1 fa1764-03 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.1764 OF 2003 A. Vijay Kumar .. Appellant V/s. The Union of India .. Respondent ..... Mr. S. J. Mohanrao for the appellant. Mr. A. N. Samant for the respondent. ..... CORAM : A. S. OKA, J. DATE : APRIL 21 , 2011. ORAL JUDGMENT :- Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent. The Appeal arises out of a claim for compensation made under Section 124 A of the Railway Act, 1989 (hereinafter referred to as “the said Act”). The case made out by the appellant is that he sustained severe injuries as a result of an untoward incident within the meaning of Sub Clause (2) of Clause (c) of Section 123 of the said Act. 2. The contention of the appellant in short is that on 3rd October, 1996, while boarding a suburban local train on platform No. 4 of Dadar 2 fa1764-03 Railway station, he fell down. He sustained injuries. He has undergone amputation of the left leg and left hand. The claim was opposed by the respondent by filing a written statement. The Railway Claims Tribunal observed that the case made out in the claim petition was that when the appellant was standing on platform, the crowd pushed him and as a result he fell down between two compartments. It was observed that the case made out in the deposition was altogether different. The Tribunal held that untoward incident is not established. Therefore, the claim petition was dismissed. 3. The learned counsel appearing for the appellant has taken the Court through the notes of evidence and other material on record. He pointed out the stand taken in the affidavit-in-lieu of examination-in- chief of the appellant and the cross-examination of the appellant. He submitted that even the cross-examination indicates that while the appellant was boarding the train, he fell down and sustained injuries. He submitted that valid season ticket and identity card held by the appellant were produced on record and, therefore, the appellant was a bonafide passenger. His submission is that considering the nature of the injuries, the case will be covered by Part-II of the Schedule of the Railway Accident and Untoward incident (Compensation) Rules, 1990 3 fa1764-03 (hereinafter referred to the “said Rules”). The learned counsel appearing for the respondent invited attention of the Court to the averments made by the appellant in the claim petition. He pointed out that the averments indicate that the appellant was merely standing on platform and was waiting for arrival of the train. He pointed out that the case of the appellant was that while he was waiting at platform No.4 of Dadar Railway station to board a suburban train, he was pushed down by the crowd and he fell in between the two compartment of a suburban train. He submitted that on plain reading of the claim petition, Sub Clause (2) of Clause (c) of Section 123 of the said Act will have no application as it is not even the case of the appellant that he was trying to board the suburban train. He submitted that the view taken by the the learned Tribunal is right. No interference is called for. 4. I have considered the submissions. I have perused the record. It must be stated here that the incident is of 3rd October, 1996, and the claim petition was filed on 9th November, 1998, alongwith application for condonation of delay. In the application for condonation of delay, it is set out that as a result of the worst calamity in his life, the life of the appellant and his family was severely affected. The appellant stated that it took a long time for recovery, both physically and mentally. 4 fa1764-03 It appears that issue of bar of limitation was raised before the Tribunal which was dealt with by the Tribunal by passing a speaking order dated 21st March, 2001. In the said order, the Members of the Railway Claim Tribunal have referred to the contention that even the mental condition of the appellant was affected and in fact the Members of the Tribunal have noted that the appellant must have taken time “for his recovery both physically and mentally”. Before dealing with the averments made in the claim petition, a reference will have to be made to the documents produced by the appellant alongwith the application for condonation of delay and especially the medical certificate dated 12th November, 1998 of Dr. Parameswaran S. The certificate records that as a result of the amputation and serious injuries, even the mental faculties of the appellant were severely affected. The Medical certificate also noted the fact that the appellant was under treatment for post traumatic stress disorder till 10th November, 1998. In the certificate dated 16th November, 1998 issued by his employer it is stated that the appellant was in a disturbed state of mind. Therefore