1 fa2751 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.2751 OF 2007 Smt.Madhuri Vinod Gupta & Ors. ...Appellants vs. The Union of India represented by the General Manager Central Railway, Mumbai,C.S.T. ...Respondent Mr.G.J.Mohon Rao for the appellants Mr.T.J.Pandian for the respondent CORAM : A.S.OKA,J. DATE : APRIL 19,2011 ORAL JUDGMENT : 1 Heard the learned counsel for the appellants and the learned counsel for the respondent. The appeal arises out of a claim made by the appellants under section 124-A of the Railways Act,1989 (hereinafter referred to as the said Act). The claim was made on account of death of one Vinod Somnath Gupta. According to the case made out by the appellants, the deceased was travelling from Mahalaxmi to Kalwa. According to the appellants, the deceased was travelling along with the first appellant from Mahalaxmi to Kalwa on 20th September 2004. While proceeding by a local train, he fell down between Thane and Kalwa Stations and sustained injuries. He ultimately succumbed to injuries. 2 It is the case of the appellants that the deceased had purchased a second class ticket which was lost in the transit. The first appellant is the widow of the deceased and the second and third appellants are the minor children of the deceased. The respondent contested the claim by filing a written statement. It was contended 2 fa2751 that that the deceased was knocked down by a local train and the incident was not an untoward incident. It was denied that the deceased was a bona fide passenger. Reliance was placed on investigation report of DRM dated 23rd November 2005 which is annexed to the written statement. It was contended that there is no material placed on record to show that the deceased was a bona fide passenger. 3 The Tribunal held that the injuries on the person of the deceased show that the deceased died as he was knocked down by a local train. The Tribunal relied upon the inquest panchnama and injuries noted therein on the person of the deceased. The Tribunal held that though the first appellant claimed that she was travelling by the same train in different compartment, she had not seen the deceased falling down from the train. Thus, the Tribunal held that the untoward incident i.e fall from the running train was not proved. Hence, the Tribunal proceeded to dismiss the claim petition. 4 The learned counsel for the appellants has taken the Court through the record. He submitted that the report relied upon by the respondent itself shows that the deceased was travelling by a train. He submitted that in any event, the respondent did not discharge the burden of proving that it was the case of knock down by the train and not of accidental fall. He submitted that the version of the first appellant that she had purchased tickets has gone unchallenged. The learned counsel for the respondent supported the impugned Judgment and submitted that the appellants have failed to prove that the deceased fell down from a running train. He submitted that in any event it is not proved that the deceased was a bona fide passenger. 3 fa2751 5 I have carefully considered the submissions. I have perused the record, The report dated 23rd November 2005 has been annexed to the written statement of the respondent. The report records that He was travelling on that part of the coach which is not intended for the use of passengers. The report also records that the deceased was travelling in a negligent and careless manner. The report relied upon by the respondent falsifies the case of the respondent regarding knock down by a train. The report itself prove that the deceased had boarded the train and therefore, the burden was on the respondent to prove that the deceased was travelling in a negligent and careless manner. However, no evidence has been adduced by the respondent. From the impugned order, it is apparent that a stand was taken by the respondent that this was a case of knock down. 6 The first appellant examined herself by filing affidavit in lieu of examination-in-chief. In paragraph 2 of the affidavit, it is stated that she along with her husband came to Mahalaxmi and her husband had purchased two second class return tickets for travelling upto Kalwa. The deceased kept one ticket in his shirt pocket and other one was given to her. She stated that both of them boarded the local train at Mahalaxmi and got down at Dadar. She stated that they boarded Kasara Bound local train at Dadar station for proceeding towards Kalwa. She boarded in ladies compartment. When she reached Kalwa, she noticed that her husband was not in the train. Surprisingly, there is no cross examination of the first appellant on the aspect of purchasing tickets and travelling together with the deceased. Therefore, there is no reason to disbelieve the case made out by the appellants that the deceased purchased two return tickets 4 fa2751 and the ticket held by the deceased was lost in the accident. 7 Thus, this was a case where the death as a result of untoward incident i.e. Accidental fall from a train was proved by the appellants. In the circumstances, in view of the provisions of the Railway Accidents and Untoward Incidents (Compensation) Rules,1990, the appellants will be entitled to compensation of Rs.4,00,000/-. 8 The Railways relied upon a document filed along with the written statement which itself records that the deceased had boarded the train. Notwithstanding the said document, a stand was taken that it was the case of knock down while attempting to cross tracks. Therefore, interest will have to be awarded to the appellants. Interest will be at the rate of 8% p.a from the date of filing the claim petition. 9 Hence, I pass the following order : i) Impugned Judgment and order dated 6th September 2007 is quashed and set aside and the Original Application no.2004 638 is allowed. ii)The respondent shall pay compensation of Rs. 4,00,000/- to the appellants with interest thereon at the rate of 8% p.a from the date of filing of the claim petition till realization or deposit of the amount with the Tribunal. iii)Time of ten weeks from today is granted to the respondent to deposit the compensation amount with the Tribunals. iv)The appellants will be entitled to costs of the original application as well as this appeal from the respondent. 5 fa2751 v) Appeal is allowed in above terms. vi)Parties to act upon an authenticated copy of this Judgment. JUDGE