that the deceased died in an untoward incident on the fateful day while traveling in the train, the onus is strictly on the Railways to prove that the deceased was not a bona fide passenger, since the normal presumption is that a passenger in a train holds a valid ticket. Moreover, if the deceased had traveled as a ticketless traveller, one would normally expected the Railway Authorities to have detected such ticketless traveling. 21. When a person dies in an accident by falling down from train, it is not possible for the legal heirs to produce the ticket or valid authority to travel in the train. Depending upon the facts and circumstances of a given case, the Tribunal and /or the Appellate court infers about the deceased being a bonafide passenger. In the present case, facts and circumsatnces prima facie indicate that the deceased was a bonafide passenger, who lost his life in the railway accident.” 16. As such the judgment passed by the learned Railway Claims Tribunal is patently erroneous, unjustified and liable to be quashed and set aside. The claimants are entitled for compensation. Accordingly, I proceed to pass the following order: ORDER i) The appeal is allowed. ii) The impugned judgment dated 17/01/2017 in Claim Application No. OA(IIu)/NGP/2013/0171 passed by the Railway Claims Tribunal, Nagpur Bench is hereby quashed and set aside. iii) The respondent- Union of India is directed to pay to the appellants the sum of Rs.8,00,000/-. iv) The amount of compensation be distributed in 4:3:3 proportion to Respondent no. 1 to 3 respectively. v) The said amount shall be deposited in the account of claimants/appellants after verification of identity within three months. The appeal stands disposed of accordingly.