IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION FIRST FIRST FIRST APPEAL NO.2864 OF 2007 APPEAL NO.2864 OF 2007 APPEAL NO.2864 OF 2007 Union of India ...Appellant Versus Smt Suchitra Ganesh Pathare & Ors. ...Respondents Shri T.J.Pandian for the Appellant. Shri S.S.Deshmukh for the Respondents. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. 25th 25th 25th JANUARY, 2008. JANUARY, 2008. JANUARY, 2008. ORAL ORAL ORAL JUDGMENT: JUDGMENT: JUDGMENT: 1. The First Appeal is preferred by the Union of India through the General Manager of Central Railway challenging the judgment and order dated 05th September, 2007 passed by the learned Members of the Railway Claims Tribunal, Mumbai Bench, Mumbai. The respondents herein filed a claim application under section 16 read with section 13 (1-A) of the Railway Claims Tribunal Act, 1987 claiming compensation on account of death of one Ganesh Suresh Pathare in an alleged untoward incident within the meaning of section 123(c)(2) of the Railways Act, 1989 (hereianfter referred to as the said Act). 2. According to the case of the respondents the deceased was travelling by a local train on 03rd February, 2002 from Ambarnath to Mumbai-CST. According to the respondents, the deceased was holding a second class railway pass for the period between 16th January 2002 to 15th February 2002. The case of the respondents made in the claim application is that when the said : 2 : 2 : 2 : train reached at KM No. 32/14 near Thane railway station at about 18.35 hours, the deceased banged on a railway post due to which he fell down from the running train and sustained serious injuries. According to the respondents he died on the spot. Accordingly, a claim for compensation was made by invoking section 124-A of the said Act. The appellant contested the claim application by filing a written statement. The written statement runs only into two pages containing general denials. The only specific contention raised is in paragraph No.3 of the written statement in which the appellant stated that death of the deceased occurred due to his own negligence. 2. The learned Members of the Tribunal allowed the claim application by holding that the deceased was a victim of an untoward incident within the meaning of section 123(c)(2) of the said Act. The learned Members of the Tribunal granted compensation of Rs.4,00,000/- as per the schedule to the Railway Accidents and Untoward Incident (Compensation) Rules, 1990. 3. The submission of the learned advocate for the appellant is that there is no material on record to show that the deceased was a bonafide passenger at the time of the alleged incident. His submission is that by no stretch of imagination there was an untoward incident in as much as this was not a case of an accidental fall : 3 : 3 : 3 : from the railway but the deceased who was precariously hanging outside the compartment banged against a pole standing near the railway track and that is the reason he fell down and succumbed to the injuries. He submitted that the deceased himself was negligent as he had no business to hang outside the compartment of the train. He submitted that this case falls in the exceptions carved out by the section 124A of the said Act.He submitted that the entire story put up by the respondents in their claim petition is unbelievable and is not supported by the evidence on record. He submitted that the Station Master’s memo clearly shows that the deceased was knocked down by an unknown local train and therefore it cannot be treated as an accidental fall from the train. He submitted that the findings recorded by the Tribunal are perverse and need to be interfered with by this Court. 4. The learned counsel appearing for the respondent supported the impugned judgment and order by pointing out that there was no evidence on record to show that the deceased was precariously hanging outside the compartment. He submitted that the deceased was standing at the door of the compartment and as the compartment was overcrowded, the deceased was pushed outside as a result the pole banged against him which resulted in accidental fall from the train. : 4 : 4 : 4 : 5. I have carefully considered the submissions. I have perused the compilation containing a copy of the claim application, written statement, notes of evidence and other documents on record. In paragraph No.6 of the claim application the respondents have stated as under: "6) (A) Brief It is submitted that Shri particulars of Ganesh Suresh Pathare, Aged untoward incident about 30 years, was indicating the travelling by a local train date and place of from Ambarnath to C.S.T the untoward Station on 3/2/2002. When incident the said train reached near Thane Railway Station Kilometer No.32/14 at about 18.35 hours, he banged on the Railway Post due to which he fell down from the running train and sustained serious injuries and died on