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2024 DIGILAW 254 (BOM)

Alka Wd/o Shrikrushna Dode v. Union of India

2024-02-05

G.A.SANAP

body2024
JUDGMENT : G.A. SANAP, J. 1. Heard finally with the consent of learned Advocates for the parties. 2. In this appeal, filed under Section 23 of the Railway Claims Tribunal Act, 1987 (for short ‘the Act of 1987), the challenge is to the judgment and order dated 10.01.2020, passed by the Railway Claims Tribunal, Nagpur Bench, Nagpur, whereby the claim filed by the appellants/claimants for compensation under Section 16 of the Act of 1987 was dismissed. 3. Background facts: Appellant No. 1 is the wife of the deceased. Appellant Nos. 2, 3 and 4 are the children of the deceased. Appellant Nos. 5 and 6 are the parents of the deceased Shrikrushna Dode. The appellants claimed that on 13.04.2016, the deceased, after purchasing a valid journey ticket, boarded the Tapti-Ganga Express at Jalgaon Railway Station to go to Surat. The appellants contended that after boarding the train, the deceased fell from the moving train at Jalgaon Railway Station and died while undergoing medical treatment in the hospital. According to the appellants, the deceased was a bona fide passenger, with a valid journey ticket. The deceased died in an untoward incident. 4. The respondent-railway filed the written statement and opposed the claim. According to the respondent-railway, the deceased was not a bona fide passenger travelling with a valid journey ticket. The ticket was not recovered from the spot. It is further contended that the deceased, while crossing the railway track, was either run over by any train or dashed by any train. The death, according to the railway, was therefore not in an untoward incident. 5. The parties adduced evidence before the Tribunal. The learned Member of the Tribunal, on consideration of the evidence, found that the claim was without substance and therefore, ultimately dismissed the claim. Being aggrieved by this judgment and order, the appellants have come before this Court in appeal. 6. I have heard the learned Advocate Ms Sumesha Chaudhary for the appellants and the learned Advocate Ms Neerja Chaubey for the respondent. Perused the record and proceedings. 7. In the facts and circumstances, the following points fall for my determination: (i) Whether the deceased died in an untoward incident as understood by the provisions of Section 123(c)(2) of the Railways Act, 1989? (ii) Whether the deceased was a bona-fide passenger travelling with a valid journey ticket? 8. Perused the record and proceedings. 7. In the facts and circumstances, the following points fall for my determination: (i) Whether the deceased died in an untoward incident as understood by the provisions of Section 123(c)(2) of the Railways Act, 1989? (ii) Whether the deceased was a bona-fide passenger travelling with a valid journey ticket? 8. Learned Advocate for the appellants submitted that the learned Member of the Tribunal has not properly appreciated the evidence adduced by the appellants. Learned Advocate took me through the evidence of witness No. 2-Devchand Tayade, examined by the appellants and submitted that the evidence of this witness is sufficient to prove that the deceased, after purchasing a valid journey ticket, had boarded the Tapti-Ganga Express to go to Surat at Jalgaon Railway Station. Learned Advocate submitted that the possibility of the loss of a ticket cannot be ruled out inasmuch as the deceased was shifted at 2:00 p.m. to the hospital in an injured condition. Learned Advocate submitted that the spot panchanama as well as the inquest panchanama are silent about seizure of the clothes of the deceased. Learned Advocate submitted that the DRM report is based on the material collected during the course of the statutory inquiry. Learned Advocate pointed out that in his report, the DRM has concluded that the deceased fell from the running train due to his negligence. The DRM has concluded that the deceased might have been standing near the door in a careless manner and due to his negligence, he might have fallen from the running train and died. Learned Advocate submitted that this conclusion, drawn by the DRM, is against the case of the respondent-railway, as sought to be pleaded in the written statement. Learned Advocate submitted that the defence of negligence or contributory negligence in the factual situation would not be available to the railway. Learned Advocate pointed out that the learned Member, due to certain mistakes committed in the pleadings by the appellants, has failed to properly appreciate the material on record. Learned Advocate submitted that Tapti-Ganga Express left Jalgaon railway station at 13:45 hours, whereas Tapti-Ganga Express from Surat arrived at Jalgaon railway station at 15:25 hours. Learned Advocate submitted that the dead body was found at 2:00 p.m. i.e. 14:00 hours and therefore, the possibility of the deceased travelling by Tapti Ganga Express from Surat to Jalgaon is out of question. Learned Advocate submitted that the dead body was found at 2:00 p.m. i.e. 14:00 hours and therefore, the possibility of the deceased travelling by Tapti Ganga Express from Surat to Jalgaon is out of question. Learned Advocate submitted that on both counts the appellants have proved their case. 9. Learned Advocate for the respondent-railway submitted that the learned Member has recorded findings on the basis of the pleadings of the appellants that the deceased never travelled by Tapti-Ganga Express from Jalgaon to Surat. Learned Advocate submitted that the admission in the pleadings is sufficient to negative the contention of the appellants that the deceased was travelling by Tapti-Ganga Express from Jalgaon to Surat. Learned Advocate submitted that the ticket was not found on the spot as well as on the person of the deceased and therefore, the learned Member was right in rejecting the claim. Learned Advocate further submitted that the evidence of AW-2 cannot be relied upon inasmuch as he is a close relative of the deceased. 