Bombay High Court
Shri. Pinto Promothonath Sen And Anr vs Union Of India, Through General ... on 11 February, 2025
2025:BHC-AS:6742
FA-514-2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 514 OF 2023.
1) Shri. Pinto Promothonath Sen ]
Age- 62 Years, Occ- Retired, ]
Residing at : Sai Arcade, A Wing, Room ]
No. 004, B-Cabin Road, Near Navre ]
Nagar, Ambernath (E), District-Thane. ]
2) Smt. Rakhi Pinto Sen ]
Age- 52 Years, Occ- Housewife, ]
Residing at : Sai Arcade, A Wing, Room ]
No. 004, B-Cabin Road, Near Navre ]
Nagar, Ambernath (E), District-Thane. ] ...Appellants
TALLE (Original Applicants).
SHUBHAM
ASHOKRAO Versus
Digitally signed by
TALLE SHUBHAM
ASHOKRAO
Date: 2025.02.11
1) Union of India, Through General ]
19:28:58 +0530
Manager, Central Railway, CST Mumbai ] ...Respondents.
------------
Mr. Vasant N. More for the Appellants.
Mr. J. S. Saluja, for the Respondent No. 1-UOI.
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Coram : Sharmila U. Deshmukh, J.
Reserved on: January 15, 2025.
Pronounced on : February 11, 2025.
JUDGMENT :
1. The Appeal has been preferred at the instance of the
Original Applicants whose claim for compensation on account of death
of their son in an incident of 5 th October, 2013 filed under Section 16(1)
r/w Section 13(1-A) of Railway Claims Tribunal Act, 1987 r/w Section
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124-A of the Railways Act, 1989 has been dismissed by the impugned
Judgment dated 30th September, 2019.
2. The Application for compensation filed in the prescribed
form pleads that on 5th October, 2013 their son Dip Pinto Sen wanted
to go to Kalyan for some work and bought return railway ticket from
Ambernath to Kalyan. After finishing the work, their son came to
Kalyan Railway Station and boarded the local train to Ambernath
where he used to reside. When the said train reached between
Vitthalwadi and Ulhasnagar railway station, the deceased accidentally
fell down from the train due to heavy rush in the compartment and
expired on the spot. The deceased was holding II nd class return railway
ticket from Ambernath to Kalyan, which got lost in the accident. The
Applicants claimed to be financially dependent on the deceased. Along
with the Application, the Applicants filed the Station Master memo,
Police Report, Inquest Panchanama, Statement, Ration Card and copy
of bank Pass Book.
3. The defence of the Respondent was that the deceased was
not a bonafide passenger and the investigation report revealed that
the deceased was run over while unauthorizedly crossing the railway
tracks.
4. The Applicant No. 1 examined himself and deposed to the
contents of the Application, and, produced the copy of station master
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memo, Police Report, inquest panchnama, spot panchnama, death
certificate, copy of bank pass book, Identity Card and ration card. In the
cross examination, he admitted that he had not personally witnessed
the incident. The Railways filed its DRM's report.
5. The Railway Claims Tribunal framed the following relevant
issues:
"i) Whether the applicants prove that they are
the dependents of the deceased within the meaning
of Section 123 (b) of the Railways Act?
ii) Whether the applicants prove that the
deceased was a bonafide passenger of the train, in
question, on the relevant day?
iii) Whether the applicants prove that the
death of the deceased had occurred as a result of an
untoward incident, as alleged in the claim
application?
6. The Railway Claims Tribunal answered the Issue No. 1 in
favour of the Applicants however, as regards the issues of the
deceased being bonafide passenger and the accident being an
untoward incident were answered against the Applicant. The Railway
Claims Tribunal dismissed the Claim Application based on the DRM's
Report that as the GRP has not mentioned about recovery of any
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railway ticket or pass from the possession of the deceased during the
inquest proceedings, the deceased cannot be termed as bonafide
passenger. The Tribunal further accepted the observation in the
inquest panchanama and Deputy Station Superintendent's Memo that
the deceased was hit by unknown train while crossing the railway track
in negligent manner.
7. Mr. More, learned Counsel appearing for the Appellant
would submit that the Appellant No. 1 had filed his affidavit of
evidence specifically deposing that the deceased had gone to Kalyan
for his personal work and was coming back from Kalyan to Ambernath
by local train and had accidentally fallen down from the running train
and his body was cut into two pieces and he expired on the spot. He
has further deposed that the ticket might have been lost in the
accident and that he was travelling by the local train having valid
railway ticket and was bonafide passenger of the train.
