Dismissed

Union of India v. Dahyabhai Somabhai Darji (Husband of Decd.)

Gujarat HC14 Aug 2018FA/762/2017

Case brief

AI extract

What is this about?

This First Appeal by the Union of India challenged a Railway Claims Tribunal order allowing compensation for a train passenger killed by poisoning and robbery. The High Court dismissed the appeal, holding the incident qualified as an 'untoward incident' under the Railways Act and directed the Railways to pay increased compensation based on 2016 rules.

What did the court decide?

The First Appeal was dismissed; compensation amount enhanced to Rs. 8 Lakhs per 2016 Rules and ordered to be disbursed with interest.

Union of India Vs Dahyabhai Somabhai Darji… — Civil Procedure and Limitation | Gujarat HC (2018)

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C/FA/762/2017 ORDER

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/FIRST APPEAL NO. 762 of 2017 With CIVIL APPLICATION NO. 1 of 2017 With CIVIL APPLICATION NO. 1 of 2018

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UNION OF INDIA

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Versus

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DAHYABHAI SOMABHAI DARJI (HUSBAND OF DECD.)

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========================================================== Appearance:

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MS ARCHANA U AMIN(2462) for the PETITIONER(s) No. 1 MR KUNAL M SHAH(5588) for the RESPONDENT(s) No. 1,2 MR MAHESH B SHAH(1053) for the RESPONDENT(s) No. 1,2 MR PJ MEHTA(467) for the RESPONDENT(s) No. 1,2

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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

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Date : 14/08/2018

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ORAL ORDER

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This First Appeal under section 23 of the Railway Claims Tribunal Act, 1987 ( for short ‘the Act, 1987’) is at the instance of the original respondent-Western Railways and is directed against judgment and order dated 18.12.2015 passed by Railway Claims Tribunal, Ahmedabad in case No. OA 2013/0177.

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The original applicants before the Tribunal are the husband of the deceased and son of the deceased respectively. It appears from the materials on record that the respondent No.1 herein was travelling with his wife in a train on 19.5.2013 from Asarva to Himmatnagar. In the course of their journey, one unknown person traveling with them offered them tea mixed with some deleterious or intoxicated substance with an

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intention to commit robbery. The respondent No.1 and his wife having consumed the spurious tea fell unconscious. The golden ear-rings worn by the wife of the respondent No.1 were taken away alongwith cash of Rs. 500/-. One of the officials of the railways found the respondent No.1 and his wife lying in an unconscious condition inside the compartment of the train. Both were taken to the Sir Pratap General Hospital, Himmatnagar in 108 ambulance for treatment. In the course of the treatment, the wife of the respondent No.1 passed away. It is not in dispute that the respondent No.1 and his wife both were having a valid and proper second class travelling ticket.

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In such circumstances referred to above, the respondent No.1 and his son preferred an application under section 16 of the Railway Claims Tribunal Act, 1987 read with section 124(A), 125 and 123(c)(1)(ii) of the Railways Act, 1989 for compensation of the amount of rupees Four lakh with 12% interest. The claim for compensation was adjudicated by the tribunal and ultimately, the application came to be allowed. The Tribunal recorded the following findings.

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“1. Applicants, through this OA under 16 of the Railway Claims Tribunal Act 1987, read with Section 124A, 125 and 123 ( c ) (1) (ii) of Railways Act 1989 are claiming compensation of Rs. 4,00,000/- with 12% interest from the respondent on account of death of his wife Lilaben Dahyabhai Darji aged about 68 years, which took place during the course of a train journey in an untoward incident.

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According to the Applicants, on 19.05.2013, the deceased as well as the applicant no.1 were travelling from Asarva to Himmatnagar by a passenger train. During the course of the journey, when the said train was running between Asarva and Himmatnagar railway station, one unknown person had offered them tea mixed with intoxicated substance and made a violent attack on them with an intention of robbery and also looted his wife’s left ear golden earring and cash of Rs. 500/- with the result of this untoward incident they both fall unconscious. They were taken to Sir Pratap General HospitalHimmatnagar by 108 Ambulacne for emergency treatment and later shifted to Civil Hospital-Ahmedabad for further treatment but unfortunately his wife died on account of this untoward incident on 21.05.2013 during the course of

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C/FA/762/2017 ORDER

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treatment in the hospital. It is alleged that they were holding a valid and proper railway second class travelling ticket bearing no. S-17612424 for 2 adults dated 19.05.2013 from Asarva to Himmatnagar and the same is placed at Exh. A/1.

