1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 714 OF 2011 WITH CIVIL APPLICATION NO. 1346 OF 2011 Union of India ...Appellant/Applicant Versus Shri Kalange Sarjerao Ganpat ...Respondent Mr.T.J.Pandian for the Appellant Mr.S.B.Munde for the Respondent CORAM:- A.V.NIRGUDE J. DATED:- 13th DECEMBER, 2011. P.C. 1. This appeal is filed by the Union of India (Railways) challenging the judgment and order dated 24.12.2010 passed by the learned Vice Chairman of the Railway Claim Tribunal at Mumbai in O.A.No.198 of 2002. The respondent was the claimant before the Tribunal. It was his case that he sustained injuries while traveling by railway from Kanpur to Satara and he accidentally fell down from the train. 2 He said that he was holding a valid railway warrant issued by his employer to undertake his journey. 2. The appellant contested the claim by filing a written statement. They denied the assertion that the respondent was a passenger of a train. They further contended that there is no record of the alleged incident being recorded as “untoward incident” with the Railway officials. In view of this peculiar defence, the respondent was under obligation to prove his case, and in order to prove his case he examined himself and one witness. He also placed on record various documents. 3. The respondent stated in his affidavit in support of his case that he is working Indian Armed Forces and had availed annual leave. Hew said for visiting his home town which is near Satara at Maharashtra. He stated that his employer issued railway warrant for facilitating his journey between Kanpur and Satara. He said he boarded the train which was going towards Mumbai. He said, he accidentally fell down from the train between Orai and Jhansi railway station. He said that he sustained serious injuries due to the fall and he became unconscious immediately after the fall. He said he regained consciousness only in a Hospital at Jhansi, where he was taken after his fall. He said that he did not know as to who brought him to the 3 hospital. His witness, one Haridas stated on oath that he knew the respondent as his colleague in military service and he said that he too availed leave and he too had boarded the same train with the respondent, but he said that after he boarded the train, he did not come to know about the accident until he reached Kalyan. On the other hand, except cross examining these two witnesses the appellant did not lead any evidence. The appellant took up stand that the respondent was not at all traveling by any train and there was no report of untoward incident to the station master of the concerned railway station at Orai and Jhansi, and they disputed the genuineness of the case. 4. The fact that the respondent had boarded the train on that day is proved through the deposition discussed above. It is also proved that the respondent sustained injuries and took initial treatment at Jhansi hospital. The respondent apparently had no reason to go to Jhansi and if he could prove that he had boarded the train which was travelling between railway station Orai and Jhansi, his case that he fell down from the train on the said night cannot be disbelieved. 5. The learned Vice Chairman of the Tribunal made no error in believing the case of respondent that he had boarded the train during 4 the night. The version of the respondent that he regained consciousness only in the morning when he was getting treatment at Jhansi hospital inspires confidence and this would also show that some unknown persons brought the respondent to the hospital at Jhansi, and did not care to report the incident to the railway authorities. The hospital case papers recorded history of the incident as accidental fall from running railway. This would further fortify the case of the respondent. This would also clarify as to why the incident was not reported to the railway authorities. Only because the incident was not reported to the railway authorities, the respondent’s case does not become untrustworthy. 6. The next question before the learned Vice Chairman of the Tribunal was whether the respondent sustained injuries due to which he suffered permanent disability. Having regard to the medical evidence, the learned Vice Chairman held that the respondent suffered 100% disability and in view of Rule 3(2) of the Railway Accident and Untoward Incident Compensation Rule, 1990, he awarded the fixed amount of Rs.4,00,000/- as compensation, along with interest to the respondent. 7. Learned Counsel appearing for the appellant while pressing the 5 appeal contended that the respondent was not a bonafide passenger because though he had railway warrant authorizing railway travel, he had not procured valid railway ticket which is issued in exchange of such warrant. The submission of the appellant’s counsel may be correct, but this was never a part of defence when the matter was before the Tribunal. Such a defence thus is not available to the appellant. 8. The learned Counsel then pointed out that the railway warrant which the respondent was carrying on his person while traveling is produced on record and the learned Vice Chairman ought to have noted the contents of the same. He pointed out that the military warrant clearly mentioned that the same should be exchanged for appropriate ticket. He said that the learned Vice Chairman of the Tribunal ought to have noticed the contents of this document which has come on record from the respondent's side. I am however, not inclined to accept this argument at this stage because this line of the defence was not taken when the case was before the Tribunal. Even in cross examination, this was not pointed out. In such a situation, one cannot blame the learned Vice Chairman of the Tribunal if he had ignored the contents of the military warrant. This is the only 6 point raised by the appellants counsel. 9. In view of the discussion above, the appeal should fail. Appeal stands dismissed. Civil Application also stands dismissed. (A.V.NIRGUDE, J.)