Dismissed

Union of India v. Bhagvatsingh Suvesingh Yadav

Gujarat HC13 Aug 2018FA/3495/2017

Case brief

AI extract

What is this about?

The High Court dismissed a first appeal filed by the Union of India against a Railway Tribunal order awarding compensation for death due to an accidental fall from a train. Upholding the Tribunal's findings as not being perverse, the Court held the incident qualified as an untoward incident and the appellant's delay was condoned but the appeal failed on merits.

What did the court decide?

The First Appeal is dismissed; the appellant is directed to deposit the awarded compensation with interest before the Tribunal within four weeks; the associated Civil Application is disposed of.

Union of India Vs Bhagvatsingh Suvesingh Yadav — Civil Procedure and Limitation | Gujarat HC (2018)

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C/FA/3495/2017 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/FIRST APPEAL NO. 3495 of 2017

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With

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CIVIL APPLICATION NO. 2 of 2017

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE J.B.PARDIWALA

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1	Whether Reporters of Local Papers may be allowed to see the judgment ?	NO
2	To be referred to the Reporter or not ?	NO
3	Whether their Lordships wish to see the fair copy of the judgment ?	NO
4	Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?	NO

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UNION OF INDIA

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Versus

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BHAGVATSINGH SUVESINGH YADAV

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Appearance:

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MR RAVI KARNAVAT(1650) for the PETITIONER(s) No. 1 MR UM SHASTRI(830) for the RESPONDENT(s) No. 1,2

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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

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Date : 13/08/2018

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ORAL JUDGMENT

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This First Appeal under Section 23 of the Railway Claims Tribunal

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Act, 1987 (for short 'The Act,1987') is at the instance of the original

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C/FA/3495/2017 JUDGMENT

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respondent – Western Railway and is directed against the Judgment and Order dated 06.09.2016 passed by the Railway Claims Tribunal, Ahmedabad in Case No. OA-2014-0089.

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The Judgment and Order passed by the tribunal reads as under:-

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“1. Applicants, through this Application under section 16 of the Railway Claims Tribunal Act 1987, read with Section 124 A and Section 125 of Railways Act 1987 are claiming compensation of Rs.4,00,000 with interest from the respondent on account of death of their son Deepaksingh Bhagwatsingh Yadav aged about 28 years, which took place during the course of a train journey in an untoward incident.

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2. According to the Applicants, on 29.12.2012, the deceased, while travelling from Surat to Ahmedabad by train no. 12656 Navjivan Express, accidentally fell down due to sudden jerk and push of the passengers near Vatva at KM no. 488/4 with the result he sustained grievous injuries and consequently died. The applicant further averred that the victim was travelling with a valid and proper second class railway travelling ticket Ex. Surat to Ahmedabad which was lost during the incident.

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3. The Respondent Railway Administration has contested the claim of the applicant by filing the written statement, wherein apart from denying the averments made in the claim application, it is contended inter-alia that applicants has not produced any documentary evidence showing that the deceased was a bona fide passenger from Surat to Ahmedabad by train no. 12656 Navjivan Express on 29.12.2012. It is also stated that the petitioner neither produced the ticket nor it has been recovered from the deceased by the police. It is further stated that as per memo of Station Superintendent - Vatva, Driver of M-69127 Shri

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Masid Ahemad informed at KKF that one unknown person dash at KM no. 488/4 on down line between Vatva & Kankaria. Actually, the deceased got injured due to his own self-inflicted, negligentcareless-hasty action. Hence, the applicant's case is not within the definition of an accidental falling of a passenger from the train carrying passengers, under Section - 123 (c) (2) of Railway Act 1989. Therefore, the Respondents are not liable to pay any compensation to the applicant.

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4. On the basis of the pleadings of the parties, the following issued were framed on 11.09.2015 for determination of the case:-

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ISSUES

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1. Whether the deceased was travelling as a bonafide passenger by train no. 12656 Navjivan Express on 29.12.2012?

