AZHARI PARVEEN SAYYAD vs GMCR

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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/573/2019 Date of Judgement: 29/Sep/2023 AZHARI PARVEEN SAYYAD ............Applicant Versus Union of India GMCR/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 /0573/2019 1.

Ms.

Azhari Parveen Sayyad, Aged 34 years, Wife of thedeceased 2.

NasimaKhatun Nasimuddin Sayyad Aged 58 Years, Mother of thedeceased Both Residing at : Village- Nagothane Taluka- Roha, District- Raigad. .....APPLICANT Versus Union OfIndia, Throughthe General Manager, Central Railway, C.S.M.T, Mumbai. ?RESPONDENT Appearances: Mr.

V.N.

More, Advocate for Claimant Ms.

D.Fernandes , Advocate for Respondent: Date of Institution: 19.08.2019 Date of Judgement: 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 A of the Railways Act, 1989 for compensation arising out of an alleged untowardincident occurred on 24.10.2018 leadingto the death of Vasimuddin NasimuddinSayyad ( here after referred as deceased).

The Applicants claimed that they are dependents of the deceased.

Applicant No.

1 is the wife of the deceased and Applicant No.2 is the mother of the deceased.

Thefactual matrix of the matter in nut-shell is as below: 2.

It is stated that the Vasimuddin NasimuddinSayyad, deceased, aged 23 years,resident of Nagothane, District- Raigad was inservice at Tata Steel, Khopoli.

The deceased on 24.10.2018, was travelling from NagothaneRailway train towards Chatrapati Shivaji Maharaj Terminus by Train No.

Train No.

71072 UP, Roha- DivaPassenger on the strength of validsecond class Railway Ticket bearing No.

UFC 63281627.

However, whileboarding the train due to heavy rush and forcefuljerk from the inside crowd, he accidentally fell down on Platform No.

1 at K.M.

No.130/2-3, sustained serious injuries and died.

The Applicant produced originalSecond Class Railway Ticket bearing No.UFC 63281627, Ex.Nagothane Railway station to Chatrapati Shivaji Maharaj Terminujs Railway Station along with the Claim Application.

It has been contended that the deceasedwas a bona-fide passenger 24..10.2018.

3.

In response to notice, Respondent?

Railway Authority appeared and opposed the claim application.

The Respondent filedWritten statement and produced on record the DRM reports pertainingto investigation conducted by IPF/RPF/Roha, accompanied with other relevantpolice papers marked as Exh.?R-1?.

Ithas been stated that on 24.10.2018, Dy.

Station Manager / Nagothane issued a Memo to onduty City police Nagothane stating that information was given by guard of Train No.

71012 Up that one person is run overat platform No.

No.

130/2-3.

Onreceipt of the memo City Police Nagothane alongwith RPF, pointsman reached the incident spot and the victim was taken to Civil Hospital , Nagothane formedical treatment wherein on duty doctor examined him and declared him dead .

The city Police has prepared the Inquest Panchnama, and registered the case vide ADR No.

24/2018 U/s.

174 Cr.PC dated24.10.2018.

City Police has notmentioned about the recovery of Railway Ticket or pass in their report.

Further as per the City Police/ Nagothane?s report, it is concluded that the deceased on24.10.2018, while boarding a running Train No.

71072, Roha-Diva passenger trainaccidentally fell down Nagothane Railway station. y station.

It is submitted that theincident occurred due to negligence on the part of victim Vasimuddin only, and therefore, 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 02.09.2021 for just and properadjudication of Claim Application on merit within ambit of law.

1.

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

2.

Whether the Applicants prove that thedeath of the deceased had occurred as aresult of untoward incident as alleged in the Claims Application and thepresent 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) of RailwaysAct, 1989?

To what Order/ Relief?

5.

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

1 Azhari Parveen Sayyad,wife of deceased Vasimuddin stepped intothe witness-box on 17.01.2023 and filed her Affidavit in lieu of herexamination-in-chief on record.

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

Aadhar Card of the Applicant No.

1 Azhari Parveen Sayyad, wife of the deceased A-1 2 Certified Copy of the S.M.

Memo A-2 3.

Statement of Surendra Lalchand Yadav, Police Constable, Railway Security Force A-3 4.

Certified Copy of Spot Panchanama A-4 5.

Certified Copy of the Inquest Panchnama A-5 6.

Certified Copy of the P.M.

Report A-6 7.

Original Railway Ticket A-7 8.

Ration card A-8 9.

2 Nasima Khatun Nasimuddin Sayyad A-9 10.

Death Certificate of the father of the deceased A-10 6.

1 Azhari Parveen Sayyad (AW/1)in her affidavit dated 17/01/2023 (Exb.AW 1/1) has stated that, on 24.10. on 24.10.2018,her husband Vasimuddin Nasimuddin Sayyad, was travelling from Nagothane Railway traintowards Chatrapati Shivaji Maharaj Terminus by Train No.

