Allowed

Smt. Khaja Bee v. Union of India

Karnataka HC12 Mar 2024MFA/2644/2016

Case brief

AI extract

What is this about?

Family of a man who died falling from an overcrowded train appealed against dismissal of their railway compensation claim. The High Court held the Tribunal's finding that he tried to board a moving train rested on an unproved DRM report with no witnesses, and that death was an untoward accident.

What did the court decide?

Appeal allowed; Tribunal order set aside; claimants awarded compensation of Rs.8,00,000/-.

Smt. Khaja Bee Vs Union of India — Motor Accident Claims | Karnataka HC (2024)

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NC: 2024:KHC:10041 MFA No. 2644 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH

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MISCELLANEOUS FIRST APPEAL NO. 2644 OF 2016 (RCT)

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BETWEEN:

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SMT. KHAJA BEE, W/O. LATE SHAIK MAHABOOB, AGED ABOUT 50 YEARS.

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SHAIK SHALAM, S/O. LATE SHAIK MAHABOOB, AGED ABOUT 29 YEARS.

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KUMARI SAMSHAD @ SHAMU, D/O. LATE SHAIK MAHABOOB, AGED ABOUT 27 YEARS.

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MAHABOOB, AGED ABOUT 24 YEARS, S/O. LATE SHAIK MAHABOOB.

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Digitally signed by SHARANYA T Location: HIGH COURT OF KARNATAKA

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ALL ARE R/AT NEAR AMBA BHAVANI TEMPLE, AAM TALAB ROAD, RAICHUR-584 101.

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…APPELLANTS

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(BY SRI S J SANGHVI, ADVOCATE)

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AND:

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UNION OF INDIA, REP. BY THE GENERAL MANAGER, SOUTH CENTRAL RAILWAY, SECUNDERABAD-500 371.

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…RESPONDENT

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(BY SRI KUSHAL GOWDA, ADVOCATE)

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NC: 2024:KHC:10041 MFA No. 2644 of 2016

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THIS MFA IS FILED U/S 23(1) OF RAILWAY CLAIMS TRIBUNAL ACT AGAINST THE ORDER DATED 05.11.2015 PASSED IN OA II U 160/2009 ON THE FILE OF THE RAILWAY CLAIMS TRIBUNAL, BANGALORE BENCH, DISMISSING THE APPLICATION FOR COMPENSATION.

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THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Heard the learned counsel for the appellants and learned

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counsel for the respondent.

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This Miscellaneous First Appeal is filed challenging the dismissal of claim petition in OA II U 160/2009 dated 05.11.2015.

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The factual matrix of the case of the claimant that is the 1^st applicant is the wife, 2^nd applicant is the son of the deceased, 3^rd applicant is the unmarried daughter of the deceased and 4^th applicant is the son of the deceased-Shaik Mahaboob. It is their claim that on 03.01.2008, the deceased after fining his agricultural work at his native along with his labours came to Krishna Railway Station and purchased the ticket to go to Raichur boarded Train No.6009 (1027) the Mumbai-Chennai Main in general compartment and the said train was over crowded, due to jolt and jerk of the train,

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accidentally fallen down from the said train, got grievous injuries and succumbed to the injuries. The claimants have claimed that they are the legal heirs.

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The respondent/Railway has filed reply statement, wherein they contend that claim does not come under ambit of Section 123 (c) or Section 124-A of the Railways Act, 1989. The injured applicant was not a bonafide passenger and the incident in question has not occurred in the manner stated by the applicant. The deceased had tried to board the train when it was in motion, fell down and sustained severe injuries and dies due to his carelessness and gross negligence. Hence, not entitled for any compensation.

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The Railway Tribunal framed the following issues:

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"1. Whether was there any untoward incident?

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2. Whether the deceased was a bonafide passenger?

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3. Whether the applicants are the sole dependants of the deceased?

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4. Whether the applicant is entitled for any relief and interest as prayed in the claim application? If so, to what extent?

