MOHAMAD MUSLIM vs GMCR

RCT SHOW JUDGEMENT This is an UNCERTIFIED copy for information/reference.

For authentic copy please refer to certified copy only.

In case of any mistake, please bring it to the notice of Registrar.

RAILWAY CLAIMS TRIBUNAL,MUMBAI BENCH 180/P, DEMELLO ROAD, 19/T WIG-WAM MUMBAI-400001 Case No: OA (II u)/MCC/586/2019 Date of Judgement: 29/Aug/2024 MOHAMAD MUSLIM ............Applicant Versus Union of India GMCR/CENTRAL ............Respondent RAILWAYCLAIMS TRIBUNAL, MUMBAI BENCH, MUMBAI CORAM:Shri.

Alok Upasani, Member (Judicial) CLAIMAPPLICATION No: OA (II u)/MCC/586/2019 1.

Mr.

Mohmad Muslim, Aged 54 years, Father of the deceased 2.

Mrs.

Mashibunnisha W/o Mohmad Muslim, Aged 34 years, Mother of the deceased BothR/at:Jagdishpur Grant, SidharthNagar, Patni Jungle, Uttar Pradesh ?

272207 APPLICANTS V E R S U S Union of India, Through The General Manager, Central Railway, C.

S.

M.

T,Mumbai.

RESPONDENT Appearances: Mr.

D.

V.

Sadvilkar - Counselfor the Applicants Mr.

A.

P.

Thomas - Counsel for the Respondent Date of Institution:12.09.2019 Dateof Judgment: 29.08.2024 J U D G M E N T 1.

This Claim Application is filed by theApplicants under Section.

16 of the Railway Claims Tribunal Act, 1987 readwith.

Sec.

123 (c)(2) & Sec.

124 - A of the Railways Act, 1989, forcompensation arising out of an alleged untoward incident occurred on 13.07.2019,involving death of Imran S/o Mohmad Muslim(hereinafter referred as deceased).

TheApplicants claim that they being the parents are the dependents of the deceasedImran Mohmad Muslim.

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

That the deceased, Imran Mohmad Muslim, was a resident of ShivajiNagar, Govandi, Mumbai.

It is allegedthat on 13/07/2019, Imran Mohmad Muslim boarded in a local train from SandhurstRoad railway station for travelling to Govandi railway station. y station.

When the said local train reached at Govandirailway station, he accidentally fell down from the running local train,sustained multiple injuries and died before admission in the hospital.

It is further alleged that the deceased wastravelling as a bonafide passenger, on the strength of a second class railwayseason ticket bearing No.

UFE 78020113, Ex.

Govandi to Mumbai CSTM railwaystation.

The said season ticket wasrecovered from the possession of the deceased during inquest proceedings andits recovery is mentioned in inquest panchnama.

3.Inresponse to notice, Respondent Railway Authority appeared and opposed the claimapplication.

The Respondentfiled Written Statement and also produced on record the DRM report pertainingto investigation conducted by Inspector/RPF/Mankhurd,accompanied with otherrelevant documents.

The DRM reportreflects that on 13.07.2019, at 09.00 hours, pursuant to information received,CNC/Govandi issued a memo to GRP/Vashi, P.

C.

956, Shri.

Kakde, that one personaged about 22 years, found lying in injured condition at Govandi railwaystation between platform No.

1 and 2, towards CSMT end.

The GRP attended the site and took the victimto Rajawadi Hospital, Ghatkopar, wherein he was declared dead.

The GRP registered a case vide ADR No.90/2019 under Sec.

174 of Cr.

PC. dated 13.07.2019.

The GRP has mentioned about the recovery of arailway season ticket bearing No.

UFE-78020113, Ex.

Govandi to CSMT, valid fortravel, for the period from 23.06.2019 to 28.072019.

The GRP has stated in the inquest panchnamathat the deceased had fallen down from an unknown local train, sustained seriousinjuries and died.

The CNC/Govandi has mentioned in its memo and diary that thevictim was found lying injured between platform No.

01 and 01-A, near FOB, CSMTside, on down track.

However, as perCCTV footage of the CCTV camera installed at Govandi railway station, it isseen that on 13.07.2019 at 08.53 hours, the victim jumped on the railway trackfrom platform No. atform No.

01 and was crossing the railway track in order to board thelocal train arriving on platform No.

02 and that time he was knocked down bythe Train No.

V-03.

