Allowed

Ranjanabai Tukaram Jatale v. Union of India

Bombay HC25 Jul 2019FA/1340/2018

Case brief

AI extract

What is this about?

The High Court allowed an appeal against the Railway Claims Tribunal's dismissal of a compensation claim. The Court held that the possession of a valid ticket made the deceased a bona fide passenger. It clarified that death during boarding/de-boarding is an 'untoward incident' and rejected the exemption for self-inflicted injury absent intent. Compensation was enhanced to Rs. 8,00,000 with interes

What did the court decide?

Tribunal judgment set aside; claim allowed; compensation of Rs. 8,00,000 awarded with interest; costs of Rs. 10,000 awarded; amount deposited in FD.

Ranjanabai Tukaram Jatale Vs Union of… — Constitutional and Fundamental Rights | Bombay HC (2019)

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(Judgment) (1) F.A. No. 01340 of 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD.

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First Appeal No. 01340 of 2018

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District : Parbhani

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Ranjanabai Tukaram Jatale
Age : 47 years,
Occupation : Household,.. Appellant
R/o. Shivaji Road, Purna, (Original
Tal. Purna, Dist. Parbhani applicant)

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versus
Union of India,
Through General Manager,.. Respondent
South Central Railway,
Secunderabad (Andhra Pradesh)

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...........

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Mr. Pavankumar S. Agrawal, Advocate, for the appellant.

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Mr. M. N. Navandar, Advocate, for the respondent.

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...........

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CORAM : SMT. VIBHA KANKANWADI, J.

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 DATE : 25TH JULY 2019

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JUDGMENT :

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01.Present appeal has been filed by the
original applicant, challenging the judgment and
awardpassedinClaimApplicationNo.
OA(IIu)/NGP/2015/0087, passed by learned Railway
Claims Tribunal, Nagpur Bench, on 15-02-2018,
whereby the claim for compensation filed by the

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(Judgment) (2) F.A. No. 01340 of 2018

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present appellant came to be dismissed. [Parties are referred as per their nomenclature before the Tribunal.]

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02.Present appellant had she is the mother of
deceased Suresh Tukaram Jatale. Her son was
travelling by some unknown train from Mumabi CST to
Purna on 10-05-2014. However on 11-05-2014, when the
train was near point No. 34 of platform No. 4 of
Purna Railway Station, due to sudden jerk to the
running train, he was thrown out and died on the
spot. Hence, she had filed the said application for
compensation in respect of the said 'untoward
accident'.

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03. The respondent - railway contested the claim. It was contended that no such incident as narrated in the petition had taken place causing death of Suresh Jatale. It can not be said as arising out of 'untoward incident' defined under Section 123(c) of the Railways Act, 1989 read with Section 124(a) of the Railways Act, therefore, the claim application itself is not maintainable. Other averments in the application have been denied. It was specifically contended that the applicant is not entitled to get any amount of compensation.

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04.Taking into consideration the rival
contentions, parties have led oral as well as

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(Judgment) (3) F.A. No. 01340 of 2018

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documentary evidence. After hearing both sides, the
learned Tribunal has come to the conclusion that
there was no untoward incident as contended in the
petition has taken place. Deceased was not the bona
fide passenger of the train on the relevant day.
Therefore, the claim application was dismissed.
Hence, present appeal.

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05.Heard learned Advocate Mr. P.S. Agrawal
appearing for the appellant/ original applicant. So
also, heard learned Advocate Mr M. N. Navandhar
appearing for the respondent.

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06. It has been vehemently submitted on behalf of the applicant, that the applicant has produced the original ticket at Exhibit A-1 to show that deceased had purchased the ticket and he was a bona fide passenger. The said ticket was found on the person of deceased. In fact, when deceased had entered the railway station platform, he was suppose to take ticket and the railway authorities had not detected him as a passenger travelling without ticket. Therefore, an inference can be drawn that he was travelling with valid ticket. In order to support his submissions, he has relied on the decision in Union of India Vs. Prabhakaran Vijaya Kumar & others [AIR 2009 SC (Supp.) 383] , wherein it has been held that "The expression 'accidental falling of a passenger from a train carrying passengers' includes accidents when a bona fide

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(Judgment) (4) F.A. No. 01340 of 2018

