Dilip Baburao Karape v. The Union of India

1. This appeal is filed against the order dated 31 January 2019 passed by the Railway Claims Tribunal, Mumbai (Tribunal).

2. The Tribunal has dismissed the original application for compensation on account of injury on the ground that the injured was not a “bona fide passenger” since ticket was not found, and secondly, “untoward incident” was on account of negligence of the injured person.

3. I have heard learned counsel for the appellant and the respondent.

4. The injured was travelling in night from Igatpuri to Nashik on 13 January 2011 and had boarded Mumbai-Howrah Mail Express Train, second class unreserved compartment. The incident happened between 1 of 3 2026:BHC-AS:9349 Igatpuri and Ghoti Railway Stations. Due to heavy rush, the injured slipped and fell down from the train which led to amputation above high thigh and other multiple injuries.

5. Admittedly, the ticket was not found but the injured person has filed an affidavit before the Tribunal stating that he had purchased the ticket to travel from Igatpuri to Nashik. The statement made on the affidavit has not been controverted. In the cross-examination, nothing has come out to prove this statement as untrue. It is possible that when a person falls from a moving train the belongings get dropped either at the time of the incident or while moving the injured from the site of the incident to the hospital. The Hon’ble Supreme Court in the case of Union of India vs. Rina Devi[1] has observed that in such cases, if an affidavit is filed, then same can be considered for the purpose of deciding whether the passenger was a “bona fide passenger” or not. In the instant case, the affidavit has been filed and nothing contrary has come on record insofar as this issue is concerned. Therefore, applying the dictum of the Hon’ble Supreme Court in the case of Rina Devi (supra), the finding that the injured person was not a “bona fide passenger” is reversed.

6. The enquiry report of the Central Railway dated 5 October 2015 accepts that the injured fell down from train No.17047 but however, it further records that he was negligent. I failed to understand as to how the railway police who were not the eyewitness to the incident can state that the injured was negligent. The fact of the injured having fallen down is accepted in the said report.

7. The spot panchnama dated 14 January 2011 records that driver of Devgiri Express Train saw the injured person lying near the

2 of 3 track and it is he who informed the station master who reached the spot and prepared the spot panchnama. The nature of injury also clearly demonstrates that the injured fell down. If a person while travelling in long distance train falls down between two stations it cannot be a case of the injured being negligent. It is known fact that in an unreserved compartment, there is heavy rush in long distance train. Further, the injured in his affidavit has given reason as to how he fell down. In the cross examination, there is no rebuttal to the same. In my view, after examining the report of the railway police, spot panchnama and the affidavit of the injured person, it cannot be said that the injured person was negligent. The “untoward incident” happened when the passenger train carrying injured as well as other passengers was moving towards Nashik and the injured fell down due to heavy rush. Therefore, this incident squarely falls within Section 123(c)(2) of the Railways Act, 1989 and would constitute an “untoward incident”. Therefore, even on this count, the findings of the Railway Tribunal is reversed.

8. The applicant to make application to the respondent for claiming the compensation on the basis of the injury. The respondent to remit the amount alongwith interest to the bank account of the injured within twelve weeks from today. In the original application, the injured has claimed Rs.4,50,000/-. However, there has been an amendment which according to the learned counsel for the appellant would result into compensation of Rs.5,60,000/-. The respondent to consider this submission and arrive at the correct compensation and remit the amount to the bank account of the injured person alongwith interest @ 6% from the date of accident till the date of payment.

9. The Appeal is disposed of in above terms. [ JITENDRA JAIN, J. ] 3 of 3 Designation: PA To Honourable Judge