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2. Whether the incident is covered under the provision of Section 123 (c) (2) of the Railways Act 1989?

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3. Whether the applicants are the dependents of the deceased?

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4. What Order? What Relief?

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5. During the enquiry and trial, the applicant no. 1 Bhagwatsingh Suveshingh Yadav (father of the deceased) filed an affidavit in support of the claim application and also placed on record documents Exhibits A-1 to A/8. The respondent railway administration has filed statutory Report of DRM and affidavits of one Masab Ahemad s/o Shri Avadmiya Barab , Loco Pilot of train no. 69127 DN Memu between Anand to Ahmedabad railway station on 29.12.2012 as well as one Bharat Kumar s/o Gokalbhai Patel, Station Master - Vatva railway station as RW-1 & RW-2.

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6. Heard the counsels appearing on behalf of the parties and carefully perused the entire material placed on record by the parties.

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Regarding Issues No.1 & 2.

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7. These two issues are taken up for consideration simultaneously for the sake of convenience and also as they are inter-related.

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8. It is stated by the Applicants in the Claim Application that on 29.12.2012 the deceased was travelling from Surat to Ahmedabad by train no. 12656 Navjivan abcExpress with a valid ticket which was lot in the incident. During the course of journey, when the said train was reached near Vatva at KM no. 488/4 he accidentally fell down due to sudden jerk, as a consequence of which he sustained grievous injuries and consequently died on account of injuries on his forehead and other parts of the body.

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To substantiate the said facts, the Applicant no. 1 has filed his affidavit in evidence in which he reiterated that fact as stated in the claim application. During the cross examination he disclosed that his son went to Ahmedabad to meet someone in connection with his work. The friend of his son reached the station to see him off for Ahmedabad. He told him that his son had purchased railway ticket. Even otherwise, his son never traveled without ticket. He further stated that he received the information regarding the incident from the police. The information by the police was that his son had fallen down from train and he was asked to reach Vatva i.e. near Ahmedabad. They reached to receive the body of their son, a bag was with him but due to extreme agony and pain on account of his son's death they left the same and took the body. He was informed by the police that his son had fallen down from the train. However no such information was given to him that while crossing the track, his son met with an accident.

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Memo at Exh. A/1 reveals that on 29.12.2012, Shri Masab Ahemad, Driver of train no. M 69127 informed that one unknown person dashed at Km no.488/4 on down main line between VTA and KKF. Panchnama of place of incident as well as panchnama of identification and inquest Panchnama with Police Report at Exh. A/2, A/3 %& A/4 indicate that, one unknown person aged about 30 years had accidentally fallen down from the train and sustained injuries on his forehead and died at Vatva railway station as KM no. 488/4 on 29.12.2012. Panchnama of place of incident also reveals that on investigation dried blood stains were found on the railway track as well as metals at the place of incident. In the Panchnama of identification, it is also stated that a person named Vijaysingh Bhagwadshingh Yadav aged 25 years had identified the dead body of the deceased as his brother Deepakbhai Bhagwatsingh Suveshingh Yadav. It is further stated that, the police has not seized anything for the purpose of investigation. Post Mortem Report at Exh. A/5 shows the cause of death of the deceased was shock and hemorrhage due to injuries over body.

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RW-1, Masab Ahemad s/o Shri Avadmiya Barab states in his affidavit that on 29.12.2012 he was on duty as a Loco Pilot in train no. 69127 DN Memu between Anand to Ahmedabad railway station. On 29.12.2012, his train no. 69127 had arrived at Vatva railway station at 18.44 hrs and departed at 18.45 hrs. after scheduled halt. When his train passing Vatva Over Bridge near KM no. 488/4, he saw one unknown person suddenly came on the track. He immediately blew the whistle but he did not listen and dashed with engine. He immediately informed SS-Vatva about the incident through VHF set but he could not contact. As such he informed on-duty Station Master- Kankaria (South Cabin) regarding the said incident and also told him to inform on-duty SS-VTA for necessary action.

