C/[ENTITY] IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 2684 of 2018 With [CASE NUMBER] FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE [ENTITY] 1 Whether Reporters of Local Papers may be allowed to No see the judgment ? 2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of the No judgment ? 4 Whether this case involves a substantial question of law No as to the interpretation of the [ACT] or any order made thereunder ? [PRECEDENT] - WIFE OF THE DECEASED. Appearance: MS [ENTITY]) for the PETITIONER(s) No. 1 MR [ENTITY]) for the RESPONDENT(s) No. 1,2,3,4 MR [ENTITY]) for the RESPONDENT(s) No. 1,2,3,4 MR [ENTITY]) for the RESPONDENT(s) No. 1,2,3,4 CORAM: HONOURABLE MR.JUSTICE [ENTITY] Date : 06/08/2018 ORAL JUDGMENT
1. This First Appeal under [SECTION] of the [ACT], is at the instance of the original respondent C/[ENTITY] and is directed against the judgment and award passed by the Railway Claims Tribunal, Ahmedabad Bench, Ahmedabad, in [CASE NUMBER].
2. The deceased [ENTITY] was travelling along with his family, i.e. the respondents herein, from Secunderabad to Jodhpur on 05.06.2013 by Train No. 17037 Secunderabad -Bikaner Express. [ENTITY] accidentally fell down from the said train. The accident occurred between Sarotra Road and Amirgadh Railway Station.
[ENTITY] was immediately admitted in a hospital at the Abu Road. He succumbed to the injuries on 13.06.2018 in the hospital. In such circumstances, the respondents herein preferred an application before the Claims Tribunal under [SECTION] of the [ACT] and prayed for compensation.
3. The appellant herein contested the claim by filing the written statement. In the written statement, the appellant took the stance that the accident was not an untoward incident and, therefore, the incident would not fall within the provisions of [SECTION] of the [ACT].
C/[ENTITY]
4. The Tribunal framed the following issues:
"1. Whether the deceased was travelling as a bonafide passenger by train no. 17037 Secundrabad
- Bikaner Express on 05.06.2013 ?
2. Whether the said incident is covered under the provision of [SECTION] of the [ACT] ?
3. Whether the Respondent proves the negligence on part of the deceased ?
4. Whether the applicants are the dependents of the deceased ?
5. What order ? What Relief ?"
5. The Tribunal answered the issues referred to above as under:
Regarding Issues No.1, 2 & 3:
"8. These three issues are taken up for consideration simultaneously for the sake of convenience and also as they are inter-related.
9. It is contended by the Applicants in the Claim Application that, on 05.06.2013, in the night, applicant no.1 alongwith her husband and their minor son were travelling from Secundrabad to Jodhpur by train no. 17037 Secundrabad - Bikaner Express. They C/[ENTITY] were holding a valid and proper railway travelling reservation ticket bearing no.A-19428253 from Secundrabad to Jodhpur for 2 adults vide PNR no. 445-1860940 and the said tickets were placed at Exh. A/1. It is further contended that, during the course of journey, on 07.06.2013, in the morning, when the said train was running between [CASE NUMBER] between Sarotra Road and Shri Amirgadh railway station, her husband fell down from the said train due to an unexpected sudden jerk and jolt between Sarotra Road and Shri Amirgarh railway stations and sustained multiple grievous injuries. He was taken to Abu Road railway station by the same train for emergency treatment. After reaching Abu Road Railway station, Railway Doctor had given primary medical treatment and then shifted to Community Health Centre-Abu Road for further treatment. Due to his serious injuries, he was referred and shifted to Sheth V. S. General Hospital- Ahmedabad for further treatment but unfortunately he died on 13.06.2013 during the course of treatment in the hospital.
To substantiate the said facts, the Applicant no.1 has filed her affidavit in evidence in which she has reiterated the said facts as stated in the claim application. The Respondent have not cross examined applicant no.1 to discard the testimony of the applicant. The evidence of the applicant therefore goes unchallenged.
C/[ENTITY] Memo at Exh. A/2 reveals that as per the message from Control from the Guard of Train no. 17037, one passenger aged about 30 years had fallen down between KM nos. 619/02-3 between Sarotra Road and Shri Amirgarh railway station. [CASE NUMBER]. Inquest panchnama at Exh. A/5 shows that, in the opinion of the panchas, on 7.6.2013, while travelling in train Secundrabad - Jodhpur Express, the deceased had fallen down and sustained injuries and he died on 13.06.2013 at about 11.50 during the treatment on account of injuries. It is further mentioned that a person named [ENTITY] aged 60 years had identified the dead body of the deceased as his son named [ENTITY]. [ENTITY] of place of incident at Exh. A/6 also reveals that the deceased had fallen down from the train Secundrabad - Jodhpur express on 07.06.2013 at KM nos. 619/2-3 between Sarotra and Amirgarh railway stations and sustained injuries. It is further mentioned in the said panchnama that the police have not seized anything for the purpose of investigation. Post Mortem Report at Exh. A/7 shows that the cause of death of the deceased [ENTITY] was shock as a result of heads injury and its complications.
