Rekha W/O Baban Naik vs Union Of India, Through The General ...
2025 Latest Caselaw 2799 Bom

Bombay High Court

Rekha W/O Baban Naik vs Union Of India, Through The General ... on 25 February, 2025

2025:BHC-AS:8906

                                                                                       FA 873-23.doc



                                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                           CIVIL APPELLATE JURISDICTION

                                         FIRST APPEAL NO. 873 OF 2023

                   Rekha W/o Baban Naik.                             ]
                   Aged 53 years, Occ. Housewife,                    ]
                   permanent Address : 28, Near Unit                 ]
                   Railway Quarter, Bendre Chawl,                    ]
                   Nandgaon, Taluka: Nandgaon,                       ]
                   District . Nashik 423104.                         ]
                   Present address: Shanti Niwas Chawl,              ]
                   Kopar (East), Dist. Thane.                        ]          ...Appellant.

                               Versus

                   Union of India, through                           ]
                   The General Manager,                              ]
                   Central Railway, Mumbai CSMT.                     ]          ...Respondent.

                                                      ------------
                   Mr. Vasant N. More for the Appellant.
                   Ms. Leena Patil for the Respondent.
                                                      ------------

                                                               Coram : Sharmila U. Deshmukh, J.

Reserved on : January 15, 2025 Pronounced on : February 25, 2025.

Judgment :

1. This First Appeal is at the instance of original Applicant whose

claim for grant of compensation on the ground of death of her son in

an incident which occurred on 9th July 2018 has been dismissed by the

Railway Claims Tribunal vide impugned judgment dated 8 th March 2023

passed in Application No.14 of 2019.

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2. The contention in the Claim Application was that on 9 th July

2018, the deceased was travelling from Thane to Kopar by local train in

second class compartment holding a valid second class railway ticket

and when the local train had reached near KM 46/10 and 46/11

between Kopar Railway Station and Diva Railway Station, due to push

from the crowd, the deceased accidentally fell down from the train and

sustained injuries and expired. It was pleaded that deceased was

travelling from Thane to Kopar holding a valid second class return

railway ticket from Kopar to Thane but the said ticket was lost in the

untoward incident.

3. The defence of Respondent-Railways was that the statutory

investigation report dated 18th December 2019 prepared by Mumbai

Division reflects that deceased was knocked down by a train while

trespassing the tracks on 9th July 2018 at about 21.40 hours between

Kopar and Diva stations on Up Line at KM No.46/10 - 46/11 and that

the victim was found lying on up / through track. It was denied that

deceased was a bona fide passenger as no valid ticket was recovered

upon search by GRPF from the body of deceased

4. The Applicant examined herself and deposed as per the contents

of her Application. She deposed that on 9th July 2018, the deceased

had purchased second class railway return ticket from Kopar to Thane

in her presence and thereafter both boarded local train in different

Patil-SR (ch) 2 of 14 FA 873-23.doc

compartments. She has deposed that both alighted at Thane Station

and the deceased told her that he was going to meet Mukadam for

some work and she left for her work. She has further deposed that on

9th July 2018, deceased started his return journey by local train from

Thane to Kopar holding a valid second class railway ticket and when the

train reached between Kopar and Diva stations, the deceased fell down

from train. She has deposed that ticket was lost during the course of

untoward incident. She has further deposed that on 10 th July 2018

when she reached home, her son was not at home and after 5 to 6 days

she lodged a missing complaint with Ramnagar Police Station,

Dombivali East. She has deposed that on 14 th August 2018 she had

gone to Dombivali Railway Police Station to make inquiry and at that

time she was informed that deceased had fallen down from running

train. In support of her deposition, she has produced the true copies of

station master's memo, inquest panchnama, post mortem report,

photocopies of ration card, Aadhar card and bank passbook.

5. In the cross examination, she has admitted that she had seen the

deceased at Thane at about 8.00 p.m. and thereafter he left to meet his

mukaram and did not return home for about 20 days. She has admitted

that copy of missing complaint filed by her is not available with her.

She has stated that after a period of 10 days she was called by

Dombivali Railway police to identify the photograph of deceased and

Patil-SR (ch) 3 of 14 FA 873-23.doc

nothing was recovered from the possession of deceased.

