Ramesh S/O Haribhau Gabhane (Died) and Another Vs Union of India, Thr. General Manager, Central Railway, Csmt Mumbai

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2024:BHC-NAG:3355

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902-J-FA-771-22.odt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR

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FIRST APPEAL NO. 771 OF 2022

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APPELLANT1. Ramesh S/o Haribhau Gabhane
(Original Applicant on RA) (Died on 23-04-2021)

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2. Nirmala Wd/o Ramesh Gabhane
 Age - 53 Yrs, Occu - housewife.

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 (R/o Plot No.24D, Hudkeshwar Rd.,
 Dube Nagar, Hudkeshwar Bk, Pipla,
 Nagpur (M.S.) 440034.

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// V E R S U S //

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RESPONDENT :Union of India,
(Original Respondent on RA)Through General Manager,
Central Railway, CSMT Mumbai.

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Ms. Sumesha Chaudhari, Advocate for appellants.
Ms. Neerja Chaubey, Advocate for respondent-sole.

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CORAM : G. A. SANAP, J.
DATED : 05/03/2024

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ORAL JUDGMENT :

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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 22/04/2022 passed by the Railway Claims Tribunal, Nagpur

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Bench, Nagpur, whereby the claim filed by the applicants under
Section 16 of the Act of 1987 for compensation was dismissed.

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2.Background facts :-

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The Claimant No.1 since deceased was the father of

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the deceased. Now, sole claimant - appellant No.2 is the mother of
the deceased Devendra Gabhane. The appellant claims that on
10/09/2019, the deceased was travelling from Pune to Nagpur by
Train No.12113 Garibrath Express with a valid reservation ticket.
It is stated that while travelling in a train due to heavy rush and
push blow of the passengers, the deceased fell from running train
at the spot of incident and died due to injuries sustained by him.
The death was in an untoward incident. He was a bonafide
passenger.

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3.The respondent - Railway filed written statement.

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It was denied that the deceased was a bonafide passenger. It was
also denied that the deceased died in an untoward incident.
According to Railway, the deceased was run over by a Goods Train
at the spot of incident. The appellant No.2 examined herself as a
sole witness. The respondent - Railway examined two witnesses.
The learned Member of the Tribunal discarded the evidence
adduced by the appellant and dismissed the claim. The appellant
is before this Court in appeal.

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4.I have heard learned Advocates for the parties.
Perused the record and proceedings.

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5. In the facts and circumstances, following points fall for my determination :-

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i] Whether the deceased was a bona fide passenger travelling by the train in question with valid journey ticket ?

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ii] Whether the deceased died in an untoward incident within the meaning of Section 123 of the Railways Act, 1989 ?

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6. Learned Advocate for the appellant submitted that

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a valid reservation ticket for journey from Pune to Nagpur by
Garibrath Express was found at the time of panchnama. It is
marked as Exh. A-1. Learned Advocate submitted that the learned
Member has accepted the case of the appellant that the deceased
was holding valid journey ticket. Learned Advocate submitted that
the learned Member has not properly appreciated the evidence
and has come to a wrong conclusion that the death was not in an
untoward incident. Learned Advocate submitted that the learned
Member has placed reliance on the evidence of RW-1 the Loco
Pilot of Goods Train No. BJW / BTPN. Learned Advocate
submitted that the evidence of this RW-1 is contrary to the
information recorded by the Deputy Station Master, Bodwad

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Railway Station. Learned Advocate submitted that the evidence of
RW-2 the Guard of the Garibrath Train is sufficient to discard the
evidence of RW-1. Learned Advocate submitted that the nature of
injuries sustained by the deceased would suggest that the
deceased during the night time accidentally fell from a moving
train and died on the spot.

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7.Learned Advocate for the Railway in short
supported the Judgment and order passed by learned Member of
the Tribunal. Learned Advocate submitted that RW-1 the Loco
Pilot of a Goods Train saw the deceased standing on the railway
line and being dashed by the train. Learned Advocate submitted
that the necessary entry was made by him in his rough journal.
Learned Advocate submitted that the evidence on record is
sufficient to reject the claim of the appellant that the death was in
an untoward incident.

