Shri.Balaram Sudakaji Sakpal And ... vs Union Of India Through General ...
2021 Latest Caselaw 4232 Bom

                                                                         626-2018-FA.doc


                       Uday S. Jagtap



                                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                            CIVIL APPELLATE JURISDICTION

                                             FIRST APPEAL NO. 626 OF 2018

                       1. Balram Sudakaji Sakpal
                       2. Smt. Anita Balaram Sakpal
                          All R/at Plot No. 729, R. No.13,
                          Shilp Dutt CHS, Charkop,
                          Kandivali (W), Mumbai                          ..Appellants

                                Vs.

                       Union of India,
                       Through General Manager,
                       Western Railway,
                       Churchgate, Mumbai - 400 020                      ..Respondent
                                                             .....
                       Mr. Vasant N. More for the appellants
                       Mr. T.J. Pandian a/w Mr. T.C. Subramanian for the respondent

                                                   CORAM : PRITHVIRAJ K. CHAVAN, J.

RESERVED ON : 4th MARCH, 2021.

PRONOUNCED ON : 9th MARCH, 2021.

JUDGMENT : -

1. This is an appeal challenging the judgment of dismissal of the Claim Application passed by the Railway Claims Tribunal, Mumbai on 30th November, 2017.

2. Facts in brief are as follows :-

3. On the fateful day of 30th April, 2010 deceased - Milind Balaram Sakpal (for short "deceased"), a bachelor of 30 years was travelling by a local train from Vile Parle to Borivali with a valid Digitally signed by UDAY UDAY SHIVAJI SHIVAJI JAGTAP Date:

JAGTAP    2021.03.11
          15:47:27
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                                                  626-2018-FA.doc

monthly season ticket. When the train was running between Km.23/8-9 near Jogeshwari station, due to heavy rush and push from the other passengers in the compartment, he accidentally fell down from the said train, sustained serious injuries and died subsequently.

4. The incident was reported to the Station Superintendent. According to the respondent, the deceased was a trespasser and while crossing railway track, he was knocked down by 395 Dn. local train. The body of the deceased was taken to the hospital for postmortem where he was declared brought dead. An inquest panchanama was drawn. Personal search of the deceased was taken during the inquest panchanama. Along with certain articles, such as mobile phone, wrist watch and wallet, the GRP also recovered a railway pass from the person of the deceased. However, according to the respondent, the same was not available as it was lost.

5. The parents of the deceased - appellants/claimants herein, have filed an application claiming compensation of Rs.4,00,000/- from the respondent on account of death of their son due to untoward incident occurred on 30 th April, 2010. The Railway Claims Tribunal, however, by the impugned judgment, dismissed the application mainly by observing that the deceased was knocked down while crossing the railway track and, therefore, his death had occasioned due to his own negligence and criminal act, for which the Railway Administration is not responsible and, therefore, not liable to pay any compensation. The deceased had committed an offence under Section 147 of the Railway Act.

6. Heard Mr. Vasant More, learned Counsel for the appellants

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and Mr. T.J. Pandian, learned standing Counsel for the respondent.

7. At the outset, Mr. More would argue that the victim fell down from the running local train due to heavy rush and push from the other passengers in the compartment and, therefore, it was an untoward incident. Since, while travelling by local train, the deceased had a valid season ticket from Vile Parle to Borivali, which has been admitted by the respondent, there was no question of he crossing or trespassing the railway track at Jogeshwari station. It is also argued by Mr. More that the respondent had failed to discharge its burden of proving that the deceased died due to his own criminal act as provided in Section 124-A(c) of the Railways Act. It is submitted that respondent was not prevented from examining any of its witnesses, including the Motorman, Guard, GRP personnel or at least a witness on inquest, in order to substantiate it's case that it was not an untoward incident but own criminal act of the deceased. He assailed the judgment of the Tribunal on these counts, as according to him, the Tribunal has committed gross error as well as illegality by ignoring these vital aspects and reached an incorrect conclusion by dismissing the application claiming compensation.

8. On the other hand, Mr. Pandian, learned standing Counsel for the respondent has supported the impugned judgment by contending that AW-1 Balaram S. Sakpal, father of the deceased and the claimant was not an eye-witness to the incident. There was no reason for the Tribunal to disbelieve the report filed by the DRM, inquest panchanama, charge-book and memo and the report of the GRP. As such, Mr. Pandian, has prayed for dismissal of the appeal.

