1 FH fa.2364.05.doc ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 2364 OF 2005 1 Albino Pedro Fernandes, 2 Mrs Carmelina Albino Fernandes R/at: Flat No.A/202, Awantika Apartment, ‘A’ Wing, Manisha Nagar, Kalwa, District Thane – 400 605. ... Appellants Versus Union of India, through the General Manager, Central Railway, C.S.T. Station Bldg, Mumbai 1. ... 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 Submissions of the learned counsel appearing for the parties were heard yesterday. 2 FH fa.2364.05.doc 2 The Appellants have taken an exception to the judgment and order dated 23 rd September, 2005 passed by the Railway Claims Tribunal. An application for compensation was made by the Appellants under Section 16 of the Railway Claims Tribunal Act, 1987. The application was made by the Appellants claiming compensation under Section 124-A of the Railways Act, 1989 (hereinafter referred to as “the Railways Act”). The case of the Appellants is that their son – Bosco Albino Fernandes was undertaking daily travelling from Kalwa to Andheri via Dadar by suburban trains. According to the case of the Appellants, their son was holding a season ticket which was valid for the period from 13 th May, 2003 to 12 th June, 2003. The alleged untoward incident occurred on 13 th June, 2003. The case of the Appellants is that on 13 th June, 2003, as the season ticket had expired, their son had purchased a Railway Coupon of Rs.5/- for the purposes of travelling from Kalwa to Juhu. It is stated that the deceased boarded a suburban train at Dadar. The train was overcrowded. When the train was in between the Matunga and Sion Railway Stations, the deceased fell down from the running train and sustained serious injuries. According to the case of the Appellants, the 3 FH fa.2364.05.doc Railway Coupon in the sum of Rs.5/- was found on the person of the deceased. The case of the Appellants is that the deceased died in an untoward incident within the meaning of Clause (c) (2) of Section 123 of the Railways Act and that is why a claim under Section 124-A was preferred. 3 The claim petition was contested by the Respondent – Railway by filing written statement. It was contended that the Appellants must prove the case that the deceased was a bonafide passenger. After parties adduced evidence, the learned Members of the Claims Tribunal held that the Appellants have failed to establish that the deceased was a bonafide passenger. The Tribunal disbelieved the case of the Appellants that the deceased had purchased a coupon worth Rs.5/- on the date of the untoward incident and that the coupon was found on the person of the deceased. The learned Members of the Claims Tribunal made a reference to the evidence of Appellant No.2, who stated that the Railway Coupon was recovered by her from the purse of the deceased, which she had received from the police. The leaned Members of the Tribunal noted 4 FH fa.2364.05.doc that in the inquest panchanama there was no reference to the said coupon. 4 The learned counsel appearing for the Appellants submitted that the entire burden was on the Railways to establish that the deceased was not a bonafide passenger and that the deceased did not possess a valid ticket. He placed reliance on the decision of the Madhya Pradesh High Court in the case of Raj Kumari and another Vs. Union of India, (1993 ACJ 846). He also placed reliance on the Division Bench of this Court in the case of Sakharibai Hasanali Makani and others Vs. Girish Kumar Rupchand Gadia and others, (1997 ACJ 95). He submitted that Appellant No.2 deposed before the Tribunal that the deceased possessed a valid coupon and there is no evidence in rebuttal adduced by the Railway. In that behalf, he relied upon a decision of this Court in the case of Mahadeo Laxman Kumare and another Vs. Union of India (2006 ACJ 681). He placed reliance on the decision of the Division Bench of this Court in the case of Sujata Mukunda Manerao Vs. State of Maharashtra and others (2004 ACJ 1103). He submitted that as the 5 FH fa.2364.05.doc death occurred on account of negligence on the part of the Railway, rights of the Appellants under Article 21 of the Constitution of India have been infringed and therefore, the Appellants are entitled to compensation. He relied upon a decision of the Apex Court in the case of Rathi Menon vs. Union of India (2001 ACJ 721). Lastly he relied upon the decision of the Division Bench of the Calcutta High Court in the case of Asharani Das vs. Union of India and another (2010 ACJ 2777). He submitted that as the Railways have not discharged the burden on them of proving that the deceased was not a bonafide passenger, the claim ought to have been allowed. 