DADA KASHINATH NIKAM vs GM CR

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RAILWAY CLAIMS TRIBUNAL,MUMBAI BENCH 180/P, DEMELLO ROAD, 19/T WIG-WAM MUMBAI-400001 Case No: OA (II u)/MCC/183/2019 Date of Judgement: 29/Sep/2023 DADA KASHINATH NIKAM ............Applicant Versus Union of India GM CR/CENTRAL ............Respondent BEFORE THE RAILWAYCLAIMS TRIBUNAL, MUMBAI BENCH, MUMBAI COARM: Shri Hari.

D.

Gujrati,Hon?ble Member (Technical) Shri Alok Upasani, Hon?ble Member (Judicial) Claim Application No: OA (II U) / MCC /0183/2019 1.

Mr.

Dada Kashinath Nikam Aged 55 years, Father of the deceased 2.

Mrs.

Ushabai Dada Nikam Aged 50 Years, Mother of thedeceased Both Residing at : Tamgavhan, Post- Malshevage, Taluka- Chalisgaon, District- Jalgaon- 424 108 .....APPLICANT Versus Union OfIndia, Throughthe General Manager, Central Railway, C.S.M.T, Mumbai. ?RESPONDENT Appearances: Mr.

A.A.

Shaikh, Advocate for Claimant Ms.

D.Fernandes for Ms.

Rubia Taneja, Advocate for Respondent: Date ofInstitution: 30.01.2019 Date ofJudgement: 29.09.2023 JUDGEMENT 1.

This Claim Application is filed by theapplicants u/s.

16 of the Railway Claims Tribunal Act, 1987 read with.

Sec.

123 (c)(2) & Sec.

124 - Aof the Railways Act, 1989 for compensation arising out of an Page No.

1 alleged untowardincident occurred on 21.07.2017 duringthe course of travelling by anunknown local train involving deathof their unmarried son Anand Dada @ Dadabhau Nikam.The Applicants claims that they are parentsand dependents of the deceased Anand Dada @ Dadabhau Nikam.

The factual matrix of the matter innut-shell is as below: 2.

It is stated that the Anand Dada @ DadabhauNikam, (hereinafter referred as the deceased), aged 22 years, resident of Jalgaon, State?

Maharashtra, was a labourer.

ApplicantNo.

1 is the father of deceased and Applicants No.

2 is motherof deceased.

The deceased on 24.09. on 24.09.2018,was travelling in a 2nd class compartment of train No.

51181 Dn Devlali-BhusavalPassenger from Manmad Junction toHirapur Railway station.

There washeavy rush in the said train, so the deceased wasstanding near the door inside the compartment.

When the said train reachedbetween Hisval and Pimperkhed/ Nandgaon Railway station, due tosudden forceful jerk from the inside crowd, , he accidentally fell down from the train and died.The Applicant produced certified copy of Railway Ticket bearing No.UFB 60303779, Ex.Manmand Junction Railway station to Hirapur Railway Station along with the Claim Application.

It has been contended that the deceasedwas a bona-fide passenger and allegedly died in an untoward incident occurred on 24.09.2018.

3.

In response to notice, Respondent?

Railway Authority appeared and opposed the claim application.

The Respondentfiled Written statement and also produced on record the DRM Report pertains to investigation conducted by IPF/RPF/Manmad.,accompanied with other relevant police papers marked as ?R-1?.

It has beencontented that on 24.09.2018, on duty Dy.

SS/Hiswal, issued the memo to on duty city police Nandgaon, Shri Taupraj Ratnakar, stating thatone unknown person had fallen down from train No.

51181 Down at K.M.

No.274/15-17 and the said information was given by Shri Samadhan Vithal Solse and Ramzan Daval.

On receipt of the Memo City Police Nandgaonattended the spot and it was found thatthe concerned railway staffs MukadamSudhakar Ramlal Kulkarni alongwith trackman Ramzan Daval trackman Samdhan Vithal Solse were alreadypresent on the incident spot.

The city police Nandgaon sent the dead body of the deceased to the governmenthospital for Post Portem.

The citypolice Nandgaon, filed a report and set the inquiry into motion vide AccidentalDeath No 65/2018, u/s 174 of Cr.

PCdated 24.09.2018.

The City Police has mentioned the recovery of Mobile, Pocket containing Second Class RailwayTicket bearing No.

