Jayashree Suresh Gharat & Ors. v. Union of India

1. This appeal takes an exception to the judgment and order passed by the Railway Claims Tribunal, Mumbai Bench, Mumbai on 28th February, 2018 in Claim Application No. OA(II u) /MCC/1133 of 2011 by which the Tribunal has dismissed the Claim Application filed by the appellants who are the dependants of one Suresh Gharat (for short ‘deceased’).

2. Briefly stated the facts are as follows; September, 2011, one Suresh Gharat aged about 47 years, a painter by profession, was travelling by an unknown local train from C.S.T, Mumbai to Mulund on a strength of a valid second class railway ticket. When the overcrowded train reached between Nahur and Mulund Railway station near K.M. No.29/4-5, due to a sudden push by the passengers in the compartment, he fell down from the running train and died instantaneously due to serious head injury. He left behind his widow, applicant No.1- Jayashree and sons, applicants No.2 and 3 viz; Haresh and Krishna and mother, Janabai as dependants.

3. A claim application was filed before the Railway Claims Tribunal seeking compensation. The Tribunal, after going through the evidence of A.W.1-Jayashree on affidavit and having considered the record of the respondent, arrived at a conclusion that the deceased was not a bona fide passenger as he did not possess a valid railway ticket. Rather, he was a trespasser who 2 of 9 was, in fact, knocked down by an unknown local train while crossing the railway track. In short, it is held that the deceased died due to his own negligence. As it was an offence, it does not cover within the term ‘untoward incident’ as defined in section 123 (c) (2) of the Railways Act, 1989 (for short ‘Railways Act’). The Tribunal has, therefore, dismissed the application.

4. Dissatisfied with the impugned judgment, the appellants have approached this Court.

5. I heard Mr. More, learned Counsel for the appellants and Mr. Pandian, learned standing Counsel for the respondent.

6. In short, Mr. More would argue that the Tribunal has committed a grave error in disbelieving the evidence of A.W.1- Jayashree which remained un-controverted that the deceased fell down of a running train due to push by overcrowded passengers in the compartment between Mulund and Nahur Railway Station. He would argue that the finding of the Tribunal that the deceased was not a bona fide passenger is also erroneous in the sense that there is no evidence adduced by the respondent to indicate that they had either searched the surrounding area of the spot of the incident or tried to find out as to whether the ticket perhaps could have been lying somewhere near the spot. There was no eye witness indicating that the deceased was crossing the track. Neither the motorman nor any of the Police or Panch witnesses have been examined. It is also submitted that evidence of the Station Superintendent is hearsay. 3 of 9

7. The learned Counsel, therefore, submitted that the impugned judgment and order be set aside as it is against the settled principles of law.

8. Mr. Pandian, learned standing Counsel for the respondent, however, has supported the impugned judgment by contending that the Station Superintendent is well conversant with the area who had testified that spot of the accident has normally been witnessed as a point where people frequently cross the railway track.

9. Mr. Pandian has also drawn my attention to the fact that the deceased was a resident of Indira Nagar Zopadpatti which is abutting to Mulund Railway Station. Therefore, possibility of the deceased crossing the track at the relevant time cannot be totally ruled out.

10. Learned Standing Counsel thus, has supported the impugned judgment and order by stating that there is no reason to set aside the impugned judgment and award, inter alia, praying for dismissal of the appeal.

11. Affidavit in lieu of examination-in-chief of A.W.1-Jayashree, in sum and substance, indicates that on 29th September, 2011, the deceased was travelling with his friend namely Ashok Mhatre from C.S.T to Mulund by a local train in a second class compartment holding a second class railway ticket. However, he accidentally fell down from the running train as he was pushed by the 4 of 9 overcrowded passengers between Nahur and Mulund station. He sustained serious injuries and consequently died. She further deposed that her husband (deceased) was a bona fide passenger, however, the ticket lost during the untoward incident. She has tendered certified copies of memo of station Superintendent, inquest panchanama, photostat copy of the death certificate and postmortem report.

12. A.W-1-Jayashree in her cross examination denied that her residence is near the railway track. There is no suggestion given to this witness that her husband was travelling without ticket. Even, there is no suggestion that he was not travelling with his friend namely Ashok Mhatre. There is no suggestion in the cross that the deceased was crossing railway track and in that process, he was hit by a running train. The evidence of this witness on oath, therefore, remained un-rebutted. Report of the Station Superintendent reveals that information was given by some unknown passenger about a person falling on the railway track with a head injury. Admittedly, there was no eye witness.

13. One Rajesh Prasad, working as Deputy Station Superintendent at Kalyan has also sworn an affidavit. The sum and substance of his evidence on affidavit indicates that on 29th September, 2011, he was working at Mulund Railway Station as a Superintendent from 19.00 hours to 7.30 hours. He received an information from an unknown person at about 22.30 hours about a person trespassing between Nahur and Mulund Railway Station. When he reached the spot of the incident along with Hamal and 5 of 9 on duty G.R.P, he noticed a male lying near down line track at K.M. No.29/4-5 with head injury, head smashed and skull broken. He immediately issued a memo to the on duty GRP, A.S.I Gaikwad who took the body of the said unknown person for medical treatment at Rajawadi Hospital in an ambulance.

14. In the course of cross-examination by the learned Counsel for the appellants, Rajesh Prasad admits that he was neither informed by the Motorman nor the Guard of any local train. He himself had not witnessed the incident.

15. In view of the aforesaid evidence, it is quite clear that neither this witness had witnessed the incident nor there was any eye witness. It is, therefore, difficult to accept the respondent’s case that the deceased was hit by a running train while crossing the track. In the inquest panchanama, it is stated that skull of the deceased was broken from the forehead to head and his brain had come out.