FIRST APPEAL NO. 123 OF 2019

30th April 2020

Petitioner Counsel: Ms. Gayatri Diwe Mr. P. R. Agrawal
Respondent Counsel: Mr. N. P. Lambat
Act Name: Railway Claims Tribunal Act, 1987 Railways Act, 1989

Section :
Section 23 Railway Claims Tribunal Act, 1987 Section 123(c) Railways Act, 1989

Cases Cited :
Paras 5, 14: Kamrunnissa. Vs. Union of India, Special Leave Petition (C) No.26625/2015
Paras 5, 17: Umadevi wd/o. Kiran Yennam and Others. Vs. Union of India, 2016 (4) Mh.L.J. 120
Paras 5, 11, 13: Smt. Dharambiri Devi and Others. Vs. the Ministry of Railway and another, FAO No.357 of 2007
Paras 5, 19: Bhuvaneshwar s/o. Bapurao Deulkar and another. Vs. Union of India, First Appeal No.666 of 2018
Paras 5, 16: Smt. Sunita wd/o. Gyaneshwar Upase and Ors. Vs. Union of India, through the General Manager, Western Railway, Mumbai, First Appeal No.137 of 2015
Para 5: Smt. Manisha wd/o. Mukesh Jain and Others Vs. Union of India, First Appeal No.324 of 2005
Paras 6, 18: Union of India. Vs. Rina Devi, 2018 AIR (SC) 2362
Paras 6, 10, 21, 24: Jameela and Others. Vs. Union of India, AIR 2010 SC 3705
Paras 6, 12, 13, 22, 23: Sh. Surai Besra. Vs. Union of India, DAO No.474 of 2012
Para 6: Dalit and Others. Vs. Union of India,

JUDGEMENT

1. This is an appeal under Section 23 of the Railway Claims Tribunal Act, 1987.

2. The facts giving rise to the present appeal can be summarised as under :
On 29th January, 2014, by an unknown train, deceased Akash s/o. Vijayrao Thakur was travelling from Nagpur to Chandur Railway station in order to go to his home at Tiwsa. As the compartment of the train was overcrowded, the deceased was standing near the door of the compartment and while travelling, he fell down from the running train, due to sudden jerk near Borkhedi Railway Station in front of signal KM No.802/5. The deceased died on the spot. The deceased was travelling in the train with proper journey ticket purchased by his friend. Information was given by Loco Pilot to the Station Master, Borkhedi Railway Station. On his information, Spot Panchanama, Inquest Panchanama etc. were prepared. The body of deceased was cut into pieces. The appellants, the parents of deceased filed claim before the Railway Claims Tribunal praying to grant compensation.

3. The respondent filed its Written Statement. Learned Claims Tribunal framed issues. Appellant no.2 Vijay Uttamrao Thakur examined himself and witness Rahul Vijayrao Nagdevte. The respondent examined Dy. S.S. Borkhedi Railway Station Shri Pradip Dewaji Borkar. The Railway Claims Tribunal rejected the claim on the ground that the deceased was not a bona fide passenger and there was no untoward incident, as claimed. Hence, this appeal.

4. Heard Ms Gayatri Diwe, learned Counsel holding for Mr.P.R.Agrawal, learned Counsel for the appellants. She has submitted that the evidence of witness Rahul Nagdevte shows that he was friend of deceased. The deceased had come to Nagpur. On 29th January, 2014, he along with the deceased went to Nagpur Railway Station. He himself purchased the journey ticket of deceased and handed over to him. Thereafter, he returned back. He has stated that the compartment in which the deceased was travelling was over-crowded. The deceased was standing in the door way of the coach. He came to know about the accident.

