RAILWAY CLAIMS TRIBUNAL,MUMBAI BENCH
180/P, DEMELLO ROAD, 19/T WIG-WAM
MUMBAI-400001

  BEFORE THE RAILWAYCLAIMS TRIBUNAL,

MUMBAI BENCH, MUMBAI

   COARM:  Shri Hari. D. Gujrati,Hon?ble Member (Technical)

                        Shri Alok  Upasani, Hon?ble  Member (Judicial)

                  Claim Application No: OA (II U) / MCC /0183/2019

1. Mr. Dada Kashinath Nikam

   Aged 55 years,

   Father  of the deceased

2. Mrs. Ushabai Dada Nikam

    Aged 50 Years,

    Mother of thedeceased

Both Residing at : Tamgavhan,

Post- Malshevage, Taluka- Chalisgaon,

District- Jalgaon- 424 108                                            .....APPLICANT

Versus

Union OfIndia,

Throughthe General Manager,

Central Railway, C.S.M.T,

Mumbai.                                                                            ?RESPONDENT

Appearances:

Mr. A.A. Shaikh, Advocate for Claimant       

Ms. D.Fernandes for Ms. Rubia Taneja, Advocate for Respondent:

                                                               Date ofInstitution: 30.01.2019

                                                               Date ofJudgement: 29.09.2023

JUDGEMENT

1.         This Claim Application is filed by theapplicants u/s. 16 of the Railway Claims Tribunal Act, 1987  read with. Sec. 123 (c)(2) & Sec. 124 - Aof the Railways Act, 1989 for compensation arising out of an

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alleged untowardincident occurred  on 21.07.2017 duringthe course of travelling  by anunknown  local train involving   deathof  their    unmarried son Anand Dada @ Dadabhau Nikam.The Applicants claims  that they are parentsand  dependents of  the deceased Anand Dada @ Dadabhau Nikam.

The factual matrix of the matter innut-shell is as below:

2.         It is stated that the Anand Dada @ DadabhauNikam, (hereinafter referred as the deceased), aged 22 years, resident of   Jalgaon,   State? Maharashtra, was a labourer.  ApplicantNo. 1 is the father of deceased and Applicants No. 2 is   motherof deceased. The deceased  on 24.09.2018,was travelling in a 2^nd class compartment  of train No. 51181 Dn Devlali-BhusavalPassenger from  Manmad Junction toHirapur Railway station.  There washeavy  rush  in the said train, so the deceased wasstanding near the door inside the compartment. When the said train reachedbetween  Hisval and  Pimperkhed/ Nandgaon Railway station, due tosudden forceful jerk from the inside crowd, , he accidentally fell down from the train and died.The Applicant produced  certified copy of Railway Ticket bearing No.UFB 60303779, Ex.Manmand Junction  Railway station to Hirapur  Railway Station along with the Claim Application. It has been contended that the deceasedwas a bona-fide passenger and allegedly died in an untoward incident  occurred on  24.09.2018.  

3.         In response to notice, Respondent? Railway Authority appeared and opposed the claim application. The Respondentfiled Written  statement and  also produced on record the DRM  Report

pertains to investigation conducted by IPF/RPF/Manmad.,accompanied with other relevant police papers marked as ?R-1?. It has beencontented that on 24.09.2018, on duty Dy. SS/Hiswal, issued the memo to on duty city police  Nandgaon, Shri Taupraj Ratnakar, stating thatone unknown person had fallen down from train No. 51181 Down at K.M. No.274/15-17 and the said information was given by  Shri Samadhan Vithal Solse and  Ramzan Daval.  On receipt of the Memo City Police Nandgaonattended the spot  and it was found thatthe concerned  railway staffs MukadamSudhakar Ramlal Kulkarni alongwith trackman Ramzan Daval trackman Samdhan Vithal Solse were alreadypresent  on the incident spot.  The city police Nandgaon sent the  dead body of the deceased to the governmenthospital for Post Portem. The  citypolice Nandgaon, filed a report and set the inquiry into motion vide AccidentalDeath  No 65/2018, u/s 174 of Cr. PCdated 24.09.2018.  The City Police  has mentioned the  recovery of  Mobile, Pocket containing Second Class RailwayTicket bearing No. UFB 60303779, dated 24.09.2018 issue at 05.25 hrs, Ex.Manmad Junction  to Hirapur  Railway station. However, the same doesnot  bears the  date and signature of panchas or anyparticulars. The statement of Shri Samadhan Vithal Solse, Trackman Unit No. 3,Hisval, was recorded by police, wherein he has stated that he saw at K.M. No.274/15-17 on down track about 04-05 steps away one male person about 20-25years was lying unconscious and sustained serious injuries. Further neither anydriver of the train nor any Railway official had informed or complain that on 24.09.2018 at K.M No. 274/15-15 that the alleged

