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2024 DIGILAW 320 (BOM)

Atul S/o Ramdas Tandekar v. Union of India

2024-02-13

G.A.SANAP

body2024
JUDGMENT : G.A. SANAP, J. 1. In this appeal, filed under Section 23 of the Railway Claims Tribunal Act, 1987 (hereinafter referred to as “the Act of 1987” for short), 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 appellant-claimant for compensation on account of injury sustained by him came to be dismissed. 2. Background facts: The appellant claims that on 15.07.2017, after purchasing the journey ticket, he was travelling from Gondia to Nagpur by Train No. 12834 Howrah-Ahmedabad express. During the course of journey, the appellant went to the wash basin. There was a huge crowd of passengers in the train. He was standing near the door of the compartment. It is stated that due to a sudden jerk to the train, he lost his balance and fell down from the running train near Pachpaoli area of Nagpur city at Kilometer No. 1128/8-10 and came under the wheels of the train. His legs were crushed under the wheel. He was admitted to Mayo Hospital, Nagpur. His both legs were amputated. It is stated that in the accident, the journey ticket was lost. 3. The respondent-Railway filed written statement and opposed the claim. It was contended by the Railway that the injured was not a bona-fide passenger. The journey ticket was not recovered either from the spot or from the injured. The injuries were not sustained in an untoward incident. The injured was negligent. 4. The parties have adduced evidence before the Tribunal. The Tribunal on consideration of the evidence, found that the evidence was not sufficient to allow the claim and as such, dismissed the claim. Being aggrieved by the judgment and order, the appellant is before this Court in appeal. 5. I have heard Mr. Kunal Mirache, learned advocate for the appellant and Ms. Neerja Choube, learned advocate for the respondent. Perused the record and proceedings. 6. In the facts and circumstances, following points fall for my determination: (i) Whether the injured was a bona fide passenger travelling by the train in question with valid journey ticket? (ii) Whether the injured sustained injury in an untoward incident within the meaning of Section 123 of the Railways Act, 1989? 7. Perused the record and proceedings. 6. In the facts and circumstances, following points fall for my determination: (i) Whether the injured was a bona fide passenger travelling by the train in question with valid journey ticket? (ii) Whether the injured sustained injury in an untoward incident within the meaning of Section 123 of the Railways Act, 1989? 7. Learned advocate for the appellant submitted that the injured has filed his affidavit and categorically stated that he had purchased the ticket and in the incident, the ticket was lost. Learned advocate submitted that the injured after falling from the train, was immediately shifted to Mayo Hospital, Nagpur and he was admitted up to 23.08.2017 from the date of the incident i.e. 15.07.2017. Learned advocate submitted that the spot panchanama was drawn after about 15 days from the date of the incident, on 01.08.2017. Learned advocate submitted that the facts stated in the affidavit on this point are sufficient to discharge the initial burden cast on the appellant to prove that he was travelling with a valid journey ticket. In support of this submission, reliance is placed on a decision of the Hon’ble Apex Court in Union of India vs. Rina Devi, AIR 2018 SC 2362 . 8. As far as untoward incident is concerned, learned advocate for the appellant submitted that certain facts relating to the incident have been admitted and therefore, there is no reason to discard and disbelieve the case of the appellant that while travelling by train, on the spot the deceased fell down due to a sudden jerk to the train. Learned advocate submitted that fall of a passenger while boarding or de-boarding a moving train is covered under the definition of an ‘untoward incident’. Learned advocate further submitted that both legs of the appellant have been amputated and therefore, the case of the appellant would be covered by Entry No. 3 of Part-II of the Schedule appended to the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990, (hereinafter referred to as “the Rules of 1990”). Learned advocate submitted that amputation of both legs has been proved on the basis of Disability Certificate (Exh.A-5). 9. It is to be noted that the incident occurred on 17.07.2017. The injured was immediately shifted to Mayo Hospital, Nagpur for treatment. The spot panchanama was drawn on 01.08.2017. Learned advocate submitted that amputation of both legs has been proved on the basis of Disability Certificate (Exh.A-5). 