10. In order to appreciate the rival submissions, I have minutely perused the record and proceedings. The first question that has to be considered is whether the deceased was travelling by the Tapti-Ganga Express from Jalgaon to Surat with a valid journey ticket. Admittedly, the ticket was not found on the spot. Similarly, the ticket was not found on the person of the deceased. At this stage, it would be appropriate to consider the direct evidence adduced by the appellants. AW-2 Devchand Tayde has deposed that on the date of the incident, he had accompanied the deceased to Jalgaon railway station. He has stated that in his presence, the deceased purchased a journey ticket to go to Surat. He has categorically stated that the deceased boarded the Tapti-Ganga Express at Jalgaon railway station to go to Surat. This witness was cross examined. Perusal of his cross examination would show that the admission of any significance has not been elicited to discard his evidence. There are other circumstances on record to make his version probable. His statement was recorded immediately on the next day of the incident. In his statement, recorded on 14.04.2016, he stated that in his presence, after purchasing the railway ticket, the deceased had boarded the Tapti-Ganga Express to go to Surat. His second statement was recorded by railway police on 05.11.2017. His statement was recorded immediately on the next day of the incident. In his statement, recorded on 14.04.2016, he stated that in his presence, after purchasing the railway ticket, the deceased had boarded the Tapti-Ganga Express to go to Surat. His second statement was recorded by railway police on 05.11.2017. In his statement, recorded by the railway police, he categorically stated that the deceased, after purchasing the railway ticket, boarded the Tapti-Ganga Express in his presence. 11. The independent inquiry was conducted by the DRM. The DRM has concluded in his report that the deceased was not a bona fide passenger inasmuch as the railway ticket was not found on the spot as well as on the person of the deceased. In my view, the evidence of AW-2 Devchand Tayade cannot be discarded. This evidence is supported by the circumstances. The dead body was noticed on the spot by the guard of the N Box Ukai Songarh Goods Train (for short ‘NUSG train’) at 14:00 hours. At that time, the deceased was lying in an injured condition on the spot. He was alive. He was shifted to the hospital. There is no record as to the clothes or seizure of the clothes on the person of the deceased in the hospital. Similarly, there is no mention of the inspection of the clothes of the deceased in the hospital. The spot panchanama was carried out on 13.04.2016 in between 19:45 hours and 20:15 hours, after four hours of the incident. The spot of the incident was not guarded either by the police or any railway employee. In my view, these circumstances clearly support the contention of the appellants with regard to loss of the ticket. 12. It is true that initial burden is on the appellants to prove that the deceased was travelling as a bona fide passenger with a valid journey ticket. The railway cannot be held responsible to discharge the burden. Whether the evidence is sufficient to discharge the burden is a main question that requires consideration in each case. On this point, a useful reference can be made to the decision of the Hon’ble Apex Court in the case of Union of India vs. Rina Devi, (2019) 3 SCC 572 . Para No. 29 would be relevant for the purpose of addressing the issue. It is extracted below: “29. On this point, a useful reference can be made to the decision of the Hon’ble Apex Court in the case of Union of India vs. Rina Devi, (2019) 3 SCC 572 . Para No. 29 would be relevant for the purpose of addressing the issue. It is extracted below: “29. We thus hold that mere presence of a body on the Railway premises will not be conclusive to hold that the injured or deceased was a bona-fide passenger for which a claim for compensation could be maintained. However, mere absence of a ticket with such an injured or deceased person will not negative the claim that he was a bona-fide passenger. The 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.” 13. As per the dictum of the Apex Court, mere presence of the body on the railway premises will not be conclusive enough to hold that the injured or deceased was a bona fide passenger for which the claim for compensation could be maintained. It is held that, however, mere absence of a ticket with such an injured or deceased person will not negative the claim that he was a bona fide passenger. The initial burden will be on the claimant, which can be discharged by filing an affidavit of the relevant facts. The burden will then shift on the railway and the issue can be decided based on the facts shown in the attending circumstances. This will have to be dealt with from case to case on the basis of the facts found. In this case, the affidavit of AW-2 is sufficient to discharge this initial burden cast on the appellants. The evidence of AW-2 is corroborated by the DRM report. The railway has not adduced any evidence in rebuttal to discard and disbelieve the evidence of AW-2. As such, I conclude that the appellants have proved that the deceased was a bona-fide passenger, travelling with a valid journey ticket, at the time of the incident. 14. The evidence of AW-2 is corroborated by the DRM report. The railway has not adduced any evidence in rebuttal to discard and disbelieve the evidence of AW-2. As such, I conclude that the appellants have proved that the deceased was a bona-fide passenger, travelling with a valid journey ticket, at the time of the incident. 