1 IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION FIRST FIRST FIRST APPEAL NO.131 OF 1999 APPEAL NO.131 OF 1999 APPEAL NO.131 OF 1999 Union of India, through the General Manager, Central Railway, Mumbai : Appellant (Original Opponents) versus 1. Shri Premchand Narshi Jakharia, 2. Smt.Laxmiben Premchand Jakharia : Respondents. Mr.A.N.Samant for the appellant Mr.C.J.Mohanrao for the respondents. CORAM CORAM CORAM : S.S.SHINDE, J. : S.S.SHINDE, J. : S.S.SHINDE, J. DATED DATED DATED : JUNE 06, 2008. : JUNE 06, 2008. : JUNE 06, 2008. JUDGMENT JUDGMENT JUDGMENT : : : 1. This appeal is filed by the appellant - Union of India challenging the judgment and order dated 20th November 1998 passed by the Railway Claims Tribunal, Mumbai Bench, Mumbai in Case No.OA 9800005. 2 2. The appellant/Central Railway is the original opponent against whom the respondents herein filed an application bearing Case No.OA 9800005 before the Railway Claims Tribunal, Mumbai Bench, Mumbai. 3. It was the case of the respondents/claimants before the Tribunal that they lost their son Pankaj purportedly by falling down from a suburban train on 14th January, 1998 near Bhandup Local Railway Station. They have claimed compensation of Rs.Four Lakhs from the appellant/central railway. According to the respondents/claimants the alleged accident took place on 14th January 1998 at about 21.30 hours near Bhandup Railway station. 4. The appellant/central railway filed its written statement on 2nd September 1998 and resisted the claim of the respondents/claimants for compensation. It was contended by the appellant/Central Railway that the death of deceased has occurred on account of the negligence of the deceased. It was further contended that the case does not fall under Section 123 (c)(2) of the Railways Act, 1989 and, therefore, the application for compensation was not tenable. It was further contended that the 3 deceased was not a bonafide passenger in the train and hence the application deserves to be dismissed. 5. The learned tribunal framed the following issues for its consideration :- 1. Whether the deceased was a bona-fide passenger in the train ? 2. Whether this case falls under Section 123(c)(2) of the Railways Act, 1989 ? and 3. Who are the persons entitled to receive the compensation ? 6. Premchand Narsi Jakharia - Applicant No.1, who is father of the deceased, has examined himself before the tribunal. He deposed that on the day of incident, the deceased, who was serving in the Crawford Market, Mumbai, was going to Mulund at about 22-00 hours and he (witness) received telephone call that the deceased had fallen down from train and sent his other son to Bhandup. He then went to Sion Hospital. On 17the January 1998, the deceased died. The statement of Paresh Premchand Jakharia, the brother of deceased, was recorded by the Kurla Police Station. The 4 relevant documents i.e. occurrence report, copies of the police papers, copy of the post mortem and the copy of the death certificate were produced before the tribunal. 7. Paresh Premchand Jakharia - the brother of deceased stated before the Kurla Railway Police on 14th January 1998 he received a message on phone from Police Constable 169 that Pankaj Jakharia at 21.30 injured by falling down from a local train and he was admitted at Sion Hospital in ‘E’ Ward. Police Inspector Hande showed him the injured. He identified the injured as his younger brother Pankaj Premchand Jakharia aged 25 years. He was also shown the articles recovered including leather purse, cash of Rs.545/- driving licence, railway monthly pass, identity card with photograph company letter pad and other papers. 8. Kashinath Kishan Hande, Railway Police Writer, prepared a report about the incident. He submitted that on the memo of Bhandup Station Master he gathered the information that one male person was injured by falling down by an unknown local train and admitted in Sion Hospital for treatment. He gave detail description of injuries received by the injured in his 5 report. He further submitted that in the back pocket of the pant there is green purse and in that purse there is cash of Rs.545 and a railway monthly pass bearing No.120 54051 and identity card were found. One driving licence, one watch and other misc. papers were also found. 9. On the basis of the oral as well as documentary evidence produced, the learned tribunal came to the conclusion that the applicants/claimants are entitled to receive compensation of Rs.4 lakhs as per Schedule Part I of the Railway Accidents and Untoward Incidents (Compensation) Amendment Rules, 1997 read with Section 123(C)(2) of the Railways Act, 1989 and the pass the following order :- "Application is allowed. The Respondents do pay Rs.4 lakhs to the Applicants within a period of 3 months from today, failing which the Respondents will be liable to pay interest @ 12% per annum on the said amount of Rs.4 lakhs from today. Out of the awarded compensation of Rs.4 lakhs, Rs.1 lakh to be paid in cash to the parents of the deceased by issuing account payee cheque 6 in their name. With regard to the rest of the amount, Rs.1,50 lakhs each be deposited in the name of the Applicants in a Fixed Deposit in any Nationalised Bank for a period of 5 years. However, they are entitled to receive periodical interest on the said amount." 