UFB 60303779, dated 24.09. ted 24.09.2018 issue at 05.25 hrs, Ex.Manmad Junction to Hirapur Railway station.

However, the same doesnot bears the date and signature of panchas or anyparticulars.

The statement of Shri Samadhan Vithal Solse, Trackman Unit No.

3,Hisval, was recorded by police, wherein he has stated that he saw at K.M.

No.274/15-17 on down track about 04-05 steps away one male person about 20-25years was lying unconscious and sustained serious injuries.

Further neither anydriver of the train nor any Railway official had informed or complain that on 24.09.2018 at K.M No.

274/15-15 that the alleged incident took place due to jerk of thetrain nor any passenger fallen down fromthe said train.

Further SSE/PWAY/Nandgaon?s Track Fit Certificate dated 19.07.2019 sates that on 24.09.2018,track was fit for travel at the spot ofthe incident.

Therefore, it reveals that that the deceased was not travellingby any train and he died due to self- inflicted injuries for which the Railway Administrationis not responsible to compensate the Claimant, hence the application berejected.

4.

Inview of pleading of both parties, and relevant documents produced on record,this Tribunal framed the following issues on 22.07.2021 for just and proper adjudicationof Claim Application on merit within ambit of law.

1.

Whether the deceased was travelling onvalid Railway Ticket and was a bona-fide passenger of the train, in question,at the relevant time?

2.

Whether the Applicants prove that thedeath of the deceased had occurred as a result of untoward incident as allegedin the Claims Application and the present case is covered under sec.

123(c)(2)of Railways Act, 1989?

Whether the Applicants prove that theyare the dependents of the deceased within the meaning under Section 123(b) ofRailways Act, 1989?

To what Order/ Relief?

5.

That,in order to establish the claim, the Applicant No. licant No.

1 Dada Kashinath Nikam, father of the deceased Anand Dada @ Dadabhau Nikam stepped intothe witness-box and filed his Affidavit dated 19.04.2022 in lieu of hisexamination-in-chief on record.

He produced the relevant documents comprising: Sr.No Description Exhibit No.

Ration Card A-1 2 Aadhar Card of Applicant No.

1 Mr.

Dada Kashinath Nikam, Father of the deceased A-2 3.

Aadhar Card of Applicant No.

02 Mrs.

Ushabai Dada Nikam, Mother of the deceased A-3 4 Certified Copy of S.M.

Memo 5.

Certified Copy of Police Report 6 Certified Copy of Inquest Panchnama 7..

Certified Copy of P.M.

Report 8.

Certified Copy of Railway Ticker 6.

Applicant No.

1 Dada Kashinath Nikam (AW/1) in his affidavit dated 19.04.2022 (Exb.

AW 1/1) has stated that, on 24.09.2018, his son DadaKashinath Nikam, wastravelling in a 2nd class compartment of train No.

The said trainwas having heavy rush, so his son was standing near the door inside thecompartment.

When the said train reached between Hisval and Pimperkhed/ Nandgaon Railway station, due to sudden forcefuljerk from the inside crowd,his son accidentally fell down from the train and died on the spot.

He had also produced the certified copy of Railway Ticket bearingNo.

UFB 60303779, dated 24.09.2018 Ex.

Manmad Junction to Hirapur Railway station on record in this case.

7.

In the cross-examination of Applicant No.

1 DadaKashinath Nikam, it was suggested on behalf of Respondent- Railway,that his son Anand Dada @ Dadabhau Nikam had died due to his ownnegligence and carelessness.

But, the AW-1 Dada Kashinath Nikam, turned-down all these suggestions putforth on behalf Respondent.

8.

Per Contra Ld.

Counsel for theRespondent referring written Statement and DRM Report has submitted that the deceased was not travelling by anytrain and died due to Self inflictedinjuries, for which Railway Administration is not responsible andtherefore, the Applicant cannot beco annot becompensated.

9.

Wehave heard the Ld.

Counsels appearing for the Applicant and Respondent.

Before embarking into the meritsof the matter, it would be profitable to set-forth the relevant provisions ofthe Railways Act, 1989 as below: Sec.

2 (29) defines"passenger" as under: "passenger" means a persontravelling with a valid pass or ticket".

123 (c)(2) defines ?untoward incident?as under: ?(c) ?untoward incident? means- xxxxx (2) the accidental falling of anypassenger from a train carrying passengers.?

124 - A of the Railways Act is alsouseful to quote as under: 124-A.

