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In the High Court of Bombay at Nagpur
A.P. BHANGALE, J.
The Union of India, General Manager
Versus
Wase Bin Husain Chaoosh & Another
First Appeal No.1307 of 2009
Decided On : 18-07-2013
Where appellant led no evidence before Tribunal to bring case within exception listed under Section 124-A of Act therefore appeal against award of compensation by Tribunal deserves to be dismissed. - In the case in hand, it appears that it was for the Railways to establish that the deceased was not a bona fide passenger when claim was made on affidavit that the deceased was a bona fide passenger carrying valid railway ticket and the railway ticket was also produced on record. Looking to the copies of documents on record as also the Railway ticket which was referred to by its serial number as also the date when it was issued, the Railway Administration was duty bound to counter the affidavit by leading necessary evidence if it wanted to avoid its liability by resorting to any of the statutory exceptions under Section 124-A of the Railways Act. But that was not done.
The counsel for the appellant has prayed that the appeal may be remanded for fresh evidence. In my opinion, such a request cannot be entertained at this stage considering that the claim is dated 28.2.2002 and all the claimants are waiting to receive compensation since many years. In the facts and circumstances of the case, therefore, no fault can be found with the Tribunal when it decided to award compensation to the claimants on the basis of available evidence before it, which was not contradicted by the Railway Administration. That being so, the appeal has no merits. The appeal is, therefore, dismissed.
RAILWAYS ACT, 1989 - Sections 124 and 124-A - Railway’s strict liability.
Railway Administration is strictly liable under Section 124 of Act for certain accidents to train carrying passengers despite fact that there may not be any wrongful act, neglect or default on part of Railway. - The claimants in accident claim cases are often dependents on the deceased and may not have personal knowledge about the untoward incident. The claim is based upon knowledge which the claimants may get from the Railways itself in respect of untoward incident occurring within the premises of Railways. The Railway Administration which undertakes hazardous activity of running passenger trains using rail tracks have strict liability towards passengers travelling by train. In a given case, the train may suddenly stop with a jerk and the passengers from the crowded compartments may, as a result of falling down, may fall prey to an untoward incident. In such cases, the Railways cannot be allowed to plead ignorance about occurrence. Liability of Railway Administration for death of passenger due to accident is covered under Chapter XIII of the Railway Acts, 1939.
Section 123(c)(2) relates to untoward incident which includes the accidental falling of any passenger from a train carrying passengers.
Section 124 lays down principle of strict liability notwithstanding anything contained in any other law. Railway Administration is strictly liable for certain accidents to train or any part of the train carrying passengers despite the fact that there may not be any wrongful act, neglect or default on the part of the Railway Administration.
1. This appeal challenges the validity and legality of the judgment passed by the Recovery Claims Tribunal, Nagpur Bench, Nagpur in Claim Application No.08/OA-II/ RCT/NGP/2002.
2. The facts, briefly stated, are as under: That, while deceased Husain Bin s/o. Wase Bin was travelling by Secunderabad-Mudkhed passenger after purchasing railway ticket no.26657832 on 3.6.2001 and the train reached Nanded on 4.6.2001, at about 8.00 a.m. while getting down from the train, as a result of sudden jerk, the deceased fell down from the bogie and sustained severe injuries and succumbed to death. The untoward incident, as alleged, occurred at Nanded on 4.6.2001, at about 8.00 a.m. near Platform No.3. The claimant alleged that it was an untoward incident occurred due to negligent act of the railway driver and claimed compensation u/s.124-A of the Railways Act, 1989. It is contended that the deceased was young and dynamic youth and due to loss of their son, the claimants, who were dependent on him, are entitled to claim and receive compensation in the sum of Rs.4,00,000/- with 18% interest from the date of application till realisation. The claimants had relied upon documentary evidence such as copy of letter of guard for information, copy of inquest panchanama of deceased, translation of copy of inquest panchanama in respect of dead body of deceased, copy of Postmortem report and railway ticket bearing No.26657832. It appears that the claim was verified by both claimants (parents of the deceased) under their signatures.
3. The Railway Administration denied the claim on the ground that it is not maintainable according to law and on facts. The Railway Administration also pleaded that there was good cause of action for the claimants within the ambit of Section 123(c) (2) or 124-A of the Railways Act, 1989. The ticket was challenged on the ground that it was fabricated evidence and the Railways have denied that the deceased was a bona fide passenger. According to Railway Administration, the deceased was in a hurry to get down from the train in reverse direction, which led to fall of the deceased. Thus, according to the Railway Administration, the deceased was grossly negligent and therefore, it amounted to self-inflicted injury within the exception of Section124-A (b) and thus, the Railway Administration denied its liability disputing that the deceased had fallen accidentally from the train. According to the learned Counsel for the appellant, the deceased, prior to his death, indulged in criminal act of travelling on foot boat of the compartment which is punishable under Section 156 of the Railways Act, 1989. Therefore, the Railways were not liable to pay compensation. Further, according to the learned Counsel for the appellant, the claim was not proved according to law as the documents sought to be relied upon were not proved in evidence. Therefore, it is contended that the appeal be allowed and claim be rejected by setting aside the impugned judgment and order. In the alternative, it is submitted that the case may be remanded to the Tribunal again for fresh evidence.
4. Mr. H.W. Harsulkar, learned Counsel for the respondents strongly opposed the submissions on the ground that the claimant Wase Bin Husain Chaoosh, aged about 65 years (father of deceased Husain Bin Wase) sworn in an affidavit contending that his son aged about 22 years died due to untoward incident occurred on 4.6.2001 at Nanded when he was trying to get down from the bogie of the train. According to the deponent/claimant Wase Bin, his son Husain, aged about 22 years was coming from Secunderabad having purchased Railway ticket No.26657832 travelling by Secunderabad-Mudkhed passenger and then proceeding by Mudkhed-Parbhani passenger. Thus, when the deceased was proceeding from Secunderabad to Nanded and had reached Nanded on 4.6.2001 and was trying to get down from the train, due to a sudden jerk, he fell down from the bogie and sustained grevious injury, which led to his
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