1 fa822 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.822 OF 1995 Smt.Santabai Dattatraya Kadam ...Appellant vs. The Union of India represented by the General Manager, Central Railway, Bombay ...Respondent Mr.G.J.Mohanrao for the appellant Mr.A.N.Samant for the respondent CORAM : A.S.OKA,J. DATE : JUNE 27,2011 ORAL JUDGMENT: 1 Heard the learned counsel for the appellant and the learned counsel for the respondent. By the impugned Judgment and order, the claim application made by the appellant under section 124 of the Railways Act,1989 (hereinafter referred to as the said Act) has been dismissed. 2 With a view to appreciate the submissions, a brief reference to the facts of the case will be necessary. The deceased was a 16 year old boy. The appellant/applicant is the mother of the deceased. There was an explosion of bomb in the compartment of a local train of the Central Railway on 19th April 1991 at 20.40 hours. According to the case of the appellant, the deceased was holding a second class ticket from Thane to Kalwa which was misplaced in the accident. As a result of the bomb blast, the deceased sustained injuries and ultimately succumbed to the injuries. Therefore, compensation of Rs.2,00,000/- was claimed by the appellant. 2 fa822 3 The claim was contested by the respondent by filing a written statement. It was contended that on the relevant date, Dadar-Thane local train DT/17 DN arrived at the railway station at Thane at 20.30 hours. The said train arrived on platform no.2. It is contended that an announcement was made that the the said train will go to Kalwa Car shed and the passengers should not enter the said train. Thus, the contention is that notwithstanding the said announcement, the deceased boarded the train. It is submitted that the train was not for the use of passengers and hence, the claim was not maintainable. However,it is admitted that there was a bomb explosion in the train and one male person died in the mishap. 4 The Railway Claims Tribunal held that the train was not meant for carrying the passengers and therefore, section 124 of the said Act will not apply. Therefore, the claim application was dismissed. The tribunal, however, held that the appellant has established that she is the dependent being the mother of the deceased. The Tribunal held that there was sufficient evidence to prove that the deceased was a bonafide passenger at the time of the accident. 5 The learned counsel for the appellant has taken the Court through the record of the case. He submitted that even the evidence of the Announcer examined by the respondent does not establish the case of the respondent that there was an announcement made that the train arrived on platform no.2 will go to Kalwa Car Shed. He submitted that as the said fact has not been established by the respondent, the finding recorded by the Tribunal is completely erroneous. As far as the finding regarding applicability of section 124 is concerned, he submitted 3 fa822 that the negligence will have to be attributed to the respondent. The evidence of the appellant established that the deceased was a bonafide passenger. 6 The learned counsel for the respondent submitted that the evidence of the announcer clearly establishes that announcements made in three different languages that the train arrived on platform no.2 was to leave for Kalwa Car Shed and that no passengers should enter the train. He submitted that in view of the said evidence, no fault can be found with the findings recorded by the Tribunal. He submitted that in any case, there was no negligence on the part of the Railways and therefore, section 124 of the said Act will have no application. He submitted that the appellant has not proved that the deceased was a bonafide passenger. 7 I have given careful consideration to the submissions. I have perused the record. The first question will be whether the deceased was a bonafide passenger. On this aspect the appellant stepped into the witness box. It will be necessary to make a reference to the evidence of the appellant. She stated that on the fateful day her son attended the examination in the school in the morning and thereafter her son had accompanied her to the station where she was carrying on her business of selling articles. The witness has stated thus : On 19.4.91 my son went to appear in the examination and then came at 2.30 p.m, after the examination, with me. On 19.4.91 at about 7.45 p.m my son took Rs.5/- from me for going hom. I sat for selling Gajara at the Thane Station between 5.00 p.m to 8.30 to 9.00 p.m. 4 fa822 As the flowers were not sold, I remain at the station up to 8.45 p.m. At Thane Station I was sitting on the foot over bridge for selling flowers (Gajara) at Thane station. Ticket is purchased at Thane station at the place of entry to plat form no.1. My son purchased the ticket, showed to me and then went. I do not know what was written on the ticket. He showed me the ticket saying that he had purchased it and I showed it. At that time I was sitting on the footover bridge near the steps leading to platform no.2. From their I saw that my son had gone to platform no.4 On the next day I went to Thane Station at about 4.00 p.m to make enquiry about my son. At the station I was advised to go to Thane civil hospital for enquiry Hospital or authority at Thane Civil Hospital showed me the body of my son. I do not know which train was boarded by my son. 8 Surprisingly, a suggestion was given to the witness that her son has shown false ticket and it was not a ticket for journey to Kalwa from Thane. Answer given by the witness was that her deceased son had shown her the correct ticket. Thus, the suggestion given by the respondent indicates that the deceased was holding a ticket but it was a false ticket. Correctness of the said suggestion has been denied by the appellant and she has reiterated that the deceased had shown the ticket. Therefore, a finding will have to be recorded that the deceased was a bonafide passenger. 