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The respondent Railway administration has contested the claim of the applicant by filing written statement, wherein apart from denying the allegations made in the claim application, it is contended inter-alia that the above alleged incident is not an untoward incident. It is also stated that the petitioner has not produced any documentary evidence showing that the deceased died due to violent attack. Therefore, the present claim application does not come under the ambit of section 123(c) of the Railways Act, 1989. Hence. it is liable to be dismissed with cost.

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On the basis of the pleadings of the parties. the following issues are raised on 20.03.2015 tor determination of the claim:

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Issues:

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(i) Whether the deceased was travelling as a bonafide passenger in a train carrying passenger on 19.05.2013?

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

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(iii) Whether the applicants are the dependents of the deceased?

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(iv) What order? What relief?

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During the enquiry and trial, the applicant no.1 Dahyabhai Somabhal Darii (husband of the deceased) has filed an affidavit in support of the claim application. The Respondent wanted cross examination of the said applicant but the Ld. Counsel for the petitioner prayed for closure of applicant evidence with further prayer that the documents produced along with the claim application be relied upon. 0n the basis of the prayer, the Tribunal closed the evidence of the applicant. However, the petitioner has placed on record documents as Exh. A/1 to A/16 for perusal to decide the said claim in terms of clause 18 (2) of RCT Act, 1987. As against this; the respondent railway administration has not examined any witness. However, produced on record documents marked R/2 to R/6.

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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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7 We shall now proceed to consider the claim of the applicants on its merit with reference to the issues raised in the case.

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Regarding issue No. 1 and 2:

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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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It is contended by the Applicant in the claim application that on 19.05.2013,

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C/FA/762/2017 ORDER

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the applicant no.1 alongwith his wife were travelling from Asarva to Himmatnagar by a passenger train. His brother-in-law Maganbhai Bhikhabhai Darii had also accompanied them. They were holding a valid second class tourney ticket no. S-17612424 dated 19.05.2013 from Assarva to Himmatnagar and the same is placed at A/1. During the course of the journey, when the said train running between Asarva and Himmatnagar railway stations one unknown person offered them tea mixed with intoxicated substance and made a violent attack on them with an intention of robbery and also looted his wife‘s golden earring and cash of Rs. 500/- with the result they had become unconscious. After the untoward incident, when the said train reached at Himmatnagar railway elation, they were taken to Sir Pratap General Hospital, Himmatnagar by 108 Ambulance for emergency treatment and later they have shifted to Civil Hospital, for further treatment During the course of treatment, on 21.05.2013 at about 19.00 hrs. his wife died on account of the above untoward incident in the hospital.

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First information received from Sir Pratap Hospital-Himmatnegar to GRP/Himmatnagar at Exh. A/2 reveals that two patients named Lilaben Dahyabhai Darii aged 60 years and Dahyabhai Somabhai Darii aged 65 years found unconscious in the train coming from Ahmedebad to Himmatnagar. They were brought to the hospital in unconscious condition and admitted in the hospital for treatment. Vardhi at Exh. A/3 & A/7 indicates that on 19.05.2013, ASI-Harishbhai of Himmatnagar Railway Police Pout Post had received a message from Civil Hospltal-Ahmedabad that, while travelling in a passenger train from Ahmedabad to Himmatnagar. both of them had fallen sick and were admitted in the Civil Hospital Himatnagagar and later they were shifted to Civil Hospital-Ahmedabad for further treatment. Panchnama of body condition at Exh. A/4 and A/5 indicates that the patient named Laliysben Dahyabhai by caste Darii was got sick while travelling in the local train from Ahmedabad to Himmatnagar on 19.05.2013 and she was admitted in the Civil Hospital-Ahmedabad. It is further mentioned that the police have not seized anything for the purpose of investigation. First information report at marked 18-E. reveals that, Offence under Section 328, 302 of IPC to the effect was registered, when the complainant and the witness were travelling in Khedbrahma train on 19.05. 2013, the accused made the complainant and witness to drink tea wherein he had mixed some intoxicated substance and thereby he made them unconscious and he robbed/removed left ear golden earring of the deceased Lilaben Darii worth Rs. 1000/- and he also stole cash of Rs. 500/-, which caused the death of Lilaben at Civil Hospital, Ahmedabad during the cause of treatment. Inquest Panchnama at Exh. A/8 shows that, in the opinion of the panchas, the deceased while travelling in the train from Ahmedabad to Himmatngar on 19.05.2013, one unknown person had given tea mixed with intoxicated substance to the deceased Lilaben and she became unconscious and died during the course of medical treatment. Post Mortem Report at Exh. A/10 shows that, final report kept pending till the reports from FSL are received from the sample collected from the body.

