Shailaja IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.41 OF 2015

1. Arun Anshiram Dhotre ]

(Aged – 45 Years) Father ]

2. Aruna Arun Dhotre ]

(Aged – 40 Years) Mother ] Village – Virsai (Bushawadi) ] Post – Kangawai, Tal – Dapoli ]

Dist. Ratnagiri. ] Appellants Vs.

Union of India, Through ] General Manager, Western ] Railway, Having his office at ]

3rd Floor, Churchgate. ] Respondent …..

Mr. Balasaheb Deshmukh i/b Mr. D.T. Ajagekar, for Appellants. Mr. Chetan Agrawal a/w Mr. Sachin R. Pawar, for Respondent.

…..

CORAM : PRITHVIRAJ K. CHAVAN, J.

RESERVED ON : 28th August, 2023. PRONOUNCED ON: 31st August, 2023.

JUDGMENT:

1. By this appeal, the appellants impugned the judgment and order dated 21st April, 2014 passed by Member (Technical), Railway Claims Tribunal, Mumbai Bench, Mumbai dismissing their Claim Application bearing No. OA/(IIu)/MCC/2011/0025.

2. Briefly stated, facts are as follows.

3. One Alpesh Arun Dhotre (for short ‘deceased’) was trevelling by a local train between Bhayander and Vasai along with his friend on the fateful day of 26th January, 2010. When the local train reached between Naigaon and Vasai Road Railway Station, due to excessive crowd in the compartment, deceased fell down out of the train sustaining fatal injuries. An accident memo was prepared by the Station Master pursuant to an information received from one unknown person that an unknown person was found lying by the railway track. When the concerned Government Railway Police staff along with two porters reached near k.m 50/07 on down local line, they noticed a boy lying on the ground with serious head injury.

4. An inquest panchanama was drawn in the presence of pancha witnesses under section 174 of the Code of Criminal Procedure. Statements of the witnesses were recorded. Dead body was sent for postmortem to Primary Health Centre, Vasai (East) District Thane. Autopsy was conducted at Primary Health Centre at Navghar. Autopsy report was collected. As per the Autopsy report, cause of death was “Hemodynamic Shock to Polytrauma”. Investigating report was given by the Inspector of R.P.F of Vasai Road Station as well as particulars of an untoward incident.

5. Meanwhile, parents of the deceased who claimed to be his dependants moved an application before the Railway Claims Tribunal seeking compensation.

6. The learned Tribunal, after going through the application and evidence of appellant No.1 - Arun Dhotre rejected the claim mainly on the ground that the appellants have failed to establish that it was an untoward incident within the meaning of section 123 (c) (2) of the Railways Act, 1989. The Tribunal rejected the claim also on the ground that the applicants failed to prove that they were dependants of the deceased. The Tribunal, however, held that the deceased was a bona fide passenger, in the sense, he was travelling between Bhayander and Vasai Road Railway Station with a valid railway ticket at the time of the accident.

7. I heard Mr. Deshmukh, learned Counsel for the appellants and Mr. Agrawal, learned Counsel for the respondent-Union of India.

8. Chapter XIII of the Railways Act contemplates liability of railway administration for death and injury to passengers due to accidents. Definition of ‘untoward incident’ as per section 123 (c) (2) of the said Act means the accidental falling of any passenger from a train carrying passengers. Section 124A of the Railways Act provides compensation on account of untoward incident whereas proviso (a) to (e) of Section 124-A are exceptions wherein Railway Authority is not liable to pay compensation. Section 124-A and it’s proviso read as under;

“124A. Compensation on account of untoward incident.- 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 the part of the railway administration such as would entitle a passenger who has been injured or the dependant of a passenger who has been killed to maint