Mevalal Kunai Mourya And Anr vs Union Of India, Thr. General Manager ...
2025 Latest Caselaw 1672 Bom

Bombay High Court

Mevalal Kunai Mourya And Anr vs Union Of India, Thr. General Manager ... on 20 January, 2025

      2025:BHC-AS:2559


                                                                                       FA-1416-2024-Final.doc


                                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                              CIVIL APPELLATE JURISDICTION

                                                  FIRST APPEAL NO. 1416 OF 2024.

                      1)      Mr. Mevalal Kunai Mourya                  ]
                              Aged-46 Years, Father of Deceased,        ]
                              R/o. Room No. 6, Shivshakti Chawl, Indira ]
                              Nagar, Pathanwadi, Rani Sati Marg, ]
                              Malad (E), Mumbai.                        ]
                      2)      Mrs. Savita Mevalal Mourya                ]
                              Aged-42 Years, Mother of Deceased,        ]
                              R/o. Room No. 6, Shivshakti Chawl, Indira ]
                              Nagar, Pathanwadi, Rani Sati Marg, ]
                              Malad (E), Mumbai.                        ] ... Appellants.
                                                        Versus
                      1)      Union of India, Through General ]
                              Manager, Western Railway, Churchgate, ]
                              Mumbai-400 020.                       ] ...Respondents.

                                                          ------------
                         Mr. Balasaheb Deshmukh i/by Mr. Deepak T. Ajagekar, for the Appellant.
                         Mr. Pushkar Gokhale, for the Respondent.
                                                          ------------
                                                  Coram :            Sharmila U. Deshmukh, J.

                                                  Reserved on:       January 10, 2025.

                                                  Pronounced on : January 20, 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 5th June, 2013 filed under Section 16(1) Digitally signed by TALLE TALLE SHUBHAM SHUBHAM ASHOKRAO r/w Section 13(1-A) of Railway Claims Tribunal Act, 1987 r/w Section ASHOKRAO Date:

2025.01.20 14:48:32 +0530 124-A of the Railways Act, 1989 has been dismissed by the impugned

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Judgment dated 20th December, 2019.

2. The Application for compensation filed in the prescribed

form pleads that on 5th June, 2013 their son Rakesh Mevalal Mourya ,

one Umesh Harish Narvekar and other friends came to Mahim railway

station and boarded the local train for travelling to Malad where the

deceased used to reside. At about 10.45 pm when the local train

reached between Andheri and Jogeshwari railway station, the

deceased accidentally fell out of the train due to heavy rush in

compartment and expired before admission in hospital due to serious

grievous injuries. The deceased was holding valid II nd Class railway

season ticket bearing No. U 30585634 alongwith railway identity card

No. T 16701431 for travelling from Churchgate railway station to

Bhayandar railway station for the period from 15 th May, 2013 to 14th

June, 2013, which was recovered from the body of the deceased as

noted in Inquest Panchanama. The Applicants are financially

dependent on the deceased. Along with the Application, the Applicants

filed the Station Master memo, Inquest Panchanama, death certificate,

railway pass, Identity card, bank account details, ration card and

photographs of the Applicants.

3. The defence of the Respondent was that as per the memo

and diary of SS/Jogeshwari on 5 th June, 2013, one unknown male was

found lying injured near down local line between Andheri and

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Jogeshwari and thus the alleged incident dated 5th June 2013 is not an

untoward incident. It was further denied that the deceased was a

bonafide passenger as no railway pass was found in the possession of

the deceased and that the Applicants are not dependent on the

deceased.

4. The Applicant No. 1 examined himself and deposed to the

contents of the Application, and, produced the railway season ticket,

railway identity card, Station Master memo, copy of Inquest

Panchanama, statement of employer of deceased and statement of co-

employee of the deceased and copy of the death certificate. In the

cross examination, he admitted that he had not personally witnessed

the incident. AW-2 i.e. the co-employee of the deceased Umesh

Narvekar deposed that on 5 th June, 2013 the deceased and one other

colleague and he himself came to Mahim railway station on 5 th June,

2013 and boarded the Borivali Local Railway Station. He further

deposed that the deceased boarded the second class general gents

compartment and he and his other colleague boarded the other

compartment and he alighted at Jogeshwari railway station. In cross-

examination he has admitted that he did not personally witness the

incident. Pertinently in the cross-examination there is not even a

suggestion given that on 5th June, 2013 the deceased had not boarded

the local train.

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5. The Railway Claims Tribunal framed the following 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 ?

iv) To what order/relief ?"

6. Issue Nos. 1 and 2 were answered in favour of the

Applicants and Issue No 3 against the Applicants. The Tribunal

considered the DRM Report produced by the Respondent which

concluded that the SS/JOS did not mention any reason of the incident

in the memo, but, the GRP has mentioned in Inquest Panchanama that

deceased was knocked down by unknown local train and that incident

took place due to his own negligence and carelessness. The Tribunal

accepted the genuineness of the reports for the reason that they were

prepared by government officials in regular course of their duties. The

Tribunal further went on to examine the injuries mentioned in the

Inquest Panchanama to conclude that such grievous injuries can be

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sustained by a person who is either been knocked down or run over by

some other train and dismissed the Claim Application.

