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2023 DIGILAW 2020 (BOM)

Shaikh Yasmeen Begum v. Union of India

2023-10-11

G.A.SANAP

body2023
JUDGMENT/ORDER 1. Heard finally with the consent of learned Advocates for the parties. 2. In this appeal, filed under Sec. 23 of the Railway Claims Tribunal Act, 1987 (For short 'the Act of 1987') challenge is to the judgment and order dtd. 18/11/2016 passed by the Railway Claims Tribunal, Nagpur Bench, at Nagpur whereby the learned Member of the tribunal dismissed the claim filed by the appellants under Sec. 16 of the Act of 1987. 3. Background facts: Deceased -Shaikh Arshad Patel was the husband of appellant No.1 and father of appellant No.2. It is the case of the appellants that deceased alongwith his mother had gone to Nanded to meet his sister. On the same day, they were returning back to Aurangabad by Devgiri Express, train No.17058 with valid journey ticket from Nanded to Aurangabad. The mother of the deceased was sitting in the bogie. The deceased had gone towards the door of the bogie. It is stated that the deceased due to rush in the train and sudden jerk to the train fell from the running train at KM 276/9-277/0 near Pergaon Railway Station. The mother of the deceased during the course of journey heard the commotion and came to know from the co-passenger that one passenger had fallen down from the train. When she got down from the train at Aurangabad Railway Station the deceased was not in the bogie. She then realized that her son had fallen from the train. She went to home and informed the same to appellant No.1 and her husband. On next day, the dead body of the deceased was found by the key-man at the spot. It is stated that deceased was traveling with valid journey ticket. Deceased died in an untoward incident. The appellants being the dependent of the deceased claimed the compensation. 4. Respondent-Railway filed the written statement and opposed the claim. It was contended that the deceased was not bonafide passenger. It was further contended that the death was not in an untoward incident. According to the respondent, the deceased was negligent while traveling in the train and therefore, he met with an accident. 5. Learned Member of the Tribunal framed as many as four issues. Appellant No.1 examined herself as a sole witness in support of the claim. Respondent-Railway examined the loco pilot of the said train as RW-1. According to the respondent, the deceased was negligent while traveling in the train and therefore, he met with an accident. 5. Learned Member of the Tribunal framed as many as four issues. Appellant No.1 examined herself as a sole witness in support of the claim. Respondent-Railway examined the loco pilot of the said train as RW-1. Learned member of the Tribunal on consideration of the evidence found that there was no substance in the claim and dismissed the claim. Being aggrieved by this order of the Tribunal the appellants are before this Court. 6. I have heard learned Advocate for the appellants and the learned Advocate for the respondent. Perused the record and proceedings. In view of the facts and circumstances following points fall for my determination. (i) Whether the deceased died in an untoward incident as understood by the provisions of Sec. 123(c)(2) of the Railways Act, 1989 ? (ii) Whether the deceased was bonafide passenger traveling on the Devgiri Express with valid journey ticket ? 7. Learned Advocate for the appellants submitted that the learned Member of the Tribunal has failed to consider the cogent and concrete evidence adduced by the appellants to prove the material facts. Learned Advocate took me through the judgment and order passed by the learned Member of the Tribunal and submitted that the learned Member of the Tribunal has mis-directed himself in deciding the matter by drawing inference on conjectures and surmises. Learned Advocate submitted that the journey ticket for two passengers was recovered from the shirt pocket of the deceased at the time of inquest panchanama. Learned Advocate submitted that this fact corroborates the case of the appellants that the deceased and his mother were traveling together in the train. Learned Advocate submitted that the evidence on record is sufficient to accept the case of the appellants that the deceased had boarded Devgiri Express at Nanded with his mother and during the course of journey he fell from running train near Pergaon. Learned Advocate submitted that the learned Member of the Tribunal has failed to consider all these aspects in proper prospective and has come to a wrong conclusion. 8. Learned Advocate submitted that the learned Member of the Tribunal has failed to consider all these aspects in proper prospective and has come to a wrong conclusion. 8. Learned Advocate for the respondent submitted that the mother of the deceased was not examined as a witness and therefore, the said fact was found unacceptable by learned Member of the Tribunal and therefore, the inference drawn by the learned Member of the Tribunal was fully justifiable. Learned Advocate in short supported the judgment and order passed by the learned Member of the Tribunal. 