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8.I have minutely perused the record and
proceedings. The spot of incident is not far away from Bodwad
Railway Station. It is a case of the Railway that the Station Master
at Bodwad Railway Station saw unknown person standing on the
foot rest of the 5th Coach from the rear side of the train. The door

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was closed as the train was fully Air Conditioned. It is further
stated that the Station Master instructed the Loco Pilot to stop the
train. The train was inspected by RW-2 the Guard of the Train, but
he did not find any passenger standing on the foot rest of the 5th
Coach from the rear side. The Guard of Garibrath Train RW-2 has
stated that the train was started and at that time, he noticed one
unknown person was lying on the track at KM No.475/05. He has
stated that after departure of a train from the said spot, he
informed the Station Master about the said person lying on the
track. RW-1 is the Loco Pilot of Goods Train. It is the defence of
the Railway that the deceased was standing on the railway line
and he was dashed by the Goods Train.

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9.The question is whether the evidence of RW-1 Loco
Pilot of the Goods Train and the corresponding entry made in the
Register inspires the confidence or not. In my view, the evidence
of RW-1 has to be appreciated keeping in mind the station diary
entry made by the Station Master at Bodwad Railway Station. It is
marked as Exh.A-2. This document is the most important
document. This entry which was made on the basis of information
received from RW-1 the Loco Pilot of the Goods Train. The perusal
of this entry would show that the RW-1 had reported to the

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Station Master that one unknown person was lying on up route of
Khamkhed Railway Station at 476/15-13 in unconscious state. It is
to be noted that if the deceased was run over at the spot of
incident by Goods Train, then the Loco Pilot would have reported
accordingly to the Station Master. The information received from
the Loco Pilot and recorded by the Station Master is different from
the nature of the incident recorded by RW-1 in his register.
Learned Advocate submitted that in order to save himself, he has
made this entry subsequently. In my view, the evidence on record
is sufficient to accept the case of the appellant that the deceased
fell from a moving train at the spot of incident and died. There is
inconsistency in the evidence of RW-1 and RW-2. The RW-2 has
stated that he saw that one person was lying on the railway line at
the spot of incident. He accordingly informed the said fact to the
Station Master. The Station Master has not produced any evidence
of receipt of such intimation from the Guard of Garibrath Train.
The deceased was travelling by Garibrath Train. It is to be noted
that if for some reason or the other, he was unable to board the
compartment at Bodwad Railway Station, then after stopping the
train on the instructions of the Station Master, he would have
approached to the Guard of the Train and ensured his safe entry in

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the Coach. He was travelling with a reservation ticket in AC-III
compartment. The Guard of the train after re-start of the train
from the said spot, noticed one person lying on the railway line.
The possibility of the deceased falling from the foot board in the
meantime, before halting of the train cannot be ruled out. The
deceased otherwise had no reason to get down at the spot. It
needs to be stated that if for some reason or the other, the
deceased was not able to board the said train, then he would have
approached the nearest Railway Station i.e. Bodwad Railway
Station. He would not have taken the risk of boarding the train.
The journey ticket in my view is the best evidence to substantiate
the case of the appellant. The evidence on record is sufficient to
accept the claim of the appellant. The accidental falling of a
passenger from moving train is in an untoward incident. The
death or injury to the passenger while boarding or deboarding the
train is covered within the ambit of "untoward incident". In the
facts and circumstances, I conclude on both the counts. The
learned Member was not right in rejecting the claim. As such, I
record the finding on both points in the affirmative.

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10.Accordingly, the first appeal is allowed.

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8 902-J-FA-771-22.odt

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i] The judgment and order dated 22/04/2022,
passed by the Railway Claims Tribunal, Nagpur Bench,
Nagpur, in Claim Application No.
OA(IIu)/NGP/0021/2020 is quashed and set aside. The
claim petition is allowed.

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ii]The respondent - Railway is directed to pay
compensation of Rs.8,00,000/- to the appellant No.2
with interest @ 6 % per annum from the date of
incident, till actual realization.

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iii]The amount of compensation be deposited directly
in the bank account of the appellant No.2 with interest
within four months from today. The appellant No.2 is
directed to provide her bank account details to the
respondent-Railway.

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11.The first appeal stands disposed of in the
aforesaid terms. No order as to costs.

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 [G. A. SANAP, J.]

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Choulwar

Ramesh S/O Haribhau Gabhane (Died) and Another v. Union of India, Thr. General Manager, Central Railway, Csmt Mumbai

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Ramesh S/O Haribhau Gabhane (Died) and Another v. Union of India, Thr. General Manager, Central Railway, Csmt Mumbai

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