Research › Search › Judgment

Bombay High Court · body

2023 DIGILAW 920 (BOM)

Suhas v. Union of India

2023-04-10

U.J.PHALKE

body2023
JUDGMENT/ORDER 1. Heard learned Counsel appearing for the parties. 2. By this appeal, the applicants-original claimants have challenged the judgment and award dtd. 2/7/2019 passed by the learned Member of Railway Claims Tribunal at Nagpur (for short, "Tribunal") in Case No.OA(llu)/NGP/265/2017, whereby the Tribunal rejected the claim of the claimants. 3. The facts, giving rise to filing of the present appeal, can be summarized as under : 3.1 On 23/5/2017, the deceased Sanjay Wamanrao Wankhade obtained the ticket to travel from Warora to Wardha by train No.22128 Anandvan Express. While boarding in the train at Warora Station, he fell down from the train at the end of platform No.3 and sustained serious multiple injuries and during his treatment he died. Thus, as per the contention of the claimants, the death of the deceased was caused in an untoward incident, while boarding in the train. The claimants are the wife and two children of the deceased. As the death of the deceased was caused in an untoward incident, they are entitled to receive the compensation. 3.2 In response to the notice, the Railway Administration resisted the claim of the claimants on the ground that the deceased was not a bona fide passenger, as no ticket was found on his person. Secondly, it is the contention of the Railway that the deceased was dashed by the goods train and the said incident was witnessed by Shri Sagar Namdeo Uikey, who was working as RPF Constable at Warora Station. Thus, the death of the deceased was not caused in an untoward incident, but the death of the deceased caused as deceased was negligent and was crossing the track, at the time when one goods train arrived at platform No.3 and dashed against the deceased. Due to the said dash, the death of the deceased is caused. Thus, the death of the deceased is not in an untoward incident, but it is caused due to his own negligence, and therefore, the Railway Administration is not liable to pay the compensation to the claimants. 4. To substantiate the contention on behalf of the claimants, claimant No.2 Kaustubh Sanjay Wankhade stepped into the Witness Box vide Exh-A-69 and narrated about the incident. Besides his oral evidence, he placed reliance on the Police papers, murg report and Spot panchanama etc. as well as the Investigation report carried out by the Railway Administration. 4. To substantiate the contention on behalf of the claimants, claimant No.2 Kaustubh Sanjay Wankhade stepped into the Witness Box vide Exh-A-69 and narrated about the incident. Besides his oral evidence, he placed reliance on the Police papers, murg report and Spot panchanama etc. as well as the Investigation report carried out by the Railway Administration. The communication by the Railway Administration at Exh-A-38 immediately after the incident dtd. 23/5/2017 by the G.R.P. Ballarshah to Police Inspector, Chandrapur City Police Station. On the basis of said evidence, the claimants claimed that the death of the deceased is caused in an untoward incident, and therefore, the Railway Administration is liable to pay the compensation. 5. Per contra, the Railway Administration adduced the evidence of Sanjay Namdeo Awari, Pointsman, Warora and Shri Sagar Namdeo Uikey, RPF Constable, Warora to prove that the death of the deceased is not caused while boarding in the train, but it is caused due to the dash by the goods train when the deceased was crossing the track. Thus, as per the contention of the Railway Administration, the alleged incident has taken place due to the negligent act of the deceased himself, and therefore, Railway Administration is not liable to pay the compensation. 6. Heard learned Advocate Mr Bagul for the applicants. He reiterated the contentions and submitted that the deceased died in an untoward incident while he was travelling by Anandvan Express. He obtained the ticket to travel by the Anandvan Express and was boarding in the train. While boarding in the train, he slipped and fell down due to the jerk to the train and sustained injury. He was immediately shifted to the hospital, but he succumbed to the death. Thus, death of the deceased is caused in an untoward incident, therefore, claimants are entitled to receive the compensation. He further stated that so far as the issue regarding the valid ticket is concerned, mere absence of the ticket is not sufficient to hold that the deceased was travelling without ticket. There is every possibility that ticket might have misplaced during untoward incident. Thus, claimants have proved on the basis of affidavit that the deceased was travelling by the said train by obtaining the valid ticket. The learned Tribunal had not considered the evidence on record and erroneously rejected the claim, therefore, the judgment and award passed by the Tribunal deserves to be set aside. Thus, claimants have proved on the basis of affidavit that the deceased was travelling by the said train by obtaining the valid ticket. The learned Tribunal had not considered the evidence on record and erroneously rejected the claim, therefore, the judgment and award passed by the Tribunal deserves to be set aside. 