1 FH fa.850.06 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 850 OF 2006 1 Smt. Vijaya Pandit Sirsat, 2 Master Ritesh Pandit Sirsat, R/at: Jyoti Apartment, 205, Ghoddev Naka, Near Water Tank, Near A.V.M. School, Bhayander (East), Dist:Thane. ... Appellants Versus Union of India, Represented by the General Manager, Western Railway. ... Respondent ----- Mr. M.B.Kotak for the Appellants. Mr. Anand Samant for the Respondent. ----- CORAM : A.S.OKA, J. DATE : 22 nd March, 2011. ORAL JUDGMENT: 1 Heard the learned counsel appearing for the Appellants and the learned counsel appearing for the Respondent. 2 FH fa.850.06 2 The Appellants are the claimants in a claim petition filed under Section 124-A of the Railways Act, 1989 (hereinafter referred to as “the Railways Act”). The case made out by the Appellants was that the deceased Pandit Govind Sirsat accidentally fell down from a local train on 15 th November, 2002 near Mira Road Station while travelling by a suburban train from Bhayander to Dadar. The case made out in the claim petition was that on 15 th November, 2002, the deceased was travelling from Bhayander to Dadar for the purposes of marketing and was holding a valid season ticket. The train was overcrowded. When the train was near Mira Road Station, at KM No.40/7, at about 9:40 a.m., the deceased was pushed by the crowd in the train and he accidentally fell down and sustained serious head injuries, which resulted unto his death. The season ticket number held by the deceased has been incorporated in the claim application. The Appellant No.1 is the widow and the Appellant No. 2 is the son of the deceased. 3 A short written statement was filed by the Railways contending that the deceased was knocked down and killed by a local 3 FH fa.850.06 train and that he was not a passenger within the meaning of Section 124- A of the Railways Act. 4 The parties adduced evidence. The Appellant No.2 filed his affidavit in lieu of examination-in-chief. Various documents were placed on record. The Appellant No.1 also filed her affidavit in lieu of examination-in-chief. The Appellant No.2 was cross-examined by the advocate for the Respondent. 5 The learned Members of the Tribunal relied upon Station Master’s memo at Exhibit – A-1, the inquest panchanama at Exhibit – A-2 and held that both the documents on record show that the deceased was knocked down by a local train while crossing the Railway tracks. Therefore, the learned Member of the Tribunal held that the case of untoward incident under Section 123 (c)(2) of the Railways Act is not established. 6 The leaned counsel appearing for the Appellants has taken 4 FH fa.850.06 the Court to the pleadings, notes of evidence and documents on record. He submitted that the burden was on the Respondent – Railways to prove that the case was not of accidental fall, but of a knock down by a local train. The learned counsel appearing for the Respondent supported the impugned judgment and order. 7 The Appellant No.2 filed his affidavit in lieu of examination in chief, in which he stated that on the date of the alleged untoward incident, he alongwith the deceased reached Bhayander Railway Station at about 9:20 a.m. He stated that though his father boarded a Churchgate bound local train, he could not board the said local train due to heavy rush. He stated that in the afternoon he was informed by his neighbour about the incident. The said witness was cross-examined by the learned counsel appearing for the Respondent before the Tribunal. In the cross- examination of the said witness, he admitted that after seeing his father boarding the train at Bhayander, he was not aware as to what happened to his father. In the cross-examination, he stated thus: 5 FH fa.850.06 “I do not know whether my father had fallen down accidentally from the running train.” He denied the correctness of the suggestion that while crossing the Railway track, his father was hit by a running train. The version of the witness that he saw his father boarding a train at Bhayander Railway Station on the date of the accident does not appear to have been seriously challenged in his cross-examination. The evidence of the said witness established that the deceased had boarded a suburban train, which was a Churchgate bound train. 8 Therefore, the burden was on the Railways to establish that the deceased attempted to cross Railway tracks and was knocked down. The first document relied upon by the Respondent that Exhibit – A-1, which was the memo of the Station Superintendent, which records that the deceased was a trespasser and was killed by an unknown train. The second document on which the reliance was placed was the inquest panchanama, which according to the Respondent records that the deceased was knocked down by a local train. It is pertinent to note that 6 FH fa.850.06 the Station Superintendent who has signed the document at Exhibit – A-1, has not been examined by the Railways. The document does not record that the Station Superintendent was an eye-witness and that the Station Superintendent has himself seen the deceased crossing the Railway tracks and getting knocked down by the local train. As far as the inquest panchanama is concerned, the attesting witnesses obviously have no personal knowledge about the manner in which the death occurred. On one hand, there was evidence of the Appellant No.2 on oath stating that on the very day in the morning, he had seen the deceased boarding a Churchgate bound train at Bhayander Railway Station. On the other hand, there was no evidence adduced by the Railways to show that the deceased was knocked down while he was trying to cross the Railway tracks. In the circumstances, the case made out by the Respondent that it was a case of knock down ought to have been disbelieved by the Tribunal. Only on the basis of the documents at Exhibit – A-1 and at Exhibit – A-2, a finding could not have been recorded that the case of knock down has been established as the authors of the documents were obviously not the eye-witnesses and in any event, the 7 FH fa.850.06 said persons were not examined as witnesses. In fact, on the basis of the evidence on record, the only conclusion which could have been drawn was that the deceased, who was the bonafide passenger in a local train fell down as a result of which he died. The approach of the Railway Claims Tribunal is completely hyper technical. Without noticing that the signatories to the documents at Exhibit – A-1 and Exhibit – A-2 were not eye-witnesses, what is stated in the documents has been erroneously accepted as a gospel truth. 9 The valid season ticket held by the deceased and his identity card were produced on record. These documents prove that the deceased was a bona-fide passenger. Hence, claim petition ought to have been allowed by the Railway Claims Tribunal by grating compensation of Rs.4,00,000/-. 10 The learned counsel appearing for the Respondent submitted that this is a case where the Railways should not be saddled with interest. It must be noted here that in the claim petition, all 8 FH fa.850.06 necessary details including the season ticket number held by the deceased were mentioned. It is also stated that the deceased had boarded a train at Bhayander Station. The written statement of the Railways in substance consists of mere denials. There was no attempt made by the Railways to discharge the burden on them to prove the allegation that while deceased was crossing the Railway tracks he was knocked down by a local train. This is in the context of evidence of the Appellant No.2 who deposed that he had seen the deceased boarding the train at Bhayander Railway Station. It was the obligation of the Railways to compensate the Appellants under Section 124-A of the Railways Act. Therefore, this is a case where the Railways will have to pay interest at the rate of 6% per annum from the date of the filing of the claim petition till deposit of the amount. The Respondent will have to pay costs of this Appeal quantified at Rs.5,000/- 11 Hence, the appeal succeeds and I pass the following order: i. The impugned judgment and order 21 st December, 2005 is quashed and set aside and the original 9 FH fa.850.06 Application No.32 of 2003 is hereby allowed ; ii. The Respondent shall pay compensation of Rs. 4,00,000/- to the Appellants together with interest thereon at the rate of 6% per annum from the date of filing of the claim petition till realization or the deposit of the amount ; iii. Time of eight weeks is granted to the Respondent to deposit the compensation amount with interest with the Tribunal ; iv. The Respondent shall pay costs of this appeal to the Appellants quantified at Rs.5,000/-. The amount of costs shall be paid within a period of eight weeks from today ; v. Appeal is allowed on above terms. [ A.S.OKA, J ]