the spot. The deceased was possessing a Second Class valid Railway Pass No.41812738 for the period from 16/1/2002 to 15/2/2002." As pointed out earlier, the written statement of the the : 5 : 5 : 5 : appellant runs only into two pages and contains only general denials. In response to the paragraph No.6 of the claim application, in paragraph No.3 of the written statement, the appellant has stated thus: "03. Para No.6 of the Application: It is denied. The contentions made in this para are to be proved by the applicants. The death of the deceased occurred due to his own negligence". Therefore, no specific case was made out by the appellant that the deceased was precariously hanging outside the compartment when the accident occurred. 7. The first respondent filed affidavit in lieu of evidence. She stated that she alongwith the deceased were travelling on 03rd February, 2002 by a suburban local train from Dombivli to Bhandup as they were intending to meet their relative staying at Bhandup. She stated that the deceased boarded a gents compartment and she boarded a women’s compartment which was adjacent to the compartment in which her deceased husband entered. She stated that the train was over crowded and even she was standing near the door. She stated that near Thane railway station her deceased husband fell down from the running train and he loudly shouted for help while falling down. She produced the original : 6 : 6 : 6 : railway season ticket and identity card held by the deceased. She produced various other documents in evidence which are referred to in the later part of the judgment. The first respondent was cross-examined by the advocate for the appellant. In cross-examination not even a suggestion has been given to her that her husband was negligent. The only cross-examination made by the advocate for appellant of the first respondent reads thus: "My marriage with the deceased took place on 20.05.01. I was residing with my in-laws. I have no issue. . I have seen my husband falling from the gents compartment as I was standing at the door and my compartment was adjacent. I did not ask other passengers to pull the chain for stopping the train. It was fast train and stepped at Bhandup after Thane. Mulund is the intermediate station where it did not stop. I do not know the name of the lady passenger about whom I have referred in my affidavit. My husband was not hanging outside the compartment. At Bhandup I called my uncle. The witness has not replied the question as to who had given her the railway pass of the deceased. My husband was wearing white half : 7 : 7 : 7 : shirt and blue pant at the time of incident". 8. There is no witness examined by the appellant. It will be also necessary to refer to the documentary evidence on record. The original railway pass which was valid from 16th January, 2002 to 15th February, 2002 alongwith pass holder’s identity card of the deceased was produced and proved by the first respondent. A certified copy of the inquest panchnama was produced on record by the first respondent. The relevant part of English translation of the inquest panchnama reads thus: "It was informed by the Thane Railway Station Master through Memo that at about 18.35 hours, one unknown person aged about 30 years, banged on the railway post and got seriously injured and died on the spot". Station Master’s report is also placed on record which records that one male was killed at Km 32/14 on the Up- Through line by unknown local. 9. It will be necessary to refer to the relevant statutory provisions. The sections 123 and 124A of the said Act reads thus: "123. "123. "123. Definitions.- Definitions.- Definitions.- In this Chapter, unless the context otherwise requires.- : 8 : 8 : 8 : (a) "accident" means an accident of the nature described in section 124; (b) "dependant" means any of the following relatives of a deceased passenger, namely:- (i) the wife, husband, son and daughter, and in case the deceased passenger is unmarried or is a minor, his parent; (ii) the parent, minor brother or unmarried sister, widowed sister, widowed daughter-in-law and a minor child of a predeceased son, if dependant wholly or partly on the deceased passenger; (iii) a minor child of a predeceased daughter, if wholly dependant on the deceased passenger; (iv) the paternal grandparent wholly dependant on the deceased passenger. [(c) "untoward incident" means- (1)(i) the commission of a terrorist act within the meaning of sub-section (a) of : 9 : 9 : 9 : section 3 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 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 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.] [124A. [124A. [124A. Compensation on account of untoward Compensation on account of untoward Compensation on account of untoward incident.- incident.- incident.