Full Text
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.551 OF 2021
1. Mrs. Seema Wd/o Sanjay
Pathare
2. Miss Neha D/o. Sanjay Pathare ...Appellants
Mr. Vasant More for the Appellants.
Mr. T.J. Pandian with Mr. Dheer Sampat for Respondent (UoI).
JUDGMENT
1. This appeal under Section 23 of the Railway Claims Tribunal Act, 1987, assails the Judgment and Award dated 28/06/2019 whereby dismissing the Claim Application No. OA (II u) / MCC/0483/2013 fled under Section 124 A of the Railways Act, 1989.
2. The brief facts necessary to decide this appeal are as under:- The Appellant No.1 is the widow and the Appellant No.2 is the daughter of Sanjay Pathare, who died on 30/03/2011 in a train accident. The deceased Sanjay, who was a railway employee was proceeding from Thane to Rabale by a local train under a valid train pass. It was the case of the Appellants that the deceased fell of the running train and sustained fatal injuries and died on the spot. The Appellants claimed that the deceased was a bonafde passenger and that his death was caused in an ‘untoward incident’. The Appellants fled a claim application under Section 124-A of the Railways Act, 1989 seeking compensation from the Railway Administration on account of death of Sanjay in an untoward incident.
3. The Respondent contested the application mainly on the ground that the deceased was not a bonafde passenger and that his death was not caused in an untoward incident. It was contended that the deceased was knocked down by a train while unauthorisedly crossing the railway track. It was stated that the Railway Administration was not responsible for the death of the deceased and that the death was due to the negligence and carelessness of the deceased.
4. In support of the claim, Appellant No.1, the widow of the deceased, fled her afdavit-in-evidence and relied upon SM report, Police report, Inquest panchanama, Ration Card, Death Certifcate and post mortem report (Exhibit-A[1] to A[6]). The Respondent did not adduce any evidence. Upon considering the evidence adduced by the Appellants, the Tribunal recorded a fnding that the Appellants are the dependents of the deceased within the meaning of Section 123(b)(i) of the Railways Act, 1989. Relying upon the evidence of AW1-Seema Pathare, the Tribunal also observed that the deceased was travelling from Thane to Rabale by a local train and that he was holding a valid free pass bearing No.745865, which was recovered during the inquest proceedings and was also referred to in the DRM report. The Tribunal therefore concluded that the deceased was in possession of a valid railway free pass for his journey on 30/03/2011.
5. The Tribunal further held that AW[1] had not witnessed the incident and that the case of the Appellants was not based on direct evidence. Relying upon the SM/TNA memo the Tribunal held that the deceased was knocked down by an unknown train while crossing the railway tracks at Airoli. Based on these fndings the Tribunal recorded a fnding that death of the deceased was not caused in an ‘untoward incident’ and hence dismissed the claim application. Being aggrieved by this order the Appellants have fled this appeal.
6. Mr. Vasant More, learned counsel for the Appellants submits that the Appellants had discharged the burden of proving that the deceased was travelling from Thane to Rabale and that he fell of from the running train and sustained injury and expired in an untoward incident. He submits that having recorded a fnding that the deceased was a bonafde passenger the Tribunal was not justifed in holding that the death was not caused in an untoward incident. Mr. More submits that the fnding of the Tribunal that the deceased was knocked down by a train while crossing the track is based on surmises and presumptions. The approach of the Tribunal in depriving the Claimants of the benefts under the benefcial legislation is manifestly erroneous.
7. Per contra, Mr. Pandian, learned counsel for the Respondent -Union of India submits that the Claimants had not produced the railway pass issued in the name of the deceased. He further submits that the deceased, who was a Railway employee was entitled for free travel only from his residence at Thane to his work place at Parel. The deceased was not authorised to travel to Rabale or Airoli. He therefore contends that the deceased was not a bonafde passenger.
