1 FH fa.2750.07 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 2750 OF 2007 Smt. Vandhana Raju Kamble and others. ... Appellants Versus The Union of India. ... Respondent ----- Mr. G.J.Mohanrao for the Appellants. Mr. T.J.Pandian for the Respondent. ----- CORAM : A.S.OKA, J. DATE : 25 th April, 2011. ORAL JUDGMENT: 1 Heard the learned counsel appearing for the parties. 2 By this Appeal, the Appellants have taken an exception to the judgment and order dated 30 th August, 2007 passed by the learned Members of the Railway Claims Tribunal on a claim application filed by the Appellants. The claim application was filed seeking compensation under Section 124-A of the Railways Act, 1989 (hereinafter referred to as “the said Act”). The Appellant No.1 is the widow of the deceased Raju 2 FH fa.2750.07 Kisan Kamble. The Appellant Nos.2 to 5 are the children of the deceased. 3 In the claim application, it is stated that on 18 th August, 2003, the deceased was travelling by a suburban local train from Ambivali to Dombivali. It is alleged that he accidentally fell down from the train and sustained head injuries. It is stated that he succumbed to the injuries. It is contended that the deceased was holding a valid season ticket and from Dombivali to Mumbra and an identity card issued by the Railways. The case made out is that the deceased died due to an untoward incident within the meaning of Sub-clause (2) of clause (c) of Section 123 of the said Act. Therefore, compensation of Rs.4,00,000/- has been claimed. 4 The Respondent filed written statement. The contention of the Respondent is that the deceased was standing at the door of the train and was dangerously leaning out of the train. It is contended that he was travelling in careless, rash and negligent manner and was thus hit by a railway pole. Thus, it was contended that the accident occurred on 3 FH fa.2750.07 account of negligence of the deceased. The learned Members of the Tribunal held that the deceased was a bonafide passenger in the train. The learned Members relied upon a report of the DRM and observed that the same was based on post mortem report and the memo of the station master. The learned Members of the Tribunal held that considering the nature of the injuries reflected from the post mortem report, it was obvious that the deceased sustained injuries on the right side of his body and therefore, the possibility of the accidental fall is doubtful. Therefore, the Tribunal held that the deceased was leaning out of the compartment and in the process got injured. Hence, it was held that the case will not be governed by Section 124-A of the said Act. 5 The learned counsel appearing for the Appellants relied upon decision of this Court in the case of Union of India Vs. Smt Suchitra Ganesh Pathare & Ors (2009) 2 All MR 837). He submitted that the Respondent has not adduce any evidence and the judgment of the Tribunal is based only on surmises and conjectures. He submitted that it was an admitted position that at the time of accident, the deceased was 4 FH fa.2750.07 travelling by a train and in absence of any evidence adduced by the Respondent, the case made out by the Appellants ought to have been accepted. The learned counsel appearing for the Respondent supported the impugned judgment and order by pointing out that the Appellants have not adduced any evidence to prove the accidental fall. He submitted that the view taken by the learned Members of the Tribunal is supported by the evidence on record and therefore, no interference is called for. 6 I have carefully considered the submissions. A valid season ticket and identity card of the deceased have been placed on record of the Tribunal and therefore, there is a finding of the Tribunal that the deceased was a bonafide passenger. It must be stated here that in the written statement filed by the Respondent, it was admitted that the deceased was travelling by a train, but it was contended that the deceased was dangerously leaning out of the train. As a result, he was hit by a Railway pole. Thus, it is not in dispute that at the time of the incident, the deceased was travelling by a train as a bonafide passenger. 5 FH fa.2750.07 It is not in dispute that the deceased fell down from the train. The case of the Appellants is that, it was a case of the accidental fall and the case of the Respondent is that there was negligence on the part of the deceased and that he was hit by a pole as he was leaning dangerously out of the train. 7 The first Appellant – widow of the deceased who was examined as a witness obviously had no personal knowledge about the incident. Therefore, the burden was on the Respondent to prove that it was not a case of accidental fall, but it was a case of the deceased negligently leaning out of the compartment and hitting a railway pole. The reliance was placed by the Respondent on office note dated 22 nd June, 2005. In the second paragraph of the said note, it is stated that station master of Ambivali Railway Station issued a memorandum that one unknown person had fallen down from unknown train. Thereafter, the report proceeds to observe thus: “Though the deceased was having pass but the fall of deceased from running train leads to inference that he was travelling on the foot board of a coach in a negligent and careless manner. He was travelling on that part of coach 6 FH fa.2750.07 which is not intended for the use of passenger which is an offence punishable u/s 156 of Railway Act. It is an act of negligence on the part of deceased as such the applicant can not be compensated.” 8 In this report relied upon by the Respondent, there is no reference to the allegation that as a result of leaning out of the compartment, the deceased was hit by a Railway pole. Thus, the said document will not help the Respondent in establishing the contention which is raised in the written statement. Alongwith written statement, inquest panchanama was produced. The Respondent did not examine any witness to show the existence of the pole near the place where the deceased was found 9 Perusal of the judgment of the learned Members of the Tribunal shows that the Tribunal has drawn an inference only on the basis of the fact that the deceased had sustained injuries on the right side of his body. As stated earlier, the only controversy was whether the deceased accidentally fell down from the train or whether the deceased 7 FH fa.2750.07 hit a pole by the side of the railway track while leaning out of the train. The Respondent has failed to discharge the burden of proving that the deceased hit a pole while dangerously leaning out from the train. Therefore, the case of accidental fall made out by the Appellants ought to have been accepted. In the circumstances, the finding recording by the Tribunal will have to be quashed and set aside and it will have to be held that it was a case of untoward incident within the meaning of sub-clause (2) of clause (c) of Section 123 of the said Act. 10 In view of Part – I of the Schedule to the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990, the Appellants were entitled to compensation of Rs.4,00,000/- Considering the facts of the case, this is the fit case where the Respondent will have to pay interest to the Appellants calculated at the rate of 8% per annum from the date of filing of the claim application. 11 Hence, I pass the following order: i. The impugned order dated 30 th August, 2007 is 8 FH fa.2750.07 quashed and set aside and the application made by the Appellants (Original Application No. 2003 595) 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 8% per annum from the date of the filing of the claim application till the realization or deposit; iii. Time of three months is granted to the Respondent to deposit the amount with the Tribunal ; iv. The appeal is allowed on above terms with costs. [ A.S.OKA, J ]