First Appeal No.703 of 2006

5th July, 2010

Petitioner Counsel: Mr. A. J. THAKKAR
Respondent Counsel: Mr. G. R. AGRAWAL,Mr. M. G. BHANGDE

Cases Cited:
Ramdhan @ Namdeo Savai Jadhav Vs. Union of India, 2009(2) Mh.L.J. 160 [Para 6]
Union of India Vs. Prabhakaran Vijaya Kumar, 2008 ACJ 1895 [Para 6]
Kavila Das Vs. Union of India, 2006 ACJ 253 [Para 6]
Union of India Vs. Hari Narayan Gupta, AIR 2007 Raj. 38 [Para 6]
South Central Railway Vs. E. Ramamohan Rao, III(2005) ACC 232 [Para 6]
Union of India Vs. Aggala Dilleswara Rao, AIR 2005 AP 444 [Para 6]
K. Vidya Kumari Vs. Union of India, South Central Railway, IV(2005) ACC 736 [Para 6]
Bapu Dadarao Shinde Vs. Union of India, 2008(4) Mh.L.J. 679 [Para 8]

JUDGMENT

JUDGMENT :- The instant Appeal stems from the judgment and order dated 20.3.2006 passed by Railway Claims Tribunal, Nagpur Bench (in short "the Tribunal") whereby the Claim Application No.7/OA II/RCT/NGP/2004 was dismissed.

2. The facts briefly mentioned are : that the appellant had claimed compensation in the sum of Rs. 7 lakhs on account of death of her husband - Nitesh Pralhad Bhalerao, near Shegaon Railway Station on 29th April, 2003. It is contended on behalf of the claimant that the deceased was travelling on a free travel pass issued by the Railway Recruitment Board to travel by Train No.2105 down Vidarbha Express from Mumbai. When the train was approaching Shegaon Railway Station, it is contended that the deceased fell down at km. 545/24-26 on down track at about 6.50 hours. The deceased had gone to attend written examination of Railway Recruitment Board on 27th April, 2003 at Mumbai and was returning home, according to the claimant.

3. The Respondent-Railway did not dispute the fact that deceased was travelling with a free travel authority No.1112475 issued by the Railway Recruitment Board, Mumbai, as deceased had gone to attend the written examination at Mumbai of the Railway Recruitment Board on 27.4.2003. However, the respondent disputed its liability to pay compensation for the alleged untoward incident. According to Respondent-Railway, the deceased was traveling in a casual, rash and negligent manner without taking adequate precaution, which tantamounts to self-inflicted injury and that he was not bona fide passenger at the time of alleged incident near Shegaon Railway Station. According to Respondent-Railway, deceased Nitesh who was travelling by Mumbai-Gondia Train No.2150 {Vidarbha Express} had a free travel authority No.11102475 to travel from Mumbai to Bhusawal; but deceased had fell down near Shegaon Railway Station and it was beyond the scope of the valid authority to travel from Mumbai to Bhusawal. Therefore, according to Respondent-Railway, the deceased was not a bona fide passenger. It is also not disputed that deceased had met with an untoward incident. The Tribunal held that the claimant was the sole dependent of deceased Nitesh Bhalerao as his widow; but held against the claimant regarding death in an untoward incident, within the meaning of Section 123(1)(c) of the Railways Act, 1989 {for the purposes of brevity hereinafter to be referred to as the "Act of 1989"}. According to the Tribunal there was no evidence of the deceased falling from train except that the dead body was found lying near at km. 545/24-26 near Shegaon Railway Station and that there was no eye-witness to the incident; and no circumstantial evidence was led by the claimant. In the result, it was held that the claimant had failed to prove that the deceased died due to accidental fall.