8. I have perused the records and considered the submissions advanced by learned counsel for the respective parties.
9. It is not in dispute that the deceased-Sanjay was a railway employee. AW1- Seema, widow of the deceased-Sanjay has stated in her afdavit-in-evidence that on 30/03/2011 her husband was travelling to Rabale by local train under a valid train pass. She has further stated that her husband fell down from a running train and died as a result of head injuries sustained in the said untoward incident. It is true that AW[1] had not witnessed the accident. Nevertheless, the uncontroverted evidence of this witness indicates that on the relevant date i.e. on 30/03/2011 the deceased was travelling from Thane to Rabale. His body was found by the side of railway track at Airoli, which is between Thane and Rabale railway station. The evidence on record reveals that during the inquest proceedings a train pass was recovered from his body. It is on the basis of this pass that the Railway Tribunal has recorded a fnding that the deceased was travelling under a valid pass. This fnding has not been challenged. Moreover, the Respondent had not adduced any evidence to prove that under the said pass the deceased was not authorised to travel to Rabale. Consequently, the Respondent cannot be heard to say that the deceased was not a bonafde passenger.
10. The next question for consideration is whether the death of the deceased-Sanjay was caused in an untoward incident or whether he was knocked down by a train while crossing the railway track. As noted above, the body of the deceased was found between Thane and Airoli Railway station. The deceased was travelling to Rabale and there was no reason for the deceased to get down at the previous station and to cross the tracks. The engine driver or the guard had not reported that the deceased was run over by a particular train. The Railway Authority did not examine any witness to prove that the deceased was hit by a train while crossing the railway tracks. In the absence of such evidence, the defence raised by the Railway Authority that the deceased had come under a running train cannot be accepted.
11 A perusal of the DRM report of the Station Master reveals that the words ‘deceased had fallen from the train’ have been scored of. The said report also does not mention the basis on which the Station Master had reported that the deceased was hit by an unknown train while crossing the track. The Tribunal did not advert to this fact and erred in accepting the defence on the basis of the report of Station Master and the DRM report.
12 Relying upon decision of the Hon’ble Supreme Court, in Kamrunnissa vs. Union of India (2019) 12 SCC 391 and decisions of this Court in Mrs. Pushpa Rajnath Sharma and Ors. vs. Union of India in First Appeal No.526 of 2019, and Meenadevi Jaiprakash Gupta and Ors. vs. Union of India, First Appeal No.290 of 2021 learned counsel for the Respondent submits that the injuries sustained by the deceased could not have been caused while boarding or de-boarding the train. Whereas learned counsel for the Respondent has relied upon the decisions of the co-ordinate Bench of this Court in Sadashiv Ramappa Kotiyan vs.Union of India 2022 ACJ 175 and decision of this Court in Smt. Sangeeta Chhagan @ Gautam Singadiya and Ors in First Appeal No.680 of 2018. Relying upon the decision of the Supreme Court in Venkateswara Rice, Ginning and Groundnut Oil Mill Contractors Co. etc. vs. The State of Andhra Pradesh and Ors., AIR 1972 SC 51 he submits that in view of inconsistent decisions of the co-ordinate Bench of this Court, the question in issue should be referred to a larger Bench.
13. In Kamrunnissa (supra) the deceased was not in possession of train ticket and the Claimants had not proved that the deceased had purchased a ticket and was in the process of boarding the train, when the accident had taken place. The inquest report also revealed that the body was found near the railway track. It was cut into two pieces and intestines had come out of the stomach. In this factual matrix it was held that accident could not have taken place while boarding a train.
14. In Pushpa Rajnath Sharma (supra) the body of the deceased was found near the railway crossing on Dn line near Platform No.3. The head of the deceased was crushed, the palm of one hand as well as the other hand was severed from the arm. The DRM report stated that the incident took place when an unknown person, trying to cross the railway track, was hit by a running train. Considering the spot panchanama the nature of injuries and the report of DRM, it was inferred that the deceased was hit by a running train.
15. In Meenadevi (supra) the Claimants had failed to prove that the deceased was a bonafde passenger. Considering the nature of the injuries as noted in the inquest and the post mortem report and relying upon the DRM report, it was inferred that the deceased was knocked down by a running train.
16. In Sadashiv Kotiyan (supra), on the basis of the travel ticket recovered while drawing an inquest panchanama, this Tribunal had recorded a fnding that the deceased was a bonafde passenger. However, considering the nature of the injuries sufered by the deceased the Tribunal recorded a fnding that death was not in an untoward incident. While setting aside the said fndings this Court observed that the accident was not witnessed by any person and in the absence of the evidence of an expert as regards cause of death, the Tribunal should not have rendered its personal opinion that the deceased was hit by a train while crossing a railway track.