-When in the course of working 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 dependant of a passenger who has been killed to maintain an action and recover damages in respect thereof, the railway administration shall, notwithstanding anything : 10 : 10 : 10 : 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- : 11 : 11 : 11 : (i) a railway servant on duty; and (ii) a person who has purchased a valid ticket for travelling by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward accident.]" Sub clause (2) of clause (c) of section of section 123 of the said Act provides that the accidental falling of any passenger from a train carrying passengers is an "untoward incident". Section 124A provides that when an application is made by a dependant of a passenger who has been killed in the course of an untoward incident, it is not necessary for such dependant to prove any wrongful Act, negligence or default on the part of the railway administration. The other condition for grant of compensation on account of untoward incident is that the person killed must be a passenger i.e. a person who is either a railway servant on duty or a person who has purchased a valid ticket for travelling by a train carrying passengers. There are five exceptions carved out by proviso to section 124A. Obviously, clauses (a), (c), (d) and (e) cannot be invoked in the present case. The question is whether the deceased succumbed to death on account of self-inflicted injury. 10. In the present case, the deceased was travelling by a suburban local train in the city of Mumbai. The : 12 : 12 : 12 : incident occurred at about 18.35 in the evening. A judicial notice has to be taken of the fact that in the city of Mumbai the suburban local trains are always overcrowded. In the present case, the incident has taken place during evening rush hours. It is a fact of life in the city of Mumbai that it is very difficult even to enter the 2nd class compartments of suburban local railway trains at any hour during the course of the day. Especially in morning and evening rush hours the situation is worst and forcing one’s entry in a train becomes a daunting task. The situation is not different even on a public holiday. The passengers who normally travel by suburban trains in the city have no choice but to undertake travelling by over-crowded suburban trains only with the object of reaching their respective places of work for earning livelihood. To keep up with the speed with which the city of Mumbai moves, the passengers have no option but to stand near the doors of the compartment as it is impossible to force entry inside the compartments. No purpose is served by waiting for the next train as the situation continues to be the same. There are poles/posts erected by railways near the railway tracks for carrying electric and other cables. A person who stands at the door on the footboard has to survive the enormous pressure exerted by the passengers who are standing inside. There is every possibility that a passenger who is standing at the door may loose his balance due to the : 13 : 13 : 13 : pressure of heavy rush. In such a case there is every likelihood that he will be hit by a pole/post standing by the side of Railway track and suffer the inevitable. 11. However, there may be cases where a passenger is adventurous and though it may be possible to enter the compartment he may choose to hang outside the door on the footboard. When such a person suffers the fate as the deceased in this case has suffered, it is possible to say that he had suffered a self-inflicted injury. But that is not even the case made out by the railway administration in the present case before the Tribunal. No such specific case is made out in written statement. This is a case where the deceased alongwith his wife were travelling by a suburban train to meet their relative at Bhandup. 12. There is more than sufficient evidence on record to show that it was a case of accidental fall from the railway. By no stretch of imagination any negligence can be attributed to the deceased. It does not lie in the mouth of the railway administration to say that as the deceased passenger was standing on the footboard near the door of the compartment, he was negligent. It is an accepted fact in the city of Mumbai that the passengers are forced to stand near the door due to perpetual overcrowding of the suburban trains. There is no option left with the passengers but to do so if they : 14 : 14 : 14 : have to reach the place of work in time. 13. Therefore, present case will not fall in the category of exception carved out by clause (b) of section 124A. This Court cannot shut eyes to the ground realities of the life in the city of Mumbai. There is no contest on any other ground regarding entitlement of the original appellants to claim compensation. 14. Hence, there is no merit in the appeal and the same is dismissed with no orders as to costs. Judge. Judge. Judge.