ORAL ORDER
1. Heard advocates for the appellants and respondent. This appeal is filed by the original applicants whose claim petition came to be dismissed by the Railway Claims Tribunal by judgment dated 25.3.1999 in Application No. 9800011.
2. The Appellants are the parents of deceased Prasad Narshima Purohit who died at the age of 18 years while he was travelling by Ambernath local train from Dombivli to Ulhasnagar and fell down from a running train near Ulhasnagar Station on 7.11.1997 at about 4.30 p.m and sustained injuries and died as a result of the injuries. According to the appellants, deceased Prasad was holding second calls card ticket which was lost in the accident.
3. When the claim petition, claiming Rs. Four lacs, was filed, it was opposed by the Railway on the ground that firstly deceased Prasad was not the bonafide passenger and, secondly the accident was not as a result of negligence on the part of the railway, but the deceased died due to his own negligence. The railway did not admit any contention raised by the appellants as is their usual approach in such matters. The applicants led evidence of one of friends of deceased Prasad. He was Vikram Singh Bist was aged about 16 years at that time and, the appellants also examined themselves. On behalf of the railway one Chief Booking Supervisor was examined. The tribunal rejected the claims holding that there was no evidence to suggest that the deceased was bonafide passenger. So far as Issue No. 2 is concerned, the tribunal, however, giving finding in favour of the applicants i.e deceased Prasad died as a result of falling down from the train and the death in question is covered under Section 124(A) of the Railways Act. But the finding on Issue No. 1 was against the appellants the application was dismissed. Hence this appeal.
4. Counsel for the appellants relied upon the judgment of the Nagpur Bench of this Court reported in 2004 (6) Bom.C.R 823 (Maniben Paljibhai Parmar… v. Union Of India….) and contended that in case of accident, the railway could not be permitted to wash their hands by throwing the entire burden of proving as to whether the deceased victim in an accident was a bonafide purchaser or not on the head of the claimants. But, according to him, it was the burden on the railway to prove that the deceased was not the bonafide passenger. In this judgment, decease Paljibhai boarded into railway train on 9.7.1992 i.e Ahmedabad Hawarah Express. He had travelled and cross and crossed the distance of about 844 km. The railway train derailed between Dhamangaon-Talni railway station which resulted in the death of said Paljibhai and 14 ors. Therefore, widow Maniben filed a claim petition for Rs. Two lacs and, the contention of the railway as usual was that the deceased was not the bonafide passenger. The tribunal gave finding against the claimant and hence the matter came to the High Court. The learned Judge, after considering all the relevant provisions, came to the conclusion that the burden was on the railway administration to prove that the deceased was ticketless traveller or not bonafide passenger. The learned Judge placed reliance on the judgment of the Division Bench of Madhya Pradesh High Court in the case of Rajkumari v. Union of India), 1994 (1) T.A.C 67 and adopted the same view in that case also. In fact in that case ex gratia payment was made to the dependents of Paljibhai on the basis railway ticket and in the name of one K.L Rana.
5. The counsel for the appellant also relied upon the said judgment of the Madhya Pradesh High Court separately reported in 1993 ACJ 846 (Rajkumari v. Union of India). In that case, the Madhya Pradesh High Court held that presumption was required to be drawn that the deceased was a bonafide passenger who lost his life in the railway accident.
6. A reliance was also placed on another judgment of the Andhra Pradesh High Court reported in 2003 ACJ 1934 (P Ramaswamy v. Union of India, represented by General Manager, South Central Railway). In that case the deceased possessing ticket but Railways contended that ticket was issued on 2.1.1997 whereas the incident occurred on 1.1.1997 Expert opinion of Forensic Science Laboratory was that the ticket was purchased on 1.1.1997 The tribunal accepted the contention of railway and held that the deceased was not bonafide passenger. However, the Andhra Pradesh High Court held that the railway could not prove or establish that the deceased was not bonafide passenger and, therefore, the railways were directed to pay Rs.two lacs. Number of other judgments on similar point were relied upon by the counsel for the appellant. One of such judgments was 2002 CLT (SC) 176 (M Parameshwaran Pillai v. Union of India) wherein the Supreme Court held that while determining the compensation to the dependents of a person who died in railway accident or an untoward incident, the railway tribunal should not take into consideration the rules as applicable on the date of accident but the rules in force at the time of awarding compensation. In that case compensation of Rs. Two lacs were awarded but the Supreme Court considering the said rules awarded Rs. Four lacs with interest.