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During cross examination he disclosed that his train reached at Vatva over bridge at 18.50 hrs. he also reiterated that, he gave information to SM that a person, all of sudden came in front of the track, he whistled but he did not leave the track and got dashed by the train. But he did not issued any memo and the same was issued by SS. He further stated that, on 17.02.2013, Police took his statement and the statement given by him is correct. On 27.06.2014 he also gave statement before RPF. He also stated that he had brought the rough journal in which the accident was written. But he had not specifically written in the rough journal that a man dashed by the train. In short as far as my memory I have written cattle run as whosoever is dashed by the train, he dashed against the cattle guard. Due to paucity of time he could not write in details. Loco Pilot does not push the button, which will cause emergency stoppage. He also informed the Guard about the incident.

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RW-2, Bharat Kumar s/o Shri Gokalbhai Patel states in his affidavit that on 29.12.2012 he was on duty as a Station Master at Vatva railway station in shift 16.00 to 24.00 hrs. On 29.12.2012 at about 18.55 hrs. he received a telephonic message from on-duty Station Master-Kankaria (South Cabin) that Loco Pilot, Shri Masab Ahemad of train no.69127 DN Memu informed him on VHF set that one unknown person dashed at KM no.488/4 on down main line between WTA-KKF section. He immediately issued memo to SIPF-VTA and GRPADI for further necessary action. He also informed PWI (Control)-ADI and Police Control (Phone no.100) regarding the incident.

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During cross examination he stated that he does not have any personal knowledge about the incident and he did not go to the place of incident.

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DRM investigation report however reveals that, on search, neither any travelling ticket nor

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C/FA/3495/2017 JUDGMENT

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any travelling authority has been recovered from the deceased. However, it stated in the investigation report that, as per the Loco Pilot of train no.69127 Anand- Ahmedabad Memu, that after departure of his train from Vatva railway station, the deceased suddenly came on the track and dash with his engine and fell down near the tack at KM no.488/4 between Vatva and Maninagar railway station. Furthermore, it is stated that, while crossing the railway line illegally, the deceased dash with the train and due to which he died. Hence, the incident occurred due to negligence of the deceased for which railway administration is not responsible.

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In this case, on perusal of the documents i.e. Panchnama of place of incident as well as Panchnama of identification and inquest panchnama, all these documents suggests that the deceased had fallen down from the train and due to which he sustained injuries and died on 29.12.2012. Moreover, the SDM final report also reveals that the deceased Deepaksingh Bhagwatsingh Yadav had fallen from the Memu train and subsequently dash with the train with the result he sustained injuries on his head and due to which he died on 29.12.2012.

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Whereas, on perusal of the affidavit of the Shri Masab Ahemad, Loco Pilot of train no.69127 DN Memu, when his train passing Vatva Over Bridge near KM no.488/4, he saw one unknown person suddenly came on the track and he blew the whistle but he did not listen and dashed with engine. During cross examination he also reiterated the same. He further stated that, on 17.02.2013, Police took his statement and the statement given by him is correct. On 27.06.2014 he also gave statement before RPF. He also stated that he had brought the rough journal that a man dashed by the train. In short as far as my memory he had written cattle run as whosoever is dashed by the train, he dashed against the cattle guard.

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C/FA/3495/2017 JUDGMENT

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Due to paucity of time he could not write in details.

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However, on perusal of the statement given by Shri Masab Ahemad, Loco Pilot of train no.69127 DN Memu on 17.02.2013 attached with the DRM investigation report at paged-73, in which he stated that, on 29.12.2012, while passing his train near Vatva railway station, an unknown person fell down while boarding the train. He immediately stopped the train and informed to Kankaria (South Cabin) regarding the incident. Moreover, he disclosed during the cross examination that the statement given by him before the police is correct. He also stated that he had recorded the incident in the rough journal about the incident. However, on perusal of the copy of the rough journal produced by him, nowhere it is mentioned the same. Also on perusal of the copy of the charge book attached with the DRM report at page 109, it appears that the said charge book is of one Shri Jitendrakumar, Station Master; however, the affidavit filed by the Respondent was one Bharat Kumar, Station Master-Vatva railway station. Hence, there is a contradiction in the statement and the affidavit and the documents on record. Hence, it is held that, the Respondent produced the said witness as an afterthought to misguide the Tribunal. Furthermore, Respondent merely fails to establish that the deceased died due to dash with the Memu train while crossing the railway track.

