Co-passenger affidavit proves bonafide passenger status despite no ticket found; eyewitness-lacking reports and non-expert injury opinions rejected; fall from overcrowded train constitutes untoward incident.

JUDGMENT :

JITENDRA JAIN, J.

1. This appeal is filed challenging judgment dated 22^nd March, 2019 passed by the Railway Claims Tribunal, Mumbai (Tribunal) whereby application for compensation on account of death on 29^th March, 2012 of Mr. Suvidh Bharat Raut between Ulhasnagar to Ambernath Railway Station came to be rejected, on the ground that the deceased was not a “bonafide passenger” and the death occurred not on account of an “untoward incident” as defined by the Railways Act, 1989.

2. I have heard Mr. Rao, learned counsel for the appellants and Mr. Pandian for the respondent.

3. On 29^th March, 2012 the deceased while travelling from Ulhasnagar to Ambernath fell down from the running train between Ulhasnagar to Ambernath Railway Station and lost his life.

4. The first issue which requires to be considered is whether the deceased was a “bonafide passenger” holding a valid ticket to travel. Admittedly, as per the inquest panchanama no cash, ornaments and valuable articles were found. Even there is no mention of any ticket having been found. However, the appellants have led the evidence of co-passenger Mr. Sandip Valvi who in his affidavit filed before the Tribunal has stated that, the deceased had purchased two tickets for himself and for the witness and both were travelling together. In the affidavit it is also stated that the deceased informed Mr. Sandip Valvi that the monthly railway pass expired yesterday. The witness has also stated that he had informed the Ambernath Police Station about the incident and went alongwith the Railway Police at the incident spot and then to the hospital. He stated that due to heavy rush the deceased fell down from a moving train. The said witness was cross- examined by the respondent. The cross-examination happened in 2016 and the incident occurred in 2012. Therefore, the witness could not produced his ticket. It is also possible that on account of fall and subsequent transporting the body to the hospital the ticket may have been lost. Since an affidavit is filed by the co-passenger confirming the purchase of tickets, following the decision of the Hon’ble Supreme Court in the case of Union of India Vs. Rina Devi , (2019) 3 SCC 572 the finding of the Tribunal that the deceased was not a “bonafide passenger” cannot be accepted.

5. Mr. Valvi, cannot be treated as planted witness. The inquest panchanama states that nothing was found from the search of the deceased. It also states that the elder brother of the deceased came to the hospital and identified the body. Therefore, the evidence of Mr. Valvi that he was present at the time of the incident cannot be brushed aside. The only person who could have informed the family members of the deceased was Mr. Valvi who knew the deceased and was staying near the house of the deceased and was a co-passenger.

6. Insofar as the “untoward incident” is concerned the incident happened between Ulhasnagar and Ambernath Railway station. At the sight of the incident, there is no eyewitness nor any office of the Railway Authorities is located. Therefore, the Station Master’s report, Railway Police report and the inquest panchanama stating that the deceased was knocked down while crossing the railway tracks cannot be accepted in the absence of any eye witness. The respondent-railway has not examined any witness to show that the deceased died by crossing the railway tracks, and further the authorities whose reports are filed were not the eyewitness. Even the pancha’s in the inquest panchanama have stated that they are of the opinion