9. In order to appreciate the rival submissions I have minutely perused the evidence and record. On perusal of record and proceedings it is apparent that the learned Member of the Tribunal has ignored the oral and documentary evidence available on record and on the basis of some irrelevant circumstances drawn the inference based on conjectures and surmises. It is undisputed that the Railway ticket was found on the person of the deceased at the time of inquest panchanama. Learned Member of the Tribunal has discarded this evidence on the ground that in the list of seized articles the value of the article was shown as 'Nil' i.e. 00. In my view, such observation, in the teeth of the evidence on record, is beyond comprehension. The inquest Panchanama is at page No. A-49 Exh. A-3. In inquest panchanma, it was mentioned that the ticket for journey of two passengers from Nanded to Aurangabad was found from person of the deceased. 10. Report dtd. 4/2/2013 was made by the inspector of Railway police to the Divisional Security Commissioner (eaMy l qj{kk vk;qDr). The investigation was conducted by the Inspector and the result of the investigation was recorded in this report. This report was part of the record before the Tribunal. In this report, it was stated that the ticket was verified. The verification revealed that the ticket was purchased on 12/6/2011 for a journey from Nanded to Aurangabad for two passengers. The costs of the ticket was Rs.120.00. It was purchased at 18:28 hours. The document at page A-42 Exh. A-1 is the accidental death report. In this report also it was recorded that at the time of the inquest panchanama the ticket in question was found from the shirt pocket of the deceased. The costs of the ticket was Rs.120.00. It was purchased at 18:28 hours. The document at page A-42 Exh. A-1 is the accidental death report. In this report also it was recorded that at the time of the inquest panchanama the ticket in question was found from the shirt pocket of the deceased. Learned Member of the Tribunal on the basis of this list of Articles at Page A-40 has recorded a finding that the costs of the ticket was nil. It is to be noted that whenever the list of the seized article is drawn one column in the form is meant for mentioning the costs/price of the said article. In the list of artilces, the approximate value of the article was mentioned and not the costs of the ticket. It is therefore apparent that the learned Member was not right in discarding the evidence of such a sterling quality. The recovery of a ticket apart from supporting the case of the appellants that the deceased was bonafide passenger, supports the most important fact that the deceased was traveling with one more person on the same ticket. AW-1 in her evidence has stated that the mother of the deceased was traveling with him. There is ample record to indicate that during the Course of investigation the statement of the mother was recorded by the police. The said statement recorded by the Railway police was not placed on record. However, the same could not be the ground to reject the available evidence on record. In view of this, I conclude that the deceased was bonafide passenger traveling on the Devgiri Express Train with valid journey ticket. In this case, the evidence on record is sufficient to accept the case of the appellants that the deceased on the given date was traveling in Devgiri Express train from Nanded to Aurangabad with his mother. 11. The contention of the appellants with regard to the fall of the deceased from the running train was discarded on the ground that the mother of the deceased did not report this accidental fall of his son to co-passengers. In my view, merely because of this, inference cannot be drawn that the deceased was not traveling in the said train. It is further contended that the deceased was negligent and therefore, he fell from running train. In my view, merely because of this, inference cannot be drawn that the deceased was not traveling in the said train. It is further contended that the deceased was negligent and therefore, he fell from running train. In short, it is their case that there was contributory negligence on the part of the deceased. Learned Member of the Tribunal has not properly appreciated the facts and law in the teeth of the evidence. It is not the case of the Railway that the deceased was run over by the train while crossing the railway line. The deceased had admittedly boarded the train at Nanded and during the course of journey near Pergaon he fell from running train. In the facts and circumstances, the only question that needs to be addressed is as to whether the defence of negligence would be available to the appellant or not. In order to address this issue useful reference can be made to the decision in the case of Union of India .v/s. Rina Devi, (2019) 3 SCC 572 . Para No. 25 of the decision would be relevant for the purpose of addressing the issue. It is reproduced below: "25. 