7. In support of his contention, he placed reliance on Union of India ..V/s.. Prabhakaran Vijaya Kumar and others, reported in 2008 ACJ 1895 and Union of India V/s. Rina Devi, reported in 2018 (3) T.A.C. 26 (S.C.). He submitted that in the case of Union of India Vs. Rina Devi (supra), the Hon'ble Apex Court has held that mere absence of a ticket with injured or deceased is not sufficient to negate the claim of the claimant that the deceased was a bona fide passenger. Thus, he submitted that in the present case also, merely because ticket was not found with the deceased is not a sufficient to discard the evidence of the claimants. 8. Per contra, Ms Chaubey, learned Advocate for the respondent - Railway, vehemently submitted that the claimants failed to prove that the deceased was a bona fide passenger. Merely, because the dead body of the deceased was found on the track is not sufficient to infer that the deceased died in an untoward incident. On the contrary, the evidence adduced by the Railway Administration shows that the death of the deceased is caused in an incident, as he was dashed by the goods train. There is no reason to discard the evidence of the Railway Administration. Thus, the death of the deceased is caused due to the self inflicted injury, and therefore, the Railway Administration is not liable to pay compensation to the claimants. 9. Having heard Mr Ravindra G. Bagul, learned Advocate appearing for applicants and Ms Neerja Chaubey, learned Advocate appears for respondent. On perusal of the material on record, the following points arise for my determination : i) Whether the learned Member of the Tribunal is justified in rejecting the claim of the claimants for compensation? 10. To substantiate the contention, the claimant No.2 Kaustubh Sanjay Wankhade adduced his evidence by filing an affidavit vide Exh-A-69. He reiterated the contention that on 23/5/2017, the deceased was travelling by Kazipeth-Lokmanya Tilak Terminus i.e. Anandvan Express from Warora Railway Station. 10. To substantiate the contention, the claimant No.2 Kaustubh Sanjay Wankhade adduced his evidence by filing an affidavit vide Exh-A-69. He reiterated the contention that on 23/5/2017, the deceased was travelling by Kazipeth-Lokmanya Tilak Terminus i.e. Anandvan Express from Warora Railway Station. He purchased the ticket at Warora Railway Station and was boarding from platform No.3. While boarding in the train, he slipped and died at General Hospital, Chandrapur, while undergoing medical treatment. Besides his oral evidence, he placed reliance on DRM Report, murg report and spot panchanama etc. He further placed reliance on the communication by the Railway Administration to the P.I., Chandrapur City Police Station informing that the deceased Sanjay Wamanrao Wankhede sustained the injuries while boarding in the train, PM report is also on record to show that the death of the deceased is caused due to the multiple injuries sustained by him. 11. He is cross-examined at length. During crossexamination, he admitted that he has not witnessed the incident personally. Rest of the cross-examination is in the denial form. He admitted during the cross-examination that his house is not far away from the railway station. It is approximately 2 kms away from the railway station. On the basis of the said cross-examination, learned Advocate for Railway submitted that as the house of the deceased was at a short distance, the deceased was crossing the track and he dashed by the goods train, sustained injuries and succumbed to the death during the medical treatment. 12. The Railway Administration has examined Sanjay Namdeo Awari at Exhibit-A-75 and Sagar Namdeo Uikey at Exh-A-81. Shri Sanjay Awari is a Pointsman and on 23/5/2017, he was deputed on duty at Warora Railway Station. His evidence is only to the extent that one goods train was passing through at about 23.40 hours. At the relevant time, one Purusottam (Baba Aglawe) came to him and asked him about the station and he came to know that injured Sanjay was shifted to the hospital. He admitted that he has not personally witnessed the incident. Another witness Sagar Uikey, who according to the Railway Administration has witnessed the incident, but his evidence is only to the extent that on 23/5/2017, he was on duty from 8:00 p.m. to 8:00 a.m. of the next day. He admitted that he has not personally witnessed the