1 FA 978-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.978 OF 2010 WITH CIVIL APPLICATION NO.2500 OF 2009 Union of India ..Appellant Vs. Raosaheb Pandit Patil and anr. ..Respondents ......... Mr.T.J.Pandian, for appellant. Mr.S.K.Payak, for respondents. ......... CORAM: R.G.KETKAR, J. DATE : 26th JULY, 2010 P.C. : Heard Mr.T.J.Pandian, learned counsel for appellant and Mr.S.K.Payak, learned counsel for respondents. 2] This appeal is preferred by the Union of India (hereinafter referred as the appellant) challenging the judgment and award dated 2 FA 978-10.sxw 3 rd February, 2009 passed by the learned Member (Technical), Railway Claims Tribunal, Mumbai Bench, Mumbai (for short “Tribunal”) in case No.OA/217 of 2005. The said case was instituted by the respondent No.1 (son of deceased) and respondent no.2 (widow of deceased) who shall hereinafter be referred as the claimants. The said case was instituted on 27 th April, 2005 claiming compensation under the provisions of Railways Act, 1989 (for short “the Act”). By the impugned judgment and award, the Tribunal held that the claimants are entitled to compensation of Rs.Four Lacs on account of death of Sandip together with interest at the rate of 9% per annum from the date of order till the date of actual payment. The Union of India (hereinafter referred as the Appellant) was directed to pay the amount within three months from the date of award. The facts and circumstances, giving rise to filing of first appeal, are as under. 3] Claimants herein are the heirs and legal representatives of Sandip Patil, since deceased, who died on 12 th January, 2005 by falling down from a train near Asangaon Railway Station at KM. 84/5-6 while travelling between Ulhasnagar and Asangaon. It is the case of claimants that deceased had a second class quarterly season ticket No.02325 which was valid till 16 th March, 2005. In 3 FA 978-10.sxw support of the claim, claimants filed following documents :- i. Station Master’s memo; ii. Police report; iii. Inquest Panchnama; iv. Post Mortem report; v. Railway quarterly season ticket. 4] Appellant resisted the claim and contended that the deceased had died due to being hit by a pole due to his own negligence. Appellant claimed that the deceased was travelling on foot board and there was no rush in the train. Appellant further claimed that the deceased died due to self inflicted injuries. 5] On the basis of pleadings of the parties, the Tribunal framed necessary issues. The Tribunal held that the deceased Sandip was travelling as a bona fide passenger from Ulhasnagar to Asangaon and that he met with an untoward incident during his journey by train. 6] I have heard Mr.T.J.Pandian, learned counsel for the appellant – Union of India and Mr.S.M.Payak, learned counsel for the respondents, at length. 7] Mr.Pandian contended that deceased Sandip was not a bona 4 FA 978-10.sxw fide passenger as also he did not meet with an untoward incident as termed under Section 123(c) of the Railways Act, 1989. He, therefore, submitted that the impugned judgment and award is liable to be set aside. On the other hand, Mr.Payak has supported the impugned judgment and award. 8] I have considered the rival submissions made by learned counsel for the parties. It is not in dispute that the inquest panchnama indicates recovery of a season ticket bearing No. 70309730. Even the DRM’s report noted recovery of a season ticket. The inquest panchnama as also DRM’s report mention same season ticket number. The ticket produced and filed on record was a quarterly season ticket valid from 17 th December, 2004 to 16 th March, 2005. Considering the material on record, the Tribunal held that deceased Sandip was travelling as a bona fide passenger on the faithful day. I find that the Tribunal has not committed any error in reaching this conclusion. 9] Mr.Pandian submitted that deceased Sandip did not meet with an untoward incident through his journey by train. The SM’s memo recorded that one person had fallen down by No.13 due to hit of OHE Pole and died at KM.84/5-6. The report of police recorded that they 5 FA 978-10.sxw were informed that “unidentified person had died on spot and as he fell down from Dn local between Asangaon and Vasind stations at KM.84/4-5 near N/B”. The inquest panchnama recorded that the person had fallen down from N/13 DN local. The panchas and police concluded that the said person was fallen down from N-13 DN local train. The contention in the DRM’s report that he was hit by a pole, is not substantiated by the panchas or the police. The appellant also did not lead any evidence in this regard. Considering the material on record, the Tribunal held that the deceased fell from a train and appellant did not establish that the accident comes within the exceptions mentioned in Section 124-A of the Railways Act, 1989. 10] The Apex Court in the case of Union of India Vs. Prabhakaran Vijaya Kumar and ors, 2008(9)SCC 527, in paragraph no.10, observed as under : “10. We are of the opinion that it will not legally make any difference whether the deceased was actually inside the train when she fell down or whether she was only trying to get into the train when she fell down. In our opinion in either case it amounts to an accidental falling of a passenger from a train carrying passengers’. Hence, it is an untoward incident’ as defined in Section 123(c) of the Railways Act.” 6 FA 978-10.sxw 11] Considering the material on record, I do not find that the Tribunal committed any error in allowing the claim made by the claimants. In the result, Appeal fails and the same is dismissed. There shall be, however, no order as to the costs. In view of the dismissal of Appeal, the Civil Application No.2500 of 2009 also stands dismissed with no order as to the costs. [R.G. KETKAR, J.]