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passenger i.e. a passenger travelling with a valid ticket or pass is trying to enter into a railway train and falls down during the process. In other words, a purposive and not literal interpretation should be given to the expression." Further, in Union of India Vs. Bimala wd/o. Pintho Tudu & others [2012(3) Mh.L.J. 883] , this High Court, Bench at Nagpur, has held that "Fact that the deceased was not detected as passenger travelling without ticket, would give rise to an inference that he was travelling with valid ticket. Unless the negative is proved or there is evidence, may be, circumstantial in nature, that the deceased was not holding valid ticket, it would be desirable, to presume that deceased was authorised passenger." Further, in Union of India Vs. Nandabai w/o. Sheshrao Dangat & others [2015(6) Mh.L.J. 295] , this Court, Bench at Nagpur, has observed, that "Merely because railway ticket was not recovered from dead body, it cannot be said that deceased was travelling without ticket. Possibility that ticket may have been lost during course of untoward incident cannot be ruled out and, therefore, presumption need to be drawn that the deceased was a bona fide passenger." Similar view was taken in Union of India Vs. Hari Narayan Gupta & another [AIR 2007 Rajasthan 38] , Smt. Vaishali Wd/o. Nitesh Bhalerao Vs. Union of India [2010(5) ALL MR 726] , Maniben Paljibhai Parmar Vs. Union of India [MANU/MH/1494/2004] . Learned Advocate for the appellant has further submitted that the learned Tribunal has wrongly held that the deceased might have come to railway station as he is resident of nearby area and would have received the injuries by

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(Judgment) (5) F.A. No. 01340 of 2018

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a speeding train. It was also observed that he would
not have received so many injuries, if he would have
fallen from the train. Non-examination of eye
witness by claimant has been taken adversely against
her, when the fact is that claimant was not with her
son, when incident took place. How she could have
got information about eye-witnesses. The facts have
been unnecessarily stretched by the Tribunal to hold
that it was not an 'untoward incident'.

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07. Per contra, learned Advocate representing the respondent has supported the reasons given by the Tribunal and submitted that when RW 01 Rajkishore Rai, who was the Guard and RW 02 Laxmi Shanker – Station Master have stated that no untoward incident was reported to them by anybody. There was no alarm, chain pulling or any unexpected jerk and even there was no rush in the train. The testimony of this person has been rightly believed by the learned Tribunal. In fact, as per the report of D.R.M., the deceased himself was responsible for the accident. As said accident occurred due to the negligence on the part of the applicant himself for which the railway is not responsible to compensate. In order to support his contentions, he relied on the decision in Geeta & others Vs. Union of India [2013 SCC OnLine Del. 2168] and Gurcharan Singh & others Vs. Union of India [2014 SCC OnLine Del. 101] and further in Jamirul Nisha & another Vs. Union of India [2008 SCC OnLine Del. 320] . In all

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(Judgment) (6) F.A. No. 01340 of 2018

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these cases, after considering the similar facts,
the Delhi High Court had come to the conclusion that
the applicant was a bona fide passenger, however,
the factum of his death / injury has not been proved
in an untoward incident. In that case also,
deceased / injured had tried to alight from running
train.

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08.Takingintoconsideringtherival
contentions, following points are arising for
determination. Findings and reasons for the same
are as follows :-

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(I) Whether the applicant was a bona fide passenger on the date of the incident ?

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(II) Whether the applicant had sustained injuries in an untoward incident, as contemplated under Section 123(c) of the Railways Act, 1989 ?

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(III) Whether the applicant is entitled to get compensation ? If yes, to what extent ?

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All the points are taken up together for discussion
for the sake of convenience and to avoid repetition.

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09.Now, as to whether the applicant can be said
to be a bona fide passenger of the train, it can be
seen from the ticket that has been produced at

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(Judgment) (7) F.A. No. 01340 of 2018

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Exhibit A-1, that it is validly issued. No contrary
evidence has been produced by the respondent to show
that the said document produced as ticket, is
forged. Unless proof about the forgery or, in other
words, that it is not a genuine ticket, is
positively adduced, the said inference cannot be
drawn which the respondent intends to draw. When
the applicant has stated that deceased had purchased
the ticket and then she has produced it on record
stating that it was found on the person of her son,
in fact, the learned Tribunal ought to have held
that he is a bona fide passenger. However, it
appears that the learned Tribunal unnecessarily went
on to infer that even if journey ticket is found on
the person of deceased, it does not lead to infer
that deceased was travelling by the train at the
time of occurrence.