5. Mr.N.P.Lambat, learned Counsel vehemently argued that the Railway Claims Tribunal has minutely verified the documents and has come to proper conclusion that the deceased might have committed suicide. No journey ticket was found on the spot of incident. He was not a bona fide passenger. Learned Counsel has submitted that if the deceased would have fallen from the running train, he would have been thrown by the side of the track. He would not come under the wheel of train. Body was cut into pieces. This itself shows that he was ran over by train. Therefore, it is not an untoward incident. In support of his submission, Mr.Lambat, learned Counsel has pointed out the following decisions :
a. Kamrunnissa. vs. Union of India, Special Leave Petition (C) No.26625/2015.
b. Umadevi wd/o. Kiran Yennam and Others. vs. Union of India, 2016 (4) Mh.L.J. 120.
c. Judgment of Delhi High Court in the case of Smt. Dharambiri Devi and Others. vs. the Ministry of Railway and another, FAO No.357 of 2007, dt.13.3.2008,.
d. Judgment of this Court in First Appeal No.666 of 2018, Bhuvaneshwar s/o. Bapurao Deulkar and another. vs. Union of India.
e. Judgment of this Court in First Appeal No.137 of 2015, Smt. Sunita wd/o. Gyaneshwar Upase and Others. vs. Union of India, through the General Manager, Western Railway, Mumbai.
f. Judgment of this Court in First Appeal No.324 of 2005, Smt. Manisha wd/o. Mukesh Jain and Others vs. Union of India, through the General Manager, South-East-Central Railway, Bilaspur (CG).

6. Ms Gayatri Diwe, learned Counsel has submitted that only because the body was found in two pieces, it cannot be inferred that it was suicide and not an untoward incident. Learned Counsel has further submitted that, as per evidence of witness Rahul Nagdevte, deceased was having journey ticket. The ticket must have been lost in the incident. It cannot be a ground for rejecting the claim in view of Judgment of Hon’ble Apex Court. In support of her submission, the learned Counsel has pointed out the following decisions. :
a. Union of India. vs. Rina Devi, 2018 AIR (SC) 2362.
b. Jameela and Others. vs. Union of India, AIR 2010 SC 3705.
c. Judgment of Delhi High Court in DAO No.474 of 2012, Sh. Surai Besra. vs. Union of India.
d. Judgment of this Court in the case of Dalit and Others. vs. Union of India, through General Manager, South Central Railway, Secunderabad.

7. It appears from the Judgment of Railways Claims Tribunal that the evidence of only Dy. S.S. Dewaji Borkar of Borkhedi Railway Station was relied on. Admittedly, he was not an eye witness of the incident. As per his evidence, he was informed by Loco Pilot of Train No.12724 AP Express that dead body of an unknown person was lying in front of home signal. Thereafter, he gave memo to all the concerned. In the cross-examination, he has admitted that he did not receive any information from any Authority that some one has committed suicide or was ran over by train while crossing the track.

8. On perusal of the Written Statement filed by the Railways signed by Jyoti Kumar Satija, Senior Circle Security Inspector, R.P.F., Nagpur, it appears that, after complete investigation, it was found that the deceased was not travelling with a valid ticket. The deceased was travelling in the door of train (coach). Therefore, the incident took place. If the deceased would have travelled sitting in the coach, such type of incident could not have taken place. The incident took place due to negligence of the deceased himself and therefore, the Railways is not responsible. The Investigation Report submitted by the Sub-Inspector R.P.F., Butibori shows that, during the investigation, the following facts emerged :
i. The deceased was not having any railway ticket, therefore, he was not a bona fide passenger.
ii. No any Railway ticket was found on the spot of incident.
iii. Deceased Akash Thakur might have been travelling in the door of train (coach) and he might have fallen from the running train. Therefore, he died due to his own negligence.

9. On perusal of the Written Statement and the Investigation Report submitted by PSI, R.P.F., Butibori, it appears that the deceased was travelling in the train sitting in the door of coach and therefore, he might have died due to jerk of the train. It appears from the submission of Railways that the deceased died due to his own negligence.

10. In the case of Jameela and Others. vs. Union of India, Hon’ble Apex Court has held that “the fact that the deceased was standing at open doors of compartment of running train may be negligent act or even rash act, but it is certainly not a criminal act. Negligence of passenger does not have effect on liability of Railways. Claimants are entitled to compensation with interest.”

11. Mr.Lambat, learned Counsel has pointed out decision of Delhi High Court in the case of Smt.Dharambiri Devi and Others. vs. The Ministry of Railway and another (supra). The learned Counsel submitted that the body of deceased was found into two halves. This itself shows that he did not fall from the running trail, but he might have committed suicide. Hon’ble Delhi High Court has observed in para no.8 that “if really witness AW-2 was an eye witness to the incident, he would have disclosed the incident to the Investigating Officer and his statement in this regard would have been recorded by the Investigating Officer. It was also not suggested to Investigating Officer, RW-1, that AW-2 was an eye witness to the incident. The entire investigation file, Ex. RW-1/1, as well as the relevant records produced by the applicants themselves would show that the body of deceased was cut into two halves and one half of the body was lying inside the Railway track whereas the other half of the body was lying outside the track. This would clearly indicate that the deceased must have been run over by the train as otherwise the body of the deceased could not have been cut into two halves, one of which lying inside the railway track and the other lying outside the track. The nature of injuries sustained by the deceased and the manner in which the two pieces of the dead body of the deceased were lying will not be suggestive of the fact that he would have fallen down from the running train. On the other hand, they will be clearly suggestive fact that the deceased must have been run over by the train. This is exactly what has been elicited in the cross-examination of RW-1 by the applicants.”

