Bombay High Court
Surekha Wd/O Bhimrao Wavare And Ors vs The Union Of India Thr The General ... on 12 August, 2024
2024:BHC-AUG:17614
FA-1406-2022.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 1406 OF 2022
Surekha Bhimrao Wavare and Ors ...Appellants
Versus
Union of India ...Respondent
***
• Mr. Mahesh P. Kale, Advocate for Appellants
• Mr. Rahul B. Bagul, Advocate for Respondent
***
CORAM : KISHORE C. SANT, J
RESERVED ON : JULY 23, 2024
PRONOUNCED ON : AUGUST 12, 2024
ORDER :
1. This appeal arises out of judgment and order
passed by the learned Member (Technical), Railway
Claims Tribunal, Mumbai at Nagpur in
OA(IIu)/NGP/184/2019 dismissing claim application of
the present Appellants seeking compensation.
2. Appellant No. 1 is widow of deceased Bhimrao
Wavare. Appellant Nos. 2 to 4 are son and daughters of
deceased who died in railway accident on 09.07.2017 at
around 04.10 pm.
3. The facts, in short, giving rise to the
Umesh PAGE 1 of 12
FA-1406-2022.odt
present Appeal are that deceased Bhimrao at the time of
incident tried to catch a train at Mukundwadi Railway
Station at Aurangabad. While trying to get in the
train, he fell down and received injuries. He was
immediately taken by mobile van to the GHATI Hospital
where he was declared dead. Postmortem was conducted
wherein it is declared that he died due to crush injury
to abdomen associated with multiple fractures. There
were two witnesses who witnessed the incident. One Ajay
Ambildhage and Sunil Bavaskar who stated that they saw
the deceased trying to get into the train and while
boarding his leg got slipped and he fell down and train
ran over him.
4. Present Appellants filed an application
seeking compensation. Learned Member found that
accident cannot be said to be untoward incident falling
under Section 123(C) of the Railways Act, 1989 (fort
short 'the Act') as the deceased was not a passenger as
defined under sub-section 2(29) of the Act. Learned
Member recorded his finding holding that the decease
was not having a valid pass or ticket and, therefore,
Umesh PAGE 2 of 12
FA-1406-2022.odt
was not a bona fide passenger of the train. In such
circumstances, claimants would not be entitled to
receive compensation. It is against this judgment and
order, present Appellants have approached this Court.
5. Mr. Kale, learned Advocate for the Appellant,
strenuously argued the case. He submits that
observation that deceased was not a passenger is
against the facts of the case and legal position. There
is clear evidence on record to show that the deceased
died due to railway accident. The deceased was trying
to get in the train when it was stopped at platform in
front of ticket booking office. Two eye witnesses,
namely, Ajay Ambildhage and Sunil Bavaskar deposed that
the deceased fell down while trying to get in the
train. Both these witnesses are rickshaw drivers who
have personally witnessed the incident. Their presence
at the spot is not doubted. Not only that train was
stopped but it was in the premises of railway station.
Not finding of the ticket with the deceased itself
cannot be taken that deceased was not a bona fide
passenger. The Court has considered this case as the
Umesh PAGE 3 of 12
FA-1406-2022.odt
case of suicide. The said conclusion could not have
been drawn when there was evidence of two eye
witnesses. The Court has wrongly believed evidence of
loco pilot who deposed that he had not received any
information regarding accidental falling down of any
passenger from train.
6. He criticized further finding that there was
no rush on the said day cannot lead to conclusion that
no such incident took place. The Court has unduely
relied upon the evidence of witness RW-1 i.e. loco
pilot who has not witnessed the incident. Thus, the
conclusion drawn by the learned Member is not correct.