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5. To what relief?"

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NC: 2024:KHC:10041 MFA No. 2644 of 2016

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During the course of the trial, the 1^st applicant i.e., the wife of the deceased has been examined as AW.1 and marked documents from Exs.A1 to A6 and also examined one witness Sri.B.Basha as AW.2. The respondent did not lead any oral evidence but only marked the DRM's Report Ex.R1.

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The Railway Tribunal having considered both oral and documentary evidence available on record had answered issue Nos.1 and 2, whether there was any untoward incident and whether the deceased was a bonafide passenger, considered the evidence of AW.1 and AW.2 and also considering the materials on record comes to the conclusion that the applicant tried to board the moving train when the train was in the motion and it was only a reckless and criminal act on the part of the deceased and hence, dismissed the claim petition. Hence, the present appeal is filed.

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The main contention of learned counsel for the appellants in his arguments that no dispute with regard to the fact that it was an accidental death and the Tribunal has erred in not noticing that the respondent had failed to prove that the deceased was boarding a running train and as a result of which,

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he fell down and succumbed to the injuries and reasoning given by the Tribunal that he made an attempt to board the running train and the same is not supported by any material. No witnesses were examined before the Tribunal and the Tribunal failed to appreciate the material and oral evidence in proper perspective. The reasoning given by the Railway Tribunal is not supported by any material on record, only it was on assumption an order has been passed particularly taking into consideration of document at Ex.R1 i.e., DRM's Report. The counsel in support of his arguments also relied upon the order passed by this Court in MFA.No.5200/2008 dated 06.08.2008 with regard to the deceased traveled in the train, lost ticket and not having the ticket itself cannot be a ground to reject the claim and the Court has to take note of that. The dead body was found on the railway track coupled with the inquest report, wherein, it is mentioned that cause of death was due to fall from the train .

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Per contra, learned counsel for the for the respondent would vehemently contend that the Ex.R1 is very clear that while the train was in motion, the deceased made an attempt to board the train, fell down and sustained severe injuries and the death is on account of his carelessness and

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gross negligence. The same is evident from Ex.R1. Learned counsel also would vehemently contend that the note dated 13.04.2010, wherein, also an observation is made that while it was in motion, he tried to board the train, then he fell down and sustained injuries. The same is taken note of by the Railway Tribunal, while passing an order and not committed any error in dismissing the claim petition.

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Having heard the learned counsel for the appellants

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and learned counsel for the respondent and also on perusal of material, the wife of the deceased has been examined as AW.1 and in paragraph No.2 of the affidavit, she has stated that after finishing the agricultural work, he went to Krishna Railway Station along with labourer and he had purchased the ticket to go to Raichur and untoward incident was taken place in the railway station and relies on the document. She was subjected to cross-examination and in the cross-examination no doubt it is elicited that on the date of incident the deceased was traveling from Krishna to Raichur but not produced any journey ticket of her husband. He is the resident of Tangadi Village and one Basha was also had seen the deceased in the railway station that he had purchased the ticket. The said witness-

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Basha was also examined as AW.2 and in the affidavit he says that he stood in the queue and purchased the ticket and thereafter, both were waiting for arrival of the Chennai Mail and on arrival of the said train, he boarded the same in general compartment, it was bit crowded and he fell down. In the cross-examination no doubt he also admits that presently he is working in a hotel at Siddapur. He also admits that he did not go inside the railway station but he says near the gate of railway station, the deceased purchased the ticket for himself to travel from Krishna to Raichur and he does not know the fare of the ticket but he admits that he did not go inside the railway station and he volunteers that he has witnessed the deceased boarding the train at platform No.1 and the train arrived at 01.30 pm. He saw the deceased boarding the train in front bogie of formation. He has not seen the ticket but the deceased was kept the ticket in his left side shirt pocket. He was present in the station when the train was in the railway station but he admit that he has not waited for his departure.

