1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE FIRST APPEAL NO.1368 OF 2006 Union of India .. Appellant. V/s Nandkumar Balkrishna Jadhav .. Respondent Mr.T.J.Pandian for the Appellant. Mr.Manoj S.Ghatage for the Respondent. CORAM: R.G.KETKAR, J. DATE: 25th June, 2010. P.C.: 1. This appeal is directed against the judgment and award dated 19th September, 2005 passed by the Railway Claims Tribunal, Mumbai Bench, Mumbai (for short the Tribunal) in case No.O.A. 2003 006. By that judgment, the Tribunal allowed the application made by the Respondent u/s.16 of the Railways Claims Act, 1989 (for short the Act) seeking Rs.4 lakhs as compensation. The facts leading to the filing of the present first appeal briefly stated are as under:- The respondent herein was working as outdoor salesman with one Mahalakshmi Roller Flour Mills, Kolhapur. It is his case that on 25th December, 1999 he had boarded train No.137UP Satara-Kolhapur Passenger at 7.00 a.m.at Kirloskar Wadi Railway Station. He was proceeding to Kolhapur. Since the compartment was overcrowded, the applicant could not get inside and he remained at the door of the compartment. The train started moving and since the people were moving in different directions inside the compartment, the Respondent received their pressure from inside due to which he lost his grip and he fell down from the train. He came in between the compartment and the platform, due to which his both legs were amputated. It is his further case that he was having second class season ticket and the railway identity card for his journey. The same were recovered from the spot by the co-passenger 2 Sachin Rupaji Patil, who in turn handed over the same to the Respondent’s brother Chandrakant. However, the Chandrakant mis-placed the same. 2. The Appellant contested the claim made by the Respondent. It was denied that the Respondent lost the grip and fell down from the train. It was contended that the Respondent was guilty of committing prohibited act of standing on the door step and consequently the Appellant is exempted from the liability to pay the compensation u/s.124A of the Act. It was contended that the Respondent was not a bonafide passenger and consequently, is not entitled to the compensation. 3. Based upon the pleadings, the Tribunal framed necessary issues. The Respondent examined himself as also the co-passenger Sachin Patil. The Appellant did not lead any evidence. 4. After considering the material on record, the Tribunal awarded the compensation of Rs.4 lakhs together with interesst @ 6% p.a.from the date of the order till realisation. 5. Mr.T.J.Pandian, learned counsel for the Appellantg herein reiterated the submissions that were made before the Tribunal. He submitted that the Respondent was not a bonafide passenger. The Respondent came with the case that the co-passenger Sachin Patil entrusted the second class season ticket alongwith the identity card to his brother Chandrakant. However, the Respondent did not examaine his brother Chandrakant, and therefore it cannot be said that he was a bonafide passenger. It was further submitted that the Respondent was standing at the foot step of the compartment and therefore, he was guilty of criminal act which was prohibited u/s.156 of the Act as also punishable under the law. Section 124A of the Act provides that the passenger would not be entitled to compensation if he suffers injury inter-alia due to his own criminal acts. On the other hand, learned counsel for the Respondent supported the impugned judgment and award. 6. In the application it was specifically averred by the Respondent herein that the second class season ticket and the railway identity card were picked up fro m the place of untoward incident by the co-passenger Sachin Patil and were handed over by him to his brother Chandrakant, however his brother 3 Chandrakant misplaced it. This was denied by the Appellant in the written statement. The Respondent examined himself and in paragraph No.2 he has specifically deposed about the second class monthly season ticket and railway identity card which were picked up by co-passenger Sachin Patil and handed over to his brother Chandrakant, who misplaced these documents. The Respondent was cross-examined, but no suggestion was put by the Appellant about the second class season ticket as also the railway identity card. In fact, there was no cross-examination on this aspect at all. The other witness examined by the Respondent is Sachin Patil, who also reiterated the same thing in his evidence. Even he was not cross- examined on this aspect. Even the Appellant did not lead any evidence. In view of the material on record, the Tribunal came to the conclusion that the non examination of Chandrakant was not fatal and no adverse inference can be drawn. The Tribunal also observed that there was nothing in the cross-examination of Sachin Patil to discredit him as to handing over of monthly season ticket and the identity card to the Respondent’s brother Chandrakant. I do not find that the Tribunal committed any error in holding that the Respondent was traveling by the said train as a bonafide passenger. 7. It was submitted on behalf of the Appellant that the Respondent who was standing on the foot step of the compartment and as such he was guilty of the criminal act. 8. After the unfortunate incident, the police recorded the statement of the Respondent on the date of the incident itself, wherein he described how he met with the accident. It was stated by the Respondent that due to crowd in the compartment he remained at the door. The train had started moving and due to the pressure of the passengers from inside he was pushed and he lost grip and fell down. On the basis of the material on record, the Tribunal came to the conclusion that the evidence did not show that the Respondent was standing at the footstep at the relevant time and it is clear case that the Respondent fell down while the bogie in which he was traveling was still on the platform and therefore the said incident is 4 covered by section 123(c) (ii) of the Act. The learned counsel for the Respondent relied upon the judgment of the Apex Court in the case of Union of India V/s.Prabhakaran Vijaya Kumar & Ors., (2008) 9 SCC 527. After considering the law on the subject of torts, as also the fact that the Railways Act is a piece of social welfare legislation, the Apex 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.” 9. Considering the material on record, the Tribunal, on appreciation of evidence came to the conclusion that the Respondent was not guilty of any criminal act in relation to his journey by the train. Considering the material on record, I do not find that the Tribunal committed any error while reaching the said conclusion. Considering the judgment of the Apex Court in the case of Prabhakaran Vijaya Kumar (supra) there is no merit in the contention advanced on behalf of the Appellant. 10. In the result appeal fails and the same is dismissed. In the circumstances 5 of the case, however, there shall be no order as to costs. (R.G.KETKAR, J.)