1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.1022 OF 1999 Union of India .. Appellant V/s Veena H.Shah & Ors. .. Respondents Mr.A.N.Samant for the Appellant. CORAM : R.G.KETKAR, J. DATE : 10th June, 2010 P.C. : 1. This appeal is preferred by Union of India challenging the judgment and award dated 6th October, 1999 passed by the Railway Claims Tribunal, Mumbai Bench, Mumbai (for short the Tribunal) in Claim Petition No.O.A. 9800112. By the impugned order, the Tribunal partly allowed the claim petition filed by the Respondents, and directed the Appellant to pay Rs.4 lakhs by way of compensation to the Respondents for the death of Shri.Hemant Vrajlal Shah in the railway accident within a period of two months from the date of the order, failing which, the Respondents would be entitled to recover the said amount with interest at the rate of 12% p.a.from the date of the order. The facts leading to the filing of the present appeal, briefly stated are as follows: - 2. The respondents, hereinafter referred to as claimants filed an application u/s.16 of the Railways Act, 1989 (for short the Act) praying for the compensation on account of death of Mr.Hemant V.Shah who died in the railway acident. It is the case of the claimants that the deceased Hemant who was 29 years of age had fallen down from the local train at Mumbai C.S.T., at platform No.7 at 8.00 p.m on 9th July, 1998. The deceased had 2 travelled in a second class compartment and was carrying second class season ticket in his purse. The said ticket was for the journey between Thane and Mumbai C.S.T. He was also carrying cash of Rs.500/- and wearing a Bentex wrist watch valued at Rs.1600/-. These articles were lost in the accident. On account of death of Hemant, the claimants claimed compensation of Rs.12 lakhs from the appellant. The appellant resisted the claim contending that the incident does not attract Section 123(c) of the Act; that the deceased sustained injuries due to his own negligence; that the deceased was not a bonafide passenger travelling with a valid ticket. 3. On the basis of the contentions raised by the parties, the Tribunal framed necessary issues. In order to substantiate the case, the claimants examined four witnesses, whereas the Appellant examined two witnesses. The claimants also produced death certificate, copies of panchnama and the FIR, telegram sent by the Station Master, post mortem report, employment certificate issued by M/s.Machine Tools & Bearing Corporation, photocopy of the ration card. The Appellant produced one station note at Exh.R1. 4. Considering the material on record, the Tribunal held that the deceased was a bonafide passenger on the date of the incident and the incident falls u/s.123(c)(ii) of the Act and that the claimants are dependent upon the deceased and consequently are entitled to the compensation of Rs.4 lakhs. 5. In support of this appeal, Mr.A.N.Samant, learned counsel for the appellant raised the following contentions:- (a) that the deceased was not a bonafide passenger and consequently claimants are not entitled to any compensation; 3 (b) that the incident does not attract section 123(C) (ii) of the Act. On the other hand, learned counsel for the Respondents supported the impugned judgment. 6. The claimants examined Vrajlal Shah, father of the deceased. He deposed that his son used to travel on a monthly season ticket, but it was lost in the accident, and as such, they could not file the same in the Court. He asserted that his son used to purchase the season ticket from 1st of every month for traveling between Thane and Mumbai C.S.T. The Appellant did not cross-examine the said witness on this point and did not even put suggestion that the deceased was not a bonafide passenger traveling by the train. Other witness viz.Veena Hemant Shah, widow of the deceased also reiterated that her husband was a season ticket holder for the journey between Thane and Mumbai C.S.T. There was no cross-examination of the said witness by the Appellant. Considering this fact, the Tribunal recorded that the assertion of these two witnesses to the effect that the deceased was a bonafide passenger traveling by the local train on the fateful day remain unchallenged. The appellant herein did not adduce any evidence to establish that the deceased was not a bonafide passenger. It was therefore held by the Tribunal that the deceased was a bonafide passenger. In view of this, I do not find any substance in the contention of the Appellant that the deceased was not a bonafide passenger on the fateful day. 7. Mr.Samant, learned counsel for the appellant further submitted that the injured fell down while catching the running train and did not fall down from the local train. In short, his submission is that the death of the 4 deceased is not covered within the expression “accidental falling of any passenger from a train carrying passengers” which is an untoward incident as defined u/s.123(c) of the Act. 8. As far as this submission is concerned, it is not in dispute that the deceased died on account of railway accident. The police report shows that the deceased sustained