71072 UP, Roha- Diva Passenger on the strengthof valid second class Railway Ticketbearing No.

However, while boarding the train due to heavyrush and forceful jerk from theinside crowd, her husband accidentally fallen down from the platform on Platform No.1 at K.M.

130/2-3, sustained seriousinjuries and died.

She had also produced the original Second Class Railway Ticket bearing No.

UFC 63281627 on record in this case.

7.

During the cross-examination ofApplicant No.

1 Azhari Parveen Sayyad, it was suggested on behalf of respondent-Railway, that the incident occurred due to victim?s own negligence and the ticket mentioned in the OA was not recoveredfrom the possession of the deceased and he was not a bonafide passenger But, the AW-1 Azhari Parveen Sayyad turned-down allthese suggestions put forth on behalf Respondent.

8.

The Respondent - Railway also adduced the evidence of Shri Ashwani Kumar Dubey S/oGhanshyam Dubey, Station Master, RW-1, He filed his Affidavit dated 25/05/2023 by way of his examination-in-chief and deposed as under ?

I say that on 24.10.2018, the train No.

71012 ( Diva Roha passenger) arrived on platform No.

1 at Nagothane Railway station at 16.17 hours.

The train started at 16.18 hours, as itwas having 1 minute halt.

The train wasat a speed of 15 hours due to passing of the train from loop line to main line.

I suddenly heard loud screamingand noticed that the train No.

71012stopped at 16.20 hours.

The guard?sbrake of the train van had almost reached near my office which is also atPlatform No.

1.I say that the Guard, Pointsman, Station Hamals alongwith mereached the spot of the incident and removed the victim from the spot of the incident.

The victim was unconscious and his left arm and left leg was cut, I say thatthe Guard gave memo to me at Platform No. atform No.

1 that one unknown person had fallen downwhile catching the train?.

9.

Contestingthe issue, Ld.

Counsel for the Respondent relying on the DRM Report statesthat, City Police Nagothane has notmentioned about the recovery of anyRailway Ticket or Pass in the Inquest Panchnama, hence, the deceased cannot betermed as a bonafide passenger.

Ld.

Counsel for Applicant submitted that in this case, the claimant has filed a secondclass Railway Ticket bearing no.UFC63281627, EX.

Nagothane to Mumbai C.S.T railway station valid on 24.10.2018 andsubmitted affidavit for the same.

In this case, Respondent should have examinedthe ticket and affidavit submitted by applicant and attending circumstance torebut the claim.

However the Respondent except for mention of non recovery ofticket during Inquest Panchanama, could not challenge the genuineness of theclaim of the applicant with substantial evidence to prove that the deceased wasnot a bonafide passenger, at the time and place of the incident.

10.

Refering DRMReport, Ld.

Counsel for the Respondent further states that the alleged incidentoccurred due to the deceased ?s own negligenceand carelessness while boarding arunning train, for which Railway Administration is not responsible andtherefore, the Applicant cannot becompensated.

11.

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".

Sec.

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. 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 state ofintoxication 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.

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

It is alsoimperative to bear in mind that the provisions of Evidence Act as well asProcedural law are not strictly applicable to the proceeding before thisTribunal.

ISSUE NO.

1 & 2 12.

Both these issues being interconnected are being taken up together for the sake of brevityand better appreciation.

We have carefully perusedSM/Nagothane?s memo, dated 24.10.2018, wherein, it is stated that one male person aged 32 years fallen downwhile boarding or alighting local trainat Nagothan Station platform No. atform No.

1 gotrunover, Message received by 71012 guard and Loco pilot goods.

The Inquest Panchnama opines that thesaid deceased person died due to serious injuries sustained in Railwayaccident.

TheDRM Report filed by Respondent concludedthat the deceased on 24.10.2018, while boarding a runningTrain No.

71072, Roha-Diva passenger trainaccidentally fell down at Nagothane Railway station.

13.

In thejudgement in the case of UOI V/s Rina Devi, Civic Appeal No.

4945/2018 (SpecialLeave Petition (Civil) No.

10223 @ D.No.

6059 of 2018) Hon?ble Supreme Court of Indiahas settled the issue of death andinjury during the course of boarding and deboarding a train anduntoward incident under section 123 ( c) and 124 (A) of Railways Act 1989.

The relevant para of the judgement isreproduce below . ?

We are unable to uphold the above view as the concept of ?self inflicted injury? would require intention to inflictsuch injury and not mere negligence of any particular degree.

Doing so would amount to invoking theprinciple of contributory negligence which cannot be done in the case ofliability based as ?no fault theory?.

Wemay in this connection refer to judgement of this court in United India Insurance Co.

Ltd.

Versus SunilKumar 34 laying down that plea ofnegligence of the victim cannot be allowed in claim based on ?no faulttheory? under Section 163 A of the Motor Vechicles Act,1988.

Accordingly we hold that death or injury in the course of boarding or de-boarding a trainwill be an ?untoward incident? entitling a victim to the compensation and willnot fall under the provision to Section124A merely on the plea of negligence as a contributing factor??.

