1 fa1762 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.1762 OF 2003 Mohd.Sajjad Ali & Anr. ...Appellants vs. The Union of India ...Respondent Mr.G.J.Mohanrao for the appellants Mr.Anand Samant for the respondent CORAM : A.S.OKA,J. DATE : APRIL 19,2011 ORAL JUDGMENT: 1 Heard learned counsel for the parties. The appellants-claimants filed a claim before the Railway Claims Tribunal invoking section 124-A of the Railways Act,1989 (hereinafter referred to as the said Act). The case made out by the appellants in the claim application is that they are the parents of one Samahul Haque who died in an accident. In the claim petition it is stated that deceased was travelling by a suburban local train from C.S.T to Ulhasnagar. He fell down from a running train between Dadar and Matunga Railway Stations at about 7.36 a.m.. He sustained injuries and ultimately succumbed to injuries. It is contended that the death has been caused due to an untoward incident within the meaning of sub clause 2 of clause (c) of section 123 of the said Act. It was contended that the deceased was holding a second class return ticket from Ulhasnagar to Matunga which was lost in the accident. 2 The claim petition was contested by the respondent by filing a reply in which it was contended that the deceased was not a bona fide passenger as he was not 2 fa1762 holding a valid ticket. The respondent denied that there was any untoward incident. It was contended that the death was not due to accidental fall from the train, but in fact the deceased died while attempting to cross the railway tracks. The Railway Claims Tribunal found that the evidence of the witness examined by the appellants was inconsistent. The Claims Tribunal found that even the version of the witnesses regarding purchase of ticket was inconsistent. The learned Member of the Tribunal relied upon the inquest panchnama which records that the deceased was knocked down by the train while crossing the railway tracks. Therefore, it was held that the death on account of untoward incident was not proved and that the deceased was not a bona fide passenger. Therefore, the Tribunal dismissed the claim petition. 3 The learned counsel for the appellants has taken the Court through the notes of evidence and submitted that the respondent has not discharged the burden. He submitted that the evidence of the witnesses of the appellants was not at all inconsistent. He submitted that the Claims Tribunal has committed an error. The learned counsel for the respondent supported the impugned Judgment and Order by contending that the appellants could not establish their case. 4 I have perused the record and I have considered the submissions. The first witness examined by the appellants is the second appellant who is the mother of the deceased. She stated that on 1 st March 1998, she along with deceased went to Dadar for buying fish by Ambernath- C.S.T local train. She stated that they purchased return tickets at Ulhasnagar Station for travelling from Ulhasnagar to Dadar. She stated that after buying fish from Dadar fish Market, her deceased son boarded Mumbai 3 fa1762 CST-Ambernath local train from Dadar to Ulhasnagar and she boarded the next train which was Mumbai C.S.T- Khopoli train. She stated that as her son did not reach the destination, on enquiry she was informed that her son fell down from the train at Matunga Station. She stated in the affidavit in lieu of examination-in-chief that her son purchased two return tickets; one was kept by him and other was handed over to her. She stated that the deceased lost a cash of Rs.3000/-. The witness was cross examined by the Advocate for the respondent. She was confronted with the statement that a ticket was purchased for traveling up to C.S.T. She stated that ticket was purchased up to C.S.T but they alighted at Dadar. In cross examination, she stated that she was possessing the ticket but it was thrown away. She stated that she actually did not see her son falling from the train. 5 The learned counsel for the respondent stated that the case of the loss of cash allegedly possessed by the deceased is inconsistent in as much as in the claim petition, the cash amount is stated to be a sum of Rs. 1300/- and in the evidence it is stated to be Rs.3000/-. The appellants also examined another witness. The said witness is Sanjay Chakravarthi. Apart from the said witness, the appellants examined Smt.Sunanda Dinkar Gaikwad. The witness Sanjay Chakravarthi in his affidavit in lieu of examination-in- chief stated that he had seen the deceased purchasing tickets on 1st March 1998. He travelled with the deceased and his mother up to Dadar. In the affidavit in lieu of evidence of Sunanda Dinkar Gaikwad, the date of the incident has been mentioned as 3rd March 1998 instead of 1st March 1998. She stated that she had boarded the Ambernath bound train at C.S.T in ladies compartment. The deceased boarded the same 4 fa1762 train at Dadar who was carrying two baskets of fish. She stated that the said deceased boarded in the gents compartment. She stated that when the train reached Matunga, she heard a noise. There were shouts from co- passengers that a fish vendor has fell down. She collected the baskets of the deceased and handed over to his mother at Ulhasnagar. 6 On the other hand, the respondent-Railways relied upon certain documents to which a reference has been made in the impugned Judgment. The first document is inquest panchnama which records that the deceased was knocked down while crossing the railway line. However, no evidence is adduced to prove the said document. There is nothing on record to show that the panch witnesses who have signed the panchnama had personal knowledge of the incident. Reliance is placed on the report of the Station Manager which records that an information was received that one unknown male person was found on the tracks who was knocked down by an unknown train. It is not clear on what basis the said report has been submitted as the Station Master had no personal knowledge. Apart from the said document, reliance is placed on a Special Message of Station Master, Matunga. However, the Railways have not shown that the authors of the aforesaid documents had actually seen the deceased getting knocked down while cross the railway line. 7 Notwithstanding the discrepancy in the evidence of the claimants, what has been established is that the deceased travelled from Ulhasnagar to Dadar and came to Dadar Railway station for the purpose of boarding the train towards Ulhasnagar Station. The witnesses have deposed about the deceased purchasing the tickets. Controversy is whether the ticket was purchased for 5 fa1762 travelling up to Dadar or C.S.T. The version of the witnesses that they had seen the deceased purchasing tickets is not seriously challenged in the cross examination. In the claim petition, a case is made out that the ticket held by the deceased was lost. Judicial notice can be taken of the fact that in the city of Mumbai, the victims of train accident do not get immediate attention. Once the purchase of tickets is established, the case made out of loss of ticket in the accident will have to be accepted. The alleged discrepancies in the evidence are not at all fatal to the case of the appellants. It is true that there may not be any direct evidence of fact that the deceased boarded the train at Dadar. At the same time, the case of the knock down while crossing the railway line has not been established by the respondent. Apart from the fact that the respondent did not examine any witness, the statements in the documents relied upon by the respondent are not proved to be made on the basis of the personal knowledge of the signatories to the documents. 8 Therefore, considering the aforesaid factual aspects, the Tribunal ought to have held that the deceased was a bona fide passenger and that it was a case of the accidental fall from the train. The respondent has failed to prove that the deceased was knocked down. Therefore, this was a case where the Tribunal ought to have allowed the claim petition and granted compensation of Rs.4,00,000/-. 9 Hence, I pass the following order : i) Impugned Judgment and order is quashed and set aside and the original application is allowed. ii)The respondent is directed to pay compensation of 6 fa1762 Rs.4,00,000/- to the appellants. The appellants will be entitled to costs of the application and this appeal from the respondent. iii)The amount of compensation shall be deposited by the respondent with the Tribunal within a period of ten weeks from today. On failure to deposit the amount within ten weeks, the respondent will be liable to pay interest on the said amount at the rate 8% per annum from 17th September 2003 till the date of deposit. iv)Appeal is allowed on above terms. JUDGE