7. Mr. Deshmukh, Learned Counsel appearing for the

Appellant would submit that the Appellants have established their

claim by examining two witnesses, whereas the Respondent failed to

examine any witness. He has taken this Court to the accident memo of

the Station Master and would contend that column Nos. (I) to (iv) are

not filled by the Station Master which include column as to whether

the deceased has been hit by some unknown train. He submits that the

station diary reports that the accident is untoward incident.

8. Pointing out to the Inquest Panchanama he submits that

the opinion of Panchas, which is mere presumption, that the deceased

must have been knocked down by some local train is contrary to the

Station Master accident memo and the station diary. He would further

point out the statement given to the police by the co-employee who

was also examined and had specifically deposed as to the fact of

boarding of local train by the deceased on date of accident. He submits

that the Tribunal has proceeded to examine the injuries to come to

conclusion that the injuries as a result of having been fallen down from

the train in the absence of any such case or evidence put forward by

the Respondent Railways. In support he relies upon the following

decision.

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Nirmala Vs. Union of India 1

Balu Narayan Gawale vs. The Union of India 2

9. Per contra, Mr. Gokhale, learned Counsel appearing for the

Respondent would submit that Aw-2 was planted witness as he was co-

employee of the deceased. He submits that the Tribunal has rightly

considered the injuries and the Inquest Panchanama to come to

conclusion that the injuries are result of having been knocked down by

local train. He would further submit that the statement of the

employer is that the timings of the deceased were from 10.00 a.m. to

6.00 p.m. and the accident had occurred at about 9.30 a.m. He submits

that it was not necessary for Respondents to produce any evidence as

the documents on record proved that the same is not an untoward

accident.

10. The following point arise for consideration:

(1) Whether the Railway Claims Tribunal was justified in rejecting the

claim for compensation by holding that the death of the deceased was

not result of an untoward incident.

As to Point no (1). :

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

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

defines an untoward incident which reads thus:

1 2023 SCC Online Bom 473.

2    2024 SCC Online Bom 1238


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             "123. (c)"Untowrd 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 ."

12. 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:

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                                                            FA-1416-2024-Final.doc

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 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."

13. 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

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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

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

alongwith the written statement.

14. 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

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entries in Station dairy, investigation by the police and Force and order

of Divisional Railway Manager.

15. The claim of the Applicants have been dismissed on the

ground that the incident was not an untoward incident i.e. there was

no accidental falling from the train. The Tribunal held that the

deceased had been knocked down by an unknown local train while

crossing the railway track. The evidence will have to be considered to

ascertain whether the Applicants have proved that the deceased died

by falling from a local train. To substantiate the claim, the Applicant No

1 examined himself and have produced the Inquest Panchanama, the

Station Master memo and the statement of the co-employee of the

deceased. As per the prescribed procedure, the information about the

accident is first given to the Station Master and the Station Master's

Memo shows that column no (I) which is required to be filled when the

person is hit by train has not been ticked. In event the deceased was

knocked down by a local train, the motorman would have reported the

incident to the Station Master and the appropriate column in the

Memo would have been ticked.

16. Proceeding to the Inquest Panchanama, the Panchanama

record the possibility expressed by the Panchas that the deceased

must have expired due to being knocked down by train. The Panchas

are described in the Inquest Panchnama as labourers residing in the

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vicinity of the railway station and careful reading of the panchanama

discloses that the panchas have expressed the possibility that the

deceased must have been knocked down by a train. As per the

prescribed procedure, the investigation is required to be carried out by

the officer of Force. Perusal of the report of the Force would indicate

that the same is based on scrutiny of documents and reports that GRP

has mentioned in inquest panchnama that deceased was knocked down

by local train. It was expected that while carrying out the investigation,

the details of the local train which allegedly knocked down the

deceased would be recorded. The spot where the deceased was found

was identified and it was possible for the Railways to find out the local

down which would be passing through the spot where the deceased

was lying.

17. The report of the Force could not be accepted as the

Station Master's diary as well as the accident memo does not record

any information having been given by any motorman of having knocked

down any person which was bounden duty of the railway servant as per

Rule 3. In event the accident was by reason of the deceased being hit

by a train while crossing the tracks, the motorman would have

immediately reported the incident to the Station Master.

18. On the other hand, the Applicants has examined the co-

employee as AW-2, who has specifically deposed that on the date of

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accident, the deceased had boarded the local train. His testimony has

not been shaken in the cross examination. There is not even a

suggestion that the deceased had not boarded the local train on the

said date. The contention that AW-2 is a planted witness cannot be

accepted for the reason that on the very next day i.e on 6 th June, 2013,

the statement of AW-2 was recorded by the police and his statement

matches the deposition that the deceased had boarded the local train.