6. Respondent-Railways examined the motorman of Train No.S-52

and the guard of Train No.S-52. The motorman has deposed that on 9 th

July 2018 when his train was passing between Kopar and Diva, he

suddenly saw a person standing on the up/through track and that he

immediately applied the emergency break and blew the whistle. In

spite thereof, the person was knocked down by his train at KM 46/10.

He has further deposed that he informed his guard about the incident

on the intercom and after halting the train, guard tried to locate the

person but as it was raining heavily and it was dark, the person could

not be located. He further deposed that after halting on the spot for 2

minutes, he proceeded as per the advice of controller. In support of his

evidence, he submitted the working diary of the day. His testimony

has not been shaken in the cross-examination. The witness has

maintained that there was no platform given on the parallel Kopar line

near the place of incident.

7. The guard in his deposition has corroborated the testimony given

by motorman. In the cross-examination, he has stated that he did not

de-board his train and had informed the chief controller and put the

memo informing the incident.

8. The Trial Court upon consideration of evidence on record has

answered the issues as to whether the deceased was a bona fide

Patil-SR (ch) 4 of 14 FA 873-23.doc

passenger of train and the death of deceased occurring as a result of

untoward incident against the Appellant and dismissed the claim

Application.

9. Learned Counsel appearing for the Appellant would submit that

the investigation report of untoward incident records that person was

knocked down by an unknown train and was lying injured. He would

submit that therefore the incident deposed by motorman is not

corroborated by the investigation report. He would further submit

that the inquest panchnama also shows that deceased was knocked

down by an unknown train while he was crossing the railway track. He

would take this Court through the evidence of motorman and would

submit that motorman has deposed about the incident which had

occurred at KM-46/10 and does not relate to the incident in the

present case. He submits that DRM's report is required to be prepared

within a period of 60 days under Rule 7 of the Railway Passengers

(Manner of Investigation of Untoward Incident) Rules, 2020. He would

submit that it is settled position in law that mere absence of ticket will

not negative the claim that deceased was a bona fide passenger. He

would further submit that Apex Court in the case of Kalandi Charan

Sahoo v. General Manager, South-East Central Railway1 has held that

Rule 7 mandates Railway Authority to investigate into the untoward

1 2018 ACJ 1460.

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                                                                        FA 873-23.doc

incident and as no inquiry was conducted immediately after the

incident, had therefore allowed the Application. He would further

submit that in the present case, the Appellant had discharged the

initial burden of proving that deceased had bought the valid railway

ticket and boarded the train and therefore onus shifted on Railways. In

support of his case, he relies upon following decisions :

Kalandi Charan Sahoo v. General Manager, South-East Central Railway 2;

Kalyan Singh Chouhan v. C. P. Joshi3;

Sanyokta Devi v. Union of India4;

Rekha Dilip Sapkale v. Union of India5; and

Union of India v. Rina Devi6

10. Per contra Ms. Leena Patil, learned Counsel appearing for the

Respondent-Railways would submit that the deceased was not a bona

fide passenger and that the death had not occasioned by reason of

untoward incident. She would further submit that objection as to Rule

7 of the Railway Passengers (manner of investigation of untoward

incident) Rules, 2020 was not taken before the Railway Claims Tribunal

and cannot be raised for the first time before this Court. She would

2 2018 ACJ 1460.

3 AIR 2011 SC 1127.

4 2023(2) T.A.C. 16(S.C.).

5 2022 ACJ 349.

6 (2019) 3 SCC 572.

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submit that final investigation report was prepared on 28th September

2018 and the investigation had started on 9th July 2018. She would

further submit that the Appellant has stated that the deceased and she

alighted at Thane station and then they both left for their respective

work. She submits that though the Appellant has deposed that on 9 th

July 2018, the deceased started his journey by local train from Thane

to Kopar, the Trial Court has rightly noted that neither the Applicant

has filed the missing complaint report nor examined any eye-witness.

In support of her case, she relies upon decision in the case of Union of

India v. Rina Devi (supra).

11. In rejoinder, learned Counsel appearing for the Appellant would

submit that in the written statement, Railways have failed to identify

their own train.

