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2024 DIGILAW 270 (BOM)

Shewantabai Wd/o Ruprao Barde v. Union of India

2024-02-06

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 09.05.2017 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 Ruprao Barde. Appellant Nos.2, 3 and 4 are the children of the deceased. The appellants claimed that on 02.01.2013, the deceased, while boarding in a Train No. 18029 Shalimar Express at Nagpur Railway Station after purchasing a valid journey ticket, fell down. He sustained injuries. He was carried to the hospital and while taking the treatment in the hospital, he succumbed to the injuries sustained in the incident. According to the appellants, the deceased died in an untoward incident, as understood by Section 123 clause (c) sub-clause (2) of the Act of 1989. The deceased was having a valid journey ticket. The journey ticket was lost in the incident. 4. The respondent-railway filed the written statement and opposed the claim. It was contended that the death was not in an untoward incident, inasmuch as the deceased fell down while boarding the running train. The deceased was negligent. It was further contended that the ticket was not recovered from the person of the deceased or from the spot of the incident at the time of the spot panchanama. According to the respondent-railway, the deceased was not a bona fide passenger travelling with a valid journey ticket. The ticket was not recovered on the spot. 5. The parties adduced the evidence before the Tribunal in support of their rival contentions. The learned Members of the Tribunal, on consideration of the evidence, found that the claim was without substance and 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 Mr. K.P. Mirche for the appellants and the learned Advocate Ms Neerja Chaubey for the respondent. Perused the record and proceedings. 7. Being aggrieved by this judgment and order, the appellants have come before this Court in appeal. 6. I have heard the learned Advocate Mr. K.P. Mirche 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. Learned Advocate for the appellants submitted that the finding of fact recorded on both the counts by the Tribunal is not consistent with the record and evidence. Learned Advocate submitted that the circumstances available on record, if considered in totality, would indicate that there was a possibility of loss of ticket. Learned Advocate pointed out that an inquest panchanama was carried out in the hospital after three to four hours of the incident. Learned Advocate further pointed out that the spot panchanama was drawn after 25 hours of the incident. Learned Advocate pointed out that there is no mention in the spot panchanama that the spot was inspected by the police either before drawing panchanama or at the time of panchanama. Learned Advocate submitted that if the deceased had entered the platform without ticket and attempted to board the train without a ticket then he would have been caught. Learned Advocate submitted that therefore, the inference has to be drawn that the deceased had purchased the ticket tried to board the train. Learned Advocate further submitted that guard of the concerned train has stated that the deceased tried to board the moving train and in the process, fell down on the track. Learned Advocate submitted that therefore, the inference has to be drawn that the deceased had purchased the ticket tried to board the train. Learned Advocate further submitted that guard of the concerned train has stated that the deceased tried to board the moving train and in the process, fell down on the track. Learned Advocate submitted that the accidental falling of any passenger from a train carrying passengers while boarding the train is covered under the definition of an “untoward incident.” In order to seek support to his contention, the learned Advocate has relied upon the decision in the case of Union of India vs. Prabhakarn Vijaya Kumar and Others, Learned Advocate relying upon a decision in the case of Union of India vs. Rina Devi, AIR 2018 SC 2362 , submitted that the evidence adduced by the appellants is sufficient to discharge the initial burden and accept their case that the deceased was a bona fide passenger. 9. Learned Advocate for the respondent-railway submitted that the Members of the Tribunal have made threadbare analysis of the evidence and on doing so, found that the said evidence was not sufficient to prove the case of the appellants on both the counts. Learned Advocate submitted that there was contributory negligence on the part of the deceased. Learned Advocate submitted that the injury sustained by the passenger while boarding a running train is equal to a self-inflicted injury. Learned Advocate submitted that if the deceased had purchased a railway ticket as sought to be contended by the appellants then the ticket would have been found in the pocket of the deceased at the time of the inquest panchanama. In short, learned Advocate has supported the judgment and order passed by the learned Members of the Tribunal. 