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Having perused the evidence of AW.1, it is clear that the applicant was not in the railway station and AW.2 was in the railway station and also he admits that he did not go

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inside the railway station but he saw the deceased standing in the queue to purchase the ticket but he did not see the ticket. The fact that AW.2 had been along with the deceased to the railway station and nothing is elicited with regard to that he was not in the railway station. Apart from that, the death is not in dispute and he died in the railway station itself is also not in dispute. The FIR is also registered which is marked as Ex.A1 and report of the postmortem is marked as Ex.A2, so also Ex.A3 is the postmortem certificate and Ex.A4 is the Crime Diary i.e., inquest, wherein, in column No.9 stated with regard to boarding of train. Ex.A5 is the death report and also the final report filed before the learned Magistrate under Section 174 of Railway Police, Mahabubnagar and in the final report also the cause of death is mentioned in paragraph No.4. In paragraph No.5, it is mentioned that according to the investigation as per the statement of the witnesses, scene of offence and injuries found on the deceased body, it is revealed that deceased-Shaik Mahaboob S/o Khaza Hussain is native of Raichur and on 03.01.2008 at 14.20 hours while he boarding the Train No.1077 UP Mail express going to Raichur, he accidentally fell down from the running train and run over by the same train

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and died on the spot. Having taken the note of the final report also it is clear that he fell down accidentally but no doubt there is mention that running train and the same was run over by the same.

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In order to substantiate the report of Ex.R1 i.e., DRM's report, none of the witnesses were examined before the Tribunal and no material is placed before the Court that when the train is in motion, he tried to board the train and the fact that he died in the railway station itself is not in dispute and the Tribunal also committed an error in coming to the conclusion that it is a criminal act that he tried to board the train when the train was moving and that conclusion is not based on any material available on record. None of the witnesses have been examined before the Railway Tribunal to speak with regard to he made an attempt to board the train when the train was moving and no doubt no ticket is produced for having he had purchased the ticket. This Court in MFA.No.5200/2008 dated 06.08.2008 when such contention

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was made in paragraph No.6 taken note of the fact that the Court inclined to accept the said submission in the wake of the evidence on record as examined in detail and considered by the

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Tribunal. The evidence of AW.-1 stating the fact that the dead body was found on the railway track coupled with the inquest report, wherein it is mentioned that the cause of death was due to fall from the train, viewed in the context of absence of any evidence from the railway administration, would lead to the conclusion that the incident occurred as a result of the accidental fall and it was an untoward accident. No exception can be found to the findings recorded by the Tribunal and the compensation awarded.

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In the case on hand also though contend that he made an attempt to board the moving train and I have already pointed out that no witnesses have been examined and except the document of Ex.R1, nothing is also found that while it was in motion he made an attempt to board and fell down and sustained severe injuries. Mere marking of documents at Ex.R1 is not enough and the respondent has not substantiated the same by examining any witness who had witnessed the fact that he tried to board the train when the train was moving and in the absence of such evidence, the Tribunal committed an error in coming to such a conclusion that he made an attempt to board the running train and the same is nothing but an

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assumption and no evidence on record. The document at Ex.R1 cannot be relied upon and the same has not been proved by examining any witnesses and mere statement in Ex.R1 that he made an attempt to board the train cannot be a sole basis to come to the conclusion that he made an attempt to board the train when it was moving and I have already pointed out that the body is also found in the very same railway station itself and it is also the case of the claimant that while boarding the train, he accidentally fell down and sustained injuries and in support of their claim also examined the AW.2 before the Court.

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Having considered the final report which is marked as Ex.A5 and also the evidence available on record, the Railway Tribunal committed an error in coming to the conclusion that it was only a recklessness and criminal act on the part of the deceased himself died and the said finding is erroneous and the same is without any basis and in the absence of any evidence led by the Tribunal, such a conclusion cannot be accepted and hence, I find an error committed by the Tribunal in rejecting the claim petition. In view of the discussions made, I pass the following:

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