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.23 OF 2008 APPEAL NO.23 OF 2008 APPEAL NO.23 OF 2008 Union of India ...Appellant Versus Mohammad Mussa Yusuf Sayyed & 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. DATE DATE DATE : 25th JANUARY, 2008. : 25th JANUARY, 2008. : 25th 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 27th August, 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 Mohammad Issak Mohammad Mussa Sayyed 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. The case made out by the respondents is that the deceased left his house at Mumbra on 19th July, 2002 and reached the Mumbra railway station. According to the respondents he purchased a new railway season ticket with identity card and boarded a suburban local train. The case of the respondents is that as the train was : 2 : 2 : 2 : over-crowded he was standing near the door of the train. When the train reached near Tilak bridge at Dadar, the deceased banged against the adjacent railway pole and sustained injuries. He fell down on the railway track and was taken to K.E.M hospital. He succumbed to the injuries sustained on 24th July, 2002. A written statement was filed by the appellant. The written statement runs only into one page containing general denials. Only a vague contention is raised that the alleged incident occurred due to negligence on the part of the deceased and the injuries sustained by the deceased were self-inflicted injuries. 3. 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. 4. 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 from the railway but the deceased who was precariously : 3 : 3 : 3 : 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 submtited that the deceased entered the train at Mumbra station and it is not possible to believe that the deceased was standing near the door till the train approached Dadar station. He submitted that the findings recorded by the Tribunal are perverse and need to be interfered with by this Court. 5. 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 a pole banged against him which resulted in accidental fall from the train. 6. I have carefully considered the submissions. I : 4 : 4 : 4 : have perused the claim application, written statement, notes of evidence and other material documents on record. The first respondent filed his affidavit in lieu of evidence. He stated that deceased was holding a season ticket which had expired on 18th July, 2002. Therefore, before boarding the train on 19th July, 2002, the deceased purchased a season ticket. He deposed that the original season ticket and season ticket holder’s identity card were handed over to him by the police constable who recorded inquest panchnama. The original railway season ticket and original identity card have been placed on record. The genuiness of the said documents has not been disputed by the appellant and therefore, the Tribunal has rightly found that the deceased was a bonafide passenger. 7. A specific case of the respondents is that as the train was overcrowded, the deceased was standing near the door of the compartment and when the train came near Tilak bridge at Dadar, the deceased banged against the adjacent railway pole. It is not the case made out by the appellant that though there was enough space available in the train compartment, the deceased was deliberately standing near the door. It is interesting to note that a suggestion was given by the advocate for appellant in the cross-examination of the first respondent to the effect that nobody had informed the first respondent that his son was struck by the pole and : 5 : 5 : 5 : therefore he fell down. From the said suggestion it appears that the appellant tried to dispute the correctness of the contention raised by the respondents that the deceased banged against a pole. The version of the first respondent that the deceased fell down from the train is not challenged by the appellant in the cross-examination. The inquest panchanama also notes that the deceased fell down from train. The station master’s memo produced before the Tribunal clearly records that the deceased had fallen down from the some unknown Up local train near Tilak bridge at Dadar. The said evidence on record establishes that the deceased fell down from a suburban local train. 8. A contention has been raised by the appellant that the injury sustained by the deceased was a self-inflicted injury as mentioned in proviso to section 124A of the Railways Act, 1989 and therefore, the respondents are not entitled to claim compensation. In the present case, the deceased was travelling by a suburban local train in the city of Mumbai. The incident occurred at about 09.10 in the morning. 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 the morning 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 : 6 : 6 : 6 : 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 overcrowded 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 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. 9. 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 : 7 : 7 : 7 : 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. 10. 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 as they have to reach the place of work in time. 11. 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. 12. Hence, there is no merit in the appeal and the : 8 : 8 : 8 : same is dismissed with no orders as to costs. Judge. Judge. Judge.