incident. Another witness Sagar Uikey, who according to the Railway Administration has witnessed the incident, but his evidence is only to the extent that on 23/5/2017, he was on duty from 8:00 p.m. to 8:00 a.m. of the next day. At about 23:23 hours, on platform No.3 Anandvan Super Fast Express arrived and after attending the said train, he was proceeding towards platform No.3 to proceed towards platform No.2 to attend Navjeevan Express. At that time, he saw two persons standing and arguing on the platform No.3. He gave signals to them. In the meantime, goods train came there. He heard the shouts. He rushed towards the platform No.3 and saw that a person lying in injured condition. He immediately informed the said incident to S. S. Warora. During crossexamination, he admitted that nobody has informed that the deceased committed suicide. 13. He further admitted that after passing of Anandvan Express, the deceased stand at the platform No.3 towards end track. Thus, attempt was made by the Railway to show that deceased had not sustained the injuries while boarding in the train, but he sustained the injuries due to the dash by the goods train. Besides oral evidence, the DRM report is on record, which shows that the Railway Administration has carried out the investigation and on the basis of the statement, they came to the conclusion that the death of the deceased is occurred due to the dash by the goods train. After going through the papers, it is apparent that the murg report is registered on the basis of the communication by the RPF, Warora to the P.I. Chandrapur City Police Station. After the incident, immediately the report was submitted to the P.I. Chandrapur City Police Station by the incharge officer of the Railway Police, Warora that the injured namely Sanjay Wankhade had sustained the injuries while he was boarding in the train. The communication further shows that when injured was boarding in the train, he slipped from the foot steps, sustained injuries and immediately shifted to the hospital by GRPF and the relatives. On the basis of this communication, only Chandrapur City Police have registered the murg report regarding the said incident. The recital of the spot Panchanama also discloses that injured had sustained the injury in the accident, when he was boarding in the train. On the basis of this communication, only Chandrapur City Police have registered the murg report regarding the said incident. The recital of the spot Panchanama also discloses that injured had sustained the injury in the accident, when he was boarding in the train. Thus, the contention of the Railway Administration that the deceased sustained the injuries as he was dashed by the goods train is not supported by their own communication to the Chandrapur City Police Station. The said communication is immediately after the incident for registering the murg report. Though, witness namely Sagar Uikey is examined by the Railway Administration in support of their contention, but admittedly he reached at the spot, when the injured was already fell down and lying on the track and Anandvan Express has left the platform. Therefore, he was not the eye witness of the said incident. On the contrary, the communication which is immediately made to the P.I. Chandrapur City Police Station shows that immediately after the incident, R.P.F. Police reached at the spot and shifted the injured in the hospital, and thereafter, submitted a report. There is no reference about the said communication in the DRM report. Thus, the contention of the Railway that the deceased sustained the injuries as he was dashed by the goods train is neither substantiated by examining the Loco Pilot of the goods train or any person, who was travelling in the said goods train. 14. Before entering into the merits of the case, it is necessary to see the definition of untoward incident defined in Sec. 123 (c) of the Railways Act, 1989, which reads as under : "Sec. 123. Definitions.-In this Chapter, unless the context otherwise requires, - (a) . . . . . . (b) . . . . . . (c) "untoward incident" means- xxxx xxxx xxxx xxxx (2) the accidental falling of any passenger from a train carrying passengers.] 