The Court also did not consider the closer report
submitted by the police wherein the cause of death is
stated to be crush injury to abdomen associated with
multiple fractures. He submits that the impugned
judgment and order, therefore, deserves to be quashed
and set aside by allowing claim application of the
Appellants. In support of his submissions, he relied on
following judgments: Union of India vs. Rina Devi, AIR
1018 SC 2362, Aniruddha Roy Mahendranath vs. Union of
Umesh PAGE 4 of 12
FA-1406-2022.odt
India, AIR Online 2023 Bom 1481, Malabai Gopal
Chandekar vs. Union of India, 2023 (4) ABR 638 & Union
of India vs. Prabhakaran Vijaya Kumar and Ors, AIR 2009
SC (Supp) 383.
7. Mr. Bagul, learned Advocate for Respondent,
opposed the Appeal. He submits that to maintain the
claim a person must be a bona fide passenger under
Section 124(A) of the Act. Considering the the
definition of bona fide passenger under sub-section
2(29) of the Act it is clear that no case is made out
that deceased was a bona fide passenger. It was
necessary for the claimant to discharge initial burden
of proving that the deceased was a bona fide passenger.
The claimants could not brought on record a valid
ticket. It is only after primary burden is discharged,
the onus would shift upon the railway. Mere presence of
body on the railway track is not sufficient to hold
that the person is bona fide passenger. In the present
case, the passenger was not in the train. From the
evidence of the claimants witnesses he points out some
discrepancies. He relied upon the inquiry report of the
Umesh PAGE 5 of 12
FA-1406-2022.odt
railways. He further submits that inquest panchnama
suggest that it was case of suicide where deceased laid
himself on the track. He further submits that it has
come on record that deceased came under the running
train. He again reiterated that in absence of railway
ticket, the person cannot be said to be bona fide
passenger. In support of his submissions, he relied on
a judgment of Andhra Pradesh High Court in the case of
Union of India, South Central Railways vs. Kurukundu
Balkrishnanaiah, LAWS(APH)-2003-12-100.
8. In rejoinder, learned Advocate Mr. Kale for
Appellant relied on the provisions of sub-section 2 of
Section 123(c) of the Act defining untoward incident
which includes accidental fall of a passenger.
9. On these submissions, this Court has to decide
the question as to whether the deceased can be said to
be a bona fide passenger and secondly, whether the
incident can be said to be an untoward incident. If
both these questions are answered in affirmative only
then the third question can be answered in affirmative
as to whether the claimants/Appellants are entitled to
Umesh PAGE 6 of 12
FA-1406-2022.odt
receive compensation.
10. From the evidence it is clear that deceased
was seen falling down while trying to get in the train.
The train was on the platform opposite ticket booking
office. So far as this fact is concerned, there is
nothing on record to dispute this fact. This Court thus
holds that deceased died while trying to get in the
train.
11. In case of Rina Devi (supra) Hon'ble Supreme
Court has considered Section 124(A) of the Act which
speaks about untoward incident. Court also considered
self inflicted injury. In that case deceased was having
a ticket. He fell down from the train due to rush of
passengers and died on the spot. There was a witness
who saw the deceased purchasing the ticket and boarding
the train who had filed an affidavit to that effect and
the said witness was not cross-examined. The Tribunal
dismissed the claim holding that the case was not of
untoward incident but was of run over and deceased was
not a bona fide passenger. The said order was set aside
by High Court by relying upon the affidavit filed to
Umesh PAGE 7 of 12
FA-1406-2022.odt
the effect that deceased had purchased the ticket and
boarded train and said witness was not cross-examined.
The Hon'ble Supreme Court considered the definition of
untoward incident which includes accidental falling of
any passenger from a train carrying passenger. Supreme
Court held that mere absence of ticket with deceased
will not negative the claim that he was not bona fide
passenger. Initial burden will be on the claimant which
can be discharged by filing of the affidavit of
relevant fact and burden would then shift on the
railway. Hon'ble Supreme Court dismissed the Appeal by
upholding the order passed by the High Court.