7. So far as the facts of this case are concerned, admittedly, the parents of deceased Prasad could not have any personal knowledge of the accident. Narshim Purohit - the first appellant, who was residing at Dombivli, has stated that the deceased son was studying in 10th standard in South Indian High School, Dombivli and he was also going for tuition classes. He was the only son of the witness. On 7.11.97 when he back at about 23.00 hrs. from his work place, he told that his son's dead body was lying in the Central Hospital, Ulhasnagar and, he learnt that some of the friends of deceased Prasad, who were accompanying him, told his wife that Prasad had fallen down from a train as the handle he was holding while standing near the exit door of the compartment was broken which has resulted in this accident. Narshim frankly conceded that he has no personal knowledge about the incident. Then statement of mother of deceased Prasad was also recorded. she had also no personal knowledge. But friend of deceased Prasad, Vikram Singh Bist was examined. He has stated that on 7.11.97 there was a test in their tuition class and after giving test, he himself, the deceased Prasad and two other friends were coming in a suburban train from Dombivli to Ulhasnagar by Ambernath local. They boarded Ambernath local at about 16 hours and he had purchased 4 return journey tickets for himself and three of his friends including the deceased for travelling from Dombivli to Ulhasnagar and back. He had paid Rs. 16/- for that purpose. As the train was approaching Ulhasnagar station, they were standing near the door to get down. Prasad was holding the handle while standing and that handle broke and Prasad fell down from the train just near Ulhasnagar station. when the train stopped at Ulhasnagar Station, all three friends rushed back to the accident spot and brought Prasad to the station platform. He carried to Central Hospital Ulhasnagar. But he died next day. He has stated that he had distributed the tickets amongst his friends including Prasad.
8. Cross examination of this important witness on behalf of the railway is very short and cryptic which is as under:-
“I purchased 4 tickets from Dombivli. I stay at Kalyan. Even though I stay at Kalyan, I had purchased the return ticket for myself also because the fare is same. It is not true that the deceased Prasad had fallen down from the train after the train had entered the platform. I do not have the ticket which we had purchased on that day with me. The ticket was not checked by any railway staff.”
9. On the basis of aforesaid evidence and the judgment relied upon, as stated above, the counsel for the appellants contended that when Vikramsingh on oath has stated that he had purchased the tickets for himself and his friends including Prasad, then burden of proving that the deceased was not bonafide passenger was liable to be shifted upon the railway. In fact, he contended, on the basis of Maniben's case, referred to above, that, it was for railway to prove that the deceased was not bonafide passenger.
10. As against this Mr. Samant, appearing for the respondent, repeatedly urged that it was for the appellants to prove that the deceased was bonafide passenger and, since no ticket was found with deceased Prasad or, no ticket was produced by the witness Vikram Singh it was rightly held by the tribunal that the appellants had failed to discharge their obligation of proving this important aspect.
11. The judgment of this Court and the judgments, relied upon by the appellants are sufficient to nullify the contentions raised by Mr. Samant for the respondent. It has to be held, in view of the aforesaid judgments, that the burden of proving that the deceased was not bonafide passenger was on the railway, and when the appellants had examined one witness in that regard and when there is absolutely no cross examination to create doubt about the integrity and honesty of this witness, then burden on the railway was still heavy. That burden has not been discharged by the railway at all. There is nothing on record to show that the deceased was not a bonafide passenger.
12. My attention was drawn by Mr. Samant, appearing for the appellant, to the observation of the tribunal with reference to the evidence of the father wherein the father had stated that his son was travelling on a card ticket and, the admission given by the appellant Narshim in his evidence wherein he has stated that the mentioning of the monthly season ticket in item No. 11 in his application must have been done by mistake. Mr. Samant therefore, contended that if deceased Prasad was having monthly ticket then case of the witness Vikram Singh that he had purchased four tickets was false and was, therefore, rightly rejected by the tribunal.
13. I do not find any substance in this contention. Since the burden is always on the railway, as has been held in the aforesaid cases, and since that burden has not been discharged by the railway, it has to be held that the deceased was bonafide passenger.
14. Secondly, what has come in the evidence of Vikram Singh is that the handle which deceased Prasad was holding in the train broke down. If this is so, then it is clear that the entire responsibility for the death of Prasad is of the railway, because maintenance of railway carriers by which the passengers are carried is the responsibility of the railway. If defective handles and broken handles are not replaced and, the passengers suffer on that count, then railway cannot escape from its liability.
15. Therefore, this is a case where the appellants are succeeded in proving their claim against the railway. They had demanded Rs. Four lacs from the railway as compensation and, from the judgment of the Supreme Court, referred to above and reported in 2002 CLT (SC) 176 (M Parameshwaran Pillai v. Union of India), the compensation has to be awarded as per the rules on the date of order. Hence the order:-
:ORDER:
The appeal is allowed. The impugned order is set aside.
The respondent to pay Rs. 4,00,000/-[Rupees Four lacs] to the appellants with 9% interest from the date of the accident till payment and also costs of the appeal.
Certified copy expedited.