Compensationon account of untoward incidents.- ?When in the courseof working a railway an untoward incident occurs, then whether or not there hasbeen any wrongful act, neglect or default on the part of the railwayadministration such as would entitle a passenger who has been injured or thedependant of a passenger who has been killed to maintain an action and recover damagesin respect thereof, the railway administration shall, notwithstanding anything containedin any other law, be liable to pay compensation to such extent as may be prescribedand to that extent only for loss occasioned by the death of, or injury to, a passengeras a result of such untoward 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 suicide by him; b) self-inflicted injury; c) his own criminal act; d) any act committed by him in a stateofintoxication or insanity; e) any natural cause or disease or surgicaltreatment unless such treatment becomes necessary due to injury caused by thesaid 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. incident.

In the backdrop of aforesaid legal provisions,we proceed to scrutinize the evidence produce on record.

It is also imperativeto bear in mind that the provisions of Evidence Act as well as Procedural laware not strictly applicable to the proceeding before this Tribunal.

ISSUE NO.

1 & 2 10.

Both these issuesbeing interconnected are taken up together for the sake of brevity and betterappreciation 11.

The Sec.

2 (29) of Railways Act, 1989 in general refers to a person travelling witha valid pass or ticket to be a passenger.

The Explanation to Section 124-Aprovides that a passenger includes a person who has purchased a valid ticketfor travelling, by a train carrying passengers on any date and becomes a victimof an untoward incident.

As long as there is a valid ticket for the journeythat should be sufficient.

12.

In this case Inquest Panchnama & DRM Report has mention about of recovery of second class RailwayTicket bearing No.

UFB60303779, Ex.

Manmad Junction to Hirapur Railway station dated 24/09/2018,while carrying out personal search by the police.

The said ticket was verified through Chief Commercial Manager (PM) that the UTS Ticket No.

UFB60303779, was issued by bookingoffice of Manmad Railway station.

The copy of system generated report of UTS Ticket Nos.

UFB 60303779 is filed alongwith the DRM Report.

13.

1 Dada Kashinath Nikam (AW/1) has filed said original Railway Ticket and his Affidavit dated 19/04/2022 (Exb.

AW 1/1) to corroborateapplicant?s claim that the deceased wastravelling as a bonafide passenger.

14.

We have carefully perused SM/Hisvahal ?s memo, dated 24/09/2018,wherein, it is stated that one unknown person fallen down from the train No.

51181 (Dn) at Hisvahal ?Panjan section at K.M.

No.

274/15-17.

Inquest Panchnamaopines that the death of the deceased dieddue to fallen down from the running train and sustained serious injuries tohead, mouth and foot and due to excessloss of blood. of blood.

The DRM Report filed by Respondentremained inconclusive on the cause of the incident and states that the alleged incident occurred due to his ownnegligence, which is an offence punishable under Sec.

156 of the Railways Act,1989.

15.

DRM?s report is inconclusive on the cause of incident despite injuredwas found in Railway area between tracks at K.M.

274/15-16 between Hisvahal ?

Panjan section.

Other possibility of incident namely trespassing and knock down was not even mentioned and examined in the DRM Report.

Even the injuries recorded in the Inquest Panchnama and Post MortemReport do not substantially lead to aconclusive inference for trespassing.

Further the deceased was also not a resident of nearby to the place of incident.

16.

In the present case being case of a beneficial legislation, if twointerpretations are possible, interpretation beneficial to the claimants has tobe preferred, consistent with the law laid down in Union of India vs.Prabhakaran Vijaya Kumar and others Appeal (Civil) 6898 of 2002.

17.

In absence of anyevidence in contrary from the Respondentside, in consideration of deceasedbody was found in Railway operationalarea, specific train number forthis travel submitted by the Applicantsand availability of a valid travelticket, we therefore have no hesitation in concluding that the deceasedhad fallen down from Train No.

51181 Dn.

Devlali ?

Bhusaval passenger, whiletravelling from Manmad junction to Hirapur Railway station.

18.

It is settled proposition thatprovisions of section 124-A are based on the principle of strict liability orno fault liability and it is mandated that the railway administration is boundto pay the compensation regardless of any wrongful act, negligence or defaulton the part of the railway administration.

The Railways can escape the liabilityto pay the compensation only when the said injury comes within the exceptionclauses (a) to (e) of the proviso to Section 124-A of the Railways Act.