12. In case of Aniruddha Roy Mahendranath (supra)
this Court considered Section 124(A). It held that the
deceased was a bona fide passenger as there was
possibility that ticket could have been misplaced
during untoward incident. In the said case body of
deceased was found in drainage adjacent to railway
track. The Claims Tribunal had dismissed the claim
Petition. This Court however allowed the Appeal.
13. In case of Malabai Gopal Chandekar (supra) a
Umesh PAGE 8 of 12
FA-1406-2022.odt
ticket was with a friend of the deceased who was
traveling in another bogey. In that case in the
panchnama it had come that a person had fallen from
train and sustained fatal injuries. There was evidence
of witnesses who stated that they saw deceased falling
down from the train. In that case also this Court
allowed the Appeal of the claimant by setting aside the
judgment of Tribunal.
14. In case of Prabhakaran Vijaya Kumar (supra) it
was held that the accidental falling of a passenger
from train carrying passenger is covered under the
definition of untoward incident. Court further
considered that the claim can be denied only in case
given under Section 124(A) of the Act i.e., (a) suicide
or attempted suicide; (b) self-inflicted injury; (c)
own criminal act; (d) any act committed 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. In that case claim was denied
by the Tribunal and Appeal was allowed by the High
Umesh PAGE 9 of 12
FA-1406-2022.odt
Court. Hon'ble Supreme Court upheld the order passed by
the High Court and directed to pay compensation.
15. So far as the judgment relied upon by Mr.
Bagul, learned Advocate for Respondent is concerned,
said judgment at the most said to have persuasive
matter.
16. In view of judgments of Hon'ble Supreme Court
in cases of Rina Devi (supra) and Aniruddha Roy
Mahendranath (supra) of this Court, this Court finds
that there is evidence of two persons stating that
deceased accidentally fallen down from the train. Going
through the record it is seen that the railway had
denied contents of the claim Petition. It denied that
there was a valid journey ticket with the deceased as
stated in the claim Petition. In the claim Petition it
is clearly stated that the ticket is missing and the
deceased was going from Mukundwadi to Purna. Learned
Advocate Mr. Bagul though had tried to show that there
are certain discrepancies about the fact of traveling
from Mukundwadi to Purna, in view of evidence this
Court finds that there is a minor contradictions, which
Umesh PAGE 10 of 12
FA-1406-2022.odt
are not material. So far as the report of the railway
coupled with evidence of RW-1, this Court find that the
same need not be considered since there is evidence led
before the Claims Tribunal showing that deceased was
trying to get in the train. The closer report filed by
the police clearly shows that the deceased died while
trying to get in the train. Though Appellant's witness
was cross-examined, there is nothing taken in the
cross-examination to specifically show that deceased
had not purchased a valid ticket. She had denied
suggestion that deceased tried to commit suicide. The
Respondent's witness admitted in his cross-examination
that he had no personal knowledge of the accident and
thus, he cannot be believed.
17. This Court thus holds that in the present case
it is proved that the deceased was a bona fide
passenger and secondly, the incident was untoward
incident considering judgments of Hon'ble Supreme Court
cited supra. So far as valid passenger is concerned,
this Court holds that deceased was bona fide passenger
in view of judgments of this Court in Aniruddha Roy
Umesh PAGE 11 of 12
FA-1406-2022.odt
Mahendranath (supra) & Malabai Gopal Chandekar (supra).
Since both these questions are answered in affirmative,
this Court holds that Appellants are entitled to
receive compensation. Hence, following order:
O R D E R
(a) Appeal stands allowed and disposed of.
(b) Impugned judgment and order dated
24.12.2021 is quashed and set aside.
(c) Opponents/Respondent Railway shall pay
compensation of Rs. 8,00,000/- (Rupees
Eight Lacs only) to the claimants along
with interest @ 6% from the date of filing
of claim application till date of actual
realisation.
(KISHORE C. SANT, J.)
Umesh PAGE 12 of 12