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10.The ratio laid down in the authorities those
have been cited by the learned Advocate for the
applicant are definitely applicable here. When the
applicant was not caught by Ticket Collector for
travelling from the train without ticket, and
respondent failed to prove that A-1 is fake
document, it will have to be presumed that deceased
had bought valid ticket. The ratio in the
authorities relied by the respondent, the facts
before the Delhi High Court, would not show that the
applicants therein had produced on record a ticket.

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(Judgment) (8) F.A. No. 01340 of 2018 Here, the basic difference is that original ticket has been produced on record. Therefore, to that extent, it can be said that there was error on the part of the Tribunal to come to the conclusion that the applicant was not a bona fide passenger. In Union of India Vs. Rina Devi [AIR 2018 SC 2362] , the Hon'ble Supreme Court has dealt with the point "Burden of proof when body found on railway premises - Definition of 'passenger'". The conflicting decisions on the subject were noted and it has been observed thus :-

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" 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. "

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Taking into consideration these observations, when
in this case, the original ticket itself is produced
and no contrary evidence about it being fake
document, it will have to be held that the applicant
was a bona fide passenger.

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(Judgment) (9) F.A. No. 01340 of 2018

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11.It is to be noted that the applicant has
examined herself only and then has produced the
ticket. Respondent - railway has examined Guard of
the said train and Station Master. Further, the
enquiry documents have also been produced for
perusal of the Tribunal. At the outset, it can be
said that there appears to be no dispute that the
deceased was found in injured condition on the
railway track. AW 1 is admittedly not an eye
witness. Learned Tribunal has cast duty on claimant
that she ought to have examined eye-witnesses.
However, it can be seen that when she was not
present at the time of incident, how she would have
come to know about the names of eye-witnesses?
Therefore, petition can not be thrown merely on the
ground that eye-witness has not been examined. RW-1
and RW-2 were also not at the spot when incident had
taken place. Some observations have also been made
by learned Tribunal taking into consideration the
injuries noted in the postmortem report. When the
concerned Medical Officer was not examined, then
Tribunal could not have made observations like
expert in the said field. Negative conclusion can
not be drawn in absence of expert opinion that death
could not have been fall but by speeding train. When
the death of Suresh had occurred on railway track
when he was travelling from a train, it is required
to be considered whether it was 'untoward incident'

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(Judgment) (10) F.A. No. 01340 of 2018

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or not.

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12. Section 123(c) of the Railways Act defines 'untoward incident' . In the said provision, accidental fall of any passenger from a train has been covered. However, Section 124A of the Railways Act deals with 'liability of the railway to pay compensation on account of untoward incident'. It has been specifically provided that no compensation is payable by the Railway Administration if the passenger suffers injury due to (a) ...... (b) selfinflicted injury (c) his own criminal act (d) ..... (e) ..... Thus, for our consideration, taking into consideration the finding arrived at earlier, that the evidence shows that the deceased was travelling from a train and then was found dead due to injuries due to fall, is required to be considered as to whether it is self inflicted injury or his own criminal act, disentitling him compensation.

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13. The decisions relied by the learned Advocate for the respondent are of various High Courts, that too, from 2008 to 2014. However, in this case, now the position stands clarified by the Hon'ble Supreme Court in Rina Devi's case (supra) . The Hon'ble Supreme Court has explained "Application of principle of strict liability - Concept of self inflicted injury" . The decision by High Court of Kerala in Joseph PT vs. Union of India [AIR 2014 Kerala (12)] , this Court's

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(Judgment) (11) F.A. No. 01340 of 2018

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decision in Pushpa Vs. Union of India [(2017) III ACC 799 (Bom.)] and Delhi High Court's decision in Shayam Narayan Vs. Union of India [(2018) ACJ 702] , were considered and it has been held thus :-

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" 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 deboarding 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. " [Stress supplied by me]

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Thus, above portion which has been stressed clearly indicates the legal position explained by the Hon'ble Supreme Court, that in case of injury in the course of fall, boarding or de-boarding a train would be an 'untoward incident' entitling a victim to compensation and will not fall under the proviso to Section 124A merely on the plea of negligence of the victim as a contributing factor. It was not held

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(Judgment) (12) F.A. No. 01340 of 2018

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to be covered under self inflicted injury in Section 124A of the Railways Act. Further, it cannot be said to be a criminal act intentionally done. For a criminal act to come under Section 124A of the Railways Act, there has to be an intention either to cause loss to anybody else or to himself or to the railways in respect of its property. Therefore, though in Shayam Narayan's case (supra) , act of criminal negligence was considered, yet, the Hon'ble Supreme Court did not approve the view taken by the Delhi High Court. In view of the said clear legal position, it is held that the present appellant is entitled to get compensation. Points no.02 and 03 are answered accordingly.