14. The next point that needs consideration is whether the death was in an untoward incident or not. The undisputed facts having bearing on this issue need to be stated at the outset. Train No. 19046 Tapti-Ganga Express, departed from Jalgaon railway station for Surat at 13:45 hours. The deceased was found lying in an injured condition by the guard of the NUSG train. He was alive. He was immediately shifted to the hospital. In the hospital, while taking treatment, he died. In the written statement, the railway contended that the deceased might have been run over or dashed by any train while crossing the railway line. In order to make good this possibility, it is pointed out that the deceased is residing at a distance of 2 km away from the spot. It is not the case of the railway that, at the relevant time, there was ACP for any train. Similarly, there was no report by a loco-pilot of any train about the run over of any person or dash to any person at the spot of the incident while crossing the railway line. The incident occurred during the day. If the deceased was either dashed or run over by any train, the loco-pilot would have immediately reported it to the station master. These are the circumstances which need proper appreciation to arrive at a just conclusion. 15. It needs to be stated, at the cost of repetition, that the evidence of AW-2 is sufficient to prove that the deceased had boarded the Tapti-Ganga Express at Jalgaon railway station for Surat. This evidence of AW-2 is supported by the undisputed facts. The case of run over, as sought to be contended, has been negatived by this evidence. The DRM report is again of great help to the appellants. On the basis of the inquiry, the DRM has recorded that after boarding the train, the deceased might have been standing at the door and therefore, due to his negligent act, he might have fallen down from the railway. The DRM report is again of great help to the appellants. On the basis of the inquiry, the DRM has recorded that after boarding the train, the deceased might have been standing at the door and therefore, due to his negligent act, he might have fallen down from the railway. The report of the DRM nowhere states that the deceased was either run over or given a dash by any train while crossing the railway line. Such a conclusion was not possible because there was no material in the form of the report of the loco-pilot of any train or the report by any witness to such an incident. The only aspect that needs to be addressed, on the basis of the observations made in the DRM report, is whether the negligence or contributory negligence of the passenger could be the basis for rejecting the claim. In my view, on this point, the decision in the case of Rina Devi (supra) would also be helpful. Para No. 25 is relevant for this purpose. It is extracted 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 Section 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 Section 124-A merely on the plea of negligence of the victim as a contributing factor.” 16. In this case, there is evidence to show that the deceased boarded the train at Jalgaon railway station. It is held that for the purpose of causing self-inflicted injury, there must be a specific intention on the part of the person. In this case, there is evidence to show that the deceased boarded the train at Jalgaon railway station. It is held that for the purpose of causing self-inflicted injury, there must be a specific intention on the part of the person. It is held that the defence of the negligence or contributory negligence, in such a case, is not available because the liability is based on no fault theory or strict liability. In my view, therefore, on this count also the contention of the railway cannot be accepted. As such, I answer both points in the affirmative. 17. Learned Advocates pointed out that, in view of the notification issued by the Ministry of Railways (Railway Board) dated 22.12.2016 in case of a death claim, the respondent shall be liable to pay compensation of Rs. 8,00,000/- (Rs. Eight Lacs Only). Learned Advocates further submit that appellants are entitled to get compensation of Rs. 8,00,000/- but without interest. In view of the decision of the Hon’ble Apex Court in the case of Union of India vs. Radha Yadav, (2019) 3 SCC 410 the appellants may not be entitled to the interest. 18. Accordingly, I pass the following order: (i) The first appeal is allowed. (ii) The judgment & order dated 10.01.2020 passed by the Railway Claims Tribunal, Nagpur Bench, Nagpur in Claim Application No. OA (IIu)/NGP/0069/2017 is quashed and set aside. The claim application is allowed. (iii) Respondent-railway is directed to pay Rs. 8,00,000/- (Rupees Eight Lacs Only) towards compensation to the appellants. (iv) Appellant No. 1 shall be paid 50 % of the amount of compensation. (v) Appellant Nos. 2 to 6 shall be paid 10 % of the amount of compensation each. (vi) The amount of the share of appellant Nos. 3 and 4 shall be kept in fixed deposit in any nationalized bank till they attain majority. (vii) The amount shall be deposited within four months directly in the bank account of the appellant Nos. 1, 2, 5 and 6 from the date of this judgment. The appellant Nos. 1, 2, 5 and 6 shall provide the particulars of their bank accounts to the respondent-Railway. If the amount is not deposited within four months, the appellants would be entitled to get interest @ 6% per annum from the date of this judgment till realization of the amount. 19. The first appeal stands disposed of. No order as to costs. 1, 2, 5 and 6 shall provide the particulars of their bank accounts to the respondent-Railway. If the amount is not deposited within four months, the appellants would be entitled to get interest @ 6% per annum from the date of this judgment till realization of the amount. 19. The first appeal stands disposed of. No order as to costs. Pending applications, if any, stand disposed of.