Though there is afoot over bridge available at Govandi railway station for going from oneplatform to another, the victim did not use the bridge.

The RPF/Mankhurd recorded the statement ofMotorman of local Train No.

V-03, wherein he has stated that, on 13.07.2019,while performing duty as Motorman on T.

No.

V-03, from CSMT to Vashi railwaystation, at about 08.53 hours, while his train was reaching Govandi railwaystation on platform No.

01 and 02 towards CSMT side, suddenly one person agedabout 25 years, jumped on the railway track and was crossing the track in orderto board the train arriving on platform No.

02 and at the same time he wasknocked down by his train No.

Though,the GRP has mentioned about the recovery of a railway season ticket from thepossession of the victim but the said ticket or a copy of the same is notavailable with the GRP?s documents.

Therefore, the deceased?s presence in the railway premises wasunauthorized and he was knocked down by T.

V-03, while crossing the railwaytrack, which is an offence punishable under Sec.

147 of Railways Act,1989.

4.

In view of pleading ofboth parties as well as relevant documents produced on record, this Tribunalframed the following issues on 24.06.2021 for just and proper adjudication ofClaim Application on merit within ambit of law. i) Whether the deceased was travelling onvalid railway ticket and was a bonafide passenger of the train in question, atthe relevant time? ii) Whether the Applicants prove that the deathof the deceased had occurred as a result of an untoward incident as alleged inthe Claim Application and the present case is covered under Sec.

123 (b) ofRailways Act, 1989? iii) Whether the Applicants prove that theyare the dependents of the deceased within the meaning of Sec. ng of Sec.

123 (b) ofRailways Act, 1989? iv) To what Order/Releif?

5.Inorder to establish the Claim, the Applicant No.1, Mohmad Muslim, stepped intothe witness-box as AW-1 and filed his Affidavit dated 18.01.2023 marked AW-1/1,in lieu of hisexamination-in-chief on record.

He produced the following documents: SN Particulars Exhibit 1.

Attested copy of Ration Card A-1 2.

Attested copy of PAN Card of deceased A-2 3.

Attested copy of Office Id.

Card of deceased A-3 4.

Attested copy of Aadhar Card of deceased A-4 5.

Attested copy of Death Certificate of deceased A-5 6.

Attested copy of PAN Card of Applicant No.

2 A-6 7.

Attested copy of Aadhar Card of Applicant No.

2 A-7 8.

1 A-8 9.

1 A-9 10.

Attested copy of Bank Passbook of Applicants A-10 6.Applicant No.1, Mohd Muslim (AW/1) filed his affidavit dated 18.01.2023 (Exh.AW-1/1) and submitted that, on 13.07.2019, his son Imran Mohmad Muslim wastravelling as a bonafide passenger of local train from Sandhurst Road toGovandi railway station, on the strength of a valid railway season ticketbearing No.

UFE-780201213, Ex.

Govandi to Mumbai CST railway station.

When the said local train reached at Govandirailway station, Imran accidentally fell down from the moving train, sustainedmultiple injuries and died before admission in the hospital.

He further submitted that the season ticket, onthe strength of which the deceased was travelling, was recovered from hispossession during inquest proceedings and its recovery is mentioned in theinquest panchnama.

In hiscross-examination the AW-1 MohmadMuslimhas stated as under: ?------The deceased was my sonnamed Imran.

He was engaged in furnitureworks at Sandhurst Road.

The incidentoccurred on 13th July, but I don?t recall the year in which theincident had occurred.

At the time ofincident, I was at my native place.

I donot have any personal knowledge of the incident. incident.

Police had informed about the incident to myyounger son.

I did not visit Mumbaiafter the incident.

But I had visitedafterwards.

The last rites of mydeceased son were performed at my native place.

My son took possession of the body.

Aadhar Card and Pass of my son were handed over to us.

My wife?s name is Masibun.

I cannot assign any reason regardingdifference in name of my wife in Affidavit and Ration Card?.

During cross examination of AW-1,Mohd.

Muslim, it was suggested on behalf of RespondentRailway, that the allegedincident occurred due to the deceased?s own negligence, while crossing therailway track, he was knocked down by train.

But the AW-1 Mohmad Muslim , turned-down these suggestions put forth onbehalf of Respondent.

7.

Respondent on the other hand has adduced theevidence of Shri.

Krishna Kant Bajpai, Motorman of Local Train No.