19.

In this case Ld. s case Ld.

Counsel for theRespondent did not lead any evidence to prove that the act of the deceased,leading to his death was as a result of any of the followings, covered underexceptional clauses under Section 124-A of Railway Act, 1989 (Supra).

In the above premises, we have no doubtthat the victim during the course of travelling has accidently fallen from train and sustainfatal injury and Respondent is not exempted from the liability to pay compensation under section 124 A ofRailways Act, 1989.

20.

In this case recovery of a Second Class Railway Ticket bearing No.UFB60303779,dated 24.09.2018, valid from Manmad Junction to Hirapur Railway station ismentioned in the Inquest Panchnama and DRM Report.

The ticket has been verified by the Respondent.

Inview of no evidence in contrary from Respondent side, it is concluded that the deceased was a bonafide passenger at the time ofincidence.

21.

On the basis of facts and circumstances ofthis case and preponderance of evidence on record, we have come to theconclusion that the deceased Mr.

Anand Dada @ Dadabhau Nikam, on 24/09/2018,while travelling by Train No.

51181Dn.

Devlali ?Bhusaval passenger,as a bonafide Railway Passenger from Manmad junction to Hirapur Railway Station, had accidentally fallen down from the running train, sustainedserious injuries anddied.

Accordingly,the incident is covered under "Untoward Incident" as defined underSection 123 (c) (2) read with Section 124-A of the Railways Act, 1989 andtherefore, the Respondent is liable to pay compensation to the dependents ofthe deceased.

Hence, we answer the issueNo.1& 2 in affirmative, in favourof Applicants.

3 22.

The Applicant No.

1 Dada KashinathNikam, categorically deposed in hisAffidavit by way of examination-in-chief that the Applicants are the dependants of thedeceased Anand Dada @ Dadabhau Nikam. hau Nikam.

The Applicants have produced Ration cardand Aadhar card of the Applicants markedas Exhibit A-1 to A-3 to prove that theyare the dependents of the deceased.

Itis not in dispute that the Applicant No.

1 & 2 are the parents of the unmarried son Manik Irwant Bodke .

The Respondent did not put this factualaspect in controversy.

Therefore, there is no impediment to hold that all theApplicants are the dependents of deceased Anand Dada @ Dadabhau Nikam ascontemplated under sec.

123 (b) of Railways Act, 1989.

Hence, we answer theissue No.3 in affirmative in favour ofthe Applicants.

4 23.

Since the incident leading to deathof the deceased in an ?untoward incident? as defined under sec.

123 (c) of theRailways Act 1989, therefore, in view of part - I of the Schedule appended to Rule 3 ofRailway Accident and Untoward Incident (compensation) Rules, 1990, the Applicants are entitled for compensation of Rs.

8,00,000/- (Rupeeseight lacks only) from Respondent ?

Railway on the day of incident.

Since the date of incident i.e., 24.09.2018, therefore, in view of LAW laid down by Hon?ble Supremecourt in case of Union of India V/S RinaDevi 2018 ACJ 1441, aforesaid dependentsof the deceased are entitled for an amount of Rs.

8,00,000/- (Rupees Eight Lakh only)(revised compensation effective from 1st January 2017), plus interest @ 9% fromthe date of incidence till the date of award as a compensation to the Applicants on account of death of the Anand Dada @ Dadabhau Nikam, in an Untoward Incident.

Hence, we pass the following order O R D E R 1.

TheClaim Application filed under section 16 of Railway Claims Tribunal Act 1987,is hereby allowed.

The Respondentshall pay Rs.8,00,000/- (Rupees Eight Lakh only) to the Applicants as acompensation with interest @ 9% p.a. from the date of incident till date ofthis order.

TheRespondent shall deposit entire amount of award in the office of AdditionalRegistrar, RCT Mumbai within 30 days from the date of receipt of this order.

4. order.

Incase of default in payment within the stipulated period of 30 days as referredabove, the Respondent shall pay the further interest @9% per annum from thedate of receipt of thisorder till the date of deposit of payment in RCT.

As per the guidelines delineated by the Ministryof Railways (Railway Board) vide Notification dated 3rd June, 2020under GSR 347 (E) which came into effect from 1st day of January, 2020,after considering the status of the Applicants and to protect the amount frombeing frittered away, the amount of Rs.