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14. Now, turning towards the quantum that can be awarded, a note of the judgments and law laid down by the Hon'ble Supreme Court in Rathi Menon Vs. Union of India [AIR 2001 SC 1333] , N. Parameswaran Pillai Vs. Union of India & another [AIR 2002 SC 1834] and Thazhathe Purayil Sarabi & others Vs. Union of India & another [AIR 2009 SC 3098] is required to be taken. In Rathi Menon's case (supra) , it was held that "The compensation must be fixed as per what on Rules prescribed at the time of making the order for payment of compensation and not in terms of money value which prevailed on date of accident." The observations are, "The relevance of the date of untoward incident is that the right to claim compensation from the Railway Administration would be acquired

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(Judgment) (13) F.A. No. 01340 of 2018

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by the injured on that date. The statute did not fix the amount of compensation, but left it to be determined by the Central Government from time to time by means of rules. Hence the time of ordering payment is more important to determine as to what is the extent of the compensation which is prescribed by the rules to be disbursed to the claimant." Thereafter, in N. Parameswaran Pillai's case (supra) , it was held that in view of authoritative pronouncement made in Rathi Menon's case (supra) , the appellants were entitled to enhancement in the compensation. In that case, the legal representatives of the deceased had claimed compensation of Rs. 2,00,000/- but then in the meantime, the Central Government had enhanced the compensation and, therefore, enhancement was granted. In Thazhathe Purayil Sarabi's case (supra) , it was a point regarding interest to be paid and it was held that the interest can be awarded either from the date of claim or from the date principal sum adjudged to be payable and/or awarded.

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15.Here, in this case, the untoward incident
had taken place on 10-05-2014 and, therefore,
compensation that was claimed was to the tune of Rs.
4,00,000/-. However, Ministry of Railways by
notification dated 22nd December 2016, enhanced
compensation for loss of hand and foot to the tune
of Rs. 8,00,000/-. The petition claiming
compensation was filed on 03-03-2015 and it was
decided on 15-02-2018 by the Tribunal. Under such

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(Judgment) (14) F.A. No. 01340 of 2018

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circumstance, taking into consideration the date of making order for payment of compensation i.e. today, the notification which has come in force on 22nd December 2016, is required to be made applicable in view of the above said pronouncements by the Hon'ble Supreme Court and in view of the decision in Thazhathe Purayil Sarabi's case (supra) , interest that is required to be granted is 6 % simple interest per annum on the sum of Rs.4,00,000/- from the date of the application till the date of award and thereafter at the rate of 9 % per annum till the date of actual payment of the same. Taking into consideration these reasons, the appeal deserves to be allowed.

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16.Hence, the following order :-

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(a) The first appeal is hereby allowed.

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(b)The judgment and award passed by learned Railway
Claims Tribunal, Nagpur Bench, in Claim Application
No. OA (llu)/NGP/2015/0087, dated 15-02-2018, is
hereby set aside. The said claim stands allowed.
The respondent is directed to pay compensation of
Rs. 8,00,000/- [Rupees eight lacs] together with
interest at the rate of 6 % per annum on the amount
of Rs.4,00,000/- from the date of the application
till the date of the award i.e. today and
thereafter, at the rate of 9 % per annum till the
date of actual payment of the same to the applicant.

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(Judgment) (15) F.A. No. 01340 of 2018

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The respondent shall pay costs of Rs. 10,000/-
[Rupees ten thousand] to the applicant.

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(c)After the said amount is deposited, an amount of
Rs. 4,00,000/- (Rupees Four Lacs Only) be deposited
in any nationalized Bank of the choice of applicant
for a period of 5 years. Rest of the amount be given
to her by account payee cheque. After the maturity
of fixed deposits, the entire amount with interest
be given applicant, without waiting for any order
from Court.

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(d)Award be drawn accordingly.

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( Smt. Vibha Kankanwadi )
JUDGE

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...........

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puranik / F. A. No. 1340-18

Ranjanabai Tukaram Jatale v. Union of India

Case brief

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Ranjanabai Tukaram Jatale v. Union of India

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