RW-1, [ENTITY] has disclosed in his affidavit that on 07.06.2013, he was on duty as a Guard of train no.17037 DN between Vadodara to Abu Road. It is further stated that on the above date, C/[ENTITY] his train was stopped between Sarotra Road and Amirgarh railway station at about 5.51 due to ACP and some passengers informed him that one passenger fell down from the train. He alongwith some passengers reached the place to search the person but they could not trace the said person. They returned back to the train and were about to start the train at that time two villages brought the injured passenger by their Motor Cycle and he was boarded on the train and given first aid. He immediately informed to Control through Station Master-Amirgarh railway station to arrange for Doctor and Ambulance on arrival at Abu Road.
DRM investigation report reveals that, as per investigation [ENTITY] of GRP/Palanpur, on 07.06.2013, the deceased Shri [ENTITY] s/o Shri [ENTITY] aged 30 years had accidentally fallen down while travelling in the SL/S -11 compartment of train no. 17037 Secundrabad - Bikaner and he died on account of injuries during the course of treatment on 13.06.2013. It is further mentioned in the investigation report that, on investigation, a railway travelling reservation ticket vide PNR No.445- 1860940 from Secundrabad to Jodhpur of train no. 17037 and seat no. 29 & 31 in SL/S-11 coach was found with the deceased. Therefore, the deceased was a bonafide railway passenger. In this case, the Respondent has not produced any cogent and acceptable evidence to prove that the deceased fell C/[ENTITY] down due to his negligence.
It is not the contention of the respondent that the deceased was knocked down while trespassing. In absence of such evidence there is no legal impediment in coming to the conclusion that the deceased must have fallen down from the train. At this stage, I would like o quote the judgment of the Hon'ble High Court of Bombay - [CASE NUMBER] decided on 02.8.2013 in case of the [PRECEDENT]. Wherein the Court held that "a reference is also made to the ruling in [PRECEDENT], to argue that when railway administration is unable to prove any of the exceptions available to it, e.g., victim died as a result of suicide or self-inflicted injury, the presumption must go with the victim, who had accidentally fallen down from the train. In a given case, it may be rash or negligent act to stand at the open door of the compartment of train. But certainly it is not a criminal act so as to exempt railway administration from paying compensation in such cases. In another ruling in Union of India v. [ENTITY] Vijaya Kumar, I(2009) ACC 270 (SC) = 2008 ACJ 1895 (SC), it is also held that railway administration was held liable to pay compensation for untoward incident because it will not make any difference whether deceased was actually inside the train or trying to get into such train when he fell down. Thus, if victim died as a result of accidental falling from the train, he is C/[ENTITY] covered within the meaning of untoward incident for which Railways is liable to compensate the dependents of the victim. In case of compensation for death claim in [ENTITY]'s case the rule of strict liability of the railway administration was considered on the ground that since railway administration undertakes hazardous activity, it must bear the burden of risk of damage which such activity may generate.
10. Keeping in view, the above judicial pronouncement, facts and evidence available on record, I am of the opinion that the victim sustained injuries as a result of fall from the running train, as alleged is an "untoward incident" within the provision of [SECTION] of the [ACT].
11. In-so-far-as bona fide passenger is concerned according to the applicant; the deceased was holding a valid and proper railway travelling reservation ticket bearing no. A-19428253 from Secundrabad to Jodhpur for 2 adults vide PNR no. 445-1860940 and the said tickets were placed at Exh. A/1. In the DRM investigation report, recovery of the said ticket has been admitted by the Respondent. Therefore, there are no legal impediments in coming to the conclusion that the deceased was traveling as a bonafide passenger on the day of incident.
12. Once it emerges that the deceased was a bonafide passenger and he has died on account of a C/[ENTITY] fall from the train, the incident squarely falls within the definition of untoward incident u/[SECTION] of the [ACT]. Moreover, it is now well settled that [SECTION] lays down strict liability or no fault liability in case of railway accidents and hence, if a case comes within the purview of [SECTION], it is wholly irrelevant, as to who was at fault. In the instant case, I find from the material placed on record that the accident in which the deceased had died is clearly not covered by the proviso to [SECTION] and that the incident does not occur because of any of the reasons mentioned in the clauses (a) to (e) of the proviso to [SECTION] Hence, in my opinion, the present case is clearly covered by the main body of the [SECTION] of the [ACT], and, not by its proviso.