9 The second question will be whether the respondent has proved that an announcement was made that the train 5 fa822 arrived on platform no.2 was to go to Kalwa Car shed and that the passengers should not enter the said train. 10 The respondent examined one Devdatta Karandikar who claimed that he made announcements on three occasions in three different languages e.g Marathi, Hindi and English that the train standing on platform no.2 will go to Kalwa Car shed and no passenger should enter the said train. In the examination-in-chief a question was asked to Mr.Karandikar. The question and answer are reproduced below : Q. You must be making entry of such announcement in any Register etc? Ans. I did not made any entry of this announcement in the Register as Thane is a Terminal Station and Kalwa Car-Shed is just nearby. Q. Are any records like diary etc maintained at the station to show which train went where ? Ans. There is train register kept with the Announcer and another register (train Register) is with the Recorder. Q. Have you brought train Register today ? Ans. No. Q. Do you write anything in the diary ? Ans. No. 11 Thus, in the examination-in-chief, the witness admitted that he did not make any entry of the alleged announcement in the register maintained in that behalf. His explanation was that Thane is a Terminal Station and Kalwa Car Shed is just nearby. He also admitted that no entry has been made by him in the diary. The witness admitted in the examination-in-chief itself that the 6 fa822 train register was kept with the Announcer and another register (Train Register) is with the Recorder. Both the Registers are not produced on record. In the cross examination, the witness made improvement by stating that he made announcements on four occasions in three different languages. Thus, the respondent did not produce relevant registers before the Tribunal though the same were in their custody. The said registers could have thrown light on the question whether the announcement as alleged was really made. The explanation that Thane being terminal station, he did not make any entry in the register of the announcment cannot be accepted in as much as nothing was produced to show that it was not necessary to make an entry of the announcement. Apart from this fact, in view of failure to produce the relevant register, the evidence of announcer does not appear to be reliable. This was a fit case where the Tribunal ought to drawn strong adverse inference on the ground that relevant registers were withheld by the respondent. 12 Reliance was placed on the letter addressed by the Station Superintendent of Thane Railway station. However, the said Station Superintendent was not examined to prove that the announcement was really made. Thus, the only finding which can be recorded is that the respondent failed to prove that an announcement was made that the train on platform no.2 was likely to leave for Kalwa Car Shed. Therefore, the finding recorded on this aspect is completely erroneous. 13 Another argument advanced is that there is no negligence on the part of the Railways. There is already a finding recorded that the deceased was a bonafide passenger and was holding a valid ticket. The 7 fa822 respondent-Railway has failed to prove that an announcement was made that the train will leave to Kalwa Car Shed. Thus, the conclusion which will have to be drawn is that no such announcement was made. This itself is a negligence on the part of the Railways. It was the duty of the Railways to make announcement that the train will not go to further stations and it will go to Kalwa Car shed. The fact that there was a bomb-blast in the train while on the way to Kalwa car shed is not in dispute. Thus, neglect on the part of the respondent- Railway was proved. Hence, section 124 of the said Act will certain apply. 14 The learned counsel for the respondent-Railways submitted that this is not a case where interest should be awarded. The said submission cannot be accepted. The specific stand taken by the respondent in the written statement could not be substantiated even in the examination-in-chief of the Announcer. Thus, this is a fit case where from the date of filing of the claim application, interest at the rate of 6% p.a will have to be granted. 15 Hence, I pass the following order : i) Impugned Judgment and Order is quashed and set aside. ii)The respondent is directed to pay to the appellant compensation of Rs.2,00,000/- with interest thereon at the rate of 6% p.a from the date of filing of the claim application till the realisation. iii)Time of twelve weeks from today is granted to deposit the compensation amount with the Tribunal. 8 fa822 iv)The amount shall be deposited with the Railway Claims Tribunal. v) The appeal is allowed on above terms with no order as to costs. JUDGE