Bombay High Court

Shri Arun Anshiram Dhotre And ... vs Union Of India Through General ... on 31 August, 2023

Bench: P. K. Chavan

                                                                           901-FA-41-2015.doc
2023:BHC-AS:24743

                    Shailaja
                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   CIVIL APPELLATE JURISDICTION
                                    FIRST APPEAL NO.41 OF 2015

                    1.         Arun Anshiram Dhotre                    ]
                               (Aged - 45 Years) Father                ]

                    2.   Aruna Arun Dhotre                 ]
                         (Aged - 40 Years) Mother          ]
                         Village - Virsai (Bushawadi)      ]
                         Post - Kangawai, Tal - Dapoli     ]
                         Dist. Ratnagiri.                  ]    Appellants
                               Vs.
                         Union of India, Through           ]
                         General Manager, Western          ]
                         Railway, Having his office at     ]
                           rd
                         3 Floor, Churchgate.              ]    Respondent
                                                    .....
                    Mr. Balasaheb Deshmukh i/b Mr. D.T. Ajagekar, for Appellants.

                    Mr. Chetan Agrawal a/w Mr. Sachin R. Pawar, for Respondent.
                                                  .....
                                CORAM                : PRITHVIRAJ K. CHAVAN, J.
                                 RESERVED ON         : 28th August, 2023.
                                 PRONOUNCED ON: 31st August, 2023.

                    JUDGMENT:

1. By this appeal, the appellants impugned the judgment and

order dated 21st April, 2014 passed by Member (Technical), Railway

Claims Tribunal, Mumbai Bench, Mumbai dismissing their Claim

Application bearing No. OA/(IIu)/MCC/2011/0025.

2. Briefly stated, facts are as follows.

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3. One Alpesh Arun Dhotre (for short 'deceased') was trevelling

by a local train between Bhayander and Vasai along with his friend

on the fateful day of 26th January, 2010. When the local train

reached between Naigaon and Vasai Road Railway Station, due to

excessive crowd in the compartment, deceased fell down out of the

train sustaining fatal injuries. An accident memo was prepared by

the Station Master pursuant to an information received from one

unknown person that an unknown person was found lying by the

railway track. When the concerned Government Railway Police

staff along with two porters reached near k.m 50/07 on down local

line, they noticed a boy lying on the ground with serious head

injury.

4. An inquest panchanama was drawn in the presence of pancha

witnesses under section 174 of the Code of Criminal Procedure.

Statements of the witnesses were recorded. Dead body was sent for

postmortem to Primary Health Centre, Vasai (East) District Thane.

Autopsy was conducted at Primary Health Centre at Navghar. Autopsy

report was collected. As per the Autopsy report, cause of death was

"Hemodynamic Shock to Polytrauma". Investigating report was given by

the Inspector of R.P.F of Vasai Road Station as well as particulars of an

untoward incident.

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5. Meanwhile, parents of the deceased who claimed to be his

dependants moved an application before the Railway Claims

Tribunal seeking compensation.

6. The learned Tribunal, after going through the application and

evidence of appellant No.1 - Arun Dhotre rejected the claim mainly

on the ground that the appellants have failed to establish that it was

an untoward incident within the meaning of section 123 (c) (2) of

the Railways Act, 1989. The Tribunal rejected the claim also on the

ground that the applicants failed to prove that they were

dependants of the deceased. The Tribunal, however, held that the

deceased was a bona fide passenger, in the sense, he was travelling

between Bhayander and Vasai Road Railway Station with a valid

railway ticket at the time of the accident.

7. I heard Mr. Deshmukh, learned Counsel for the appellants

and Mr. Agrawal, learned Counsel for the respondent-Union of

India.

8. Chapter XIII of the Railways Act contemplates liability of

railway administration for death and injury to passengers due to

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accidents. Definition of 'untoward incident' as per section 123 (c)

(2) of the said Act means the accidental falling of any passenger

from a train carrying passengers. Section 124A of the Railways Act

provides compensation on account of untoward incident whereas

proviso (a) to (e) of Section 124-A are exceptions wherein Railway

Authority is not liable to pay compensation. Section 124-A and it's

proviso read as under;

"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;

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(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.]

9. The impugned judgment and order passed by the Railway

Claims Tribunal suffers from several irregularities as well as

illegalities, in the sense, entire judgment is perverse and needs to be

quashed and set aside for the following reasons.