incident took place due to jerk of thetrain nor any  passenger fallen down fromthe said train.  Further  SSE/PWAY/Nandgaon?s  Track Fit Certificate  dated 19.07.2019 sates that on 24.09.2018,track was fit for  travel at the spot ofthe incident. Therefore, it reveals that that the deceased was not travellingby any train and he died due to self- inflicted injuries for which the Railway Administrationis not responsible to compensate the Claimant, hence the application berejected.

4.         Inview of pleading of both parties, and relevant documents produced on record,this Tribunal framed the following issues  on 22.07.2021 for just and proper adjudicationof Claim Application on merit within ambit of law.    

1.     Whether the deceased was travelling onvalid Railway Ticket and was a bona-fide passenger of the train, in question,at the relevant time?

2.     Whether the Applicants prove that thedeath of the deceased had occurred as a result of untoward incident as allegedin the Claims Application and the present case is covered under sec. 123(c)(2)of Railways Act, 1989?

3.     Whether the Applicants prove that theyare the dependents of the deceased within the meaning under Section 123(b) ofRailways Act, 1989?

4.     To what Order/ Relief?

5.         That,in order to establish the claim, the Applicant No. 1 Dada  Kashinath Nikam, father  of the  deceased Anand Dada @ Dadabhau Nikam stepped intothe witness-box and filed his Affidavit dated 19.04.2022 in lieu of hisexamination-in-chief on record. He produced the relevant documents comprising:

6.         Applicant No. 1 Dada Kashinath Nikam (AW/1) in his affidavit  dated 19.04.2022 (Exb. AW 1/1) has  stated that, on 24.09.2018, his son DadaKashinath Nikam, wastravelling in a 2^nd class compartment  of train No. 51181 Dn Devlali-BhusavalPassenger from  Manmad Junction toHirapur Railway station.  The said trainwas  having heavy  rush, so  his son  was standing near the door inside thecompartment. When the said train reached between  Hisval and Pimperkhed/ Nandgaon Railway station, due to sudden forcefuljerk from the inside crowd,his son accidentally fell down from the train and died on the spot. He had also produced  the certified copy of Railway Ticket bearingNo. UFB 60303779, dated 24.09.2018 Ex. Manmad Junction to Hirapur Railway station  on record in this case.        

7. In the cross-examination of Applicant No. 1  DadaKashinath Nikam, it was suggested on behalf of Respondent- Railway,that  his son Anand Dada @ Dadabhau Nikam had died due to his ownnegligence and carelessness. But, the AW-1 Dada Kashinath Nikam,  

turned-down all these suggestions putforth on behalf Respondent.

8.         Per Contra Ld. Counsel for theRespondent referring written Statement and DRM Report has submitted that the deceased was not travelling by anytrain  and died due to Self inflictedinjuries, for which Railway Administration is not responsible andtherefore,  the Applicant cannot becompensated.  

9.         Wehave heard the Ld. Counsels appearing for the Applicant and  Respondent. Before embarking into the meritsof the matter, it would be profitable to set-forth the relevant provisions ofthe Railways Act, 1989 as below:

Sec. 2 (29) defines"passenger" as under:

"passenger" means a persontravelling with a valid pass or ticket".

Sec. 123 (c)(2) defines ?untoward incident?as under:

?(c) ?untoward incident? means-

xxxxx

(2) the accidental falling of anypassenger from a train carrying passengers.?