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DRM investigation report reveals that as per the investigation, Panchnama of GRP/Ahmedebad, no railway travelling ticket was found with the deceased. It is further stated that the as per the panchnama, the name at the

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C/FA/762/2017 ORDER

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deceased lady was shows as Lilaben wife of Dehyabhai Darii aged 68 years. It is further mentioned in the said investigation report that as per the statement of the Guard and the Driver of train no. 52920, they have no knowledge about any passenger falling unconscious and nobody had informed them regarding the incident. It is also mentioned that as per final FSL report the deceased died due to Cardio-respiratory arrest due to brain and lungs ocdemec. Hence, the railway administration has no responsibility for the above incident.

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Ld. Counsel tor the Respondent filed written arguments in which the Respondent submitted that there is no evidence on record showing the so called incident alleged incident occurred in the running train or in the railway premises. It is further submitted that Postmortem report at the deceased, the opinion regarding the cause of death of the deceased was reserved waiting for visceral-chemical analysis from FSL. However, the petitioner has not produced copy of FSL report in respect of cause of death, while subsequent endorsement on PM report dated 28.08.2013 indicates the cause of death was cardiac respiratory arrest due to brain and lungs ocdemec, however circumstantial evidence should be considered. Therefore, the case of the claimant does not fall within the ambits of the provision of Section 123 ( c) (ii) & (iii) of the Railway Act 1989. Hence, the Respondent Railway is not responsible and liable to pay any compensation to the petitioners.

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On perusal of the documents and evidence. it appears that the deceased alongwith her husband was travelling from Asarva to Himmatnagar by a passenger train. They had purchased a travelling ticket from Asarva to Ahmedabad and the same is produced on record as Exh. A/1l. During the course of the journey, one unknown person travelling in the same compartment of the said train had developed closeness with the victims and had offered some tea mixed with some substances. After drinking the tea, they became unconscious and he robbed the golden ear ring as well as cash of Rs. 500/- of the deceased. The victims were admitted in the Civil Hospital by the copassenger and brother-in-law of applicant no.1 for treatment but Lilaben Dahayabhai died during the course of treatment in the hospital.

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On the basis of the above stated facts, we have to consider whether the alleged incident can be construed as “untoward incident" or not.

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The term 'untoward incident“ has been defined under section 123 ( c ), which reads as follows.

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“Untoward incident means... (1) (i) the commission of a terrorist act within the meaning of sub-section (1) of Section 3 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 1937) or,

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(ii) the making of a violent attack or the commission of robbery or dacoity; or (iii) the indulging in rioting, shoot-out or arson, by any person in or on any train caring passengers, or in a waiting hail, cloak room or reservation or booking pffoce or on any platform or in any other place within the precincts of a railway station; or

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(2) The accidental falling or any passenger from a train carrying passengers.

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C/FA/762/2017 ORDER

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From the above definition, it is clear that this case falls under item no. (ii) making of a violent attack or the commission of robbery or decoity. Since, the victim died of violent attack by administration of poison, it would certainly within the definition of "untoward incident” and under such circumstances, the claimant would be entitled to get compensation under Section 124-A.

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In the present case, the deceased Lilaben Dahayabhai was poisoned to death by one unknown person. The deceased was done to death as she was administered highly intoxicated poisonous substance mixed in the tea. It is pertinent to note that with regard to the present incident the police have also registered an offence of murder and robbery punishable under section 302 & 328 of IPC. To administer a poisonous substance to the passengers travelling in the train in order to make them unconscious and rob is in our considered view nothing but violent act contemplated in section 123 (c) 1 (ii) of the Railways Act, 1989. Therefore, the claimants are entitled to get compensation under section 124-A of the Act.

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At this stage, we would like to quote the judgment of the Hon'ble High Court of Gujarat at Ahmedabad in First Appeal No. 7981 of 1999 decided on 11.10.2012 in the case of Union of India Appellant(s) versus Bhagwatiben Sureshbhai Patel & 3 Defendant(s).. against the judgment passed on 06.08.1999 by the Ld. Railway Claims Tribunal Ahmedabad Bench in OA no. 9800058, in which the Ld. Tribunal has allowed the application preferred by the Respondent and the appeals filed by the applicant is dismissed and held that the Judgment dated 16.08.1999 passed by the Ld. Railway Claims Tribunal- Ahmedabad Bench in Claim Application no. OA 9800058 is confirmed."

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In-so-far-as the question of bona fide passenger is concerned according to the applicants; they were holding a valid and proper railway second class travelling ticket bearing no. S-17612424 for 2 adults dated 19.05.2013 from Asarva to Himmatnagar and the same is placed at Exh. A/1. The Respondent has not produced any cogent and acceptable evidence to rebut the claim of the petitioner. Therefore, there are no legal impediments in coming to the conclusion that the injured was traveling as a bonafide passenger on the day of incident.