4. Mr. A. J. Thakkar, learned counsel for the appellant, in support of the appeal, contended that deceased Nitesh had a valid pass to travel by Vidarbha Express and, as such, merely because he travelled beyond Bhusawal Railway Station, he cannot be termed as a trespasser. Furthermore, at the most, his travel from Bhusawal towards Shegaon may be termed as over-travelling as he could not rise and get down at Bhusawal station. His entry in the train at Mumbai was authorised. The Respondent-Railway was certainly entitled to charge him for over travel. At the most, it may be said that the victim had exceeded his authority to travel a certain distance. Learned counsel further invited my attention to the provisions of the Act of 1989 making a reference to Section 55 thereof. It is contended that what is required is that a passenger must have with him a proper pass or ticket or permission of Railway servant to remain in compartment. A person obtaining permission of a Railway servant ordinarily gets certificate from the Railway servant to the effect that he is permitted to travel in such compartment or carriage on condition that he subsequently pays the fare payable for the distance to be travelled. The avowed object of Section 55 of the Act of 1989 is to prevent unauthorised person from travelling without having paid necessary fare. Learned counsel for the appellant also referred to Rules in Railway Manual, more particularly Rule 231 in Appendix IV and argued that passenger travelling beyond the authorised distance unintentionally, such a passenger is allowed to return to point to which he originally destined. Thus, any passenger who overtravels unintentionally can not be termed as a mala fide passenger merely because he is liable to pay excess Railway fare or penalty for the over-travelled distance. Learned Counsel for the appellant invited my attention to Section 123(1)(c) of the Act of 1989, which is quoted herein-below :

" "untoward incident" means

"(1)(i) the commission of a terrorist act within the meaning of sub-section (1) of section 3 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 1986); or

(ii) the making of a violent attack or the commission of robbery or dacoity; or

(iii) the indulging in rioting, shoot out or ransom by any person in on any train carrying passengers, or in a waiting hall, cloakroom or reservation or booking office or on any platform or in any other place within the precincts of a railway station; or

(2) The accidental falling of any passenger from a train carrying passengers."

5. It is submitted on behalf of the appellant that burden was on Railway to prove that the deceased was not a bona fide passenger. It is submitted that in the facts and circumstances of the present case, this burden was not discharged by Railways. Therefore, the Tribunal was not justified in drawing a conclusion against the deceased who, in fact, was authorized pass holder from the Railways. The facts as to how the untoward incident occurred and how the deceased sustained injuries ought to have been explained by the Railways by means of evidence, in the facts and circumstances of the present case. The deceased was an Engineer and it was believable that he had met with an untoward incident within the meaning of sections 123(1)(c) and 123(2) of the Act of 1989. The presumption, assumption and guess-work in such situation ought to have been drawn in favour of the claimant who lost her young husband in an untoward incident. The question as to whether the deceased was a bona fide passenger cannot be shifted upon the claimant-widow, for the simple reason that to discharge such burden of proof is impossible by the claimant-widow who may not have any means of knowledge about the pass or ticket with the dead passenger, who met with accident. The person who was provided with a pass must be presumed as a bona fide passenger as pass is equated to ticket. It is submitted that welfare and benign legislation ought to be construed in favour of the claimant. As a result, it is submitted that the deceased cannot be termed as mala fide passenger and, therefore, it must be concluded that he met with an untoward incident within the meaning of Section 123(1)(c) and 123(2) of the Act of 1989. My attention is also invited to the provisions of Section 138 of the Act of 1949 which permits levy of excess fare for travelling without proper ticket or pass. At the most, the passenger would liable to pay excess fare or charge for over-travelled distance; but merely on that ground he cannot be termed as mala fide passenger without a proper pass or ticket simply because he had travelled beyond the destination. In the facts and circumstances of the present case, the deceased was travelling by an Express train from Mumbai during a night journey and, since it is night journey it is quite possible that he was not awakened, could not rise and may have unintentionally travelled beyond the destination and such person is allowed to return to his place of destination in view of Railway Manual Rule 231 : Appendix IV. The mere fact that passenger had over travelled beyond the destination does not necessarily warrant an interference that he was not a bona fide passenger; though such is person is liable to pay proper or excess fare to the Railways. Learned counsel for the appellant invited my attention to documentary evidence on record. Affidavit of Vishwanath Raghunath Patil, an Engineer and cultivator at Bhusawal Tq.-Bhusawal, Dist.-Jalgaon indicating that deceased Nitesh was serving as Maintenance Engineer, and getting salary of about Rs.10,000/- from that firm Creative Laboratories, Jalgaon. Learned counsel also relied upon the inquest panchanama at Exh.149 on record which contained opinion of the panchas that deceased had fallen from train and met with his death. Learned counsel also referred to document A-51 which is free travel authority which entitled the deceased to travel in Railway second class from Bhusawal to Mumbai and back during the period between 23.4.2003 and 1.5.2003. The post-mortem note A-60 also refers to Panchanama and police report indicating that death may be due to Railway accident. According to learned counsel for the appellant to meet the case of the claimant, only one counter affidavit of one Haridas Vishwas Khedkar, Deputy S. S. Shegaon Railway Station was filed who stated that he received information from one Dadu about an unknown person lying on the down lane line, north side. On that he had issued memo to GRP Shegaon and since the area was not falling in limits of GRP, memo was issued to City Police Station Shegaon; he had no knowledge about having seen the dead body nor had any knowledge about any person having seen the victim falling down from the train. Under these circumstances, no evidence whatsoever was led by the Railway authorities. Spot Panchanama document A-50 indicated how the deceased was found near the down Railway line below K.M. No.545-26 in a seriously injured condition mentioned in the Panchanama. It is, therefore, contended with reference to Section 124-A and the definition clauses sections 2(28), 2(29) that the circumstances were self-explanatory, in the absence of evidence to the contrary by the Respondent-Railways.