15. Now by considering the definition of untoward incident, it is to be seen whether the deceased was travelling by the train, which was carrying the passengers and whether he was holding a valid train ticket. Admittedly, the ticket was not found either with the deceased when he was found in an injured condition nor it was produced subsequently by the relatives or the claimants before the Investigating Authority. So, admittedly no ticket was produced in support of the contention. Admittedly, the ticket was not found either with the deceased when he was found in an injured condition nor it was produced subsequently by the relatives or the claimants before the Investigating Authority. So, admittedly no ticket was produced in support of the contention. The Hon'ble Apex Court in Union of India Vs. Rina Devi (supra), has already dealt with this issue and held that merely because the ticket was not found with the deceased is not sufficient to hold that the deceased was not a bona fide passenger. By referring the judgment of Delhi High Court in Gurcharan Singh Vs. Union of India, reported in (2015) A.C.J. 171, the Hon'ble Apex Court held that initial onus to prove the death or injury to a bona fide passenger is always on the claimant. However, such onus can shift on Railways if an affidavit of relevant facts is filed by the claimant. Merely, because the ticket was not found with the deceased is not sufficient to negate his claim. There is possibility of misplacing the said ticket during the untoward incident. Considering the same, in the present case also, the injured has sustained the injuries while boarding in the train. The possibility that ticket is misplaced during untoward incident or it is destroyed in the said incident cannot be ruled out. Therefore, the contention of the Railway that deceased was not a bona fide passenger is not acceptable merely on the basis of the fact that the ticket was not found with the deceased. Mere absence of ticket with such injured or deceased will not negative the claim that he was a bona fide passenger. The claimants have adduced the evidence by filing an affidavit of relevant facts, and therefore, burden will then shift on the Railway and the issue can be decided on the fact shown on the attending circumstances. No evidence is adduced by the Railway to show that the deceased was travelling without ticket. Thus, contention of the Railway that the deceased was not a bona fide passenger is without any evidence. 16. Insofar as the issue regarding the untoward incident is concerned, the contention of the Railway and the DRM report on which railway administration relied upon shows that the death of the deceased was caused due to the dash by the goods train. The DRM report is based on the statement of DW-2 Sagar Uikey. 16. Insofar as the issue regarding the untoward incident is concerned, the contention of the Railway and the DRM report on which railway administration relied upon shows that the death of the deceased was caused due to the dash by the goods train. The DRM report is based on the statement of DW-2 Sagar Uikey. Admittedly, he was not present when the alleged incident has taken place. Admittedly, he reached at the spot after the deceased was found on the railway track. Thus, admittedly said DW-2 Sagar Uikey is not the witness of the incident. The contention of the Railway that the deceased was dashed by the goods train is also contradicted by their own communication to the P.I., Chandrapur City Police Station. Exhibit-A-38 is the communication to the P.I. Chandrapur City Police Station informing that the deceased Sanjay Wamanrao Wankhade slipped from the foot steps of the train while boarding in the train and sustained injuries and immediately shifted to the hospital. During his medical treatment, he succumbed to the injuries. Thus, this communication itself is sufficient to show that the deceased sustained the injuries, while he was boarding in Anandvan Express and this fact was witnessed by the GRPF and they have shifted the injured in the hospital with the help of relatives of the deceased. Deceased died in the hospital, while taking medical treatment. Thus, contention of the Railway Administration that deceased died due to the dash by the goods train is not supported by the cogent and reliable evidence. On the contrary, the evidence on which the Railway Administration is relied upon is contradicted by their own communication. 17. Admittedly, there was no eye witness to the incident in question. Deceased was resident of Warora. The railway ticket was not found with him, but the communication of the Railway Administration itself shows that the deceased was in train and he fell down and sustained injuries. As observed by the Hon'ble Apex Court in Union of India ..V/s.. Prabhakaran Vijaya Kumar (supra), that accidental falling of a passenger from a train carrying passengers is covered under the untoward incident. As observed by the Hon'ble Apex Court in Union of India ..V/s.. Prabhakaran Vijaya Kumar (supra), that accidental falling of a passenger from a train carrying passengers is covered under the untoward incident. The Hon'ble Apex Court in that case held that it is well settled that if the words used in a beneficial or welfare statute are capable of two constructions, the one which is more in consonance with the object of the Act and for the benefit of the person for whom the Act was made should be preferred. In other words, beneficial or welfare statutes