Sec. 124 - A of the Railways Act is alsouseful to quote as under:

124-A. Compensationon account of untoward incidents.-

?When in the courseof working a railway an untoward incident occurs, then whether or not there hasbeen any wrongful act, neglect or default on the part of the railwayadministration such as would entitle a passenger who has been injured or thedependant of a passenger who has been killed to maintain an action and recover damagesin respect thereof, the railway administration shall, notwithstanding anything containedin any other law, be liable to pay compensation to such extent as may be prescribedand to that extent only for loss occasioned by the death of, or injury to, a passengeras a result of such untoward incident :

Provided that nocompensation shall be payable under this section by the railway administrationif 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 stateofintoxication or insanity;

e)    any natural cause or disease or surgicaltreatment unless such treatment becomes necessary due to injury caused by thesaid untoward incident.

Explanation - For the purposes of thissection, ?passenger? includes-

i)       a railway servant on duty; and

ii)      a person who has purchased a valid ticketfor travelling, by a train carrying passengers, on any date or a valid platformticket and becomes a victim of an untoward incident.

In the backdrop of aforesaid legal provisions,we proceed to scrutinize the evidence produce on record. It is also imperativeto bear in mind that the provisions of Evidence Act as well as Procedural laware not strictly applicable to the proceeding before this Tribunal.

ISSUE NO. 1 & 2

10.          Both these issuesbeing interconnected are taken up together for the sake of brevity and betterappreciation

11.     The Sec. 2 (29) of Railways Act, 1989  in general refers to a person travelling witha valid pass or ticket to be a passenger. The Explanation to Section 124-Aprovides that a passenger includes a person who has purchased a valid ticketfor travelling, by a train carrying passengers on any date and becomes a victimof an untoward incident. As long as there is a valid ticket for the journeythat should be sufficient.

12.           In this case   Inquest Panchnama &  DRM Report has mention  about of recovery of second  class RailwayTicket bearing No. UFB60303779, Ex. Manmad Junction to Hirapur Railway station  dated  24/09/2018,while carrying out personal search by the police.   The said ticket  was verified through  Chief Commercial Manager (PM) that  the UTS Ticket  No. UFB60303779, was issued by bookingoffice  of Manmad  Railway station.  The copy of  system generated  report of UTS Ticket  Nos. UFB 60303779 is filed alongwith  the DRM Report.

13.             Applicant No. 1 Dada  Kashinath Nikam (AW/1) has filed said original Railway  Ticket and his  Affidavit dated  19/04/2022 (Exb. AW 1/1) to corroborateapplicant?s  claim that the deceased wastravelling as a bonafide passenger.

14.      We  have carefully perused  SM/Hisvahal ?s memo, dated 24/09/2018,wherein, it is stated that one unknown person fallen down from the  train No. 51181 (Dn) at Hisvahal ?Panjan  section at K.M. No.  274/15-17.  Inquest Panchnamaopines that  the death of the deceased dieddue to fallen down from the running train and sustained serious injuries tohead, mouth and foot and due to  excessloss of blood. The DRM Report filed by Respondentremained inconclusive on the cause of the incident and  states that the  alleged incident occurred due to his ownnegligence, which is an offence punishable under Sec. 156 of the Railways Act,1989.  

15. DRM?s report is inconclusive on the cause of incident despite injuredwas found in Railway area between tracks at K.M. No. 274/15-16 between Hisvahal ? Panjan section.  Other possibility  of incident  namely  trespassing and  knock  down was  not  even 

mentioned and examined in the DRM  Report.  Even the injuries recorded in the Inquest Panchnama and Post MortemReport do not substantially  lead to aconclusive  inference  for trespassing. Further the deceased was also not a resident  of nearby  to the place of incident.

 16.   In the present case being case of a beneficial legislation, if twointerpretations are possible, interpretation beneficial to the claimants has tobe preferred, consistent with the law laid down in Union of India vs.Prabhakaran Vijaya Kumar and others Appeal (Civil) 6898 of 2002. 

17.  In  absence  of  anyevidence in contrary from the  Respondentside, in consideration of  deceasedbody  was found in Railway operationalarea, specific  train number forthis  travel submitted by the Applicantsand availability of a valid  travelticket, we therefore have no hesitation in concluding that the  deceasedhad  fallen down from  Train No. 51181 Dn.  Devlali ? Bhusaval passenger, whiletravelling from  Manmad junction to  Hirapur Railway station.

