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CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 317 OF 2021
1. Mr. Murlidhar Posha Gadmale )
Age – 54 Years, Father of Deceased )
2. Mrs. Vijaya Murlidhar Gadmale )
Age – 49 years, Mother of Deceased )
R/o. B/201, Hemadi Residency Co. Op. Soc. )
Plot No. 3A, Sector No. 11, Kamothe, )
Navi Mumbai ) ...Appellants
Through General Manager, Central Railway )
C.S.M.T., Mumbai – 400 001 ) ...Respondent
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Mr. Balasaheb Deshmukh a/w. Mr. D.T. Ajagekar for the Appellants.
Mr. Mohamedali M. Chunawala for Respondent.
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JUDGMENT
1. This Appeal is filed under Section 23 of the Railway Claims Tribunal Act, 1987 (‘the Act of 1987’ for short), challenging the judgement and order dated 05/03/2021 passed by the Railway Claims Tribunal, Mumbai Bench, Mumbai in Claim Application No. OA(IIu)/MCC/0094/2014. By the said impugned order, the claim filed by the Appellants for compensation towards death of their deceased son – akn 1/11 Sagar Murlidhar Gadmale, is dismissed.
2. The Appellants are parents of the deceased. It is the case of the Appellants that on 27.08.2013, deceased was travelling by a local train from Dadar to Mansarovar railway station, on the strength of a valid second class railway ticket, when at about 23.10 hrs, the local train reached between Mankhurd and Vashi railway station, due to the rush in the local train and push of the other passengers in the compartment, the deceased accidentally fell from running train and died, before he could be admitted to hospital. Deceased was unmarried and was 20 years old.
3. The Respondent-Railway filed written statement took a stand that on thorough investigation, it is found that the injuries sustained by deceased and his eventual death are self-inflicted. It is contended that there is no untoward incident or accident as contemplated under Section 123 and 123A of the Railway Act of 1989 (for short ‘the Act of 1989’). The case of holding valid second class railway ticket is denied. The claim of compensation is denied. The liability was denied.
4. The Tribunal framed issues and held that the Applicants are dependents on the deceased within the meaning of section 123(b) of Railway Act. However, it is held that the Appellants did not prove that the deceased was a bonafide passenger of the train in question on the relevant day. It is further held by the Tribunal that it is a case of knock-down / runover by the train and therefore not an untoward incident.
SUBMISSIONS
5. Learned Counsel for the Appellants submitted that the application akn 2/11 of evidence is perverse. It is submitted that the GRP, Vashi was informed by station master memo (CMBR) about the incident and then Inquest Panchnama was drawn mentioning that deceased fell down from local train. He submitted that Tribunal can not conclude about nature of injuries, in absence of expert witness opinion, that this is a case of knock-down during track-crossing. He submitted that no suggestion about track-crossing or runover has been given to Appellants’ witness. He relied on following judgments in support of his case:
(i) Union of India Vs. Rina Devi - (2019) 3 SCC 572
(ii) Rekha Dilip Sapkale Vs. Union of India (Bom.H.C.
(iii) Raziya Abdul Kadir Shaikh Vs. Union of India (Bom.H.C.
(iv) Pinto Promothonath Sen and Anr. Vs. Union of India (Bom.H.C.
6. Learned Counsel for the Respondent-Railways has supported the order of the Tribunal. He submitted that in Station Master Memo (Mankhurd), no reason is stated for incident. He submitted that no ticket was found on the deceased during inquest panchnama. He submitted that considering that the left hand of the deceased was found severed from the body and there were injuries all over body including head and right leg is folded inside, this is a clear case of knock-down / run-over by the train while crossing railway-tracks which is prohibited and therefore a case of selfinflicted injury. Therefore this is not a case of fall from the train.
7. Following points arise for my consideration: akn 3/11 (1) Whether the deceased was a bonafide passenger of the train in question, on the relevant day? Yes. (2) Whether the death of the deceased had occurred as a result of an untoward incident, as alleged in the claim application? Yes. (3) What amount of compensation is payable to Appellants? As per final order.
REASONS
8. I have carefully considered the submissions and perused the record with the assistance of learned Counsel for the parties.
9. It is already held by the Tribunal that the Appellants are parents of the deceased and therefore dependent under Section 123 (b)(i) of the Railways Act, 1989.
