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SCA/23000/2007 5/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 23000 of 2007
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
=============================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=============================================================
CHANDAN
SINGH AMARSINGH CHAUHAN - Petitioner(s)
Versus
UNION
OF INDIA OWING AND REPRESENTING - Respondent(s)
=========================================================
Appearance
:
MR
PB GOSWAMI for
Petitioner(s) : 1,
RULE NOT RECD BACK for Respondent(s) :
1,
SERVED BY RPAD - (R) for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 16/02/2010
ORAL
JUDGMENT
1.0 By
way of the present petition, the petitioner
has inter alia prayed for quashing and setting aside the judgment
dated 13th October 2003 passed by the Railway
Claims Tribunal, Ahmedabad Bench at Ahmedabad in Case No.OA 200032,
whereby the Tribunal has dismissed the application of the petitioner
for getting compensation.
2.0 The
facts of the case, if put in a nutshell, are as under :
2.1 On
10th November 1999, the petitioner
had gone to the Railway Station to see off his relative namely
Hasubhai, who was travelling to Mumbai. The petitioner
had purchased the Platform Ticket No.907798 and had entered in
Platform No.1 since he wanted to go to Platform No.3.
2.2 The
petitioner
was standing near the staircases of the bridge of Platform No.3 and
at that time, the special pilgrimage train was arriving from the Yard
on Platform No.3. On account of heavy rush of pilgrims and public at
large, the pilgrims were trying to catch the train in hurry. Due to
unbearable pushes of the passengers on Platform No.3, the petitioner
was thrown out and he fell down from the Platform and got himself
trapped between the train on the track and the platform. As a result
of the same, the petitioner
sustained several grievous injuries, including amputation of his
right elbow.
2.3 In
pursuance of the said incident, the petitioner
lodged a claim for Rs.4 lakhs under Section 124-A of The Railways
Act, 1989 (hereinafter referred to as ‘the Act’) before the Railway
Claims Tribunal at Ahmedabad being Case no.OA-2000032. However, the
said application came to be dismissed vide judgment dated 13th
October 2003. Hence, this petition.
3.0 Mr.P.B.
Goswami, learned
advocate for the petitioner,
has submitted that the judgment rendered by the Tribunal is unjust
and improper and passed without appreciating the facts of the case
and evidence on record. It is submitted that though the incident in
question is covered under Section 124 of the Act, the Tribunal has
failed to take into consideration the same and it has observed that
since the incident does not fall within the definition of
‘untoward incident’ as per Section 124 of the Act, no compensation is
payable to the applicant .
3.1 It
is submitted that though the petitioner
was bona fide passenger of the Railways since he was holding Platform
Ticket No.907798 dated 10th November 1999 and the incident
occurred near the Platform No.3, the railway authority is responsible
for the same and, therefore, the petitioner
is entitled to get compensation from the respondent-authorities.
3.2 It
is submitted that the petitioner
had received grievous injuries and his right elbow was amputated and,
therefore, he is not able to perform his day to day affairs. On
account of the said incident, he has become dependent and therefore
also, the compensation as prayed for may kindly be granted in the
interest of justice.
4.0 Having
considered the arguments advanced by the learned
advocate for the petitioner,
perusing the documents produced on record as well as the impugned
judgment, it transpires that the incident in question took place on
10th November 1999 and the petitioner
preferred an application for obtaining compensation in the year 2000,
which came to be decided vide judgment dated 13th October
2003. It is pertinent to note that the petitioner
had an alternative remedy to prefer an appeal against the impugned
judgment. However, on account of delay of more than three years, the
petitioner
has chosen not to prefer an appeal and has preferred the present
petition. However, the petitioner
approached this Court after a period of more than three years and in
view of the decision of the Apex Court in the case of Shiv
Dass v. Union of India and others, reported in (2007) 9 SCC 1330,
the petitioner
is not entitled to get any compensation after a period of three
years. It would be beneficial to reproduce the relevant paragraph
Nos.10 and 11 of the said decision as under :
10.
In the case of pension the cause of action actually
continues from month to month. That, however, cannot be a ground to
overlook delay in filing the petition. It would depend upon the fact
of each case. If petition is filed beyond a reasonable period say
three years normally the Court would reject the same or restrict the
relief which could be granted to a reasonable period of about three
years. The High Court did not examine whether on merit appellant had
a case. If on merits it would have found that there was no scope for
interference, it would have dismissed the writ petition on that score
alone.
11.
In the peculiar circumstances, we remit the matter to the High
Court to hear the writ petition on merits. If it is found that the
claim for disability pension is sustainable in law, then it would
mould the relief but in no event grant any relief for a period
exceeding three years from the date of presentation of the writ
petition. We make it clear that we have not expressed any opinion on
the merits as to whether appellant’s claim for disability pension is
maintainable or not. If it is sans merit, the High Court naturally
would dismiss the writ petition.
4.1 It
is pertinent to note that the petitioner
had made the said application for getting compensation before the
Tribunal under Section 124 of the Act on account of the said untoward
incident. The definition of an ‘untoward incident’ falls under
Section 123(c) of the Act, whereby it has been categorically
indicated that the incident in question does not fall under an
untoward incident. It would be beneficial to reproduce the provision
of Section 123(c) of the Act as under, which provides for definition
of an ‘untoward incident’ :
123(c)
: ‘untoward incident’ means :
(1)
(i) the commission of a terrorist act within the meaning of
sub-section (1) of section (3) of the Terrorist and Disruptive
Activities (Prevention) Act, 1987; or
(ii)
the making of a violent attack or the commission of robbery or
dacoity; or
(iii)
the indulging in rioting, shoot-out or arson, by any person in or on
any train carrying passengers, or in a waiting hall, cloak room or
reservation or booking office or on any platform or in any other
place within the precincts of a railway station; or
(2)
the accidental falling of any passenger from a train carrying
passengers.
4.2 Looking
to the aforesaid definition of ‘untoward incident’ it is crystal
clear that the case of the petitioner
does not fall under the said definition. Thus, when the case of the
petitioner
does not fall under the said definition of an ‘untoward incident’, he
is estopped from seeking compensation under the said head. Further,
the Tribunal while passing the judgment has relief upon the following
documentary evidence on record :
Original
Platform Ticket No.907798 dated 10.11.1999.
Xerox
copy of the memo issued by SS-ADI to SI GRP.
Certified
copy of the place of occurrence.
Injury
certificate issued by a private hospital.
4.3 In
view of above, it is apparent that the Tribunal after taking into
consideration the pros and cons of the matter and after appreciating
the documents on record, has rendered the judgment by assigning just
and proper reasons. I am in complete agreement with the reasons
assigned by the Tribunal. Thus, I do not find any illegality in the
judgment impugned in the petition and, therefore, the present
petition is required to be dismissed.
5.0 For
the foregoing reasons, the present petition fails and is,
accordingly, dismissed. Rule is discharged with no order as to costs.
Interim relief, if any, stands hereby vacated.
(K.S.
Jhaveri, J)
Aakar
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