18.             It is settled proposition thatprovisions of section 124-A are based on the principle of strict liability orno fault liability and it is mandated that the railway administration is boundto pay the compensation regardless of any wrongful act, negligence or defaulton the part of the railway administration. The Railways can escape

the liabilityto pay the compensation only when the said injury comes within the exceptionclauses (a) to (e) of the proviso to Section 124-A of the Railways Act.

 19.        In this case Ld. Counsel for theRespondent did not lead any evidence to prove that the act of the deceased,leading to his death was as a result of any of the followings, covered underexceptional clauses under Section 124-A of Railway Act, 1989 (Supra).

               In the above premises, we have no doubtthat the victim during the course of travelling  has accidently fallen from train and sustainfatal injury and Respondent is not exempted from the liability to pay compensation under section 124 A ofRailways Act, 1989.

20.     In this case recovery of a Second  Class Railway Ticket bearing No.UFB60303779,dated 24.09.2018, valid from Manmad Junction to Hirapur  Railway station ismentioned in the  Inquest Panchnama and DRM  Report.  The ticket has been verified by the Respondent. Inview of  no  evidence in contrary from Respondent side, it is concluded that the deceased was a bonafide passenger at the time ofincidence.

21.  On the basis of facts and circumstances ofthis case and preponderance of evidence on record, we have come to theconclusion that the deceased Mr. Anand Dada @ Dadabhau Nikam, on 24/09/2018,while travelling  by Train No. 51181Dn.             Devlali ?Bhusaval passenger,as a bonafide Railway Passenger from  

Manmad junction   to  Hirapur  Railway Station, had accidentally fallen down from the running train, sustainedserious injuries anddied.  Accordingly,the incident is covered under "Untoward Incident" as defined underSection 123 (c) (2) read with Section 124-A of the Railways Act, 1989 andtherefore, the Respondent is liable to pay compensation to the dependents ofthe deceased.  Hence, we answer the issueNo.1& 2  in affirmative, in favourof  Applicants.

ISSUE NO. 3

22.  The Applicant No. 1 Dada KashinathNikam,  categorically deposed in hisAffidavit by way of examination-in-chief that  the Applicants are the dependants of thedeceased Anand Dada @ Dadabhau Nikam. The Applicants have produced Ration cardand  Aadhar card of the Applicants markedas Exhibit A-1 to A-3 to  prove that theyare the dependents of the deceased.  Itis not in dispute that the Applicant No. 1 & 2  are the parents of the  unmarried son Manik Irwant Bodke . The Respondent did not put this factualaspect in controversy. Therefore, there is no impediment to hold that all theApplicants are the dependents of deceased Anand Dada @ Dadabhau Nikam ascontemplated under sec. 123 (b) of Railways Act, 1989. Hence, we answer theissue No.3  in affirmative in favour ofthe Applicants.

ISSUE NO. 4

23.            Since the incident leading to deathof the deceased in an ?untoward incident? as defined under sec. 123 (c) of theRailways Act 1989, therefore, in view of part - I of the Schedule appended to

Rule 3 ofRailway Accident and Untoward Incident (compensation) Rules, 1990,  the  Applicants are  entitled  for  compensation of                          Rs. 8,00,000/- (Rupeeseight lacks only) from Respondent ? Railway on the day of incident.

Since the date of incident i.e., 24.09.2018, therefore,  in view of LAW laid down by Hon?ble Supremecourt in case of Union of India  V/S RinaDevi  2018 ACJ 1441, aforesaid dependentsof the deceased are entitled for an amount of  Rs. 8,00,000/- (Rupees Eight Lakh only)(revised compensation effective from 1st January 2017), plus interest @ 9% fromthe date of incidence till the date of award as a compensation to the Applicants on account of death of  the Anand Dada @ Dadabhau Nikam, in an  Untoward Incident.

         Hence, we pass the following order

O R D E R

1.      TheClaim Application filed under section 16 of Railway Claims Tribunal Act 1987,is hereby allowed.

2.      The Respondentshall pay Rs.8,00,000/- (Rupees Eight Lakh only) to the Applicants as acompensation with interest @ 9% p.a. from the date of incident till date ofthis order.