8. He submits that in the cross examination, the only
suggestion given is that the son had died while crossing the railway
track and there is not even a suggestion that he was not a bonafide
passenger. He would further point out that the Tribunal has considered
the injuries sustained by the deceased and has held that such grievous
injuries can only be inflicted on a person who has either being knocked
down or run over by some train and has therefore held that the
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deceased was knocked down by an unknown train. He submits that the
decision of this Court dated 5th September, 2022 in the case of Mrs.
Seema wd/o Sanjay Pathare vs. Union of India passed in First Appeal
No. 551 of 2021 has held that it is not a universal proposition that
every crush injury is caused by coming in contact with the moving train
and such injury can also be caused when the person falls from speeding
train.
9. He submits that the Apex Court in the case of Union of
India vs. Rina Devi1 has held that the initial burden to prove that the
deceased was bonafide passenger is always on the claimant however
once an affidavit of relevant facts is filed by the Claimant the onus
shifts on the Railways. He submits that the Apex Court has further held
that the mere absence of ticket will not negate the claim that he was
bonafide passenger.
10. He submits that in the case of Sanyokta Devi vs. Union of
India2 the Apex Court has held that the Claimants cannot be expected
to explain how the accident has taken place.
11. Per contra, Mr. Saluja, learned Counsel appearing for the
Respondent-Railways would submit that the station master's memo
records that on 5th October, 2013 the deceased was hit by unknown
train while trespassing. He would further submit that the inquest
1 2018 ACJ 1441
2 2023 (2) T.A.C. 16 (S.C.)
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panchanama records that the ticket has not been found on his person
whereas his mobile was found in broken condition. He submits that the
spot panchanama recorded by police on 6th October, 2013 records that
while seeing the surrounding area of spot, no doubtful thing or
weapon has been seen and therefore it is evident that the premises
were searched and no ticket was found. He would further submit that
the documents on record shows that the deceased was run over while
unauthorizedly crossing the railway tracks and therefore it is not an
untoward incident.
12. The following points arise for consideration:
(a) Whether the Applicants have proved that the deceased was a
bonafide passenger.
(b) Whether in the facts of the present case, the death had
occasioned due to an untoward incident ?
As to point No. 1:
13. Before proceeding to the facts of the case, it would be
beneficial to refer to the decision of the Apex Court in the case of
Union of India vs. Rina Devi (supra) where the Apex Court has
considered the issue of burden of proof when the body is found on the
railway premises. After examining decisions of various High Courts, the
Apex Court held that the mere absence of ticket with such injured or
deceased will not negative the claim that he was bonafide passenger
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and that initial burden will be on the claimant which can be discharged
by filing an affidavit of relevant facts and the burden will then shift on
the railways and the issue can be decided on the facts shown or the
attending circumstances which will have to be dealt from case to case
on the basis of facts found.
14. In the present case, by filing the evidence affidavit, the
Applicant No. 1 has deposed that the deceased was travelling by local
train having valid railway ticket and while travelling had accidentally
fallen down from the running train and died.
15. In the cross-examination, there is not even a suggestion
given by the Railways that the deceased did not have a valid railway
ticket and was therefore not a bonafide passenger. The initial burden
of the Applicant was to assert that the deceased was having valid ticket
and once such assertion finds place in the affidavit the initial burden
stands discharged and the onus then shifts on the railways. The
evidence of the Applicant No. 1 has gone un-contraverted as regards
the deposition of the purchase of the railway ticket by the deceased
and the deceased must be held to be a bonafide passenger. Point no. 1
is accordingly answered in favour of the Applicants.
As to Point No. 2.
16. Under Section 123 (c) (2) of the Railways Act 'untoward
incident' means the accidental falling of any passenger from train
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carrying passenger and Section 124-A of the Railways Act provides for
'no fault liability' compensation to be paid for the loss occasioned by
reason of untoward incident subject to the exceptions carved out in
clause (a) (e) of the proviso. In the present case the defence of the
Respondent-Railways as per the DRM's Report is that the deceased was
trespasser and was run over while unauthorisedly crossing the tracks
and that the incident was self inflicted one as much as deceased
carelessly and negligently invited the disaster to himself. It is further
the contention that the body was found cut into two pieces which
happens only when run over by speeding train and not by falling down.
