Fathima vs Union of India

B. Manohar, J.—The appellants being the applicants before the Railway Claims Tribunal have filed this appeal challenging the legality and correctness of the judgment and order dated 01-04-2008 made in O.A. No.98/2003 passed by the Railway Claims Tribunal, Bangalore Bench, Bangalore (hereinafter referred to as ''the Tribunal'' for short) dismissing the claim application filed by the appellants.

The appellants are the wife and children of deceased Babajan Nadaf. They filed a claim application contending that deceased Babajan who was travelling as a passenger in the Train No.7301 from Hubli to Dharwad boarded the train at Hubli on 25-11-2002 in order to come to Dharwad-The train left Hubli at 22.05 hours arid arrived at Dharwad at 22.25 hours. At Dharwad Station, the Engine driver applied the brake suddenly, due to which, Babajan standing in front of the door slipped, fell down from the coach and died on the spot due to the untoward incident at Dharwad Railway station. At the time of accident, he was aged about 40 years, running the business and earning a sum of Rs. 9,000/- p.m. The deceased was a bona fide passenger, died due to untoward incident. Hence, the applicants filed the claim application seeking compensation of Rs. 4,00,000/-.

In response to the notice issued by the Tribunal, the respondent entered appearance filed the written statement inter alia contending that there is no cause of action for the applicants to file the claim application as it does not fall within the ambit of Section 123(c)(2) of the Railways Act. The report submitted by the Investigating Officer clearly disclose that the deceased had committed suicide at Dharwad Railway Station. Hence, the respondent is not liable to pay the compensation and prayed for dismissal of the application filed by the applicants.

In order to prove their case, first applicant got examined herself as A.W.1, the brother of the first applicant who had taken the deceased to the Railway Station was examined as A.W.2. The co-passenger travelling along with the deceased was examined as A.W.3 and got marked the documents as Ex. A1 to Ex. A4. On behalf of the respondent, two witnesses were examined as R.W. 1 and R.W.2 and got marked the documents as Ex. R1 and Ex. R2.

The Tribunal, after appreciating the oral and documentary evidence let in by the parties dismissed the claim application filed by the applicants on the ground that the applicants have failed to prove that the deceased was a bona fide passenger travelling in train No. 7301 and no ticket has been produced. On the other hand, report submitted by R.W. 1 and R.W.2 discloses that, when the train entered Dharwad Station, they saw one person suddenly coming on the track and got injured. Hence, the deceased was not a bona fide passenger. Being aggrieved by the judgment end order passed by the Tribunal, the appellants have preferred this appeal.

Sri. B.S. Sangati, learned counsel appearing for the appellants reiterated the contentions taken before the Tribunal and contended that evidence of A.W.1 to A.W.3 clearly disclose that the deceased had boarded the train at Hubli Railway Station. A.W.2 accompanied the deceased to the railway station, after purchasing the ticket for the deceased to travel to Dharwad, he left the railway station. Further, one of the co-passenger who traveled along with the deceased was examined as A.W.3. In his evidence, he has clearly stated that when the train reached Dharwad, while they were standing in front of the door, due to sudden jerk in the train, the deceased fell down from the train on the track and the train ran over him. Due to untoward incident, the deceased died. Hence, the order passed by the Tribunal is contrary to law.

On the other hand, Sri. M.B. Kanavi argued in support, of the judgment and order passed by the Tribunal and sought for dismissal of the appeal.

The records clearly disclose that the deceased died at Dharwad Railway Station on 12-11-2002. The dead body was found on track No. 1. The case of the applicants is that the applicants along with the deceased went to Hubli to attend some function at her brother''s house. After attending the function, the deceased wanted to return to Dharwad. The first applicant requested her brother who was examined as A.W.2 to drop the deceased to the Railway Station in order to catch the Link Express, which was going to Dharwad. The case of A.W.2 is that he had taken the deceased to the Railway Station in an Auto-rickshaw and had purchased the ticket for the deceased to go to Dharwad. In the railway station, he met Yellappa who was doing the similar business, which was done by the deceased. Both Yellappa and the deceased traveled in the same train from Hubli to Dharwad. The specific case pleaded by A.W.3 is that, when the train reached Dharwad, the deceased in order to get down from the train went near the door. In view of sudden jerk, the deceased fell on the railway track. However, A.W.3 fell down in the train itself and sustained some minor injuries. The specific case pleaded by A.W.3 is that he was present in the platform, when the dead body was removed from the track. The police bad taken him to the police station, obtained some signatures and they also collected his ticket. It is his further case that the police had recovered a small purse from the pocket of the deceased. The evidence of A.W.1 and A.W.3 clearly disclose that the deceased boarded the train at Hubli Railway Station to proceed towards Dharwad. However, at Dharwad Railway Station the deceased fell down and died. The claim made by the applicants falls within the ambit of Section 123(c)(2) of the Railways Assistant Commissioner, since the deceased died due to an untoward incident that took place on 25-11-2002 at Dharwad Railway Station. The communication sent by the guard of the Train No. 7301 to its driver regarding the dead body found on the track, while the train entered Dharwad railway station cannot be believed at all, as the driver of the train was not examined to prove the same. All these communications are subsequent communications. The documents have been produced before the Tribunal to show that the deceased was travelling from Hubli to Dharwad. There is no reason to believe that the deceased had committed suicide. The rejection of the claim application solely on the ground that no ticket has been produced to show that the deceased was not a bona fide passenger in the train is contrary to law. In various judgments, this Court and also the Hon''ble Supreme Court had held that when the railway accident occurs, the body will be cut into pieces and it is very difficult to recover the ticket from the dead body of the deceased. In the instant case, A.W.3 has clearly stated that the police had recovered some purse from the dead body of the deceased. The purse might have contained the ticket. The said purse recovered by the police was not made available before the Tribunal. Hence, the order passed by the Tribunal cannot be sustained.

Accordingly, the appeal is allowed. The judgment and order passed by the Tribunal in O.A. No. 98/2003 is set aside. The applicants are entitled for compensation of Rs. 4,00,000/- as per Schedule-III Part-I of the Railway Accidents And Untoward Incidents (Compensation) Rules, 1990. The said amount carry simple interest at the rate of 4% p.a. from the date of claim application till disbursement.

The respondents are granted six weeks time to deposit the said amount.