V-03, whostepped in to witness box as RW-1 and filed his affidavit by way of hisexamination in chief on record and submitted as under: ?I ampresently working as Motorman at CSMT Lobby (Suburbarn).

On 13.07.2019, I was working as Moroman ofLocal Train No.

V-03, from CSMT to Vashi railway station, which departed CSMTat 08.15 hours, against schedule departure of 08.12 hours and reached Vashi at09.08 hours, against scheduled arrival of 09.02 hours.

When the said train was entering Govandistation, suddenly a person tried to cross the track from platform No.

01 toplatform No.

02.

I blew the whistle andapplied emergency brakes, in spite of this, he was hit by my train at 08.53hours.

When my train halted, I informedmy Guard, Shri.

Amit Mhaske over the intercom about the incident.

After a brief halt, I was informed by thePointsman as well as RPF staff, that the victim was taken out from the track.

MyGuard informed me that he had conveyed the information to the Controller and onhis instruction, the train started from Govandi station.

I have given my statement to RPF/Mankhurd on15.02. d on15.02.2020 and am submitting my Motorman diary for the day of incident, whichmay please be taken as Exh.

R-2 and R-3?.

During his examination by thisTribunal, he has stated as under: ?Ihave made the correction in my Motorman Book regarding the incident.

By mistake, I had written MNKD (Mankhurd)instead of GV (Govandi station).

I hadmade entry in the Lobby in regard to this unusual incident.

At Govandi station, my Train was being takenon DN. line which has the platform on both sides?.

The respondent also produced CCTVfootage along with a certificate from the competent authority as required underSec.

65-B of Indian Evidence Act.

8.

During arguments, Ld.

Counsel forApplicants submitted that the AW-1, Mohmad Muslim, has filed his affidavitdated 18.01.2023 and deposed before this Tribunal to confirm that the deceased,on the relevant day was travelling by local train from Sandhurst Road toGovandi railway station, on the strength of a valid second class railway seasonticket bearing No.

UFE-78020113,Ex.

Govandi to Mumbai CST railway station, whichwas recovered during the personal search of the deceased and its recovery ismentioned in the Inquest Panchnama.

Hence, the deceased was a bonafide passengerof the train at the time and place of incident.

The Applicants have also filed the original railway season ticket alongwith the Claim Application.

The death of the deceased occurred due toaccidental fall from running train which is within the ambit of Sec 123(c) ofRailways Act, 1989.

9.

Contesting the issues, Ld.

Counsel for Respondent submittedthat although the Police has mentioned about the recovery of the abovementioned second class railway season ticket bearing No.

Govandito Mumbai CST railway station, from the possession of the deceased, the fall ofthe deceased from running train as alleged by the Applicants is notsubstantiated as he was knocked downby LocalTrain No. lTrain No.

V-03,while crossing the railway track at Govandirailway station, which is substantiated from thestatement and evidence of Motorman of Train No.

V-03 and the CCTV footage ofGovandi station for the day of incident filed by respondent.

As such the alleged incident occurred due tothe deceased?s own negligence and carelessness, while crossing the railwaytracks, due to which he was knocked down by Local Train No.

V-03, sustainedmultiple serious injuries and died subsequently.

In the present case thedeceased was a trespasser at the time of incident, he was not travelling by anytrain when the incident occurred and therefore, he was not a bonafide passengerat the time and place of the incident.

Assuch the alleged incident, dated 13.07.2019, cannot be termed as an UntowardIncident, as defined under Sec.

123 (c) (2) of the Railways Act, 1989 andtherefore the Applicants cannot be compensated under the Railways Act,1989.

10.I have heard theLd.

Counsels appearing for the Applicants and Respondent.

Now, before embarkinginto the merits of the matter, it would be profitable to set-forth the relevantprovisions of the Railways Act, 1989 as below: (i)Sec.

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

123 (c)(2) defines ?untoward incident? as under: ?(c) ?untoward incident? means- xxxxx (2) the accidentalfalling of any passenger from a train carrying passengers.? (iii)124-A.

Compensation on account ofuntoward 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 recoverdamages in respect thereof, the railway administration shall, notwithstandinganything contained in any other law, be liable to pay compensation to suchextent as may be prescribed prescribed and to that extent only for loss occasioned by thedeath of, or injury to, a passenger as a result of such untoward incident : Provided that no compensation shall bepayable under this section by the railway administration if the passenger diesor 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 this section,?passenger? includes- i) arailway servant on duty; and ii) aperson who has purchased a valid ticket for travelling, by a train carryingpassengers, on any date or a valid platform ticket and becomes a victim of anuntoward incident.