The injuries which are reflected in the postmortem report are as under:
1. # (R+) femur
2. # (R+) thigh
3. Multiple abrasion over back, abdomen and
both legs.
4. Body divided in two parts horizontally at
abdomen unbilical region.
17. The Trial Court upon consideration of the injuries held that
such injuries can be inflicted only upon person who has either being
knocked down or run over by some train and has therefore accepted
that the deceased was trespasser and was knocked down by unknown
train.
18. As per the prescribed procedure, the information about
the accident is first given to the station master and the station master
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memo records that the deceased was hit by an unknown train while
trespassing. The Railway Passengers (Manner of Investigation of
Untoward Incidents) Rules, 2003 provides that any railway servant
including guard and driver of train on coming to know of occurrence of
an untoward incident shall report the same to the nearest station
Superintendent.
19. In the present case, the station master's memo does not
record any information being given by any motorman of having
knocked down any person which was the bounden duty of the railway
servant as per Rule 3 of the Rules of 2003. The information given to the
police infact records that on 5 th October, 2013 written memo was given
that the deceased was lying between Vitthalwadi and Ulhas Nagar
railway station near railway K.M. 56/36 in two pieces of body. It is
therefore clear that the deceased was found lying near the railway
track and no information was given by any motorman that the train had
knocked down some person who was crossing the railway track. There
is no evidence led by Railways of any guard or motormen to establish
that the deceased was knocked down while crossing the tracks.
20. It is the case of the Railways that it is self inflicted injury
and has occurred due to carelessness and negligence of the Applicant.
In the case of Union of India vs. Rina Devi (supra) the Apex Court
examined the concept of self inflicted injury and after considering the
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various decisions on the subject held that the concept of self inflicted
injury would require intention to inflict such injury and not mere
negligence of any particular degree. It further approved the view taken
in the case of United India Assurance Company Ltd., vs. Sunil Kumar 3
that the plea of negligence of the victim cannot be allowed in claim
based on no fault theory under Section 163-A of the Motor Vehicles
Act, 1988.
21. In Sadashiv Ramappa Kotiyan vs. Union of India4, the Co-
ordinate Bench, in identical facts where the body was found cut in two
pieces, has held that in absence of expert evidence, the Tribunal should
not have rendered its personal opinion while adjudicating the claim
under the present statute. The contention of the Railways thus could
not have been accepted. As far as the findings of the Trial Court based
on the injuries and holding that such grievous injury could not be
sustained after having fallen down from the train is sustained, it needs
to be noted that the injuries have to be considered in the overall
circumstances. The extent of the injuries is not sufficient in order to
come to a conclusion that he was knocked down by a train particularly
when the Railways have not examined any witness to establish that the
deceased was knocked down by a train while crossing the railway
tracks. The place where the body was found was known to the railways
3 2018 ACG 1 (SC)
4 (2022) ACJ 175
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and it would not have been difficult to find out the trains which would
be crossing the particular spot either at particular time. The railways
having failed to lead any evidence it cannot be said that the accident
was not result of untoward incident.
22. The Tribunal erred in considering the opinion of panchas in
inquest panchanama, the police report and spot panchanama that the
deceased while crossing the line came under the train. The reports had
to read along with the evidence and could not be solely relied upon to
arrive at a finding that the deceased had been hit by a train while
crossing the tracks. The Railways having failed to lead evidence to
prove the same, the opinion set out in the reports could not be
accepted. The evidence produced on record proves that the deceased
had expired in an untoward incident by reason of which the
compensation is payable under Section 124-A of the Railways Act and
the incident does not fall in any of the exceptions carved out in the
proviso to Section 124-A. Point No. (2) is accordingly answered in
favour of the Applicant.
23. Resultantly, the First Appeal is allowed and the following
order is passed:
ORDER:
(a) First Appeal is allowed.
(b) The impugned Judgment dated 30th September,
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2019 is hereby quashed and set aside.
(c) Respondent-Railway shall pay compensation of Rs.
8,00,000/- to the Appellants within a period of eight
weeks from the date of the Appellants furnishing the
bank details to the concerned department.
(d) In event of failure to make payment within the
prescribed time, the Respondent Railways to pay
interest @ 6% p.a. on the amount of compensation
from due date till the entire amount is realized.
[Sharmila U. Deshmukh, J.]
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