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Therefore, on the facts and circumstances of the case, we have no hesitation in holding that the deceased was a bonafide passenger of the train and he has due to drinking of intoxicated poisonous substance mixed in the tea it would certainly come within the definition of "untoward incident”. Hence, our findings on Issue No.1 & 2 are in the affirmative .

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Regarding Issue No.3.

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The Applicant No. 1 is the husband and applicant no.2 is the son of the deceased respectively. In suppoert of the dependency, the claimants produced certified copies of election card and PAN card at Exh. A/13, 14 & 16. As against this, the Respondent railway administration did not adduce any contra

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C/FA/762/2017 ORDER

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evidence to show that the present applicants are not the the dependents of the deceased. Hence, it can be safely concluded that the applicants are the dependents of the deceased within the meaning of Section 123 (b) of the Railways Act. Hence, our findings on issue No. 3 are in the affirmative.

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On the facts and in the circumstances of this case, we find it just and proper to apportion the compensation amount amongst the Applicants as under:

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Dahyabhai Somabhai Darji Rs. 3,00,000/Aged 72 years (Husband of the deceased)

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Bharatbhai Dahyabhai Darji Rs. 1,00,000/Aged 36years. (son of the deceased)

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ORDER

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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. 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 1 & 2 together with proportionate interest shall be paid to them through ECS once the applicant give all the banking details including photo copy of the pass book to the concerned railway authority

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(ii) No order as to costs. “

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The Railways being dissatisfied with the judgment and order passed by the Tribunal has come up with this First Appeal under section 23 of the Act, 1987.

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Ms. Amin learned counsel appearing for the appellant submitted that even if the entire case as put up by the respondents herein is believed or accepted to be true, the same would not fall within the ambit of “untoward incident” as defined under section 123(1) of the Act. Ms. Amin laid much emphasis on the fact that section 123(C)(1)(ii) talks about making of a violent attack or the commission of robbery or decoity. According to Ms. Amin, the facts of this case would suggest or indicate that there was no violent attack. It is also sought to be submitted that the

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case would not fall within the ambit of robbery.

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In such circumstances referred to above, Ms. Amin the learned counsel prays that there being merit in this First Appeal, the same be allowed and the judgment and order passed by the Tribunal be quashed.

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On the other hand this appeal has been vehemently opposed by Mr. Mehta the learned counsel for the respondent original claimant. According to Mr. Mehta no error not to speak of any error of law could be said to have been committed by the Tribunal in passing the impugned order. Mr. Mehta would submit that the issue involved in this first appeal is squarely covered by a decision of this court in the case of Union of India vs. Bhagwatiben Sureshbhai Patel & Ors. In First Appeal No.7981 of 1999 decided on 11^th October, 2012. Mr. Mehta submitted that the respondent No.1 and his wife were travelling in a train and in the course of their journey, they were robbed by an unknown person by making them unconscious. Mr. Mehta would submit that the wife of the respondent No.1 ultimately succumbed on account of the deleterious substance which was administered to her mixed in the tea while taking treatment in the hospital. According to Mr. Mehta, the case squarely falls within the ambit of the “untoward incident” as defined under section 123 of the Act.

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Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the Tribunal committed any error in passing the impugned order.

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The following facts are not in dispute.

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C/FA/762/2017 ORDER

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(1)Respondent No.1 and his wife were travelling on 19.5.2013 from Asarva to Himatnagar in a passenger train.

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(2)Both were holding a valid second class ticket bearing No. S-17612424 for two persons.

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(3)Both were found inside the compartment in an unconscious condition

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(4)The railway officials shifted both to Sir Pratap General hospital, Himatnagar by calling for 108 ambulance.

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(5)In the course of treatment, the wife of the respondent No.1 passed away.

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(6)The statement of the respondent No.1 recorded revealed that while they were travelling an unknown passenger offered them tea and they being unmindful of the intention of that unknown passenger consumed the tea and fell unconscious.

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(7)The deceased was robbed of her gold earrings and cash of Rs. 500/-.

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In view of the above, in my opinion there is no scope the for learned counsel for the appellant to argue that the case is not falling within the ambit of “untoward incident”. The case is one of robbery. Whatever means the person might have adopted ultimately the same resulted or facilitated that person in robbing the deceased and her husband. The incident occurred while they were actually travelling in the train.