5 I have given careful consideration to the submission. In view of sub-clause (2) of clause (c) of Section 123 of the Railways Act, accidental fall of any passenger holding a valid ticket is covered by “untoward incident”. Under Section 124-A, whether or not the untoward incident has occurred on account of any wrongful act, neglect or default on the part of the Railway Administration, a dependent of a passenger, who has been killed can maintain an action and recover damages in 6 FH fa.2364.05.doc accordance with the Rules framed. The relevant rules, which are applicable provide for payment of compensation of Rs.4,00,000/- in case of a death of a passenger as a result of an ‘untoward incident’. Section 124-A contains an explanation which provides that the passenger is a person, who has purchased a valid ticket for travelling by train. Thus, to enable the dependents to make a claim under Section 124-A, the deceased must be a passenger. The case made out in the claim application by the Appellants was that on the date on which untoward incident occurred, the validity of the season ticket of the deceased had already expired and therefore, he had purchased a coupon in the sum of Rs.5/-, which entitled him to travel by the train on the date of the accident. A true copy of the inquest panchanama is on record. The contents of the inquest panchanama are not disputed by the Appellants. The inquest panchanama records that on taking search of the body of the deceased, one leather purse was found on the person of the deceased. It is recorded that the expired season ticket and a cash of Rs.200/- was found in the purse. It is pertinent to note that in the examination-in-chief of the Appellants, which was filed in the form of an affidavit, it was sought to be 7 FH fa.2364.05.doc contended that the deceased had purchased a coupon in the sum of Rs. 5/-. In the cross-examination, Appellant No.2 stated that she recovered the coupon from the purse of her son. She stated that the purse was handed over to her by the Railway Police and that in the inquest panchanama, there was no reference to the said coupon. 6 In the claim application filed by the Appellants, it is specifically stated that a Railway Coupon in the sum of Rs.5/- was found on the body of the deceased. Even assuming that the burden to prove that the deceased was not a passenger within the meaning of Section 124-A was on the Railways, by production of the inquest panchanama, the said burden was discharged as the inquest panchanama records that a season ticket was found in the purse of the deceased, which was not valid on the date on which untoward incident occurred. Though the said panchanama records that cash of Rs.200/- and the expired season ticket was found in the purse found on the person of the deceased, there is no reference therein to the alleged coupon. As stated earlier, the Appellants did not challenge the correctness of the inquest panchanama. In the 8 FH fa.2364.05.doc cross-examination, when the Appellant No.2 was confronted with what is stated in the inquest panchanama, a new case was made out by her that in the purse carried by the deceased, which was handed over to her by the Railway Police, a coupon in the sum of Rs.5/- was found. In the claim application, it is merely stated that the coupon was found on his body. It is pertinent to note that the inquest panchanama not only records that season ticket was found in the purse of the deceased, but a cash in the sum of Rs.200/- was found in the purse. There is no reference to the coupon in the panchanama. This itself rules out any manipulation or any error in recording the inquest panchanama. The inquest panchanama was sufficient to discharge the burden on the railways. The case made out in the claim petition was falsified by the inquest panchanama and therefore, in the cross-examination, a new case was made out that the coupon was very much in the purse carried by the deceased. The said case was made out by the 1 st Appellant in her cross examination. The case made out by the Appellants has been rightly discarded by the Railway Claims Tribunal by recording a finding that on the date of the untoward incident, the deceased was not possessing a valid ticket. 9 FH fa.2364.05.doc 7 In the case of Asharani Das (supra) before the Division Bench of the Calcutta High Court, a finding was recorded that the statement of the widow of the deceased that the deceased had purchased a train ticket was proved by the oral evidence of the eye- witness and that the Railways failed to falsify the case made out by the witnesses. 8 In the case of Mahadeo Laxman Kumare (supra), the claimants had set out the ticket number issued to the deceased and the ticket was found in the clothes on the person of the deceased. Therefore, the view taken will not apply in the present case. The Madhya Pradesh High Court in the case of Raj Kumari and another (supra) took a view that initially burden was on the Railway to prove that the deceased was not a bonafide passenger. As far as the decision of this Court in the case of Sujata Mukunda Manerao (supra) is concerned, the Court was dealing with the issue of grant of compensation in the case of custodial death and the said decision will have no application in the present case. 10 FH fa.2364.05.doc 9 Thus, in the present case, it is not possible to interfere with the finding of the Tribunal that the deceased was not a passenger within the meaning of Section 124-A of the Railways Act. 10 Hence, no case for interference is made out. The appeal is accordingly dismissed with no order as to costs. [ A.S.OKA, J ]