9. It is to be noted that the incident occurred on 17.07.2017. The injured was immediately shifted to Mayo Hospital, Nagpur for treatment. The spot panchanama was drawn on 01.08.2017. It is undisputed that the spot of the incident was not separately inspected either by the Railway Police or by the Railway authorities till the date of panchanama i.e. 01.08.2017. The injured was admitted to the hospital from 16.07.2017 to 23.08.2017. In the hospital, his both legs have been amputated. It needs to be stated that if the panchanama was drawn by carrying out thorough inspection of the spot, then this Court would have accepted the contention of the respondent-Railway that after inspection of the spot at the time of the panchanama, the ticket was not found. No explanation has been put forth for the delayed inspection of the spot. Therefore, the possibility of non-recovery of the ticket from the spot is in favour of the appellant. The appellant has filed his affidavit of evidence. In his affidavit, he has categorically stated that he is resident of Nagpur. He has stated that on the date of the incident at Gondia Railway Station, he had purchased the journey ticket and boarded the Ahmedabad Express to go to Nagpur. It is stated that he fell down from the train at the spot. He has stated that he sustained injuries to his legs and from the spot, he was immediately shifted to the hospital. It is his case that the journey ticket was lost in this process. It is necessary to state at this stage that if the panchnama had been drawn immediately after the incident, then there would have been the possibility of locating the ticket on the spot. The delayed drawing of the panchanama and inspection of the spot is against the Railway and in favour of the appellant. The appellant, who had purchased the journey ticket and travelled with a valid ticket, has deposed before the Court. It needs to be stated that this issue has been considered by the Hon’ble Apex Court in Rina Devi (supra). Paragraph 17.4 would be relevant for the purpose of addressing this issue. It is extracted below: “17.4. The appellant, who had purchased the journey ticket and travelled with a valid ticket, has deposed before the Court. It needs to be stated that this issue has been considered by the Hon’ble Apex Court in Rina Devi (supra). Paragraph 17.4 would be relevant for the purpose of addressing this issue. It is extracted below: “17.4. We thus hold that mere presence of a body on the Railway premises will not be conclusive to hold that injured or deceased was a bona fide passenger for which claim for compensation could be maintained. However, mere absence of ticket with such injured or deceased will not negative the claim that he was a bona fide passenger. 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.” 10. The Hon’ble Supreme Court has held that mere presence of body on the railway premises will not be conclusive to hold that the injured or deceased was a bona fide passenger. It is further held that mere absence of ticket with such injured or deceased will not negative the claim that he was a bona fide passenger. It is held that the initial burden on the claimant can be discharged by filing an affidavit of relevant facts and the burden will then shift to the railways, and the issue can be decided on the basis of the facts shown or the attending circumstances. It is held that this will have to be dealt with from case to case on the basis of the facts found. In my view, the case of the appellant is fully covered by the law laid down in Rina Devi (supra). 11. The appellant has categorically stated on affidavit that he had purchased the ticket and after purchasing ticket, he boarded the train. This evidence is sufficient to discharge the initial burden cast on the appellant and prove that he was a bona fide passenger. In view of this evidence, the railway was supposed to adduce evidence in rebuttal. 11. The appellant has categorically stated on affidavit that he had purchased the ticket and after purchasing ticket, he boarded the train. This evidence is sufficient to discharge the initial burden cast on the appellant and prove that he was a bona fide passenger. In view of this evidence, the railway was supposed to adduce evidence in rebuttal. The most important circumstance, which I have discussed above is in favour of the appellant and against the Railway. Therefore, the contention of the appellant that he was a bona fide passenger travelling with valid journey ticket has been proved. In my view, therefore, the Tribunal was not right in rejecting the contention of the appellant on this count. 