12. Following points arise for determination :

(1) Whether the finding of the Railway Tribunal that the death is not occasioned by reason of untoward incident is sustainable ?

(2) Whether the evidence on record is sufficient to establish that the deceased was a bona fide passenger ?

As to Point Nos.1 and 2:

13. In event, Point No.1 is answered in favour of the Appellant, then

Point No.2 will have to be considered as to whether the deceased was a

Patil-SR (ch) 7 of 14 FA 873-23.doc

bona fide passenger.

14. Before proceeding to the facts, it will be apposite to refer to the

relevant statutory provisions. Section 123(c) of the Railways Act, 1989

defines an 'untoward incident', which reads thus:

"123. (c) "Untoward incident" means--

(1) (i) the commission of a terrorist act within the meaning of sub-section (1) of section 3 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 1987); or

(ii) the making of a violent attack or the commission of robbery or dacoity; or

(iii) the indulging in rioting, shoot-out or arson, by any person in or on any train carrying passengers, or in a waiting hall, cloak room or reservation or booking office or on any platform or in any other place within the precincts of a railway station; or (2) the accidental falling of any passenger from a train carrying passengers ."

15. Section 124-A 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 clauses (a) to (e) of the proviso and reads

thus:

"124-A. Compensation on account of untoward incidents.- 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 dependent 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

Patil-SR (ch) 8 of 14 FA 873-23.doc

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 purpose 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 untword incident."

16. In exercise of powers conferred by Section 129 of Railways Act,

The Railway Passengers (Manner of Investigation of Untoward

Incidents) Rules, 2003 have been framed. Rule 3 provides that any

railway servant, including guard and driver of the train, on coming to

know of occurrence of an untoward incident shall report the same to

the nearest Station Superintendent. The Station Superintendent shall

report such incident to the Divisional Security Commissioner in

prescribed 'Form-I' as per Rule 4. Under Rule 6, the Station

Superintendent shall make necessary entries in the station diary and

make brief report to the Divisional Office, Zonal Railways, police and

Divisional Security Commissioner of the Railway Protection Force.

Under Section 7, the officer of the Force on receipt of report under

Rule 6 shall carry out the investigation within sixty days and submit

report to Divisional Security Commissioner of the Force. Similarly under

Patil-SR (ch) 9 of 14 FA 873-23.doc

Rule 8, the police are required to initiate investigation and prepare

inquest report. The reports prepared by the police shall be forwarded

to the Magistrate and the report prepared by the Force shall be

forwarded by the Divisional Security Commissioner to Divisional

Railway Manager within fifteen days of receipt of report of

investigation from the Force under Rule 10. Under Rule 11, the

Divisional Railway Manager may either accept the report of the Force

and pass order or direct further investigation by the Force. If the report

is accepted, the order passed shall be communicated to the Station

Superintendent for necessary entries to be made in the station dairy.

Under Rule 13, the investigation report alongwith the acceptance by

Divisional Railway Manager is required to be sent to the Claim office,

which on receipt of notice of claim shall submit the Divisional Railway

Manager's report to the concerned Bench of Railway Tribunal along

with the written statement.

17. The gist of the Rules reproduced above demonstrates complete

procedure to be followed for investigation of untoward incident

commencing from report by the railway servant, making entries in

Station dairy, investigation by the police and Force and order of

Divisional Railway Manager.

18. The claim of the Appellant has been dismissed on both the

counts of not being a bona fide passenger and the death not occurring

Patil-SR (ch) 10 of 14 FA 873-23.doc

as a result of untoward incident. The procedure reproduced above

would show that on the occurrence of untoward incident, Railway

servant including the guard and driver of the train are required to

report the same to the nearest station superintendent. If facts of the

present case are seen, the Railways have examined the motorman and

guard of the train who have corroborated each other's testimony that

on 9th July 2018 when their train was passing between Kopar and Diva

stations, they suddenly saw a person standing on the up / through

track and that the motorman had immediately applied the emergency

break but the person was knocked down. In support of their

deposition, copy of the working diary of train was produced by the

motorman. Perusal of the same would indicate that there is a

reference to two incidents in the said diary. The second incident refers

to Train No.S-52 and the location is KM 46/10 and it is recorded that a

person was noticed on the Railway track and before the train could

stop at about 23.26 hours, the person was knocked down by the train.