17. Similarly, in Sangeeta Singadia (supra) the deceased was held to be a bonafde passenger. The Tribunal, relying upon DRM report and the nature of the injuries as recorded in the inquest panchanama returned a fnding that the deceased was hit by a train. The deceased had sufered head injury and the cause of death was stated to be shock due to ‘cranio- cerebral injury’. This Court observed that such injury could have been caused due to a fall from a train and further held that the fnding rendered by the Tribunal without adverting to the medical aspect of the said injury is perverse.
18. It need not be emphasized that what is binding is the ratio of the decision and not fnding of facts. The fndings recorded in the aforestated decisions, on the issue relating to the cause of death, are based on facts of the case, in particular, the nature of injuries and the other attending circumstances. There is no confict between the two Co-ordinate Bench decisions which necessitates a reference to the Larger Bench. The aforesaid decisions do not lay down any such proposition of law as regards the cause of death, as canvassed by the learned counsel for the Appellant or Respondent and hence, are not relevant to decide the issue in the present case.
19. On the basis of the facts of the case, the Tribunal has rendered a fnding that the deceased was in possession of a railway pass. The evidence of AW[1] indicates that the deceased was travelling to Rabale. His body was found by the side of railway track at Airoli. There was no reason for the deceased to get down at the previous station and cross the railway track or to be at the place where his body was found. None had seen him crossing the railway track. Hence, the theory of the deceased was crossing the railway track at Airoli is based on surmises and conjectures.
20. The material on record reveals that the body of the deceased was found by the side of the railway track between Thane and Airoli railway station. The post mortem report records the following injuries:- (i)Abrasion over left side chest,
(ii) Blister over left side forearm 3x[4] cm size.
(iii) Crush injury on right leg, cut through and through below knee and above foot into 2 pieces, bones exposed, tibia and fbula (#))
(iv) Abrasion over left elbow 2x[1] cm
(v) Chin contusion of size 2x[1] cm
The post mortem report records that the death of the deceased - Sanjay was caused due to shock as a result of the head injury with polytrauma.
21. I am unable to accept the contention of the learned counsel for the Respondent that the fact that the deceased had sufered crush injury is an indication of the fact that he was hit by a moving train. It is not an universal proposition that every crush injury is necessarily caused by coming in contact with a moving train. Such injury can also be caused when a person falls from a speeding train and comes in contact with a hard surface or an object. It also cannot be said with certainty that the leg or any other limb cannot be severed in an accidental fall from the train. In fact, there may be several hypothetical theories as to the cause of death or injuries. But the theory to be acceptable has to be consistent with the facts of the case and the evidence on record. In the instant case there is nothing on record to indicate that the injuries mentioned in the inquest panchanama and post mortem report could not have been caused due to an accidental fall from a running train. On the contrary the evidence on record is compatible with the theory of accidental fall from a running train. Resultantly, the fnding of the Tribunal that the death of the deceased Sanjay was not caused in an untoward incident cannot be sustained.
22. It is pertinent to note that Section 124 A is a benefcial piece of legislation inserted with an avowed object of awarding compensation to the injured or the dependents of the deceased in case of injury or death in an untoward incident. Having regard to the object of benefcial legislation, it should receive liberal interpretation and whenever two views or constructions are possible, the one which advances the object of the statute and serves its purpose, should be preferred. Considering the facts and circumstances of the case and keeping in mind the object of the Act, the Tribunal was not justifed in taking a pedantic view and depriving the family of the deceased of the benefts of the benefcial legislation.
23. Under the circumstances and in view of discussion supra, the appeal is allowed. The impugned Judgment and Award is quashed and set aside. Consequently, the Claim Application No. OA (II u) / MCC/0483/2013 is allowed. The Respondent is directed to pay to the Claimants compensation of Rs.8,00,000/- The Appellants shall furnish to the Railway Authority the bank account details within a period of two weeks from the date on which the order is uploaded. The Respondent shall deposit the compensation in the individual accounts of the Appellants in equal proportion within a period of eight weeks. (SMT.
ANUJA PRABHUDESSAI, J.) MEGHA S PARAB