14.

Itis settled proposition that provisions of section 124-A are based on theprinciple of strict liability or no fault liability and it is mandated that therailway administration is bound to pay the compensation regardless of anywrongful act, negligence or default on the part of the railway administration. istration.The Railways can escape the liability to pay the compensation only when thesaid injury comes within the exception clauses (a) to (e) of the proviso to Section124-A of the Railways Act (Supra).

15.

In this 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 exceptional clauses underSection 124-A of Railways Act, 1989. (Supra) 16.

Inthe above premises, we have no doubt that the victim had fallen down whileboarding the train accidently fallen from train and sustain fatal injury.

Hewas immediately taken to hospital,wherein on duty medical officer examined and declared dead.

It is a clear case of an accidental fell down from a trainleading to his death and Respondent is not exempted from the liability to paycompensation under section 124 A of Railways Act, 1989.

17.

We have perused the Inquest Panchnama preparedby Nagothane police station, there is even no sub heading for the recovery fromthe possession of the deceased.

No documents on Jamatalashi was produced by the Respondent.

Since traveland fallen down of the deceased is established and Applicants haveproduced Railway ticket of deceased which was valid on the day of incidence and filed affidavitin this regard.

The Respondent should have examined the ticketproduce alongwith the Claim Application.

However DRM?s report is silent on this aspect.

Thereis no contrary evidence or material to falsify the theory of possession of avalid ticket and its recovery from thedeceased put-forth by the Applicant.

In such circumstances, there is noimpediment to conclude that he was a bona-fide passenger, as defined in sec.

2(29)of the Railways Act as well as Explanation (ii) to sec.

124-A of the RailwaysAct?1989.

Thus on the basis of facts and circumstances of this case andpreponderance of evidence on record, we have come to conclusion that the deceased Vasimuddin Nasimuddin Sayyad,on 24.10. ,on 24.10.2018, while travelling as a bonafide Railway passenger from Nagothane Railway station to Mumbai C.S.T Railwaystation, had accidentally fallen down from running train, sustained serioushead injuries and died.

Accordingly, the incident is covered under Section 123(c) (2) read with Section 124 ?A of the Railways Act, 1989.

Hence, weanswer the issue No.

1 &2 in affirmative.

3 18.

The Applicant No.

1 Azhari Parveen Sayyad, categorically deposed in his Affidavit by wayof examination-in-chief that the Applicantsare the dependants of the deceased Vasimuddin Nasimuddin Sayyad.

The Applicantshave produced Aadhar card of the Applicants and Ration card alongwith Affidavit marked asExhibit A-1, A-8 & A-9 to prove that they are the dependents of thedeceased.

However, the ration card produced by ApplicantNo.

1 Azhari Parveen Sayyad, has beenrecently issued on 23.02.2023 only and bears only her name.

Nothing has been produced to establish the relationship of Applicant No.

2 with deceased.

In view of above, array of dependents and relationship of Applicants with deceased could not firmly establish.

Therefore, this issue is kept open and will be decided after production of legal heir certificate or SurvivalMember Certificate of deceased or any other admissible documents issued by the Competent Authority.

4 19.

Sincethe date of incident i.e 24.10.2018, therefore, in view of norms laid down byHon?ble Supreme court in case of Union of India V/S Rina Devi 2018 ACJ 1441,dependent of the deceased are entitled for Rs.

8,00,000/- (Rupees Eight Lakhonly) (revised compensation effective from 1st January 2017), plus interest @ 9per annum from the date of incidencetill the date of award as a compensationto the dependents of the deceased onaccount of death in an UntowardIncident.

Issue No. (4) is decidedaccordingly. cordingly.

Hence, we pass the following order O R D E R a) Subjectto production of legal heir Certificateor Survival Member Certificate ofdeceased or other admissible documents issued by Competent Authority toestablish array of dependents of thedeceased, the Claim Application filed under section 16 of Railway claimsTribunal Act 1987, is hereby allowed and the Respondent shall pay Rs.8,00,000/- (Rupees Eight Lakh only) plus interest @ 9 perannum from the date of incidence tillthe date of award as a compensation to the aforesaid dependent of the deceasedas compensation.. b) 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. c) 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. d) Applicantis directed to be remained present within one month from the date of receipt ofthis order before this court along with legal heir Certificate or Survival MemberCertificate of deceased or other admissibledocuments issued by Competent Authority and their Id to establish array of dependents of the deceased and theirrelationship with the deceased to decideratio and mode of disbursal of compensation award. e) In the facts and circumstances of the case,there is however, no order as to costs. f) Registryis directed to send a free certified copy of this Judgment to the parties in view of Rule 34 (3) of the Railway Claims Tribunal(Procedure) Rules, 1989.

With these observations, the Claim Application is disposed of accordingly.

File be consigned to Record room after duecompliance.

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

GUJRATI) Member (Judicial) Member(Technical