1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.304 OF 2005 Union of India .. Appellant V/s Smt.Beladevi Bindwasani Tiwari .. Respondent Mr.A.N.Samant for the Appellant. CORAM : R.G.KETKAR, J. DATE : 10th June, 2010 P.C. : 1. This appeal is preferred by the Union of India challenging the judgment and award dated 24th September, 2004 passed by the Railway Claims Tribunal, Mumbai Bench, Mumbai (for short the Tribunal) in O.A.No.156 of 1999. By that judgment, the Tribunal allowed the application made by the Respondent and directed the Appellant herein to pay sum of Rs.4 lakhs to the Respondent within 60 days from the date of the order, failing which, the interest @ 6% p.a shall be payable from the date of the order till the amount is paid. 2. The facts and the circumstances giving rise to the filing of the first appeal are as follows: It is the case of the Respondent that her husband Bindwasani Tribhuvan Tiwari, since deceased, while traveling on 21st November, 1998 by a local train from Kalwa to Mumbai C.S.T.fell down accidentally from the running train near Mulund Railway Station. He sustained injuries and subsequently died due to the injuries. He was traveling in the second class compartment holding the second class monthly season ticket which was lost in the accident. She being the sole dependent of the deceased, made an 2 application claiming the compensation of Rs.4 lakhs. 3. The appellant herein denied that the incident in question was an untoward incident u/s.123(c) of the Railways Act, 1989 (for short the Act). It was also contended that the deceased was not a bonafide passenger. 4. On the basis of the pleadings, the Tribunal framed necessary issues and held that the deceased was a bonafide passenger of the train in question and he died as a result of an untoward incident as defined u/s.123(c) of the Act and the Respondent being the sole dependent of the deceased, she is entitled to claim compensation. 5. Mr.A.N.Samant, learned counsel for the appellant submitted that the deceased was not a bonafide passenger and that the death of the husband of the Respondent is not an untoward incident as per the provisions of Section 123(c) of the Act. 6. In support of the claim, the Respondent examined herself. During the course of examination she deposed that the railway pass and the Identity Card were recovered from the dead body of the husband by the police and the same were given to her by the police, but they were lost by her subsequently. Exhibit A1 is the inquest panchanama, which records that on searching the clothes of the deceased, the police had recovered railway pass alongwith the Identity Card in the name of the deceased as also the other articles from the deceased. 7. On the basis of this evidence on record, the Tribunal recorded that the deceased was a bonafide passenger and in view of the trauma and mental agony undergone by the Respondent after the death of her husband and 3 the fact that she is an illeterate lady, her inability to preserve the railway pass cannot be held against her, as at that time she was not aware of the importance of preserving the railway pass. I do not find that the Tribunal has committed any error in arriving at this finding. Considering the material on record, the only conclusion that can be drawn is that the deceased was a bonafide passenger. I therefore do not find any substance in the contention raised by the Appellant that the deceased was not a bonafide passenger. 8. Mr.Samant, learned counsel for the appellant submitted that the death of the respondent’ husband is not an untoward incident as per section 123(c) of the Act. The memo dated 21st November, 1998 issued by the Station Superintendent, Mulund at Exh.A2 records that it is the case of falling down from the train. Even the inquest panchanama at Exh.A1 records that it is the case of falling down from the train. 9. Considering this material on record, the Tribunal held that it is an untoward incident as per section 123(c) of the Act. In my opinion, the accidental death of the deceased came within 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:- 4 “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”. 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 5 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.” 11.The Tribunal on the basis of the material on record, held that the Respondent is the sole dependent of the deceased and consequently held that she is entitled to Rs.4 lakhs as compensation as per Rule 3 of Part-I of the Schedule under the Railway Accidents and Untoward Incidents (Compensation) Rules 1990. 12.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 Applicant (claimant). In the 6 result, the appeal fails and the same is dismissed. There shall be however no order as to costs. (R.G.KETKAR, J.)