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. versus Sunil Kumar laying down that plea of negligence of the victim cannot be allowed in claim based on 'no fault theory' under Sec. 163-A of the Motor Vehicles Act, 1988. Accordingly, we hold that death or injury in the course of boarding or de-boarding a train will be an 'untoward incident' entitling a victim to the compensation and will not fall under the proviso to Sec. 124-A merely on the plea of negligence of the victim as a contributing factor." 12. In this case, the Hon'ble Apex Court has held that the plea of negligence of victim cannot be allowed in the claim based on 'no fault theory'. It is held that the liability in the accident claim under the Railways Act is based on the strict liability/no fault theory. In this case, the Hon'ble Apex Court has held that the plea of negligence of victim cannot be allowed in the claim based on 'no fault theory'. It is held that the liability in the accident claim under the Railways Act is based on the strict liability/no fault theory. It is held that in case of death or injury in the course of boarding and de-boarding a train will be an 'untoward incident' entitling a victim to the compensation. The case in question falls within first part of Sec. 124-A of the Railways Act, 1989 (for short 'the Act of 1989'). Even if the facts stated in the written statement are accepted as it is, the case would not fall within any of the clauses of proviso to Sec. 124-A of the Act of 1989 merely on the plea of negligence of the victim as a contributory factor. In my view, the appeal before me is fully covered by this decision. The evidence on record is sufficient to establish that the deceased died in an untoward incident. In view of this, the judgment and order passed by the learned Member of the Tribunal cannot be sustained. Accordingly, I conclude that there is substance in the appeal. Both the points are, therefore, answered in affirmative. 13. In this case, the accident had occurred on 12/6/2011. Learned Advocates for the parties submit that in view of the Notification issued by Ministry of Railways (Railway Board) dtd. 22/12/2016, came into effect from 1/1/2017, in case of death claim the appellants/claimants are entitled to get compensation of Rs.8, 00, 000.00 (Rupees Eight lakhs only). Before issuance of this notification, in case of death claim, compensation provided was Rs.4, 00, 000.00 (Rupees Four Lakhs only). As per the old provisions, the claimants/appellants would have been entitled to get Rs.4, 00, 000.00. Learned Advocates drew my attention to the decision of the Hon'ble Apex Court in Union of India .vs. Radha Yadav, (2019) 3 SCC 410 . wherein Hon'ble Supreme Court has held that in case of old claim after this notification, the claimants/ appellants would be entitled to get compensation of Rs.8, 00, 000.00, without interest, if the compensation provided earlier with interest is less than Rs.8, 00, 000.00. Learned advocate submitted that the compensation of Rs.4, 00, 000.00 with interest would not be more than Rs.8, 00, 000.00. Learned advocate submitted that the compensation of Rs.4, 00, 000.00 with interest would not be more than Rs.8, 00, 000.00. Therefore, in this case, the appellants/claimants would be entitled to get Rs.8, 00, 000.00 (Rupees Eight Lakhs only), without interest. 14. Accordingly, the First Appeal is allowed. (i) The impugned judgment and award dtd. 18/11/2016 passed by the Railway Claims Tribunal, Nagpur Bench, Nagpur in case of OA.(IIu)/NGP/2012/0178, is quashed and set aside. (ii) The claim application filed by the appellants is allowed. (iii) Respondent-Railway is directed to pay Rs.8, 00, 000.00(Rupees Eight Lacs Only) towards compensation to the appellants. The amount be deposited within four months in this Court. (iv) Out of the compensation amount of Rs.8, 00, 000.00, the 30% amount be paid to appellant No.1 and 70 % amount be paid to appellant No. 2. It is made clear that if the appellant No.1 has remarried, after the death of her husband, then the amount of share of appellant No.2 be allowed to be withdrawn by the parents of the deceased. (v) The amount of share of appellant No.2 till he attains majority be kept in a fixed deposit with Nationalized Bank. This order be communicated to the parents of the deceased. The Advocate for the appellant No.1 shall provide postal address of parents of the deceased to the Registrar (Judicial). (vi) The appellants will not be entitled to get any interest on the said amount. However, the appellants would be entitled to get interest @ 7% per annum from the date of this judgment till realization of the amount, if the amount is not deposited within four months. 15. The First appeal stands, disposed of. No order as to costs. Pending applications, if any, stands disposed of.