should be given a liberal and not literal or strict interpretation. It is further held by the Hon'ble Apex Court that if we adopt a restrictive meaning to the expression 'accidental falling of a passenger from a train carrying passengers' in Sec. 123(c) of the Railways Act, we will be depriving a large number of railway passengers from getting compensation in railway accidents. It is well known that in our country there are crores of people who travel by railway trains since everybody cannot afford travelling by air or in a private car. By giving a restrictive and narrow meaning to the expression we will be depriving a large number of victims of train accidents (particularly poor and middle class people) from getting the compensation under the Railways Act. In view of that a liberal construction with the object of the Act is to be accepted and the interpretation for the benefit of the person for whom the Act was made should be preferred. 18. The Railway Administration further raised the issue that the deceased sustained the injuries due to his own negligence i.e. the self inflicted injuries. Admittedly, there is no evidence to show that the deceased either attempted to commit suicide or he was dashed by any train. The contention of the Railway that he was dashed by the goods train is not supported by any evidence. So far as the contention of the Railway that the act of the deceased covered under Sec. 124 -A Clause (b) of the Railways Act, the intention of the person, who sustained the self inflicted injury is to be proved. In view of the observation of the Hon'ble Apex Court in Union of India ..V/s.. So far as the contention of the Railway that the act of the deceased covered under Sec. 124 -A Clause (b) of the Railways Act, the intention of the person, who sustained the self inflicted injury is to be proved. In view of the observation of the Hon'ble Apex Court in Union of India ..V/s.. Rina Devi (supra), wherein the Hon'ble Apex Court held that the 'self inflicted injury' would require intention to inflict such injury and not a mere negligence of any particular degree. Doing so would amount invoking the principle of contributory negligence which cannot be done in the case of liability based on 'no fault theory'. The Hon'ble Apex Court has referred in earlier decision in United India Insurance Co. Ltd. ..V/s.. Sunil Kumar reported in 2017 (13) SCALE 652 , wherein it is held by the Hon'ble Apex Court that plea of negligence of the victim cannot be allowed wherein claim based on 'no fault theory' under Sec. 163-A of the Motor Vehicles Act, 1988 and it is held that the 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 Sec. 124-A merely on the plea of negligence of the victim as a contributory factor. 19. Herein in the present case, admittedly the initial onus is discharged by the claimants by adducing reliable evidence. It is also supported by the communication of the Railways to show that the deceased had sustained the injuries while boarding in the train. There is absolutely no evidence to show that the deceased was dashed by the goods train while he was crossing the railway track. In view of that I have no hesitation to hold that the burden shifted on the Railway Administration is not discharged by it. The claimants have proved that the deceased was a bona fide passenger and his death was caused in an untoward incident. 20. The alleged incident occurred on 23/5/2017. The Railway Administration issued a Notification dtd. 22/12/2016 which came into effect from 1/1/2017. In view of that Notification, claimants are entitled for compensation of Rs.8, 00, 000.00 with interest @ 6% per annum. 21. In view of the above discussion, the appeal deserves to be allowed. Hence, I pass the following order : ORDER i) The first appeal is allowed. 22/12/2016 which came into effect from 1/1/2017. In view of that Notification, claimants are entitled for compensation of Rs.8, 00, 000.00 with interest @ 6% per annum. 21. In view of the above discussion, the appeal deserves to be allowed. Hence, I pass the following order : ORDER i) The first appeal is allowed. ii) The judgment and award dtd. 2/7/2019 passed by the learned Member of Railway Claims Tribunal at Nagpur in Case No.OA(IIu)/NGP/265/2017 is hereby quashed and set aside. iii) The respondent - Railway Administration is directed to pay the compensation of Rs.8, 00, 000.00 to the claimants within a period of 60 days from the receipt of the copy of this judgment alongwith @ 6% per annum. iv) Considering the claimant Nos.2 and 3 have attended the age of majority, the entire amount of compensation be disbursed to claimant No.1 Smt. Suhas wd/o Sanjay Wankhsde. v) The amount of compensation be disbursed on due identification and verification. 22. With these directions, the first appeal is disposed of as no order as to costs.