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

BEFORE THE RAILWAY CLAIMS TRIBUNAL,

  MUMBAI BENCH,MUMBAI

              CORAM: Shri. H. D. Gujrati,Member (Technical

                     Shri. Alok Upasani, Member(Judicial)

Claim Application No: OA (II U) / MCC / 710 / 2019

Mr. Mohammad Harun Gulab Bhai Shaikh

Age: 40 years,

Residing at: Room No. 15, Ground Floor,

B-Wing, Samayak C. H. S., Ganga Building No. 1,

Lallu Bhai Compound, Mankhurd (W),

Mumbai: 400 043                                                                ? APPLICANT

(Name of Applicant amended as per order dated 04.05.2023)

Versus

Union of India,

Throughthe General Manager,

Central Railway, C.S.M.T. Station Building,

  Mumbai: 400 001                                                                ? RESPONDENT

Appearances:

Mr. D.S. Kulkarni for Mr. J. P. Gadiya     :Advocate for Claimant          

Ms.Ankita Rele                                               : Advocate for Respondent

  Dateof Institution: 13.11.2019

  Dateof Judgment: 17.11.2023

JUDGMENT

1.         TheClaim Application has been filed by the Applicant under Sec. 16 of the RailwayClaims Tribunal Act, 1987, read with Sec. 123 (c) (2) & Sec. 124-A of theRailways Act, 1989, for compensation rising

outof an alleged untoward incident, occurred on 17.05.2019 during the course ofworking a Railway, involving injuries sustained to passenger Mr. Mohammad Harun Gulab Bhai Shaikh.

2.  Thefactual matrix of the matter in nut-shell is as below:

Mohammad Harun Gulab Bhai Shaikh (herein after referred as injured), resident of Mankhurd,Mumbai, was working as a Courier Boy, for livelihood. On 17.05.2019, in the morning, the Applicant left his home, with a view togo to his work of delivery of Courier at Kandivali.  After completing his work, Applicant boardeda local train from Kandivali Railway Station and reached Andheri RailwayStation.  From Andheri Railway Station,he boarded another local train and reached Vadala Road.  Thereafter, he boarded another local trainfrom Vadala Road Railway Station for going to Vashi.  Applicant was standing near the door, insidethe compartment.  At about 01.00 hours,when the said local train was traversing the railway track between Vadala Roadand G. T. B. Nagar Railway Station, near Km. No. 11/1 and 11/2, he lost hisbalance and fell down from the moving local train and sustained seriousinjuries. It is further submitted by the injured that he was in possession of avalid Second Class Monthly Railway Season Ticket bearing No. UFE 7418867 fortravel from Sanpada to C. S. M. T. Railway Station, valid for the period from04.05.2019 to 03.06.2019 along with valid Railway Identity Card bearing No.94MPBCQ374 (AA 39190356).  The originalof the same is filed along with the affidavit.

3.         In response to notice, Respondent? Railway Authority appeared and opposed the claim application. The respondent filed Written Statement and alsoproduced on record the DRM report pertaining to investigation conducted by IPF/RPF/VadalaRoad, accompanied with other relevant police papers marked as ?R-1?. It hasbeen contended that on 16.05.2019, at about 01.00 hours, PC 1704, Shri. K. A.Kumbhar who was on night duty at GTB Nagar Railway Station receivedinformation, that one person has fallen down between Vadala Road and GTB Nagar RailwayStation. On this information, the GRP/Vadala Road along with hamals rushed tothe spot and found the injured lying between Km. No. 11/1 and 11/2 and theytook him to Sion Hospital, where the concerned doctor admitted the injured for medicaltreatment. The GRP/Vadala Road has not mentioned recovery of any pass or ticketfrom the possession of the injured in their report. It is clear from the documentson record, that the victim had fallen down from a moving local train betweenVadala Road and GTB Nagar Railway Station, between Km. No. 11/01 and 11/02,during his journey and sustained serious injuries.  The alleged incident occurred due to thevictim?s own negligence, while travelling near the door/on the footboard ofmoving local train, which is an offence punishable under Sec. 156 of theRailways Act, 1989. There are announcements and warning boards installed atstations and in coaches of local trains that travelling near the door/on thefootboard of trains is a punishable offence. Thus, the act of the victim was a legaloffense under section 137, 156 of the Railways Act, 1989.

4.    In view of pleading of both parties, and relevantdocuments produced on record, this Tribunal framed the following issues on 19.07.2021, for just and properadjudication of Claim Application on merit within ambit of law.