10. Being aggrieved by the said judgment and order dated 20th November 1998 passed by the Railway Claims Tribunal, Mumbai Bench, Mumbai, the appellant/central railway has filed this first appeal. 11. The learned counsel appearing for the appellant/central railway vehemently argued before me that the deceased was not a bonafide passenger since no evidence in the nature of ticket was produced before the tribunal and, therefore, claim of the respondents/claimants should have been rejected by the tribunal. The learned counsel for the appellant, in the alternate, submitted that if this court comes to a conclusion that the tribunal has rightly awarded the compensation to the respondents/claimants, in that event, the rate of interest should be at 6% p.a. in stead of 12% p.a., as awarded by the tribunal, from the date of passing of the order till the payment of remaining amount to the respondents/claimants, which 7 is lying in the Fixed Deposit. 12. The learned counsel appearing for the respondents/claimants submitted that in the panchanama prepared by the Kurla Police Station, it is clearly mentioned that in the back pocket of the pant of the deceased there is green purse and in that there is cash of Rs.545 and railway monthly pass bearing No.120, 54051 and identity card were found and one driving licence, one watch and other miscellaneous papers were also there. He drew my attention to the evidence of the father of deceased before the tribunal wherein he deposed that on the date of incident the deceased was in possession of the season ticket which was issued on 17.12.97 and was valid up to 16.1.98. The learned counsel for the respondents/claimants further relied upon the statement of Paresh Premchand Jakharia - the brother of deceased in which he has stated, he identified his younger brother Pankaj i.e. the deceased. The police officers showed him the articles recovered from the deceased i.e. leather purpose, cash of Rs.545, driving licence, railway monthly pass identity card and other papers and same were handed over to him. He further submitted that there is sufficient evidence on record to show that the deceased was the bonafide passenger on the date of 8 incident. He, therefore, submitted that the contention of the learned counsel for the appellant/central railway that the deceased was not the bonafide passenger on the date of incident is liable to be rejected and the decision of the tribunal has to be upheld. 13. The learned counsel appearing for the respondents/claimants drew my attention to the provisions of Section 123 of the Railway Act, 1989. Chapter XIII of the Railways Act, 1989 relates to the liability of Railway Administration for Death and Injury to passengers due to accidents and Section 123 (c)(2) of the Railways Act, 1989 reads as under:- "123. Definition -- In this Chapter, unless the context otherwise requires --- [(c) "untoward incident" means --- (2) the accidental falling of any passenger from a train carrying passengers.] 14. After hearing the learned counsel for the respective parties I do not find any infirmity in the order passed by the tribunal. I have gone through the 9 evidence on record. I have perused the statements of the father and brother of the deceased and also perused the panchanama prepared by the Kurla Police Station. From the evidence on record it reveals that on the date of incident the deceased was in possession of valid monthly season ticket with identity card which were recovered by the police from the purse found in the back pocket of his pant. Therefore, I am satisfied that the deceased was the bonafide passenger on the date of incident. It is an admitted fact on record that the deceased died by falling down from a local train. The tribunal has properly appreciated the evidence on record and has rightly come to the conclusion that the deceased was the bonafide purchaser. Hence I hold that the decision of the tribunal to award compensation of Rs.4 lakhs to the respondents/applicants was in accordance with law and, no interference is required for. 15. Coming to the alternate submission made by the advocate for the appellant/central railway, I am of the opinion that the rate of interest at 12% p.a. awarded by the tribunal on the compensation amount of Rs.4 lakhs is required to be modified. It would be appropriate and in the fitness of things, if the interest rate is reduced to 6% p.a. in the facts and 10 10 10 circumstances of this case. 16. In the result, the appeal filed by the appellant/central railway is dismissed. However, the respondents/claimants are entitled to receive the remaining amount of compensation lying in the Fixed Deposit with interest at the rate of 6% p.a. from the date of order of the tribunal till the payment of the amount to the respondents/claimants. It is made clear that after calculating the interest at the rate of 6% p.a., rest of the interest amount shall be refunded to the appellant/central railway. The appeal is disposed of accordingly. [S.S.SHINDE, [S.S.SHINDE, [S.S.SHINDE, J] J] J]