12. In the present case, there was no any eye witness of the incident. The deceased was resident of Tiwsa. Nothing is on record to show that the deceased was ran over by the train. There was no any reason for the deceased to come to Borkhedi without any ticket or come under the Railway train to commit suicide. It cannot be said that only because there were two pieces of body of deceased, therefore, he was ran over by the train. The Delhi High Court in the case of Sh. Surai Besra. vs. Union of India (supra) has observed in para no.6 of the Judgment as under :
“6. The conclusion of the Tribunal that the nature of injuries show that it is a case of coming under the wheels of the train is once again a misconceived conclusion because the types of injuries are only one aspect which has to be considered alongwith other facts of the case to decide whether the accident is of a fall from the train or injuries were on account of a person being run over by the train. It is not unknown that a body may be badly cut up and crushed after falling from the train either on account of the bonafide passenger getting entangled in the steps of the train and thereafter in the wheels or the other equipments of the train in which he was travelling or that the deceased on account of the fall from the train gets hit by the various equipments of the Railways which are adjoining to the tracks such as poles, signals, wires, junction boxes etc. Therefore, in the facts of the present case, in my opinion, the Tribunal was wholly unjustified in giving a finding of the death of the deceased on account of being run over simply because of the condition of the body of the deceased Sh. Hari Besra.”

13. In view of Judgment of Delhi High Court in the case of Sh. Surai Besra (supra), it cannot be said that the deceased was ran over by the train or he might have committed suicide only because the dead body was found in two pieces on the railway track. Hence, the cited decision in the case of Smt. Dharambiri Devi and Ors. vs. The Ministry of Railway and another (supra) is not applicable to the case in hand.

14. Mr.Lambat, learned Counsel has pointed out Judgment of Hon’ble Apex Court in the case of Kamrunnissa. vs. Union of India (supra). The facts in the cited decision are very much different. It is observed in para no.6 as under :
“6. We have considered the contentions advanced at the hands of the rival parties. We are of the view, that the issue in hand can be determined on the basis of paragraphs 7 & 8 of the Inquest report, submitted by the Assistant Commissioner, Railway Police Station, Devangere. The above paragraphs are extracted hereunder :
“VII Dead body was lying in two pieces on Road. No one on the Railway track, with head towards South and lying inside down, legs towards North which had become into two pieces and lying next to the Railway Track, muscle and intestine has come out of the body.
White full short, White Dhoti and Spectacle. White Chappals, there is a diary in his pocket having few phone numbers. No other items are found apart from this.
VIII Dead body was lying in two pieces on Road. No one on the Railway track, with head towards South and lying inside down, legs towards North, Railway track is facing East West direction. Towards North : Road Nos.2, 3 and Good Shed road, South by : PF 1 AND THEN Quarters of Railway Staff, a) b) c) No.”
A perusal of the aforesaid report reveals, that the body of the deceased, Gafoor Sab, was found on road. It is, therefore, not possible for us to accept, that the railway accident in question had taken place when the deceased was boarding the train on the railway station.”
In para no.9, the Hon’ble Apex Court has come to the conclusion as under :
“A perusal of the First Information Report, leaves no room for any doubt, that the deceased was seen coming from the direction of Bangalore, and while crossing the railway track, he having not noticed the oncoming train, was over run by the train. In view of the factual position depicted in the First Information Report, as also the inquest report, we find no justification in entertaining a challenge to the orders passed by the Railway Claims Tribunal, as also, by the High Court, while rejecting the claim of the petitioner.“

15. In the present case, there is no evidence to show that the deceased was crossing the Railway track and therefore, he was ran over by the coming train. Therefore, the cited decision is not applicable to the case in hand.