10. Before proceeding to decide this appeal on merits. it is necessary to consider the recent judgment of Rina Devi (supra) wherein, the Hon’ble Supreme Court has considered various earlier judgments of the Supreme Court and High Courts as well as conflicting views thereunder and has culled out conclusions resolving the issues in following manner: “18. xxx Wherever it is found that the revised amount of applicable compensation as on the date of award of the Tribunal is less than the prescribed amount of compensation as on the date of accident with interest, higher of the two amounts ought to be awarded on the principle of beneficial legislation. Present legislation is certainly a piece of beneficent legislation.” akn 4/11 “20. From the judgments cited at the Bar we do not see any conflict on the applicability of the principle of strict liability. Sections 124 and 124-A provide that compensation is payable whether or not there has been wrongful act, neglect or fault on the part of the Railway Administration in the case of an accident or in the case of an “untoward incident”. Only exceptions are those provided under proviso to Section 124-A. In Prabhakaran Vijaya Kumar it was held that Section 124-A lays down strict liability or no fault liability in case of railway accidents. Where principle of strict liability applies, proof of negligence is not required. This principle has been reiterated in Jameela” “29. 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.” “30. As already observed, though this Court in Thazhathe Purayil Sarabi held that rate of interest has to be @ 6% from the date of application till the date of the award and 9% thereafter and 9% rate of interest was awarded from the date of application in Mohamadi, rate of interest has to be reasonable rate on a par with accident claim cases. We are of the view that in absence of any specific statutory provision, interest can be awarded from the date of accident itself when the liability of the Railways arises up to the date of payment, without any difference in the stages. Legal position in this regard is on a par with the cases of accident claims under the Motor Vehicles Act, 1988. Conflicting views stand resolved in this manner.” [Emphasis supplied] About Point No. 1 & 2
11. At the outset, it must be noted that as per Rina Devi (supra), it is akn 5/11 settled position of law now that mere absence of ticket with injured or deceased will not negate the claim of bona fide passenger but 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. It is also now well settled that the issue can be decided on the facts and attending circumstances to be dealt with on a ‘case to case’ basis.
12. Appellant No. 1-Muralidhar (A.W.-1) has filed affidavit reiterating the case. He has stated as follows: “2] That on 27/08/2013 my son MR.
SAGAR MURLIDHAR GADMALE, came at Mansarovar railway station and purchased railway return ticket for him for traveling from Mansarovar railway station to Dadar railway station and went at Dadar to attend his tuition. After completion of tuitions at the time of returning home he came at Dadar railway station and boarded in local train to reach at our residence. My son was holding valid IInd class Railway ticket bearing No. O 11409946 for him for traveling from Mansarovar railway station to Dadar railway station Via Kurla railway station, dated on 27/08/2013. My son was bonafide passenger. (I am producing the Railway Ticket, which may be exhibited as Ex. A- 3) 3] xxxxx At about 23:10 hrs. when the said local train reached near k. m. 24/18 between Mankhurd railway station and Vashi railway station, my son accidentally fell down from the train, due to heavy rush and push by the other passengers in the compartment and died before admission in hospital, due to sustained serious multiple injuries. My son had fallen down accidentally from a running train carrying Passenger.”
13. It is also stated that Appellants are dependent parents, who have suffered great emotional and financial loss. Railway ticket, copy of inquest panchanama, post-mortem report are produced on record, which are Exhibit akn 6/11 A-3, A-5 and A-6 respectively.
14. DRM Report indicates that Station Master (CMBR) had issued memo to GRP (Vashi) reporting a person lying injured between Mankhurd and Vashi Stations. Inquest panchanama dated 28/08/2013 (01.30 hrs) reveals that PAN Card having name of the deceased was found in the back pocket of deceased’s pant. Inquest panchanama also records the mobile phone found on the body was receiving a call, on which accident was informed, and the Appellant No. 1 had reached during panchnama, who identified the body as that of his son. According to panchas, deceased fell down from the train and sustained serious injuries causing death.
15. The Tribunal has held that no ticket is mentioned in inquest panchnama and has considered the argument of Respondent / Railway that ticket filed on record is a planted one. The Tribunal itself after considering the nature of injuries (severe crush injuries, as stated) has concluded that the injuries can only be inflicted on a person who is knocked down or run over by the train and therefore this is a case of crossing of railway track between Mankhurd and Vashi. Therefore, it is concluded that it is not proved that the deceased was bonafide passenger who fell down from the train.
16. I have perused the cross-examination. The Appellant No. 1 has withstood the test of cross-examination and has clearly denied the suggestion about deceased not carrying valid ticket and deceased dying due to his own fault and negligence. No suggestion about ‘ticket being planted’ or ‘deceased crossing / trespassing the railway track’ is given to the Appellant No. 1 during the cross-examination. Ticket is produced on record.