13. Therefore, on the facts and circumstances of the case, I have no hesitation in holding that the deceased was travelling as a bonafide passenger on the train and he has died as a result of the injuries sustained by him in an untoward incident. Hence, my findings on Issue No.1, 2 & 3 are in the affirmative.
Regarding Issue No.4:
14. The Applicant no.1 is the wife, applicant no.2 is the minor son and applicant no.3 & 4 are the father and mother of the deceased respectively. In support of their dependency, the claimants produced true copies of ration card as well as election card, birth C/[ENTITY] certificate, School identity card and Aadhar card at Exh. A/10 to A/20. Evidence of the Applicant no.1 goes unchallenged on the point of relationship with the deceased. As against this, the Respondent railway administration did not adduce any contra evidence to show that the present applicants are not the dependents of the deceased. Hence, it can safely be concluded that the applicants are the dependents of the deceased within the meaning of [SECTION] of the [ACT]. Hence, my findings on Issue No.4 are in the affirmative.
On the facts and in the circumstances of this case, I find it just and proper to apportion the compensation amount amongst the Applicants as under;
1. [ENTITY] Rs. 1,50,000/- Aged 25 yrs.
(wife of the deceased)
2. [ENTITY] Rs. 1,00,000/- [ENTITY] Aged 04 yrs.
(son of the deceased)
3. [ENTITY] Rs. 75,000/- Aged 60 yrs.
(father of the deceased) C/[ENTITY]
4. [ENTITY] Rs. 75,000/-
Aged 50 yrs.
(mother of the deceased)"
6. The operative part of the order passed by the Tribunal reads as under:
"The application is allowed. The respondent [ENTITY] shall pay the applicants a sum of Rs.4,00,000/- (Rs. Four lakhs only) as compensation as per apportionments given above. 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.
i) The compensation amount payable to the applicants No.1, 3 & 4 together with proportionate interest shall be paid to them through ECS once the applicants give all the banking details including photo copy of the pass book to the concerned railway authority.
ii) So far applicant Nos. 2 is concerned the entire amount awarded to him together with proportionate interest, shall be deposited in a Nationalised Bank till he attains the age of majority.
C/[ENTITY] iii) It is also hereby directed by this Tribunal that henceforth information regarding Payment of
compensation awarded by this Tribunal may also be sent to this Bench along with requisite details namely NEFT/ECS details and date thereof.
iv) No order as to costs."
7. The appellant herein, thereafter, preferred a review application before the Tribunal on the premise that the Ahmedabad Bench had no jurisdiction to adjudicate the claim as the accident had not occurred within the limits of the State of Gujarat. According to the appellant, the accident had occurred within the limits of the State of Rajasthan. This contention came to be raised for the first time in a review application. The review application came to be rejected vide order dated 24.08.2016. The order reads as under:
"This "application for review or recalling of the order " has been filed by the applicant for review of the judgment/order dated 15.09.2015 passed by this Tribunal in [CASE NUMBER].
It is submitted by the applicant (original Respondent) that, the claimants joined the [ENTITY] Churchgate, Mumbai as Respondent. However, the incident happened between [CASE NUMBER] between Sarotra Road and Shri C/[ENTITY] Amirgarh Railway Station and investigation report filed by DRM-Ajmer is in the jurisdiction of North- [ENTITY]. Accordingly, the applicant mistakenly joined [ENTITY] as party of the Respondent instead of North [ENTITY]. Therefore, it is difficult to make the payment as per order of the Hon'ble Court. Hence prayed that in the judgement/order Respondent party may be changed as North [ENTITY], Jaipur instead of [ENTITY] in the interest of justice.
Counsel for the Respondent has filed written reply cum written arguments of the original applicant (i.e. Respondent of the Review application) stating therein the factual position and placing reliance on some circular, copy of which has not been annexed.
On perusal of the entire records, it is clear that the incident occurred between [CASE NUMBER] between Sarotra Road and Shri Amirgarh railway stations. However on perusal of the written statement, nowhere, the applicant (original Respondent) took preliminary objection about misjoinder of the party. In the WS the Respondent is shown as Union of India, through the General Manager, [ENTITY], Churchgate Mumbai.
Moreover, the affidavit of RE also shows [ENTITY] as the Party. At the time of filing the IR, the Respondent was very well aware that the investigation has been done by the DRM, Ajmer. i.e. North [ENTITY]. Furthermore, the applicant C/[ENTITY] filed the claim application on 22.08.2013 and the same has been decided on 15.09.2015 i.e. after two years, but neither the Respondent took any preliminary objection nor filed any application in this regard. Nowhere during the trial, Respondent clarified about the incorrect party in the claim application which shows, sheer negligence on the part of the respondent and after pronouncement of six months and fifteen days of the judgement review application for recalling the order has been filed.