16. Mr.Lambat, learned Counsel has pointed out decision of this Court in First Appeal No.137 of 2015, Smt. Sunita wd/o. Gyaneshwar Upase and Ors. vs. Union of India, through the General Manager, Western Railway, Mumbai, wherein it is observed by this Court that “It is not the case of this witness that he had seen the deceased boarding the train. Thus, there was a total failure to establish that the deceased fell from any of the trains travelling between Vapi Railway Station in Gujarat and Nagpur Railway Station in Maharashtra. There is absolutely no evidence to substantiate the plea that the deceased died as a result of untoward incident.“ In the present case, witness Rahul Nagdevte has stated that he went along with deceased to Nagpur Railway Station. The journey ticket was purchased and thereafter, the deceased boarded in the train. The compartment in which he was sitting was crowded and therefore, he was sitting in the door. In view of evidence of witness Rahul Nagdevte, said decision is not applicable to the case in hand.

17. Learned Counsel Mr.Lambat has pointed out decision in the case of Umadevi wd/o. Kiran Yennam and Others vs. Union of India (supra). In para nos. 6 and 8 of the said Judgment, it is observed as under :
“6. The claimants have produced on record the original railway ticket (Exh.AW1/7), dated 4.3.2010 for the travel from Badnera to Surat for Rs.126/. Perusal of the said ticket does not indicate the name of the passenger, but that may not be of much significance against the claimants. The significant fact is that there is absolutely no evidence to show the source from which the claimants have obtained the said ticket. It is the statement of AW-1 Umadevi, widow of the deceased, in her cross-examination that the police had handed over her cash, cheque and the journey ticket. But the fact remains that the receipt dated 6.3.2010 at Exh.A/6 in respect of items found on the person of the deceased handed over by Police Inspector, Shegaon, to the father of the deceased does not include the ticket at Exh. A-1/7. The Railway Tribunal took into consideration the documents i.e. spot and inquest panchnama, dead body receipt and the statement given to the Police by the widow of the deceased, to hold that the claimants have planted the ticket which was procured subsequently.”
“8] The claimants have come forward with the case in the claim petition that at fateful day of 4.3.2010, the deceased was travelling from Badnera to Surat by train "HWH-CSTM Special" as a bona fide passenger with valid travel ticket of II Superfast class bearing No. H-16099801, worth Rs. 126/-. Undisputedly, the native place of the deceased was village Fedmupparam, District Varangal in Andhra Pradesh. It is the case of the claimants that the deceased was coming back at Surat via Khammam by train after performing some religious function at his native place and he came upto Badnera and then he purchased a travel ticket from Badnera to Surat at Badnera Railway Station and started his journey by special train. The case of the claimants is that the deceased fell down from the said train near Pole No. 543 at about 16.30 hours at a distance of 4 Kms from Shegaon Railway Station.”

18. The facts in the cited decision are very much different. On the other hand, witness Rahul Nagdevte in the present case has stated that, in his presence, the deceased entered in the train having journey ticket. The ticket might have been lost in the train. That itself is not a ground to deny the claim of appellants in view of the Judgment of Hon’ble Apex Court in the case of Union of India. vs. Rina Devi (supra). The Hon’ble Apex Court has held that “mere absence of ticket with such injured or deceased will not negate the claim that he was a bona fide passenger. Initial burden of proof 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.” In the present case, witness Rahul Nagdevte has stated that, in his presence, the deceased entered the train having valid journey ticket. The ticket might have been lost during the accident and therefore, that cannot be a ground to reject the claim of the appellants.

19. Mr.Lambat, learned Counsel has pointed out Judgment of this Court in First Appeal No.666 of 2018, Bhuvaneshwar s/o. Bapurao Deulkar and another. vs. Union of India (supra). This Court has observed in para no.7 as under :
“7. The material on record, particularly Inquest Panchanama and the evidence led on behalf of the appellants, nowhere shows recovery of any railway ticket from the body of the victim or any other such material to indicate that the victim was indeed travelling in Train No.12655 from Shegaon to Badnera and that she had accidentally fallen from the said train leading to her death. There was no eyewitness to the incident and there is no material put forth on behalf of the appellants to connect the said train with the recovery of the dead body of the victim on the railway track near Badnera Station.”

20. In the cited decision, the evidence of witness on recovery shows that the victim was travelling in the train from Shegaon to Badnera and she had accidentally fallen from the said train leading to her death. The time stated by the appellant/claimant when the victim was proceeding in train no.12655 from Shegaon to Badnera is falsified by the witness of Railways. In the present case, there is no evidence to show that no any passenger train passed from Borkhedi Railway Station. Therefore, the said decision is not applicable to the case in hand.