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9. No doubt, there was not a single eye-witness to the incident, nevertheless, the affidavit of AW-1 Balaram Sakpal indicates that his son - deceased Milind was travelling from Vile Parle to Borivali on 30th April, 2010 by a local train in a II nd class compartment, holding a IInd Class valid monthly season ticket. He testified in his affidavit of evidence that when the train reached near Jogeshwari station, his son accidentally fell down from the running train due to heavy rush and push from the other passengers, resulting into serious injuries and his ultimate death. He also testified that his son was a bona fide passenger. The witness has produced true copies of memo of Station Master, copy of police report, copy of inquest panchanama, copy of cause of death certificate, postmortem report and a copy of Ration Card. He claimed compensation of Rs.4,00,000/- with interest at 9% p.a.

10. While cross-examining him on behalf of respondent, nothing could be brought out which would render his evidence unworthy of credit. Rather, it has been reiterated in his cross-examination that on that fateful day, deceased was travelling all alone in the local train. The fact that the deceased was in fact travelling in the local train at the relevant time has not only been brought out in the cross- examination of AW-1 Balaram Sakpal but even from the inquest panchanama, it is evident that the GRP found monthly season ticket from his person. If the season ticket had, in fact, been recovered during the search of the deceased, the learned Tribunal appears to have deliberately turned a nelson's eye to the vital piece of evidence which has been lost, for which no explanation from any of the GRP personnel or of the concerned authorities has been called for. Adverse inference is, therefore, required to be drawn against the respondent.

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11. It can, therefore, be safely said that the deceased was travelling with a valid monthly season ticket. No evidence has been adduced as to how and from whom the ticket was lost. If the deceased was hit by local train as per the record and documents of the respondent and a report by the guard of the train, why the respondent had not discharged its burden by examining the said Guard or Motorman or even for that matter, the GRP personnel, who alleged to have conducted inquest panchanama. Adverse inference is again required to be drawn against the respondent for withholding the material evidence of those witnesses. Despite contending that the deceased died due to his own criminal act of trespassing / crossing the track as provided in Section 124-A(c) of the Railways Act, the respondent choose not to substantiate its case. It was incumbent upon the respondent to discharge the said burden.

12. Interestingly, the DRM's report reveals that the Station Superintendent has mentioned in the charge-book that the deceased was knocked down by local train while crossing the railway track, for which he was liable to be prosecuted under Section 147 of the Railways Act, 1989. As already stated hereinabove, no evidence has been adduced to substantiate the said fact, as according to the respondent, there was no eye-witness. If it was a criminal act of the deceased, why there is no registration of FIR? Rather, a report of an accidental death appears to have been submitted under Section 174 of the Criminal Procedure Code by the Investigating Officer, which has been accepted by the Executive Magistrate.

13. It has been rightly argued by Mr. More that due to the

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illegalities by the respondent, the appellants who were dependents of the deceased, cannot be deprived of the benefits under the welfare legislation without proving in the Court of law that the deceased was guilty of the offences attributed to him. Section 124A of the Railways Act contemplates :-

"124A. Compensation on account of untoward incident. - When in the course of working 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 dependant 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 travelling by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident.]"

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14. It is evident that the exceptions carved out in the aforesaid Section from (a) to (e), wherein under those contingencies no compensation shall be payable under Section 124A of the Railways Act. The respondent - Railway Authority has failed to establish that the deceased died due to his own criminal act and, therefore, the death of the deceased was indeed an untoward incident, which has occurred while he was travelling as a bona fide passenger with a valid season ticket in the local train on the fateful day.

15. The impugned judgment is perverse on more than one count. Firstly, the Tribunal has committed gross impropriety in ignoring the fact that during inquest, a valid monthly season ticket was found on the person of the deceased. Secondly, it has failed to examine the witness namely; the Motorman or the Guard or the GRP personnel to substantiate its contention that the deceased was hit by a local train. If there was no eye-witness, then, how come the matter was reported to the Station Superintendent by the Guard of that train. Thirdly, there is a patent irregularity in relying upon the statement of the panch witnesses of the inquest panchanama qua the deceased.

16. The learned Member of the Tribunal observed that the police and panchas together have opined in the inquest panchanama that the said deceased was knocked down by 395 Dn. local train while crossing the railway track at Jogeshwari station level crossing gate No.25. It is surprising as to how the police and panchas could have their opinion, that too, in an inquest panchanama when they were not the witnesses of the accident. It is even more surprising that the learned Member of the Tribunal, in total ignorance of law, has placed

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reliance upon the so called opinion of the police and panchas in the inquest panchanama. This is nothing but a total perverse findings returned in the impugned judgment, which cannot be sustained in law.

17. Mr. More, has, therefore, rightly placed a useful reliance on a judgment of this Court in the case of Ramdhan alias Namdeo and Anr. Vs. Union of India & Anr. 2009 (3) T.A.C. 193 (Bom.) and Union of India Vs. Sitabai Vasane & Ors. 2014 ACJ 896.