6. Learned counsel relied upon the ruling in Ramdhan @ Namdeo Savai Jadhav Vs. Union of India, 2009(2) Mh.L.J. 160 in which this Court had set aside the order of the Railways Tribunal. After making reference to the ruling in Union of India Vs. Prabhakaran Vijaya Kumar and others reported in 2008 ACJ 1895, it does appear that the liberal meaning ought to be given to the expression "accidental falling of a passenger from a train" carrying on passengers occurred in Section 123(c) of the Railways Act. As it is a welfare piece of legislation the provisions have to be construed so as to give benefit to large number of Railway passengers to enable them to get just and proper compensation in Railway accidents. It is truism that in India, a large number of people travel by Railway trains as everybody cannot afford to travel by Air or by private vehicle. Therefore, in such cases, the proviso has to be construed in a liberal manner and not in a literal and pedantic manner. Therefore, Section 124(A) provides for strict liability or no fault liability in case of Railway accidents. Reference is also made to Kavila Das & another Vs. Union of India : 2006 ACJ 253 (A. P. High Court). In that case, a person provided with a pass by Railway authority to travel in second class; when he fell down and sustained fatal injuries. The contention that holder of a pass to travel in a particular class becomes trespasser if he travels in any other class, was negatived. It was held that such passenger is bona fide passenger of the train and not of any class or compartment. Thus, a person who travels with a pass from Railway authority who had fallen from train and sustained fatal injuries was held bona fide passenger as aforesaid pass is equated to ticket. Learned counsel for the appellant also referred to ruling in Union of India Vs. Hari Narayan Gupta and another (AIR 2007 Raj. 38) to argue that the burden was laid upon Railway-Respondent to prove what they asserted. According to them, deceased was not bona fide passenger and secondly he did not met with untoward incident. The burden was entirely upon the Railways which they failed to discharge. Learned counsel also made a reference to the ruling in South Central Railway Vs. E Ramamohan Rao and another reported in III(2005) ACC 232 to argue that except making bald allegation in defence that the deceased died on account of his own negligence nothing was indicated as to what the acts of negligence were on the part of the deceased. Under these circumstances, the Tribunal had awarded the claim with interest. Learned counsel also made reference to Union of India Vs. Aggala Dilleswara Rao reported in AIR 2005 AP 444 to argue that presumption should be drawn in favour of the claimant when no evidence is adduced by the Railway with regard to negligence and carelessness on the part of the deceased. It must be held that the accident was untoward incident within the meaning of Section 123(c) of the Railways Act. Lastly reference is made to K. Vidya Kumari Vs. Union of India, South Central Railway, IV(2005) ACC 736 in which the High Court of Andhra Pradesh after making reference to the provisions of untoward incident as also section 124-A held that by travelling by train carrying passenger victim is entitled to compensation, in that case, even a platform ticket holder is held entitled to claim compensation.