17. In all three cases relied upon by the Appellants viz. Rekha Dilip akn 7/11 Sapkale, Mrs. Raziya Abdul Kadir Shaikh and Mr. Pinto P. Sen (supra) this Court was dealing with the same defence of railway of knock down / run over by the Railway. It is material to note that in Rekha Dilip Sapkale (supra), this Court has taken a view that where several injuries on the person of the deceased are found, it cannot be said that those injuries could be sustained ‘only’ when the deceased is hit by the train during crossing the tracks. It was held that in absence of satisfactory evidence about the deceased crossing the railway track, it will have to be presumed that he was a bonafide passenger. In Raziya Abdul Kadir Shaikh (supra), this Court has held that ‘accidental falling’ can be in a myriad of situations and does not govern only a case where a person falls off after having comfortably boarding the train. It is further held that having regard to the object of the beneficial legislation, the Tribunals and Courts are expected to construe the term, “accidental falling” in a purposive manner. In Pinto Promothonath Sen (supra), this Court was considering the case where body of the deceased was found cut into two pieces. Apart from considering lack of suggestions in cross-examination and other evidence, this Court considered the judgment of Sadashiv Ramappa Kotiyan vs. Union of India [(2022) ACJ 175] where body was found cut into two pieces and ultimately held that in absence of expert evidence, the Tribunal should not render its personal opinion about case being that of knock down or run over by the train. Relying on that authority, the claim was allowed.
18. In the present matter it is not a case of body being cut into two pieces. In the present case, the Respondent – Railway has not led any evidence in support of its case about deceased being run-over/ knocked down while crossing the railway track. There is no expert evidence on record akn 8/11 to suggest this was a case of knock-down/run-over by train based on injuries. There is no report of knock-down/run-over by motorman or guard. Therefore in my view, the Tribunal was not justified in itself arriving at the conclusion that this was a case of knock-down / run-over by the train while crossing the railway track. Above judgments relied upon by the Appellants directly support the case.
19. Considering all the aforesaid overall, there is sufficient material to hold that deceased Sagar was a ‘bona fide’ passenger and his death had occurred as a result of an ‘untoward incident’ within the meaning of section 123(c)(2) r/w 124A of the Railways Act, 1989. The argument about the deceased himself being negligent is rejected in view of law discussed above that the liability is strict and in the nature of no-fault liability, as explained by the Hon’ble Supreme Court in paragraph 20 of Rina Devi (supra). Point nos. 1 & 2 are accordingly answered as Yes. About Point No. 3
20. Considering the date of accident (27.08.2013), Railway Accidents and Untoward Incidents (Compensation) Rules 1990, as they existed prior to 01.01.2017 would apply and compensation for Rs.[4] lakh for the death would be payable. Following paragraph 30 of the judgment of Rina Devi (supra), interest is payable from date of accident. Considering that legal position is held on par with claims under Motor Vehicles Act, 1988, interest @9% (Rs. 36,000/- per year and Rs. 3,000/- per month) appears to be just and proper. Undoubtedly, section 124A of the Railways Act r/w the said Rules of 1990 is a beneficial piece of legislation. Considering that date of award (05.03.2021) is after amendment in the said Rules of 1990 (revising akn 9/11 amount payable for death to Rs. 8 lakh), para 18 of Rina Devi (supra) is applied and comparison is drawn between 2 figures, accepting higher of the two amounts, this being under a beneficial piece of legislation. Date of Accident 27.08.2013 Rules modified w.e.f. 01.01.2017 Date of Award 05.03.2021 Compensation payable on the date of accident (A) Rs.4,00,000/- Yearly Interest @9% p.a Rs. 36,000/- Monthly Interest Rs. 3,000/- Total interest from date of accident till today - 11 years, 11 months (B) Rs.4,29,000/- Rs. 36,000/- X 11 = 3,96,000/- Rs. 3,000/- X 11 = 33,000/- Total: 4,29,000/- Total amount payable today (A) + (B) Rs.8,29,000/- If amount of compensation is considered on the date of award as per amended rules. Rs.8,00,000/- Less than amount payable with interest considering date of accident as basis. Higher of the two amounts: Rs.8,29,000/- Accepted as per para 18 of Rina Devi (supra)
20. Accordingly I pass following order: (A) The Appeal is allowed and impugned judgment and award is set aside. (B) The Appellants are entitled to receive and Respondent / Railway is directed to pay to the Appellants, a sum of Rs. 8,29,000/- as on today including interest. This amount be paid within a period of 6 weeks from today. In case of default, this akn 10/11 amount shall carry interest @9% p.a. after 6 weeks till the date of realization.
(C) No order as to costs.
(D) All concerned to act on duly authenticated or digitally signed copy of this order. (M. M. SATHAYE, J.) akn 11/11