19. The Trial Court based its finding on the possibility

expressed in the Inquest Panchanama and the DRM's report, which in

turn relied upon the Inquest Panchnama, to opine that the deceased

was knocked down by a local train. The Respondent in the present case

did not lead any evidence and filed the DRM Report along with certain

documents and the Tribunal has accepted the genuineness and the

veracity of the said documents.

20. In the case of Union of India vs. Prabhakaran Vijaya

Kumar 3 the Apex Court has held that in the absence of any of the

exceptions mentioned in clauses (a) to (e) of the proviso to Section

124-A, on account of no fault liability, the compensation is required to

be paid. It is not the case of the Respondents that the incident which

has taken place falls in any of the exceptions contained in clauses (a) to

(e) of the proviso to Section 124-A. The Respondent denies that the

3 [2008 ACJ 1895]

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incident which occurred on 5th June, 2013 is an untoward incident i.e.

there I is no accidental falling of any passenger from the train as the

deceased was lying injured near local line. It cannot be disputed that

even after falling down from local train the deceased could be found

lying on the railway tracks and merely because he was found on railway

track cannot lead to presumption that he was knocked down by the

local train while crossing the tracks.

21. It is no doubt true that there is no eye witnesses to the

incident however AW-2 has specifically deposed that he along with the

deceased had reached Mahim railway station and boarded different

compartments of the train. In the cross-examination his testimony has

not been shaken. The Applicants have therefore discharged the initial

burden to show that the deceased had in fact boarded the local train

and thereafter the onus shifted on the Respondent to lead evidence to

prove that the incident was not an untoward incident, which has not

been done. Despite being aware of the exact position where deceased

was lying injured, the railways did not examine any motorman of the

train which is alleged to have knocked down the deceased.

22. The provisions of Section 124-A of the Railways Act

provides for no fault liability with the exceptions as carved out in the

proviso. The Tribunal failed to appreciate that the Respondent has not

examined any witnesses and thus the case of the Applicants was

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established by the evidence produced on record.

23. For coming to conclusion that the death had occurred by

reason of being knocked down by the unknown local train, the Tribunal

has further relied upon the injuries mentioned in the Inquest

Panchanama to hold that such grievous injuries can only to be inflicted

on the person who has been knocked down or run over by some train.

Mr. Deshmukh, is right in contending that there is no such case put

forth by railways and there is no evidence produced on record. Even if

the injuries are grievous, the Tribunal does not possess the expertise to

determine whether the injuries have been sustained by reason of being

knocked down by a train or by reason of falling from the train. It is not

uncommon that a fall from a speeding train can result in grievous

injuries by the impact of the dash against the train and falling on the

tracks. The statutory provisions does not define grievous injury of

particular nature for the purpose of Section 123(c)(2).

24. An accidental falling of the passenger amounts to an

untoward incident, for which compensation is payable by the Railways,

unless the incident falls within the exceptions provided in the proviso

to Section 124-A. The Applicants having discharged their initial burden

have established the occurrence of untoward incident and the onus

then shifted on the Railways, which the Railways have failed to

discharge. The Tribunal proceeded on surmise and conjectures while

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ignoring the evidence which has been placed on record. As held by this

Court in the case of Balu Narayan Gawale vs. The Union of India

(supra) it is well settled that the provision of compensation in Railways

Act is beneficial piece of legislation and when upon cumulative

consideration of facts and circumstances based on evidence on record

it can be reasonably considered on preponderance of probability that

the deceased had expired due to accidental death which does not fall

with in any of the exceptions carved out in the proviso to Section 124-

A, the claim should have been allowed.

25. In the case of Ramdhan @ Namdeo vs. Union of India 4

learned Single Judge of this Court has held that as it was the case of

the Respondent-Railways that deceased while crossing the railway

track was knocked down, it was for the Respondent-Railways to prove

the same by leading appropriate evidence. In the present case the

Tribunal has gone one step further as without any case being pleaded

by the Railways Tribunal has rejected the claim on the ground that the

deceased was knocked down by the train.

26. The evidence produced on record by the Applicants prove

that the deceased had expired in an untoward incident as

contemplated by Section 123 (c)(2) by reason of which the

compensation is payable under Section 124-A of the Railways Act, 1989

4 2008 SCC Online Bom 1215

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and that the incident does not fall within any of the exceptions carved

out in the proviso to Section 124-A. The issue is accordingly answered

in favour of the Applicants.

27. Resultantly, the First Appeal is allowed and following order

is passed:

ORDER:

(a) First Appeal is allowed.

(b) The impugned Judgment dated 20th December,

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 8

weeks from the date of uploading of this order on

the official website of this Court.

(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

till the entire amount is realized.

28. In view of the disposal of First Appeal, nothing survives for

consideration in the pending Civil/Interim Applications and the same

stand disposed of.

                                                 [Sharmila U. Deshmukh, J.]




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