21. The Written Statement and Investigation report submitted by the Railway Authorities itself show that the deceased was travelling in the open door and therefore, the incident took place due to his own negligence. In the Written Statement filed by Jyoti Kumar Satija, Senor Circle Security Commissioner, R.P.F, Nagpur, it is stated in last para that “after complete investigation, it is clear that the deceased was not having any valid journey ticket. The deceased was travelling in the open door sitting on the steps or standing and therefore, the incident took place. If he would have seated in the compartment, such type of incident would not have taken place. This incident took place due to negligence of the deceased himself and therefore, the Railway is not responsible”. This para of the Written Statement clearly shows that, after investigation, it was revealed that the deceased was travelling in the train. The Investigation Report submitted by the P.S.I., R.P.F., Butibori shows that the deceased was travelling in a compartment while standing in the door and therefore, he fell down from the running train and therefore, the incident took place. If the Written Statement and Investigation Report are taken into consideration, then it is clear that the deceased was travelling in the train. The defence raised in the Written Statement that he died due to his own negligence cannot be a ground to reject the claim of appellants. In view of the Judgment of Apex Court in the case of Jameela and Others. vs. Union of India (supra), the Investigation Report submitted by the P.S.I., R.P.F., Butibori and Written Statement, if taken into consideration, they nowhere suggest that the deceased was ran over by the train and therefore, the incident took place. The Railway Claims Tribunal has wrongly come to the conclusion that the dead body was found in two pieces and therefore, the deceased was ran over by train. This conclusion is against the investigation carried out by P.S.I., R.P.F., Butibori and also against the Written Statement filed on record.

22. The evidence of friend of deceased namely Rahul Nagdevte clearly shows that the deceased was travelling from Nagpur to go to Chandur Railway by train. He himself purchased the ticket and handed over to the deceased. The ticket might have been lost. That cannot be a ground to reject the claim of appellants. The Investigation Report and Written Statement filed on record show that, during investigation, it was found that the deceased was travelling in the train standing in the door of the compartment and therefore, he fell down from the train due to his own negligence. This particular Written Statement and the Investigation Report submitted by the P.S.I., R.P.F., Butibori have not been taken into consideration by the Railway Claims Tribunal and therefore, the Tribunal came to the wrong conclusion that he was ran over by the train. Nodoby can imagine as to what will happen when a person falls from the running train. The Delhi High Court in the case of SH. Surai Besra (supra) has observed that there is no evidence to show that the dead body of deceased as found near his residence or place of work or for some reasons deceased was ordinarily to be at the place where his body was found……. The deceased was going to his village Tiwsa by train from Nagpur to Badnera.

23. It cannot be said that the deceased has committed suicide or was ran over by the train. Once it is held that the deceased was travelling in the train and he fell down from the running train, it is untoward incident as defined in Section 123(c) of Railways Act, 1989. In para 6 of the Judgment in the case of SH. Surai Besra (supra), it is observed that it is not unknown that a body may be badly cut up and crushed after falling from the train either on account of the bonafide passenger getting entangled in the steps of the train and thereafter in the wheels or the other equipments of the train in which he was travelling or that the deceased on account of the fall from the train gets hit by the various equipments of the Railways which are adjoining to the tracks such as poles, signals, wires, junction boxes etc. Therefore, in the facts of the present case, in my opinion, the Tribunal was wholly unjustified in giving a finding of death of the deceased on account of being run over simply because of the condition of the body of the deceased.” In the present case, the Railway Claims Tribunal has wrongly not considered the Written Statement and the Investigation Report submitted by the P.S.I., R.P.F., Butibori. Those documents show that deceased fell down from running train.

24. It is the case of the Railways itself that the incident took place due to negligence of the deceased and therefore, the Railways are not liable. Negligence on the part of deceased cannot be a ground to reject the claim as held by Hon’ble Supreme Court in the case of Jameela (supra). The evidence of witness Rahul Nagdevte was wrongly not considered by the Claims Tribunal. Hence, the appeal is allowed. The impugned Judgment is hereby quashed and set aside.
The respondent/Railways is directed to pay compensation of Rs.8,00,000/- (Rupees Eight Lacs only) to the appellants within a period of four months.
The amount of compensation be distributed in equal share to appellant nos.1 and 2.

Decision : Appeal allowed.