10. An affidavit in lieu of examination-in-chief of appellant No.1-

Arun Dhotre who is the father of the deceased indicates that he and

appellant No.2 are the parents of the deceased who died on 26 th

January, 2010 while travelling from Bhayander to Vasai Road in the

local train along with friend. Around 10.50 hours when the said

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local train reached between Naigaon and Vasai Road stations near

k.m 50/7, deceased accidentally fell down from the train due to

heavy rush and push by the passengers in the compartment,

resulting into his instantaneous death.

11. Evidence of this witness would obviously be of hearsay in

nature as he had no occasion to witness the accident. However,

accident memo dated 26th January, 2010 drawn by Government

Railway Police, inquest Panchanama and the investigation report

given by Additional Divisional Railway Manager dated 8 th March,

2011 unfold the entire facts, thereby establishing the fact that fall of

the deceased from the train was an accident, meaning thereby, it was

an untoward incident.

12. Accident memo dated 26th January, 2010 drawn by the

Government Railway Police reveals that one unknown person aged

about 20 years was found dead at k.m 50/7 near down railway line.

Inquest Panchanama drawn on 26th January, 2010 indicates injuries

on the person of the deceased. Description of the injuries as stated

in the inquest panchanama is as under;

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"Injuries:- 2 to 3 inch wound behind the head and skull has been broken and internal flesh came out from it, right hand has broken in internally in wrist, and left hand has broken in arm, there are abrasions on chest and abdomen, left foot has broken in calf and 1 inch round wound seen on it, there is bleeding from ears, due to skull broken and eyes and mouth are open".

13. It is an admitted fact that the deceased had died due to the

injuries as stated hereinabove as well as from the postmortem report

dated 26th January, 2010. Death certificate of the deceased is also

filed on record. Death certificate given by Navghar Primary Health

Centre reveals provisional cause of death as "Polytrauma".

14. The most important document is the final investigating report

given by ADRM the subject of which itself shows that it was in

respect of an investigation of an untoward incident. It is not the

case of the respondent that death of the deceased falls within the

proviso to section 124-A of the Railways Act which provides that

no compensation is payable if a passenger dies or suffers injury due

to situation mentioned therein. Section 124-A of the Railways Act

lays down strict liability or no fault liability in case of railway

accident. The respondent has not been able to bring it's case under

any of the clauses of section 124-A of the Railway's Act.

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15. Coming back to the report of ADRM which is quite

interesting one. The Authority had examined following documents;

(a) Investigation report of IPF/BSR,

(b) SS/BSR memo,

(c) Form No.2,

(d) Police Report,

(e) Inquest Panchnama,

(f) Certificate of cause of death,

(g) Postmortem report,

(h) Statement of deceased's cousin

(i) Statement of deceased's father

Conclusion drawn by the Authority is quite strange. The Authority

had concluded as under;

"From the scrutiny of the above documents it was found that, SS did not mention any cause of incidence in his memo GRP mention in their report deceased fell down from unknown local train, but they failed to establish the reason of incidence i.e falling down from any train, by any supportive evidence, hence cognizance cannot be given on such assumptions mentioned in the GRP's reports. Moreover there is no independent eyewitness to the incidence. Therefore, in the absence of independent witness and concrete evidence, it cannot be establishes that the deceased has fallen down from any train. It is also revealed that GRP found one 2nd class railway local ticket dated 26.01.10 Ex. Bhayandar - Vasai Road, in possession of deceased during the personal search, but no any copy of same is available to verify bonafideness; hence cognizance can

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not be given on such information. Compensation can not be granted to claimant in this case".

It appears that despite there being a specific memo given by the

Station Superintendent on the basis of the Government Railway

Police report that the deceased fell down from an unknown local

train, the Authority disbelieved his own employee for the reasons

best known to it. The conclusion as regards Station Superintendent

failed to establish the reason of incident is something which is

beyond one's understanding as to what was expected of the Station

Superintendent by this Authority? Observations of the Authority

that in the absence of any independent eye witness to the incident

or any other concrete evidence, it cannot be established that the

deceased had fallen down from train is something, no sane man will

accept or believe. The observations of the ADRM are beyond the

pale.

