IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF JULY 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR MISCELLANEOUS FIRST APPEAL No.10972 OF 2012 (RCT) BETWEEN Mrs. Praveena Ganesh, W/o. Mr. Ganesh Kumar K., Aged 26 years, Now R/at Flat No.103, Parimala Elite, Prashanth Road, Whitefield, Bengaluru-560066.
(By Sri. Suma Kedilaya, Advocate) AND Union of India Rep. by The General Manager, South Western Railway, Club Road, Keshwapura, Hubli.
(By Sri. N.S.Sanjay Gowda, Advocate) …Appellant …Respondent This MFA is filed under Section 23 of Railway Claims Tribunal Act against the order dated 17.08.2012 passed in O.A. II U 132/2008 on the file of the Railway Claims Tribunal, Bengaluru Bench, Bengaluru, dismissing the application for compensation.
This MFA coming on for final hearing this day, the court delivered the following:
JUDGMENT The Railway Claims Tribunal by its award dated 17.8.2012 dismissed the claim petition and aggrieved by the same, the claimant is before this court in appeal.
2. Given a brief account of the incident, on 7.5.2008, the applicant was travelling with her husband in train number 6517 (Mangalore Express). In between Mandya and Mysore Stations near Yeliyur Railway Station Signal in between 23.30 and 24.00 hours when the train was moving slowly, an unknown person peeped inside the train through the window and snatched the gold mangalsutra of the claimant. Immediately she made a complaint in the next railway station. Thereafter, for the loss she sustained, being a bona fide purchaser, she made a petition claiming compensation of Rs.50,000/-. The Tribunal held an enquiry and dismissed the petition mainly giving the reasons that snatching of mangalsutra by a miscreant would not come under the definition of ‘untoward incident’ under section 123 (c) (1) (ii) of the Railways Act, that the mangalsutra was worn as a jewellery and not assigned or booked as luggage in Railways and therefore section 100 of the Railways Act is not attracted, that the claimant had kept open the window and thereby there was negligence on her part and that the applicant had not filed any bill/money receipt to establish her ownership, value, carat and weight of mangalsutra alleged to have been snatched by the miscreant.
3. Assailing the above findings, the learned counsel for the appellant argues that the claimant was a bona fide purchaser, she had valid ticket with her. The window was kept open because she was travelling in the train during summer season. Negligence cannot be attributed to her. Section 124A of the Railways Act obligates railway administration to compensate even in case of negligence by the claimants. She further argues that the incident squarely falls within the definition of ‘untoward incident’. In this regard she refers to section 123 (c) (1) (ii) of the Railways Act. Production of bill or receipt to show ownership with regard to mangalsutra is highly improbable. The Tribunal has come to a wrong conclusion.
4. Learned counsel for the respondent submits that while there is no dispute that the appellant was a bona fide purchaser, the incident that has been complained of does not fall within the scope of ‘untoward incident’. His argument is that section 123 (c) (1)(ii) of the Railways Act only refers to robbery or dacoity. This is a case of theft. Therefore, the incident is not covered under section 123 (c) (1)(ii) of the Railways Act. He argues that the Tribunal has rightly come to conclusion to dismiss the claim petition.
5. After hearing the arguments, it is to be stated that there is no dispute with regard to snatching of mangalsutra. If the reasons assigned by the tribunal are seen, I do not think that they are justifiable. Section 123 (c) (1)(ii) of the Railways Act clearly says that the making of a violent attack or the commission of robbery or dacoity is also an ‘untoward incident’. Just because the word used is ‘robbery’, it cannot be said that the incident that took place in this case cannot be brought within the scope of section 123 (c) (1)(ii) of the Railways Act. ‘Robbery’ is an aggravated form of theft. Section 390 of the Indian Penal Code deals with definition of robbery and it states, “theft is ‘robbery’ if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint”.
6. That means ‘robbery’ includes ‘theft’. But, the converse may not be true. The Tribunal ought to have given literal interpretation to the word ‘robbery’ in view of the intention of the legislature in providing compensation to victims of ‘untoward incidents’. Moreover it is clearly said that the appellant is a married woman; husband was also travelling with her; obviously she should be wearing mangalsutra. Expecting production of a bill or receipt can said to be unwarranted and total non-application of mind by the tribunal. Because of snatching of mangalsutra, she sustained loss being a bona fide purchaser and she has to be compensated.
7. The appellant has claimed Rs.50,000/- towards loss. The incident took place in the year 2008. There is no base for claiming Rs.50,000/- towards compensation. Whatever the amount that is awardable to the appellant towards compensation is purely a guess work. Taking into consideration the overall circumstances, I am of the opinion that Rs.20,000/- can be awarded. Therefore, with this observation, the following order : -
(a) Appeal is allowed.
(b) The award of the tribunal is set aside.
(c) The appellant is awarded Rs.20,000/- towards compensation with interest @ 6% p.a. from the date of application till the date of deposit.
Ckl Sd/- JUDGE