12. It is the case of the Railway that the deceased was negligent and therefore, the injuries sustained by him could not be said to be in an untoward incident, as understood by Section 123(c)(2) of the Railways Act, 1989. The Railway has raised the defence of negligence or contributory negligence. The question is, whether such defence in the claim based on ‘strict liability’ or ‘no fault theory’ can be entertained? Hon’ble Apex Court in Rina Devi (supra) has considered this issue. Paragraph 16.6 of the decision would be relevant for addressing this 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, 2017 (13) SCALE 652 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 de-boarding 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.” 13. 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 124A merely on the plea of negligence of the victim as a contributing factor.” 13. The Hon’ble Apex Court has held that in such a claim, the principle of contributory negligence cannot be invoked inasmuch as the liability in such a case is based on ‘no fault theory’. It is held that the death or injury in the course of boarding or de-boarding a train will be an ‘untoward incident’ entitling a victim to compensation and will not fall under the Proviso to Section 124-A of the Railway Act merely on the plea of the victim as a contributing factor. The Hon'ble Apex Court has considered the provisions of Section 124A of the Railways Act. 14. It needs to be stated that as per Section 124-A, the Railway is liable to pay compensation for the injuries sustained by a passenger. The Proviso to Section 124A of the said Act lays down the contingencies where the railway cannot be held responsible for paying the compensation. Accidental falling of a passenger from a train is not covered under the Proviso. Accidental falling of a passenger from a train could not be equated with causing self-inflicted injury. In my opinion, the case of the appellant would be covered by the first part of Section 124A of the Railways Act and not under any of the clauses of the Proviso to Section 124A of the Act. In the facts and circumstances, I conclude that the injuries sustained by the appellant were in an untoward incident, as understood by Section 123(c)(2) of the Railways Act. As such, I conclude that the Tribunal was not right in deciding on this point against the appellant. 15. The next important aspect is with regard to the quantum of compensation. Undisputedly, both the legs of the appellant have been amputated. In my view, therefore, for the purpose of quantifying the compensation, it would be necessary to consider the compensation prescribed in the Schedule in respect of death and injuries under the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990, (hereinafter referred to as “the Rules of 1990”). Undisputedly, both the legs of the appellant have been amputated. In my view, therefore, for the purpose of quantifying the compensation, it would be necessary to consider the compensation prescribed in the Schedule in respect of death and injuries under the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990, (hereinafter referred to as “the Rules of 1990”). In my view, the case of the appellant would be squarely covered by Entry No. 3 of Part-II of the Schedule to the Rules of 1990. For the purpose of ready reference, Entry No. 3 is reproduced below: “Part-II: (1)....... (2)....... (3) For double amputation through leg or thigh or amputation through leg or thigh on one side and loss of other foot. (4).......” 16. In this case, both legs of the appellant have been amputated. Entry No. 3 provides for compensation in respect of double amputation through leg or thigh or amputation through leg or thigh on one side and loss of other foot. In my view, therefore, the appellant would be entitled to get compensation of Rs. 8,00,000/- (Rupees Eight lakhs only), as provided against this entry. The appellant would also be entitled to get interest @ 6% per annum on the amount of compensation of Rs. 8,00,000/- (Rupees Eight lakhs) from the date of filing the claim application till its realization. Accordingly, I record my finding on both points in the affirmative. 17. In the result, the First Appeal is allowed: (i) The judgment and order dated 10.01.2020, passed by the Railway Claims Tribunal, Nagpur Bench, Nagpur, in Case No. OA(IIu)/NGP/234/2018, is set aside. The claim petition is allowed. (ii) Respondent-South East Central Railway is directed to pay Rs. 8,00,000/- (Rupees Eight Lakhs only) towards compensation to the appellant within four months from the date of this judgment, along with interest @ 6% per annum from the date of filing claim application/petition till its realization. (iii) The amount be deposited directly in the bank account of the appellant. The appellant is directed to provide his bank account details to the respondent-Railway. (iv) The First Appeal stands disposed of in the aforesaid terms. No order as to costs. Decree be drawn up accordingly.