16. The learned Tribunal appears to have simply reproduced the

conclusions arrived at by the ADRM in the said report without

application of mind. Strangely, on one hand, Authority accepts that

the deceased was found with a valid traveling ticket but it further

states that no any copy of the same is available to verify the bona

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fides. A true copy of the ticket is also annexed by the appellants

bearing No.86822043. There is a reference of railway ticket in the

inquest panchanama. There is a reference of two second class

railway tickets dated 26th January, 2010 indicating that they were

from Bhayander to Vasaid Road Railway Station. Admittedly, cousin

of the deceased viz Abhishek D. Dhotre was traveling with the

deceased at the relevant time and, therefore, both must have

purchased tickets. There is no doubt that the deceased was a bona

fide passenger at the relevant time. From the documents on record,

it has been established that the deceased died due to an accidental

death which was an untoward incident.

17. The appellants have tendered ration card indicating name of

the appellants, name of the deceased as well as other family

members which was issued by the Competent Authority. They have

also tendered copies of their Aadhar Cards. From the documentary

evidence coupled with the evidence of the appellants, it has been

proved that they were dependants of the deceased.

18. Learned Counsel for the respondent submitted that since it

was a Republic Day, there was no rush in the local train and,

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therefore, there was no question to board an over crowded local

train resulting into his fall. However, Counsel for the respondent

fairly admits that the deceased was a bona fide passenger. Counsel

would argue that the appellants could have examined cousin of the

deceased in support of their case. Merely because cousin of the

deceased, who was admittedly travelling with him in local train with

valid ticket was not examined, would not ipso facto diminish other

clinching evidence discussed hereinabove.

19. Rather, respondent has not explained as to why no evidence

had been adduced on their behalf in rebuttal in order to bring their

case within the exceptions to section 124-A of the Railways Act.

The respondent could have examined Station Superintendent,

Government Railway Police Personnel or at least Additional

Divisional Railway Manager who had given a report dated 9 th

January, 2012.

20. In case of Union of India Vs. Rina Devi, 2018 ACJ, 1441, in

paragraphs 16.1 and 16.2, the Hon'ble Supreme Court on the point

of principle of strict liability and concept of self inflicted injury

observed thus;

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"16.1 From the judgments cited at the Bar we do not see any conflict on the applicability of the principle of strict liability. Sections 124 and Section 124A provide that compensation is payable whether or not there has been wrongful act, neglect or fault on the part of the railway administration in the case of an accident or in the case of an 'untoward incident'. Only exceptions are those provided under proviso to Section 124-A. In Prabhakaran Vijaya Kumar (supra) it was held that Section 124A lays down strict liability or no fault liability in case of railway accidents. Where principle of strict liability applies, proof of negligence is not required. This principle has been reiterated in Jameela (supra).

16.2 Coming to the proviso to Section 124A to the effect that no compensation is payable if passenger dies or suffers injury due to the situations mentioned therein, there is no difficulty as regards suicide or attempted suicide in which case no compensation may be payable. Conflict of opinions in High Courts has arisen on understanding the expression 'self inflicted injury' in the proviso. In some decisions it has been held that injury or death because of negligence of the victim was at par with self inflicted injury. We may refer to the decisions of High Courts of Kerala in Joseph PT (supra), Bombay in Puspa (supra) and Delhi in Shayam Narayan (supra) on this point".

21. The Tribunal had answered the issue of "bona fide passenger"

in respect of the deceased in the affirmative. The second issue as

regards "untoward incident" has been answered in the negative.

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Third issue as to whether the appellants are the dependants of the

deceased has also been answered in the negative.

22. Reasons assigned to the negative finding to the issue of

untoward incident are cryptic, in the sense, a short paragraph

appears to have been extracted from the ADRM's report to

construe that it was an untoward incident. As such, observations are

indeed cryptic and perverse.

23. The Tribunal disbelieved ration card tendered by the

appellants by observing that the appellants cannot be said to be the

dependants of the deceased in view of section 123 (b) of the

Railway Act. It seems that the Tribunal had lost sight of clause (ii) of

Section 123 (b) which reads thus;

"(ii)the parent, minor brother or unmarried sister, widowed sister, widowed daughter-in-law and a minor child of a pre-deceased son, if dependant wholly or partly on the deceased passenger".

Parents can also be said to be dependants in view of the aforesaid

clause. The Tribunal has also committed grave error by observing

that on the date of the accident, the appellants are shown to be the

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residents of "Virsai in Ratnagiri" instead of "Vasai in Thane

District". Such observations made by the the trial Court are again

in ignorance of common sense, for, merely because residence of the

appellants-parents of the deceased is shown as Virasai in Ratnagiri

would not dis-entitle them from claiming compensation in view of

the facts and attending circumstances. They cannot be denied their

original claim on the aforesaid ground.

24. Corollary of the aforesaid observations is that impugned