18. In case of Ramdhan alias Namdeo & Anr. (supra), the Tribunal had denied compensation to the claimants by observing that the deceased was not possessing a railway ticket and, therefore, jumped to a conclusion that he was not a bona fide passenger. It is held by this Court that none prevented Railways to substantiate its plea that deceased was crossing railway track and was knocked down. This Court has, therefore, quashed the impugned judgment and order of the Tribunal. Section 124A of the Act lays down strict liability or No Fault Liability in case of railway accident. It is observed that if a case comes within the purview of Section 124A, it is wholly irrelevant as to who was at fault.

19. This Court has taken into consideration the judgment of the Hon'ble Supreme Court in case of Union of India Vs. Prabhakaran Vijaya Kumar & Ors. 2008 ACJ 1895. The salient features of the said judgment are reproduced as under :-

"8. However, the evidence of D. Sajja, DW-1, who was the Station - Master at the railway station corroborates the evidence of PW-2, DW-1 had deposed that he saw one girl running toward the train and trying to enter the claim and

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she fell down. He has further stated that the deceased Abja had attempted to board the train and fell down from the running train. For this reason, the Tribunal held that this was not an 'untoward incident' within the meaning of the expression in Section 123(c) of the Railways Act, 1989, as it was an accidental falling of a passenger from a train carrying passengers.

9. In appeal, Kerala High Court was of the view that the deceased sustained injuries, even according to the respondents, in her anxiety to get into the train which was moving. Hence, the High Court held that the deceased came within the expression 'accident falling of a passenger from a train carrying passengers' which is an 'untoward incident', as defined in section 123(c) of the Railways Act, 1989.

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 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. Union of India, (2003) 4 S.C.C. 524 (para 9), B.D. Shetty V. CEAT Ltd., (2002) 1 S.C.C. 193 (para 12), Transport Corporation of India V. E.S.I. Corporation (2000), 1 S.C.C. 332, etc.

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12. It is well-settled that if the words used in a beneficial or welfare statute are capable of two constructions, the one which is more in consonance with the object of the Act and for the benefit of the person for whom the Act was made should be preferred. In other words, the beneficial or welfare statutes should be given a liberal and not literal or strict interpretation vide Alembic Chemicals Works Co. Ltd. V. Workmen, A.I.R. 1961 S.C. 647 (para 7), Jeewanlal Ltd. V. Appellate Authority, A.I.R. 1984 S.C. 1842 (para 11), Lalappa Lingappa V. Laxmi Vishbnu Textile Mills Ltd., A.I.R. 1981 S.C. 852 (para 13), S.M. Nilakjar V. Telecom Distt. Manager, (2003) 4 S.C.C. 27 (para 12), etc.

14. In our opinion, if we adopt a restrictive meaning to the expression 'accidental falling of a passenger from a train carrying passengers' in Section 123(c) of the Railways Act. We will be depriving a larger number of railway passengers from getting compensation in railway accidents. It is well known that in our country there are crores of people who travel by the railway trains since everybody cannot afford travelling by air or in a private car. By giving a restrictive and narrow meaning to the expression we will be depriving a large number of victims of train accidents (particularly poor and middle class people) from getting compensation under the Railways Act. Hence, in our opinion, the expression 'accidental falling of a passenger from a train carrying passengers' includes accidents when a bona fide passenger, i.e. a passenger travelling with a valid ticket or pass is trying to enter into a railway train and falls down during the process. In other words, purposive, and not literal, interpretation should be given to the expression."

20. Thus, it is apparent that the provisions for compensation in the Railways Act is a beneficial piece of legislation and, therefore, it should receive a liberal and wider interpretation and not a narrow and technical one. The one which advances the object of the statute and serves its purpose should be preferred in view of the judgment of the Hon'ble Supreme Court in case of Kunal Singh Vs. Union of India, (2003) 4, S.C.C. 524.

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21. As a consequence, the appeal is allowed with cost of Rs.5,000/-.

22. The impugned judgment and order dated 30 th November, 2017 passed by the Railway Claims Tribunal, Mumbai is quashed and set aside.

23. The respondent - Railway shall pay a compensation of Rs. 8,00,000/- (Rupees Eight Lakhs only) to the appellants, within a period of six weeks from today.

24. If the respondent fails to pay the compensation within six weeks, future interest at the rate of 9% p.a. shall have to be paid on the amount of compensation, till the entire amount is realised.

25. The Record & Proceedings be remitted back to the Railway Claims Tribunal, Mumbai.

( PRITHVIRAJ K. CHAVAN, J.)

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