8,00,000/- (Rupees Eight lakhs only)plus interest @ 9% shall be disbursed in the following manner: i) Applicant No.1 Mr.Dada Kashinath Nikam and Applicant No.

2 Ushabai Dada Nikam, each shall bepermitted to withdraw an amount of Rs.40,000/- (Rupees Forty Thousand only ), in their respective Savings BankAccounts through NEFT/RTGS, from the total awarded compensation amount of Rs.8,00,000/- (Rupee Eight Lakh only) & plus interest @ 9%. per annum. ii) The balance amount of Rs 7,20,000/- (Rupees Seven LakhTwenty Thousand only) plus interest accrued till date, be kept in the name ofApplicant No.

Dada Kashinath Nikam and Applicant No.

2 Ushabai Dada Nikam in Annuity deposit in anyNationalised Bank located nearer to the permanent residential address ofApplicant No.1, in the manner described below.

Applicant?s name.

Amount to be disbused in favour of Applicant(s) by NEFT/RTGS Amount to be invested in Annuity Scheme in a Nationalized Bank Dada Kashinath Nikam (Father) Applicant No.

1 Rs 40,000/- (Rupees Forty Thousand only) Rs.3,60,000/- (Rupees Three Lakh Sixty Thousand only) plus accrued pro-rata interest in Annuity scheme on similar line as MACAD with monthly payment of Rs.6,000/- (Rupees Six Thousand only) till entire deposit amount is exhausted.

Ushabai Dada Nikam (Mother) Applicant No.

2 Rs 40,000/- (Rupees Forty Thousand only) Rs. only) Rs.3,60,000/- (Rupees Three Lakh Sixty Thousand only) plus accrued pro-rata interest in Annuity scheme on similar line as MACAD with monthly payment of Rs.6,000/- (Rupees Six Thousand only) till entire deposit amount is exhausted. iii.

The Claimants aredirected to open an individual Savings Bank Accounts in any Nationalized Banklocated nearer to the place of permanent residence of Applicants The SavingsAccounts will be linked account with Annuity(term) Deposit Account on similar line as of MACAD (Motor AccidentClaim Annuity (Term) Deposit Account). iv.

The Bank is hereby directednot to permit any joint name(s) to be added in the Savings Bank Accounts orFixed Deposit Accounts of the Applicants i.e. the Savings Bank Accounts of theApplicants shall be an individual Savings Bank Account and not a Joint Account.The concerned Bank is further directed not to issue any Cheque Book and/orDebit Card in the name of Applicant for the above referred S.B. account.

If thesame are issued, the concerned Bank authority is directed to take step to cancel/revokethe same before making any payment of awarded amount to the Applicant.Moreover, the concerned Bank shall take care for not issuing any Debit Cardrelating to above referred S.B. account of the Applicant by any other branch ofthe Bank.

The Bank shall put an endorsement on the Passbook issued in favour ofApplicant to the effect that no Cheque Book and/or Debit Card shall be issuedto the Claimants without the permission of this Tribunal. v.

The concerned Bank of the Claimants isdirected to permit the Claimants to withdraw money from their Savings BankAccounts by means of a withdrawal form only.

The Claimants are directed toproduce the copy of this order before the concerned Bank for requisite endorsementin the Passbooks. vi.

The Original Deposits receipts shall beretained by the Bank in safe custody. e custody.

However, the statement containing AnnuityScheme number, interest rate, monthly payment and leave shall be furnished byBank to the Applicants. vii.The Bank shall not grant any loan, advance, withdrawal or pre-mature dischargeon the Annuity Deposits without permissionof this Railway Claims Tribunal. viii.The Claimants are directed to produce the original Bank Passbook with the necessary endorsement as well Aadhaar Card and PAN Card beforethe Additional Registrar, RCT, Mumbai.

ADR shalltake the following documents on record fromthe Claimants before releasing the awarded amount. (a) Details of the Bank Accounts of the Claimantsnear tothe place of their permanent residence with necessary endorsement. (b) Aadhaar Card and PAN Card or any other appropriate ID card; and (c) Twosets of photographs and specimen signatures of the Claimants.

6.

There shall be no order as tocost.

The certified copy of this judgement be given to Applicants free of cost.

Accordingly, the claimApplication stands disposed of in above terms.

Judgement pronounced on 29 th September 2023, in open court. (ALOK UPASANI) (HARID.

GUJRATI) Member (Judicial) Member(Technical)