5.         That, in order to establish the claim, the injured Mr. Mohammad Harun Gulab Bhai Shaikh, stepped into the witness-box and filed his Affidavit in lieuof his examination-in-chief on record. He produced the relevant documents comprising:

6.         The Applicant Mr. Mohammad Harun Gulab Bhai Shaikh (AW-1), in his affidavitdated 04.05.2023, deposed that, on 17.05.2019, he left his residence in themorning with a view to go for work of delivery of Courier at various places andlastly he delivered courier at Kandivali. After completing his work, he boarded a local train from KandivaliRailway Station and reached Andheri Railway Station.  From Andheri Railway Station, he boardedanother local train and reached Vadala Railway Station.  Thereafter, from Vadala Road Railway Station,he boarded in the second class compartment of a local train for going towardsVashi.  He was standing near the door,inside the compartment.  At about 01.00hours, when the said local train was traversing the railway track betweenVadala Road and GTB Nagar Railway Station, near Km. No. 11/1 and 11/2, suddenlydue to jerk and jolts of the train and speed of the train he lost his balanceand accidentally fell down from the moving local train and sustained seriousinjuries.   He was escorted by the GRP to LTMG Hospital,Sion, for medical treatment. It is furthersubmitted by the injured that he was a daily commuter and was in possession ofvalid Second Class Railway Season Tickets bearing Nos. UFE 7418867 Ex. Sanpadato CSMT Railway Station, UFE 7418868 Ex. Vadala Road to Andheri Railway Stationand UFE 7418869 Ex. Andheri to Virar Railway Station along with valid RailwayIdentity Card bearing No. 94MPBCQ374 (AA 39190356).  The originals of the same are produced alongwith the affidavit.

7.         Inthe cross-examination of injured Applicant Mr.  Mohammad Harun Gulab Bhai Shaikh (AW-1), itwas suggested on behalf of Respondent - Railway, that at the time of theincident, he suffered the attack of Epilepsy and thereafter, had fallen downfrom the train under the influence of attack and that the incident occurred dueto his own negligence and that he was not a bonafide passenger at the time ofthe incident. But, the AW-1 Mr. Mohammad Harun Gulab Bhai Shaikgh turned-downall these allegations put forth on behalf of Respondent.

8.         Percontra, the Ld. Counsel for the Respondent submitted that, the alleged incidentoccurred due to victim?s medical condition as he had history of epilepsy andalso own negligence while he was travelling near the door/on the footboard ofmoving local train.  The act of travellingnear the door/on the footboard of moving local train is a legal offense underSection 156 of the Railway Act.

9.         Wehave heard the Ld. Counsels appearing for the Applicants and Respondent. Wehave also gone through the entire documents produced on record. It is not putinto controversy that the victim sustained injuries in a railway accident. Beforeembarking into the merits of the matter, it would be profitable to set-forththe relevant provisions of the Railway Act 1989 as below:

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

"passenger" means a person travelling with avalid pass or ticket".

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

?(c) ?untowardincident? means-

xxxxx

(2) the accidentalfalling of any passenger from a train carrying passengers.?

124-A. Compensationon 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 thepart of the railway administration such as would entitle a passenger who hasbeen injured or the dependant of a passenger who has been killed to maintain anaction and recover damages in respect thereof, the railway administrationshall, notwithstanding anything contained in any other law, be liable to paycompensation to such extent as may be prescribed and to that extent only forloss occasioned by the death of, or injury to, a passenger as a result of suchuntoward 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 suicideby him;

b)    self-inflicted injury;

c)    his own criminal act;

d)   any act committed by him in astateof intoxication or insanity;

e)    any natural cause or diseaseor surgical treatment unless such treatment becomes necessary due to injury causedby the said 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 ofaforesaid legal provisions, we proceed to scrutinize the evidence produce onrecord. It is also imperative to bear in mind that the provisions of EvidenceAct as well as Procedural law are not strictly applicable to the proceedingbefore this Tribunal.

Issue No. I & II:

10.       Both these issues being interconnected are taken up together for betterappreciation of evidence adduced on record.

            We have carefullyperused the CNC/ G. T. B. Nagar?s memo and Station Diary wherein, it is mentionedthat, as per message from on duty GRP and on dutyPointsman, one person named Mr. Md. Harun age about 35 years was found betweenKm. No. 11/1 & 11/2, was injured badly on right leg and head, sent to SionHospital.  We have also perused thePolice report wherein, it is mentioned, one injured person fallen between VadalaRoad and G. T. B. Nagar, between Km. No. 11/1 and 11/2.  The DRM?s report filed by Respondent demonstratesthat the victim received the injuries while he was travelling near the door/on the footboard of moving local train. 