7. Thus, in the facts and circumstances of the present case, the deceased who had intentionally travelled beyond Bhusawal and who held authorized pass could have been allowed to return to the station (Bhusawal) to which he was originally destined. Under these circumstances, he cannot be termed as mala fide or fraudulent passenger but it must be held that he was a bona fide passenger who met with an untoward incident within the meaning of Section 123(c) read with further section 124-A of the said Act. Thus, learned counsel for the appellant contends that just and proper compensation ought to have been awarded by the Tribunal.

8. To meet this submission, learned counsel for respondent referred to citation in the case of Bapu Dadarao Shinde and another Vs. Union of India, 2008(4) Mh.L.J. 679, to argue that there was no evidence to show that deceased was a bona fide passenger on the train and his death was result of an untoward incident and contended that the Tribunal had rightly dismissed the claim for compensation.

9. I have gone through the evidence on record, documents as also submissions advanced at the Bar, with reference to relevant provisions referred to. In my opinion, the provisions are welfare piece of legislation in order to enable the dependent/claimant to receive just compensation in case of fatal Railway accident and to enable injured victims in Railway accidents to claim compensation on the basis that they met with untoward incident within the meaning of Sections 123(1) and 123(2) of the said Act. Further amendment brought into effect from 1994 made the legislative intention clear that large number of Railway passengers ought to get just compensation in Railway accidents. The welfare legislation, therefore, shall be construed in a liberal manner in order to enable the dependent/claimant to receive compensation in fatal railway accidents, as contemplated under the said Act, 1989.

10. Considering the rulings cited, I think, submissions advanced on behalf of the appellant, are convincing to hold that the Railway-respondent had failed to adduce adequate evidence before the Tribunal to discharge its required onus on the basis of available evidence, such as, spot panchanama, PM notes, inquest panchanama and it does appear that the deceased had fallen from the train and met with an untoward incident in which he was travelling as a bona fide passenger. Merely because he had over travelled beyond his authorised distance of Bhusawal, it would not be enough to label him as a mala fide or fraudulent passenger. Looking to the rulings cited and provisions of the Act, Railway Manual, at the most, the Railway could have recovered excess fare or charge form him beyond the travelling destination; furthermore, he could also be allowed to return to the station of his destination in view of the Rules. That being so, in my opinion, the impugned order is rather indefensible and cannot be sustained in law and is liable to be set aside.

11. Regarding quantum of compensation, in view of the Railway Accidents & Untoward Incidents (Compensation) Rules, 1990 in force with effect from 7th June, 1990, the amount of fixed compensation for death in respect of any one person is Rs.4,00,000/- (vide Schedule to Rules Part I), the following order is passed :

The impugned judgment and order dated 20.4.2006 passed by the Railway Claims Tribunal is set aside. The Respondent-Railway shall pay sum of Rs. 4,00,000 (Rupees four lakhs) to the claimant along with interest at the rate of 6 per cent per annum from the date of application till the amount is paid to the claimant. The appeal is allowed accordingly with costs.

Appeal allowed.