The guard's memo book produced by guard also makes a mention of

the said incident taking place. The Stationmaster's memo also records

that a person had been knocked down by the train while trespassing.

Similarly, inquest panchnama also makes note of the incident having

occurred while crossing railway track.

19. The deposition of Appellant is that on 9 th July 2018, the

Patil-SR (ch) 11 of 14 FA 873-23.doc

deceased had started his return journey by local train from Thane to

Kopar. However, the oral evidence of Appellant has been sufficiently

rebutted by Railways by producing the evidence of motorman and

guard who have deposed that deceased was knocked down by the train

while crossing railway track. In the cross-examination, the Appellant

has admitted that she had seen the deceased at about 8.00 p.m. and

thereafter he left to meet his Mukadam at Thane and did not return for

about 20 days. The admission in the cross-examination is fatal to the

case of Appellant that the deceased had boarded local train from

Thane to Kopar on 9th July 2018. The admission in the cross-

examination proves that she had seen the deceased at Thane at about

8.00 p.m. in the evening and had thereafter not seen him for about 20

days. Though it is sought to be emphasised by learned Counsel

appearing for the Appellant that investigation report states that

deceased was knocked down by an unknown train, in the light of

evidence on record of motorman and guard of train No.S-52 that the

deceased was knocked down by their train, which testimony has not

been shaken in the cross-examination, the mere mention of an

unknown train in the investigation report will not assist the case of

Appellant.

20. Pertinently, in the statement recorded by RPF, the Appellant has

stated that after reaching Thane Station she had left for her work and

Patil-SR (ch) 12 of 14 FA 873-23.doc

the deceased had informed her that he was going to meet his

mukadam for work. The evidence of Appellant does not establish that

the deceased had boarded the train from Thane to Kopar. AW-1 had

not seen the deceased after they alighted at Thane and no other

person has been examined to prove that the deceased had boarded the

train. On the other hand, Railways have produced evidence to

establish that the deceased was run over by Train No.S-52. There is no

reason to doubt the authenticity of working diary.

21. As regards the contention that Rule 7 of the Railway Passengers

(Manner of Investigation of Untoward Incident) Rules, 2020 provides

that the police shall prepare a detailed accident report and submit a

copy of the same to the Divisional Security Commissioner within 60

days from the date of untoward incident for onward submission to the

Divisional Railway Commissioner, in the present case, report has been

submitted on 18th December 2019. The report records the investigation

which is carried out immediately after the accident on 9 th July 2018.

Rule 7 of the Railway Passengers (Manner of Investigation of Untoward

Incident) Rules, 2020 does not provide for any consequence in event of

report being submitted beyond the period of 60 days and therefore

the same are directory. What is mandated is that there should be an

investigation and submission of report.

22. In the decision relied upon by learned Counsel appearing for the

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Appellant in case of Kalandi Charan Sahoo v. General Manager, South-

East Central Railway (supra), the accident had taken place in the year

2005 and no inquiry was conducted under Rule 7 of the Railway

Passengers (Manner of Investigation of Untoward Incident) Rules, 2020

and only when the claim was filed in the year 2009, the investigation

was ordered which investigation revealed that deceased had de-

trained from the moving train and invited the accident. In the peculiar

facts of that case where no inquiry as mandated by Rules was

conducted immediately after incident, the Apex Court has held that the

Appellants are entitled to compensation. The said decision cannot be

pressed into service as an absolute proposition of law that non

completion of investigation within a period of 60 days would vitiate the

report.

23. In the light of above discussion, Point No.1 is answered against

the Appellant.

As to Point No.2.

24. Considering that it has been held that the death has not been

occasioned by reason of untoward incident, it is not necessary for this

Court to consider whether the deceased was a bona fide passenger.

Resultantly, First Appeal stands dismissed.

                                                                          [Sharmila U. Deshmukh, J.]



                              Patil-SR (ch)                    14 of 14
Signed by: Sachin R. Patil
Designation: PS To Honourable Judge
Date: 25/02/2025 19:49:01