10. In order to appreciate the rival submissions, I have gone through the record and proceedings. As far as the issue of death in an untoward incident is concerned, in my view, the finding of fact recorded by the Tribunal cannot be sustained. The evidence on record is sufficient to conclude that the deceased in attempting to board the Shalimar Express, fell down and came under the wheels. The evidence of Umeshchandra S/o Trinath Behera-guard (RW-1) has been relied upon to substantiate the contributory negligence on the part of the deceased. The evidence on record is sufficient to conclude that the deceased in attempting to board the Shalimar Express, fell down and came under the wheels. The evidence of Umeshchandra S/o Trinath Behera-guard (RW-1) has been relied upon to substantiate the contributory negligence on the part of the deceased. RW-1 has stated that the deceased tried to board a moving train despite his instructions not to board the same. Guard has stated that after fall the passenger came under the wheels of the train. He thereafter applied the brake and stopped the train. He informed Station Master, Nagpur about the incident. He has stated that he thereafter attended the spot and lifted the injured person. His evidence shows that dead boy was lying on the track. His body was not cut into pieces. The deceased sustained serious injuries and died due to the injuries. The evidence of the guard is sufficient to prove that the deceased tried to board Lokmanya Tilak-Shalimar Express Ex- Nagpur to Bilaspur. The question is whether the death in such an accident could be said to be a death in an “untoward incident” as understood by Section 123(c)(2) of the Act. In my view, this issue can be addressed by making reference to the decision of the Apex Court in the case of Union of India Vs. Prabhakarn Vijay Kumar (supra). At the out set, it is necessary to state that the facts of this case and the facts in the case of Prabhakarn Vijay Kumar (supra) are identical. The deceased in the case of Prabhakaran had sustained the injuries in her anxiety to get into the train which was moving. The question was whether it would come within the expression “accidental falling of a passenger from a train carrying passengers” and as such an “untoward incident.” The Hon’ble Apex Court has held that accidental falling of passengers from train carrying passengers in this manner is an “untoward incident.” It is held that the death in such an incident has to be termed as an “untoward incident.” The Hon’ble Apex Court has held that the words used in a beneficial or welfare statute when are capable of two constructions, the construction 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. 11. 11. On going through the record, I am satisfied that the deceased died in an untoward incident. It is to be noted that the guard of the train has not stated that the train had gained considerable speed and momentum. The train had departed from the Nagpur Railway Station. The train was on a loop line. Immediately after departure, the train does not run in high speed. RW-1 who was the guard of the concerned train could have thrown sufficient light on this aspect in his evidence. In the teeth of the material available on record and in view of the settled legal position as above, I conclude that the Tribunal was not right in holding that the death was not in an “untoward incident.” 12. At this stage, it would be appropriate to consider whether the defence of negligence or contributory negligence is available or can be invoked in such a case. In my view, the legal position on this point has been well settled by the Apex Court in the case of Union of India vs. Rine Devi (supra). Paragraph No. 16.6 would be relevant for the purpose of addressing the issue. It is extracted below: “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. vs. Sunil Kumar, AIR 2017 SC 5710 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.” 13. It is held that in order to cause self-inflicted injury, the intention is necessary. It is held that liability in such a claim is based on ‘no fault theory’ and therefore, the principle of contributory negligence or negligence cannot be brought in. It is held that in order to cause self-inflicted injury, the intention is necessary. It is held that liability in such a claim is based on ‘no fault theory’ and therefore, the principle of contributory negligence or negligence cannot be brought in. It is held that the death or injury in the course of boarding or de-boarding a train will be in an ‘untoward incident’ entitling a claimant 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. In my view, in the backdrop of this settled legal position, the defence of negligence of the victim as a contributing factor is not available in this case. 14. The next important issue that needs independent consideration is as to whether the deceased was a bona fide passenger or not? Admittedly, the ticket was not found on the person of the deceased at the time of the inquest panchanama. Admittedly, the inquest was drawn after three hours of the incident. The deceased had fallen on the railway track. His body was carried to the platform by guard of the train. It is not the case of respondent-railway as well as guard (RW-1) that the spot was immediately inspected and on inspection, the ticket was not found. In fact, it is not the case of the railway that the spot was immediately inspected and the ticket was not found. The deceased, as per the case of the appellants was travelling from Nagpur to Gondia. It has been mentioned in the inquest panchanama that not a single article including money was found in the pocket of the deceased. Learned Advocate submitted that there is a presumption that one who travels by a train, travels with a valid journey ticket. Learned Advocate submitted that there is constant vigil at the platform as well as routine checking in the train of passengers travelling without a ticket. Learned Advocate submitted that if the deceased had entered the railway station without a ticket then he would have been caught. In my view, this is one of the factors to be considered while answering this issue. 