It is well settled that the review proceedings are not by way of appeal and the scope of review is very limited. The Hon'ble Supreme Court in [PRECEDENT] held that the power of review can only be exercised for correction of a mistake and not to substitute a view and that the power of review could only be exercised within the limits of the statute dealing with the exercise of such power.
Same view has been followed in the judgement of [PRECEDENT] in which it was observed that review jurisdiction is extremely limited and unless there is a mistake apparent on the face of record, the order/judgement does not call for review. The mistake apparent on record means that the mistake is self-evident, need no search and stares at its face.
The power of review available to the Tribunal is the same as has been given to a court under C/[ENTITY] [SECTION] read with [SECTION] [ACT].
In view of the factual position and law as stated above, this review application is not maintainable within the purview of [SECTION] - read as "Any person considering himself aggrieved by any order of the Tribunal from which no appeal is allowed [or from which appeal is allowed, but has not been preferred] and who on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain review of the order made against him, may apply for review of a final order not being an interlocutory order, to the Tribunal."
In the present case, there is nothing on record to show that there is some mistake or error apparent on the face of record or any other sufficient reasons for reviewing the judgement dated 15.09.2015 in [CASE NUMBER]. Hence, I pass the following order.
ORDER In view of the above discussion, the review application filed by the present applicant is dismissed for the reasons mentioned above. Accordingly this review application is disposed off."
8. Being dissatisfied with the orders passed by the Tribunal, the appellant is here before this Court with this present Appeal under [SECTION] of the [ACT].
C/[ENTITY] 9. Ms. [ENTITY], the learned counsel appearing for the
appellant, submitted that it is not possible for her to contend that the incident does not fall within the provisions of [SECTION] of the [ACT]. The deceased was a bonafide passenger and was travelling from Secunderabad to Jodhpur with his family. However, the only point which Ms. [ENTITY] would like to urge is with regard to the jurisdiction of the Ahmedbad Bench to adjudicate the claim.
10. If the issue with regard to the jurisdiction would have been raised at an appropriate time, probably both the sides could have led appropriate evidence in this regard. In the absence of any evidence with regard to the territorial jurisdiction, even the review application was not maintainable in my opinion. In such circumstances, the Tribunal rightly rejected the review application, observing as under:-
"9. With respect to the quantum of compensation, the Supreme Court, in [ENTITY] (supra) held that the compensation will be payable as applicable on the date of the accident but if the amount prescribed on the date of the award is higher than the amount payable on the date of the accident, then the claimant would be entitled to the higher of the two amounts. The relevant portion of the said judgement is reproduced herein under:-
C/[ENTITY] "8. issue of apparent conflict in [ENTITY] v. Union of India and [ENTITY] v. General Manager, South-East Central Railway, Bilaspur as to the relevant date for applying the rate of compensation when different rate is applicable at the time of filing of claim and on the date of the order. A submission has been filed by the Registrar Principal Bench, Railway Claims Tribunal seeking clarification on four subjects which repeatedly arise before the said Tribunal i.e.:
(i) Quantum of compensation: It is stated that there is a conflict in the decisions in [ENTITY] (supra) and [ENTITY] (supra) which needs clarification. We have already taken note of this issue.
xxx xxx xxx 19. Accordingly, we conclude that
compensation will be payable as applicable on the date of the accident with interest as may be considered reasonable from time to time on the same oattern as in accident claim cases. If the amount so calculated is less than the amount prescribed as on the date of the award of the Tribunal, the claimant will be entitled to higher of the two amounts.
Compensation as applicable on the date of the accident has to be given with C/[ENTITY] reasonable interest and to give effect to the mandate of beneficial legislation, if compensation as provided on the date dof award of the Tribunal is higher than unrevised amount with interest, the higher of the two amounts has to be given."
"10. It is well settled that the appeal is the continuation of the claim petition and the power of the Appellate Court is co-extensive with that of the Claims Tribunal. Reference may be made to [PRECEDENT]. Applying the principles laid down in [ENTITY] (supra) in present case, the claimants are held entitled to Rs. 8,00,000/- in terms of the [ACT] which prescribes compensation of Rs. 8,00,000/- in case of death with effect from 1st January, 2017."
11. At this stage Ms. [ENTITY] submitted that it will be difficult for her client to comply with the award passed by the Tribunal.
12. In the result, this Appeal fails and is hereby dismissed.
The claimants are held entitled to compensation of Rs.8,00,000/- (Rupees Eight Lac Only) along with interest @ 9% per annum from the date of the application, i.e. 13.08.2013.
C/[ENTITY]
13. In view of the order passed above, the Civil Application would not survive and the same is disposed of.
([ENTITY], J) MAYA