3.      TheRespondent shall deposit entire amount of award in the office of AdditionalRegistrar, RCT Mumbai within 30 days from the date of receipt of this order.

4.      Incase of default in payment within the stipulated period of 30 days as referredabove, the Respondent shall pay the further interest @9% per annum from thedate of receipt of thisorder till the date of deposit of payment in RCT.

5.        As per the guidelines delineated by the Ministryof Railways (Railway Board) vide Notification dated 3^rd June, 2020under GSR 347 (E) which came into effect from 1^st day of January, 2020,after considering the status of the Applicants and to protect the amount frombeing frittered away, the amount of Rs. 8,00,000/- (Rupees Eight lakhs only)plus interest @ 9% shall be disbursed in the following manner:

i)                   Applicant No.1 Mr.Dada Kashinath Nikam  and  

Applicant No. 2 Ushabai Dada Nikam, each shall bepermitted to withdraw an amount of  Rs.40,000/- (Rupees Forty Thousand only ), in their respective Savings BankAccounts through NEFT/RTGS, from the total awarded compensation amount of Rs.8,00,000/- (Rupee Eight Lakh only) & plus interest @ 9%. per annum.

ii)   The balance amount of Rs 7,20,000/- (Rupees Seven LakhTwenty Thousand only) plus interest accrued till date, be kept in the name ofApplicant No. 1 Mr.  Dada Kashinath Nikam and Applicant No. 2 Ushabai Dada Nikam in Annuity deposit in anyNationalised Bank located nearer to the permanent residential address ofApplicant No.1, in the manner described below.

iii. The Claimants aredirected to open an individual Savings Bank Accounts in any Nationalized Banklocated nearer to the place of permanent residence of Applicants The SavingsAccounts will be linked  account with Annuity(term)  Deposit  Account  on  similar line as  of

MACAD (Motor AccidentClaim Annuity (Term) Deposit Account).

iv. The Bank is hereby directednot to permit any joint name(s) to be added in the Savings Bank Accounts orFixed Deposit Accounts of the Applicants i.e. the Savings Bank Accounts of theApplicants shall be an individual Savings Bank Account and not a Joint Account.The concerned Bank is further directed not to issue any Cheque Book and/orDebit Card in the name of Applicant for the above referred S.B. account. If thesame are issued, the concerned Bank authority is directed to take step to cancel/revokethe same before making any payment of awarded amount to the Applicant.Moreover, the concerned Bank shall take care for not issuing any Debit Cardrelating to above referred S.B. account of the Applicant by any other branch ofthe Bank. The Bank shall put an endorsement on the Passbook issued in favour ofApplicant to the effect that no Cheque Book and/or Debit Card shall be issuedto the Claimants without the permission of this Tribunal.

v.  The concerned Bank of the Claimants isdirected to permit the Claimants to withdraw money from their Savings BankAccounts by means of a withdrawal form only. The Claimants are directed toproduce the copy of this order before the concerned Bank for requisite endorsementin the Passbooks.

vi.  The Original Deposits receipts shall beretained by the Bank in safe custody. However, the statement containing AnnuityScheme number, interest rate, monthly payment and leave shall be furnished byBank to the Applicants.

vii.The Bank shall not grant any loan, advance, withdrawal or pre-mature dischargeon the Annuity Deposits without  permissionof this Railway Claims Tribunal.

                viii.The Claimants  are  directed to produce the original

    Bank Passbook with the necessary endorsement as well

              Aadhaar Card and PAN Card beforethe Additional  

              Registrar, RCT, Mumbai. ADR shalltake the following

documents on record fromthe Claimants before  releasing  

the awarded amount.

(a)         Details of the Bank Accounts of the Claimantsnear

            tothe place of their permanent residence with

            necessary endorsement.

(b)        Aadhaar Card and PAN Card or any other  

          appropriate ID card; and
(c)     Twosets of photographs and specimen signatures

          of the  Claimants.

         6.  There shall be no order as tocost.

          7. The certified copy of this judgement be given to

                Applicants free of cost.

           8. Accordingly, the claimApplication stands disposed of in

               above terms. 

             Judgement pronounced on   29 ^th  September 2023, in open

            court.

      (ALOK UPASANI)                                             (HARID. GUJRATI)

            Member  (Judicial)                                              Member(Technical)