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In the instant case, the petitioner claimed that the deceased had fallen down from train no.12656. However, the documents i.e. SDM report as well as statement of the Loco Pilot, Masab Ahemad reveals that the deceased Deepaksingh Bhagwatsingh Yadav had fallen down from Memu train and dash with the train and due to which he died on 29.12.2012. Hence, I am of the opinion that the petitioner had mistakenly shown the train no.12656 instead of 69127 Memu train. It is a bonafide mistake from the part of the

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claimants.

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Moreover, from the scrutiny of the documents i.e. Panchnama of place of incident as well as inquest Panchnama, Police report, it is crystal clear that the deceased met with an accidental fall and succumbed on account of injuries. To the contrary, if it is assumed that the deceased fell from the train due to his own negligence, it is not a criminal Act the same does not attract clause (c) of proviso to Section 124 A of the Act.

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In this regard, it is to be stated that the Hon’ble Apex Court in the case of JAMEELA & Others Vs. Union of India (2010 ACC 800 SC) has laid down that even it is to be assumed that the deceased fell down from the train due to his own negligence, it would not have any effect on the compensation payable under Section 124A of the Railways Act.

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9. Therefore, it is held that the victim sustained injuries as a result of fall from the running train and succumbed, as alleged is an “untoward incident” within the provision of Section 123 (c) (2) of the Railways Act 1989.

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10. In-so-far-as question of bona fide passenger is concerned, as per contents of the application, the victim was travelling with a valid railway journey ticket but the said ticket was lost during the incident. However, in this regard, the Respondent has not cross examined the applicant as the same is hearsay evidence. Moreover, it is neither the stand of the respondents that no such ticket was issued in favor of the deceased nor he was caught as unauthorized passenger. Moreover, Chapter- VII and XV of the Act give ample power to the railway administration to check the unauthorized travel of passengers. There is every possibility that ticket might have lost in an accident of such magnitude. At this stage I would

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like to quote excerpts of the judgment of Hon’ble High Court of Gujarat in the case of Jenuddin Usmanmiya Malek v/s Union of India in first appeal no.917 of 2012 decided on 16.07.2012, on which the reliance has been placed by the applicant counsel which held that.....”if the deceased was travelling and mainly because the ticket has not been produced or no recovered, it would not be sufficient to deny the compensation. Merely because the ticket has not been recovered at the spot from the deceased by itself would not be a ground to deny the claim for compensation. It is required to be mentioned that the Railway Tribunal is a beneficial piece of legislation and while interpreting the provisions, one must have a regard to the overall facts and circumstances with regard to the pragmatic approach.”

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It is also worthwhile to quote the judgment of Hon’ble Bombay High Court (Nagpur Bench) 2016 (1) T.A.C. 830 (Bom.) (F.A.No.925 of 2010 decided on 6^th August, 2015) in the case of Union of India Vs. Nandabhai & Others, in which it is observed that .. “A presumption do arise in favour of the passenger travelling unless it is specific case by the Railway Administration that the passenger was travelling without ticket. There is always a presumption which ought to be drawn in favor of the law abiding citizen that he was a bona fide passenger unless specific evidence can be pointed out to the contrary.” Therefore, there are no legal impediments in the coming to the conclusion that the deceased was travelling as a bonafide passenger on the day of incident.