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In identical facts, a co-ordinate bench of this court had an occasion to decide the First Appeal No. 7981 of 1999. I may quote the relevant observations,

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C/FA/762/2017 ORDER

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“On 19.11.1997, the deceased person was travelling in Ashram Express Train No.2916 on meter gauge side of Ahmedabad Railway Station. The deceased person and his friends were travelling from Delhi to Mehsana by Ashram Express on 19.11.1997. Deceased Person Patel Sureshbhai Kanjibhai was given highly poisonous biscuits at Abu Road Station in order to rob him by making unconscious. Thereupon, Ahmedabad railway police transferred the case for further investigation to the railway police station at Abu Road. The Abu railway police recorded the complaint of Upendrabhai Patel, one of the co-travellers and offence under section 302, 328 and 394 and 114 of the IPC was registered. Therefore, respondents herein filed application for compensation before the Tribunal being Claim Application No.OA9800058. The said application was allowed by the Tribunal vide order dated 16.08.1999 and appellant herein was directed to pay Rs.4 lacs to the respondents herein within 60 days of the order, failing which interest @ 12% per annum form the date of order till realization. Being aggrieved by the said order, the appellant herein – Union of India has preferred this appeal.

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3. It is submitted by Mr.Karnavat, learned advocate for the appellant that learned Tribunal has erred in not properly appreciating the evidence on record. It is submitted that alleged incident cannot be considered as violent attack in order to commit robbery or decoity and therefore, it cannot be considered as untoward incident. The Tribunal has erred in not considering the important document i.e. Exh.11 FSL report and Exh.12 PM Report. Therefore, it is requested to allow the present appeal.

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4. Mr.Mehta, learned advocate for the respondents herein has submitted that judgment passed by the Tribunal is legal and not required to be interfered. Learned advocate for the respondents herein relied on the decision in the case of Union of India v/s. Aleykutty Devassia of the High Court of Kerala at Ernakulam reported in 1998 ACJ 1195 in support of his submission.

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5. Heard learned advocates for the respective parties. This Court has perused the judgment passed by the Tribunal. It is admitted fact that deceased was

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travelling by Ashram Express Train No.2916 on 19.11.1997. The facts reveal from the evidence adduced by the respondents herein are that two other persons were also travelling in the same compartment and came close to all the three victims and took into confidence. Both of them said that they were going to Palanpur. All of them had tea at Abu Road Railway Station. At that time, two unknown persons who had cultivated closeness with the three victims had offered cream biscuits to the victims. After eating cream biscuits, three became unconscious and two persons who had offered cream biscuits eloped with the luggage and valuable. The contention of the learned advocate for the applicant that case cannot be considered as untoward incident is concerned, learned Tribunal has considered the said aspect and it is held by the Tribunal that since the victim died of violent attack by administration of poison, it would clearly come within the definition of 'untoward incident' and the claimants would be entitled to get compensation under section 124-A. This Court is in agreement with the said finding. Further, in this regard, in the case of Union of India (supra), High Court of Kerala at Ernakulam in para 6 has held as under :-

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“6. In the present case, Celinamma was strangulated to death by one Melvin Paduva. HE was tried by the Court of sessions and found guilty of murder punishable under section 302 of Indian Penal Code. The Tribunal was pleased to extract the relevant portions of the judgment of the Sessions Court in Sessions Case No.27 of 1994 wherein the Sessions Court found Melvin Paduva guilty of causing the death of Celinamma. This is a case where Celinmma died of violent attack while she was travelling in a train. The act committed by the assailant amounts to untoward incident as defined under the Railway Act and the claimants are certainly entitled to get compensation under section 124-A of the Act.”

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6. Considering the evidence on record and decision of the High Court of Kerela in the case of Union of India (Supra), this Court is of the opinion that judgment passed by the Tribunal is legal and not required to be interfered with.

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C/FA/762/2017 ORDER

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In view of the above, this First Appeal fails and is hereby dismissed. The amount of compensation shall now be disbursed in accordance with the principles explained by the Supreme Court in Civil Appeal No. 4945 of 2018 in Union of India vs. Reena Devi decided on 9^th May, 2018. Applying the principles laid down in Reena Devi (supra), the original claimants are held entitled to rupees eight lakh in terms of the Railways Accidents and untoward Incidents (compensation) Amendment Rules, 2016, which prescribed compensation of Rs. 8,00,000 in case of death with effect from 1.1.2017.

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Order in Civil Applications:

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In view of order passed in the main appeal, the captioned two Civil Applications would not survive and the same stands disposed of accordingly.

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C.M. JOSHI

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Union of India v. Dahyabhai Somabhai Darji (Husband of Decd.)

Case brief

What is this about?

What did the court decide?

Union of India v. Dahyabhai Somabhai Darji (Husband of Decd.)

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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