wages were paid to him till 15th November, 1998 only on compassionate ground though he was not in position to work. As pointed out earlier, the certificate of Dr. Parameswaran S. which is dated 12th November, 1998, categorically notes that the appellant's mental faculties were affected. The application 5 fa1764-03 for condonation of delay and claim petition were filed on 9th November, 1998. In the light of this material on record to show that at that time even the mental faculties of the appellants were affected, the averments in the claim petition will have to be examined. It is true that in paragraph 6(b) of the Claim Petition, it is stated that when on 3rd October, 1996, the appellant was waiting on platform No.4 of Dadar Central Railway Station to board Kalyan End First Class compartment, he was pushed by the crowd and he fell down between the two bogies of the suburban train. On this aspect, it will be material to note what is stated by him in his affidavit-in-lieu of examination-in-chief at Exhibit AW-1. In paragraph No.2 of the affidavit, the appellant has stated thus: “I say that on 3.10.1996 after my duty hours I came to Dadar for boarding the Kalyan local from platform No.4, at about 6.45 p.m. I say that it was a rainy day and heavy crowd on the platform to go to Mulund. I say that while boarding the local train at Dadar I fell down between two compartment and I sustained injuries to my left leg and left hand and I was taken to near by K.E.M. Hospital by railway police and the two co passengers namely Shri. Madhukar Laxman Hande and Shri Keshav Madhav Sanap. I say that in the Hospital my leg and my hand were amputated.” (underline supplied) The appellant was cross-examined by the advocate appearing for the respondent. The material part of the cross-examination reads thus: 6 fa1764-03 “At that time boarding the train I was pushed by the crowd; as a result I fell down from the train.” Thus, what is brought on record in the cross-examination of the appellant is that while he was boarding the train, the crowd pushed him as a result he fell down from the train. Thus what stated in the examination-in-chief and the cross-examination proves that while boarding the train, he was pushed by the crowd and he fell down from the train. The averments made in the claim petition filed on 9th November, 1998 will have to appreciated in the light of the fact that at that time, the appellant was in a disturbed state of mind. In view of this peculiar fact, a very little importance will have to be given to the averments made in the claim petition. Thus, what is brought on record in the cross-examination shows that the appellant fell down from the train while he was boarding a suburban local train. 5. Under Sub Clause (2) of Clause (c) of Section 123 of the said Act, accidental fall of any passenger from a train carrying passengers is an untoward incident. Going by the oral evidence of the appellant and especially what is brought on record in the cross-examination of the appellant, it is established that while the appellant was boarding the train, he was pushed by the crowd and he fell down from the train. 7 fa1764-03 Thus, this is a case where Sub Clause (2) of Clause (c) of Section 123 of the said Act will squarely apply as it is a case of accidental fall from the train. The first class season ticket and identity card held by the appellant which were valid on the date of the accident have been produced and proved. Hence, the appellant was a bonafide passenger. 6. As far as the quantum of compensation is concerned, there are no findings recorded by the Tribunal and, therefore, that aspect will have to be decided by the Railway Claims Tribunal. It may not be fair to both the parties if this factual aspect is determined for the first time in Appeal. Hence, a limited order of remand will have to be passed. 7. Hence, I pass the following order: :: O R D E R :: i. The impugned Judgment and order dated 17th September, 2003 is quashed and set aside. ii. It is held that the appellant was a bonafide passenger. It is also held that the appellant sustained injuries as an result of a untoward incident within the meaning of Clause (c) of Section 123 of the Railway Act, 1989. 8 fa1764-03 iii. The Railway Claims Tribunal shall decide only the issue of quantum of compensation payable to the appellant and interest, if any, payable to the appellant. iv. The Railway Claims Tribunal shall decide the claim petition as expeditiously as possible and within a period of three months from the date of which writ of the Judgment is received by the Tribunal. v. Only the issue regarding quantum of compensation and interests, if any, is kept open. vi. Appeal is partly allowed on the above terms with no order as to costs. JUDGE