injuries and died in the hospital. The telegram sent by the Station Master mentioned that left leg of one passenger was cut while trying to catch the running local train on platform No.7. The Appellant examined Deputy Superintendent, Mumbai C.S.T., who deposed that the Guard of the train came to his office and informed that the passenger aged about 30 years while trying to board the running local train was run over and his left leg got cut. Mr.M.S.Awari, Guard, in his evidence deposed that the train arrived at C.S.T.at about 8.10 p.m on platform No.7 and after stopping the train and before he left the cab, the outgoing motorman of Titwala local train joined him in the cab and in the meantime some people informed him that they will not allow the train to leave because somebody had fallen down on the track and he reported the said fact to the Station Master. He admitted that he had not seen anybody falling down from the train. Considering the material on record, the Tribunal held that the case made out by the Appellant that the injured fell down while catching the running train is unacceptable. 9. Even if the case of the Appellant that the deceased fell down while catching the train and had not fallen down from the train is accepted to be correct, in my opinion, the accidental death of the deceased came within 5 the expression “accidental falling of a passenger from a train carrying passengers” which is an “untoward incident” as defined under Section 123(c) of the Railways Act, 1989. Section 2 (29) of the Railways Act defines the term “passenger” to mean a person traveling with a valid pass or ticket. Section 123(c) of the Railways Act defines “untoward incident” to include the ‘accidental falling of any passenger from a train carrying passengers”. Section 124A of the Railways Act reads as under:- “124A – Compensation on account of untoward incident. - When in the course of working in a railway an untoward incident occurs, then whether or not there has been any wrongful act, neglect or default on the part of the railway administration such as would entitle a passenger who has been injured or the dependent of a passenger who has been killed to maintain an action and recover damages in respect thereof, the railway administration shall, notwithstanding anything contained in any other law, be liable to pay compensation to such extent as may be prescribed and to that extent only for loss occasioned by the death of, or injury to, a passenger as a result of such untoward incident; Provided that no compensation shall be payable under this section by the railway administration if the passenger dies or suffers injury due to - (a) suicide or attempted suicide by him; (b) self-inflicted injury; (c) his own criminal act; (d) any act committed by him in a state of intoxication or insanity; (e) any natural cause or disease or medical or surgical treatment unless such treatment becomes necessary due to injury caused by the said untoward incident. Explanation – For the purposes of this section, “passenger” includes - (i) a railway servant on duty; and (ii) a person who has purchased a valid ticket for traveling by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident”. 6 10.The incident in which the deceased died is not clearly covered by the proviso to Section 124A, namely, the incident did not occur because of any of the reasons mentioned in clauses (a) to (e) of the said proviso. The provisions of the Act were considered by the Apex Court in the case of Union of India V/s.Prabhakaran Vijaya Kumar and Others, Appeal (2008) 9 SCC 527. After considering the law on the subject of torts, as also the fact that the Act is a piece of social welfare legislation, the Apex Court in paragraph Nos.10 and 11 of the judgment, 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.” “11. No doubt, it is possible that two interpretations can be given to the expression ‘accidental falling of a passenger from a train carrying passengers’, the first being that it only applies when a person has actually got inside the train and thereafter falls down from the train, while the second being that it includes a situation where a person is trying to board the train and falls down while trying to do so. Since the provision for compensation in the Railways Act is a beneficial piece of legislation, in our opinion, it should receive a liberal and wider interpretation and not a narrow and technical one. Hence in our opinion, the latter of the above-mentioned two interpretations i.e.the one which advances the object of the statute and serves its purpose should be preferred, vide Kunal Singh V/s.Union of India (2003) 4 SCC 524 (para 9), B.D.Shetty V/s.CEAT Ltd. (2002) 1 SCC 193 (para 12), Transport Corporation of India v/s.ESI Corporation (2000) 1 SCC 332 etc.” 7 11.Considering the material on record, I do not find that the order passed by the Tribunal is perverse or that there is any error committed by the Tribunal while allowing the claim made by the Applicants (claimants). In the result, the appeal fails and the same is dismissed. There shall be however no order as to costs. (R.G.KETKAR, J.)