2022:BHC-AS:21016 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.551 OF 2021

1. Mrs. Seema Wd/o Sanjay Pathare

2. Miss Neha D/o. Sanjay Pathare ...Appellants Versus Union of India ...Respondent ...

Mr. Vasant More for the Appellants.

Mr. T.J. Pandian with Mr. Dheer Sampat for Respondent (UoI).

CORAM: SMT. ANUJA PRABHUDESSAI, J.

DATED : 5th SEPTEMBER, 2022.

JUDGMENT :-

1. This appeal under Section 23 of the Railway Claims Tribunal Act, 1987, assails the Judgment and Award dated 28/06/2019 whereby dismissing the Claim Application No. OA (II u) /

MCC/0483/2013 fled under Section 124 A of the Railways Act, 1989.

2. The brief facts necessary to decide this appeal are as under:-

The Appellant No.1 is the widow and the Appellant No.2 is the daughter of Sanjay Pathare, who died on 30/03/2011 in a train accident. The deceased Sanjay, who was a railway employee was proceeding from Thane to Rabale by a local train under a valid train pass. It was the case of the Appellants that the deceased fell of the running train and sustained fatal injuries and died on the spot. The Appellants claimed that the deceased was a bonafde passenger and that his death was caused in an ‘untoward incident’. The Appellants fled a claim application under Section 124-A of the Railways Act, 1989 seeking compensation from the Railway Administration on account of death of Sanjay in an untoward incident.

3. The Respondent contested the application mainly on the ground that the deceased was not a bonafde passenger and that his death was not caused in an untoward incident. It was contended that the deceased was knocked down by a train while unauthorisedly crossing the railway track. It was stated that the Railway Administration was not responsible for the death of the deceased and that the death was due to the negligence and carelessness of the deceased.

4. In support of the claim, Appellant No.1, the widow of the deceased, fled her afdavit-in-evidence and relied upon SM report, Police report, Inquest panchanama, Ration Card, Death Certifcate and post mortem report (Exhibit-A1 to A6). The Respondent did not adduce any evidence. Upon considering the evidence adduced by the Appellants, the Tribunal recorded a fnding that the Appellants are the dependents of the deceased within the meaning of Section 123(b)(i) of the Railways Act, 1989. Relying upon the evidence of AW1-Seema Pathare, the Tribunal also observed that the deceased was travelling from Thane to Rabale by a local train and that he was holding a valid free pass bearing No.745865, which was recovered during the inquest proceedings and was also referred to in the DRM report. The Tribunal therefore concluded that the deceased was in possession of a valid railway free pass for his journey on 30/03/2011. 5. The Tribunal further held that AW1 had not witnessed the incident and that the case of the Appellants was not based on direct evidence. Relying upon the SM/TNA memo the Tribunal held that the deceased was knocked down by an unknown train while crossing the railway tracks at Airoli. Based on these fndings the Tribunal recorded a fnding that death of the deceased was not caused in an ‘untoward incident’ and hence dismissed the claim application. Being aggrieved by this order the Appellants have fled this appeal.

6. Mr. Vasant More, learned counsel for the Appellants submits that the Appellants had discharged the burden of proving that the deceased was travelling from Thane to Rabale and that he fell of from the running train and sustained injury and expired in an untoward incident. He submits that having recorded a fnding that the deceased was a bonafde passenger the Tribunal was not justifed in holding that the death was not caused in an untoward incident. Mr. More submits that the fnding of the Tribunal that the deceased was knocked down by a train while crossing the track is based on surmises and presumptions. The approach of the Tribunal in depriving the Claimants of the benefts und