15. Shewantabai (AW-1), the wife of the deceased has not stated that she has seen the deceased purchasing the ticket and boarding the train. In my view, this is one of the factors to be considered while answering this issue. 15. Shewantabai (AW-1), the wife of the deceased has not stated that she has seen the deceased purchasing the ticket and boarding the train. It is the case of the appellants that the deceased had purchased the ticket for journey to Gondia from Nagpur and the said ticket was lost in the incident. The question is whether the material on record is sufficient to make this contention of the appellants probable. It is to be noted that this issue has to be considered and decided on the preponderance of probabilities. In my view, the possibility of the loss of the ticket in this case cannot be ruled out. Admittedly, the deceased tried to board the running train. The guard has stated that while boarding a running train he fell down and came under the wheels of the train. The possibility of loss of a ticket and other articles in such an accident is possible. This possibility cannot be ruled out. 16. In order to accept the defence of the railway, there must be other material to dispel this possibility. As stated above, the spot was not immediately inspected either by the police or by the railway officials. It is undisputed that the spot panchanama was drawn after 24 hours. It is further seen on perusal of the spot of panchanama that the spot was shown at the platform and not on the railway track. The deceased had fallen on the track. This fact would suggest that the track where the deceased had fallen was not inspected. It is further pertinent to note that even if track had been examined or inspected after 24 hours, the possibility of locating the goods and articles including the ticket was remote. The deceased was carried to the hospital in an injured condition. The person who had carried the deceased was not examined. The inquest panchanama was drawn after three to four hours. In my view, therefore, the possibility of loss of a ticket cannot be ruled out. As such, I conclude that on both the counts, the learned Tribunal was not right in rejecting the claim. The evidence on record, coupled with the undisputed facts and circumstances, is sufficient to discharge the initial burden cast on the shoulders of the appellants. In my view, therefore, the possibility of loss of a ticket cannot be ruled out. As such, I conclude that on both the counts, the learned Tribunal was not right in rejecting the claim. The evidence on record, coupled with the undisputed facts and circumstances, is sufficient to discharge the initial burden cast on the shoulders of the appellants. The evidence is sufficient to prove that the deceased was a bona fide passenger. Accordingly, I record my findings on both the points in the affirmative. 17. In this case, the accident had occurred on 02.01.2013. In view of the notification issued by the Ministry of Railways (Railway Board) dated 22.12.2016, came into effect from 01.01.2017, in case of death claim, the claimants is/are entitled to get compensation of Rs. 8,00,000/- (Rs. Eight Lacs Only). In view of the decision of the Hon’ble Apex Court in Union of India vs. Radha Yadav, (2019) 3 SCC 410 , in case of old claim after this notification, the claimants/appellants would be entitled to get compensation of Rs. 8,00,000/- without interest, if the compensation provided earlier with interest is less than Rs. 8,00,000/-. Learned Advocate submitted that the compensation provided earlier i.e. Rs. 4,00,000/- with interest would not be more than Rs. 8,00,000/-. Therefore, in this case, the appellants/claimants would be entitled to get Rs. 8,00,000/- (Rupees Eight Lacs Only), without interest. 18. Accordingly, I pass the following order: (i) The first appeal is allowed. (ii) The judgment and order dated 09.05.2017 passed by the Railway Claims Tribunal, Nagpur Bench, Nagpur in Claim Application No. OA(IIu)/NGP/2013/0250 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-Shewantabai Wd/o Ruprao Barde shall be paid 70% of the amount of compensation. (v) Appellant Nos. 2 to 4 shall be paid 10 % of the amount of compensation each. (vi) The amount shall be deposited within four months directly in the bank account of the appellants from the date of this judgment. The appellants 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. The appellants 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.