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11. In the instant case, it is clear from the material placed on record that the accident in which the deceased had died is clearly not covered by the proviso to Section 124A and that the incident does not occur because of any of the reasons mentioned in the clauses (a) to (e) of the proviso to Section 124-A of the Railways Act, and, not by its proviso.

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12. Therefore, on the facts and circumstances of the case, it is held that the deceased was travelling as a bonafide passenger on the train and he died as a result of the injuries sustained by him in an untoward incident. Hence, the findings on issues No.1 & 2 are in favor of the applicants.

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Regarding Issue No.3:

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13. The Applicants no.1 & 2 are the father and mother of the deceased respectively. In support of their dependency, the claimants produced true copy of ration card at Exh.A/6. Evidence of the Applicant goes unchallenged on the point of relationship with the deceased. As against this, the Respondent railway administration did not adduce any contra evidence to show that the present applicant is not the dependent of the deceased. Hence, it can safely be concluded that the applicant is the dependent of the deceased within the meaning of Section 123 (b) of the Railway Act. Hence, the finding on Issue No.3 is in the affirmative.

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On the facts and the circumstances of this case, I find it just and proper to apportion the compensation amongst the Applicants as under;

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1.Bhagwatsingh Suvesingh Yadav Rs.2,00,000/(Aged 65 yrs. (father of the deceased)

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2. Taradevi Bhagwatsingh Yadav Rs.2,00,000/Aged 60 yrs. (mother of the deceased)

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ORDER

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C/FA/3495/2017 JUDGMENT

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14. The application is allowed. The respondent Western Railway shall pay the applicants a sum of Rs.4,00,000/- (Rs.Four lakhs only) as compensation as per apportionment above. The awarded sum will carry simple interest @6% per annum from the date of the application till the date of the award. The Respondents shall pay the aforesaid amount together with the interest within a period of 60 days from the date of the order failing which the applicants are entitled to get interest @9% per annum from the date of default.

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i) The compensation amount payable to the applicant nos.1 & 2 together with proportionate interest shall be paid to them thought ECS once the applicants give all the banking details including photo copy of the pass book to the concerned railway authority.

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iii) No order as to costs.”

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Mr. Karnavat, the learned counsel appearing for the appellant submitted that the tribunal committed a serious error in allowing the application filed by the respondents herein for compensation. According to Mr. Karnavat, the case on hand is not one falling within the ambit of “untoward incident” as explained in Section 123 of the Railways Act, 1987. The case sought to be put forward by the appellant herein is that the deceased was in fact trying to cross over the railway tracks and in the process, was run over by the train. This theory has not been accepted by the tribunal. After due consideration of the evidence on record, the tribunal has recorded a finding of fact that the case is one of untoward

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incident falling within the ambit of Section 123 of the Act.

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I called upon the learned counsel to show me something very glaring on the basis of which it could be said that the findings recorded by the tribunal are perverse or erroneous in law. The learned counsel for the appellants submitted that on probabilities having regard to the nature of the accident, it cannot be said that the deceased while boarding or deboarding the train fell down.

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The SDM report as well as the statement of the Loco Pilot namely Masab Ahemad has been duly considered by the tribunal. Having regard to the same, the tribunal arrived to the finding that the deceased fell down from the train and sustained fatal injuries.

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In my view, no interference is warranted in the present Appeal. The First Appeal therefore fails and is hereby dismissed.

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It appears that the Judgment and Order passed by the tribunal is dated 06.09.2016. This First Appeal came to be filed with delay. The delay was condoned. The First Appeal has been taken up today after a period of almost two years from the date of the Judgment and Order of the tribunal. Till this date, the appellant has not deposited the amount awarded with interest. The appellant shall deposit the entire amount with interest before the tribunal within a period of four weeks from today.

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As the First Appeal has been dismissed, the Civil Application would not survive and the same would also disposed of.

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(J.B.PARDIWALA, J)

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Bhoomi

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Union of India v. Bhagvatsingh Suvesingh Yadav

Case brief

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Union of India v. Bhagvatsingh Suvesingh Yadav

Case brief

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