11.       Pleaof negligence on part of the deceased is not accepted in view of legal positionwell settled by Hon?ble Supreme Court in Relevant Para of the judgment isreproduced as under:

?The manner in whichthe accident is sought to be reconstructed by the Railway the deceased wasstanding at the open door  of  the train compartment from where he fell down,in called by

the Railway itself as negligence.  Now negligence of this kind which is not veryuncommon on Indian trains is not the same thing as a criminal act mentioned inclause (c) to the proviso to Section 124-A. A criminal act mentioned envisage under clause (c) must have an elementof malicious intent or mens rea.  Standingat the open doors of the compartment of a running train may be negligent act,even a rash act but without anything else, it is certainly not a criminalact?. 

13.       In the present case, if we consider thatthe injured had fallen down while travelling near the door/footboard of movinglocal train, even though these circumstances itself are not sufficient to drawthe inference that he was intending to inflict self-injury. It cannot beignored that the injured was travelling by a train. He purchased a ticket forhis journey. Had there been any intention on his part for self-inflictinginjury, he would have commit suicide by other means.

14.       Further,during argument, Ld. Counsel for the Respondent relied upon the content ofmedical documents to argue that the victim had history of epilepsy as permedical papers.  Therefore, this incidenttook place due to his medical condition and therefore, Respondent is exemptedunder sub Para (e) of Section 124-A of Railways Act, 1989. 

15.   We have perused the medical document of L.T. M. G. Hospital, Sion, on record.  Thisdocument did mention about history of epilepsy but none of the station record,Police record or even medical documents establish that the incident had takenplace due to epilepsy.  In absence ofsame, mere mention  of history ofepilepsy in the medical papers does not prove the contention of the Ld. Counselfor Respondent. 

16.    In the abovepremises, we have no doubt that the injured, during the course of travelling bylocal train, accidentally fell down from the train and sustained serious injuries.It is a clear case of anaccidental falling down from train and sustained injuries in an untowardincident as defined in sec. 123 (c) (2) of Railway Act. 1989 and Respondent wouldnot be exempted from the liability to pay compensation by availing benefit ofsection 124 A of Railways Act, 1989.

17.       The Police report has no mention ofrecoveries from the possession of the victim (injured).  In absence of any mention about therecoveries in Police report, the DRM report concludes that the injured was anunauthorized traveller in the train. However, the Applicant has mentioned inhis affidavit dated 04.05.2023, that at the time of the untoward incident hewas a bonafide passenger. He has also produced the original Second ClassRailway Season Tickets and Railway Identity Card, on the strength of which hewas travelling.  Ld Counsel for Respondent has failed toproduce any evidence on record to discard the same and thus, failed to provethat the victim was not a bonafide passenger of the said train at the time ofthe said incident. It can be concluded that the victim was a bonafide passengerat the time of the alleged incident.

18.       In view of facts and circumstances of thiscase and preponderance of evidence adduced on record, we have no hesitation toconclude that the injured Mr. Mohammad HarunGulab Bhai Shaikh, on 17.05.2019, whiletravelling as a bonafide passenger of a local train from Kandivali to Vashi  Railway Station via Vadala Road RailwayStation, accidentally fell down from the moving local train between Vadala Roadand G. T. B. Nagar Railway station and sustained serious injuries. Accordingly,the incident is covered under "untoward incident" as defined underSection 123 (c) (2) read with Section 124-A of the Railways Act, 1989. Hence,we answer the Issue No. I & II in affirmative and in favour of theApplicant.

ISSUE No. III   

19.       The Applicanthas filed medical papers of LTMG Hospital, Sion, wherein, he was diagnosed withfracture of distal tibia of right leg and head injuries. 

20.  Ld. Counsel forthe Applicant and Respondent both verified the injuries with the medical paperson record.  They both conceded that theinjuries sustained to victim would be classified under Sr. No. 33 of Part III ?Fracture of majorbone femur tibia of one limb? of RailwayAccident and Untoward incidents (Compensation) Rules 1990 amendment 2016.   Therefore,   in view of Part III, Sr. No. 33 of theSchedule appended to Rule 3 of Railway Accident and Untoward Incident (Compensation)Rules, 1990 as amended in 2016, the Applicant is entitled for compensation ofan amount of Rs. 80,000/- (Rupees Eighty Thousand only) for the scheduledinjuries caused to him in the untoward incident, on the day of theincident.  The other injuries are non-scheduledinjuries as they are not covered under Part II or III of Railway Accident andUntoward Incident (Compensation) Rules, 1990. Looking into the hospitalization, nature of injuries, pain andsuffering, the victim had undergone, we are inclined to grant Rs. 45,000/-(Rupees Forty Five Thousand only) as compensation for the non-scheduledinjuries.  Therefore, the Applicant isentitled to receive a total compensation amount of Rs. 80,000/- + Rs. 45,000/-= Rs. 1,25,000/- (Rupees One Lakh Twenty Five Thousand only). 

