FIRST APPEAL NO. 91 OF 2019

6th March 2020

Petitioner Counsel: Shri R. G. Babul
Respondent Counsel: Shri Shekhani Shri R. G. Agrawal
Act Name: Railway Claims Tribunal Act, 1989

Section :
Section 23 Railway Claims Tribunal Act, 1989 Section 123(c) Railway Claims Tribunal Act, 1989 Section 124A Railway Claims Tribunal Act, 1989

Cases Cited :
Paras 7, 9: Union of India Vs. Rina Devi, reported in 2018 ACJ 1441
Para 8: Jameela and others Vs. Union of India, reported in 2010 ACJ 2453

JUDGEMENT

1. This is an appeal under Section 23 of the Railway Claims Tribunal Act, 1989 against the judgment of Railway Claims Tribunal, Nagpur (for short the “Tribunal”) in Case no. OA(IIu)/NGP/2015/0307.

2. The facts of the present appeal can be summarized as under:
On 22.08.2012, at about 02.00 a.m., deceased were going to Bangalore alongwith Narsi Ahirwal, Mukesh @ Banti Khatik and Rajesh @ Pappu Barar, who reside in the same colony and do same work in the same company. Deceased alongwith his friend purchased Railway Ticket at Jhansi Railway Station. They were travelling by Train No. 12628 - Karnataka Express. Deceased fell down from running train due to heavy rush in the train at about 07.00 a.m. between Waghli to Kajgaon Railway Station on 24.08.2012.
Legal heirs of the deceased filed claim application before the Tribunal. It was contested by the Railway by filing written statement. In the written statement, defence was raised by the Railway that no untoward incident as defined under Section 123(c) of the Railways Act, 1989 (for short the “Act”) took place. The Tribunal held that legal heirs i.e. appellants are not entitled for compensation and hence, dismissed the claim application. Therefore, this appeal before this Court.

3. Heard Shri Bagul for the appellants. He has pointed out Spot Panchnama, Inquest Panchnama and Seizure Panchnama of ticket filed on record. Learned Advocate has submitted that Railway Authority not investigated the matter and statutory report as per the provisions not submitted by the Railway Authority. Learned Advocate has submitted that deceased was going to Bangalore alongwith his friends. Tickets was produced by his friend, therefore, it is clear that he was a bonafide passenger. Learned Advocate has submitted that documents i.e. Spot Panchnama and Inquest Panchnama show that he fell down from the running train and, therefore, it is untoward incident as defined in Section 123(c) of the Act and prayed to allow the appeal.

4. Heard Shri Shekhani holding for Shri Agrawal for the respondent. He has submitted that co-passengers were not examined before the Tribunal and, therefore, there is no evidence to show that deceased was going to Bangalore with a valid ticket. The Tribunal rightly rejected the claim. There is no merit in the appeal. Hence, appeal is liable to be dismissed.

5. Spot Panchnama and Inquest Panchnama show that deceased fell down from running train. Contents of Spot Panchnama show that spot was shown by the Railway Trackman Rameshkumar Sahu. As per the statement of Rameshkumar Sahu, deceased fell down from running train. Rameshkumar Sahu was employee of the Railway. The Railway could have examined him to prove the defence. Inquest Panchnama also shows that deceased fell down from running train. The Tribunal came to the conclusion that deceased was not a bona fide passenger and no untoward incident taken place.

6. Following points arose for my consideration:
(a) Whether the deceased was a bona fide passenger as defined under the Act ?
(b) Whether the deceased died in an untoward incident as defined under Section 123(c) of the Act ?

7. Learned Advocate Shri Bagul has pointed out Seizure Panchnama of the Railway Ticket filed on record at Exh. A-51. From this document, it is clear that deceased was going to Bangalore alongwith his friends, namely, Narsi Ahirwal, Mukesh @ Banti Khatik and Rajesh @ Pappu Barar. Railway ticket was produced by the brother of the deceased. After the incident, brother of deceased came to know that deceased alongwith his friends were going to Bangalore with a valid ticket. One of the friends handed over the ticket and the same was produced before Railway Police, Chalisgaon. It was seized. Therefore, it cannot be said that deceased was not having a valid journey ticket. Even though, the ticket was not found with the deceased, then also it cannot be a ground to reject the claim. The Hon’ble Apex Court in the case of Union of India Vs. Rina Devi, reported in 2018 ACJ 1441 has held that:
“Death or injury in the course of boarding or deboarding train will be untoward incident. Victim will be entitled for compensation and incident does not fall under the proviso to Section 124A on the plea of negligence of the victim as a contributory factor”.
The Hon’ble Apex Court further held that:
“Mere absence of ticket with such injured would not negate the claim that he was a bona fide passenger”.

8. The Hon’ble Apex Court in the case of Jameela and others Vs. Union of India, reported in 2010 ACJ 2453 has held that:
“Deceased died due to his own negligence that cannot be a ground to reject the claim. It is not a criminal act and, therefore, claim cannot be rejected on the ground that deceased died due to his own negligence”.

9. Material documents filed on record i.e. Spot Panchnama and Inquest Panchnama show that deceased was fell down from running train. It is untoward incident as defined under Section 123(c) of the Act. It is a strict liability of the Railway to prove the defence as carved out under clauses (a) to (e) of the proviso to Section 124A of the Act. Railway has not examined any witness to show that there was no any untoward incident. Railway Trackman Rameshkumar Sahu was employee of the Railway. The said witness could have been examined by the Railway to disprove the claim. The Tribunal wrongly rejected the claim of the appellants. Material documents i.e. Spot Panchnama prepared by the Railway Police clearly shows that Railway Trackman Rameshkumar Sahu shown the spot and as per his statement deceased fell down from running train, therefore, it is untoward incident as per Seizure Panchnama of the ticket. The deceased was travelling with a valid journey ticket, therefore, he was a bona fide passenger. Even there was no any ticket, that cannot negate the claim of the appellants in view of judgment of the Hon’ble Apex Court in the case of Rina Devi (cited supra).

10. In that view of the matter, following order is passed:
(i) Appeal is allowed.
(ii) Impugned judgment is hereby quashed and set aside.
(iii) The respondent-Railway is directed to pay amount of compensation of Rs.8,00,000/- (Eight lakh only) to the appellants within a period of three months.
(iv) Amount of compensation be distributed to the appellants in equal shares.
Accordingly, appeal is disposed of with no order as to costs.