20.  Since the date of incident is 17.05.2019,therefore, in view of the guidelines laid down by Hon?ble Supreme Court in thecase of Union of India Vs. Rina Devi 2018 ACJ 1441, the Applicant is entitledto receive a compensation amount of Rs. 1,25,000/- (Rupees One Lakh Twenty FiveThousand only) with interest @ 9% per annum from the date of incident till thedate of order (revised compensation effective from 1^st January2017), for the injuries sustained to him in an untoward incident.   

                                                    O R D E R

a)                The Claim Application filed under section 16of Railway claims Tribunal Act 1987, is hereby allowed.

b)                The Respondent shall pay Rs.1,25,000/- (Rupees One Lakh  Twenty Five Thousand only) withinterest @ 9%, from the date of incident till the date of this order to theApplicant.

c)                The Respondent shall deposit entire amount ofaward in the office of Additional Registrar, RCT Mumbai within 30 days from thedate of receipt of this order.

d)               In case of default in payment within thestipulated period of 30 days as referred above, the Respondent shall pay thefurther interest @ 9% per annum from the date of receipt of this order till the date ofdeposit of payment in RCT.

e)                As per the guidelines delineated by the Ministry ofRailways (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 Applicant and to protect the amountfrom being frittered away, an amount of Rs. 1,25,000/- (One Lakh Twenty FiveThousand only) plus accrued interest shall be disbursed in the followingmanner.

i. Applicant Mr.  Mohammad HarunGulab Bhai Shaikh shallbe permitted to withdraw an amount of Rs. 25,000/- (Rupees Twenty Five Thousandonly) in his Savings Bank Account through NEFT/RTGS, from the total awardedcompensation amount of Rs. 1,25,000/- (Rupees One Lakh Twenty Five Thousand only)plus accrued interest. 

ii. The balance amountof Rs. 1,00,000/- (Rupees One Lakh only) plus accrued interest till date bekept in the name of the Applicant in Fixed Deposit Scheme in any NationalizedBank near to the place of his permanent residence, in the manner describedbelow:

iii. TheClaimant is directed to open an individual Savings Bank Account in aNationalized Bank near to the place of his permanent residence. This SavingsAccount willbe linked with the Fixed Deposit Account of the Claimant.

iv.The Bank is directed not to permit any joint name(s) to be added in theindividual Savings Bank Account or Fixed Deposit Account of the Claimant i.e.the Savings Bank Account of the Claimant shall be an individual Savings BankAccount and not a Joint Account.  Theconcerned Bank is further directed not to issue any Cheque Book and/or DebitCard in the name of the Applicant for the above referred Savings Account.   If the same has already been issued, theBank is directed to cancel/revoke the same before making any payment of awardedamount to the Applicant.  Moreover, theconcerned Bank shall take care for not issuing any Debit Card relating to theabove referred Savings Bank Account of the Applicant by any other branch of theBank.  The Bank shall put an endorsementon the Passbook issued in favour of the Applicant to the effect that no ChequeBook and/or Debit Card shall be issued to the Claimant without the permissionof this Tribunal. 

v.  The concerned Bank of the Claimant isdirected to permit the Claimant to withdraw money from his Savings Bank Accountby means of a withdrawal form only. The Claimant is directed to produce thecopy of the order passed by the RCT before the concerned Bank whereupon, theBank be directed to make an endorsement on the Passbook. 

vi.   The Original Fixed Deposit receipt shall be retained bythe Bank in safe custody. However, the statement containing FDR number, FDRamount, date of maturity and maturity amount shall be furnished by Bank to theApplicant.  The maturity amount of theFDR be credited by ECS in the Savings Bank Account of the Applicant operated inthe Nationalised Bank located nearer to the place of permanent residence ofApplicant

vii.  The Bank shall not grant any loan, advance,withdrawal or pre-mature discharge on the Fixed Deposit without permission ofthe RCT.

viii. The Claimantis directed to produce the Bank Passbook with the necessary endorsement as wellas Aadhaar Card and PAN Card before the Additional Registrar, RCT Mumbai. TheADR shall take the following documents on record from the Claimant beforereleasing the awarded amount:

(a)                  Details of the Bank Account of theClaimant near to the   

place of hispermanent residence with necessary endorsement on the Passbook.

(b)                 Aadhaar Card and PAN Card or any otherappropriate 

ID card;

and

(c)          Two sets of photographs and specimensignature of the

Claimant.

  ix. There shall be no order as to cost.

x.  The certified copy of this judgment be given to Applicant free of  cost.

xi. Accordingly, the Claim Application stands disposed ofin above terms. 

            Judgmentpronounced on 17^th November, 2023.

   (AlokUpasani)                                                          (H. D. Gujrati)

Member (Judicial)                                                 Member(Technical)