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

IssueNo. (1)&(2): 11.

Both these issues are interconnected andtherefore taken up together for consideration, for the sake of brevity andbetter appreciation.

12.

I havecarefully perused the CNC/Govandi?s memo, wherein it is stated that the victimwas found lying injured on down track at Govandi station, near CSMT side FOB,platform No.

1 & 2.

The inquestpanchnama reflects that the victim had fallen down from an unknown local train,sustained serious injuries and died subsequently.

The Police report states that, as per memo ofCNC/Govandi to GRP, the victim had fallen down from an unknown local train nearplatform No.

02 of Govandi railway station and sustained serious injuries.

However, the memo issued by CNC/Govandi doesnot mention anywhere that the victim had fallen down from an unknown localtrain, it only mentions that the victim was found lying injured at Govandistation.

Hence, cognizance cannot begiven to the conclusion of Inquest Panchnama and Police report as it is notbased on factual contents. contents.

Moreover, the inquest panchnama was preparedin the hospital and not at the site of incident and therefore, it was not basedon site conditions to infer the cause of incident.

The DRM?s report, while referring the CCTVfootage of Govandi railway station for the day of incident and statement andevidence of Motorman of Train No.

V-03, concluded that the victim was knockeddown by Local Train No.

V-03, while crossing the railway track, in a negligentmanner, which is an offence punishable under Sec.

147 of the Railways Act,1989.

I have also gone through the CCTVfootage produced by the respondent duly certified by the competent authorityunder Sec.

13.In this case, the AW-1 Mohmad Muslim, is not a witness of the incident and hasno personal knowledge of the incident.

In fact he was at his native placewhenthe incident occurred.

Onus to prove that thedeath of the deceased had taken place in an untoward incident and that thedeath occurred while the deceased was travelling in a train carrying passengersas a passenger with valid ticket, within the meaning of section 123 (c) read with section124-A of the Railways Act, 1989 lies with the Applicantsfirst.

The Applicants did not produce any concretewitness/document to substantiate travel and accidental fall of the deceasedfrom the train.

In this connection, reliance on the judgments of Hon?ble Delhi HighCourt in case of JamirulNisha and OthersVs.

UOI, 2009 ACJ 1393 and Hon?ble HighCourt of Andhra Pradesh in case of Jetty Naga Lakshmi Parvathi vs.

Union of India,2011 SCC Online AP 828 : 2013 ACJ 1061are relevant.

In case of JamirulNishaand Others (Supra), Hon?ble High Court has observed that: ?from the perusal of section 123 (c) (2)and 124 A, it is clear that ?sine qua non? for claiming compensation, onaccount of death or injury sustained in a train accident is that the victim ofa train accident or his dependents as the case may be must first establish thatthe victim or the deceased had accidental accidentally fallen from the train?.

In the case of Jetty Naga Lakshmi Parvathi (Supra), Hon?ble High Court of Andhra Pradesh afterreferring to the provisions of the Evidence Act which is as follows : (SCC OnLine AP para 24) ?24.

So, from Section 101 of the Evidence Act, 1872, it is clear thatthe applicants, having come to the court asserting some facts, must prove thatthe death of the deceased had taken place in an untoward incident and that thedeath occurred while the deceased was travelling in a train carrying passengersas a passenger with valid ticket.

Therefore, having asserted that the deceaseddied in an untoward incident and he was having a valid ticket at the time ofhis death, the initial burden lies on the applicants to establish the same.

Theinitial burden of the applicants never shifts unless the respondent admits theassertions made by the applicants.

Such evidence is lacking in this case.Except the oral assertion of AW 1, no evidence is forthcoming on behalf of theapplicants.

The court may presume that the evidence which could be, and is notproduced, would, if produced, be unfavourable to the person who withholds it.The best evidence rule, which governs the production of evidence in courts,requires that the best evidence of which the case in its nature is susceptibleshould always be produced.

Section 114(g) of the Evidence Act, 1872 enables thecourt to draw an adverse presumption against a person who can make available tothe court, but obstructs the availability of such evidence.

The ClaimsTribunal, upon considering the material on record, rightly dismissed the claimof the applicants and there are no grounds in this appeal to interfere with theorder of the Tribunal.?

In absence of any cogent evidence, by relying uponthe version of Applicants in Claim Application and Affidavit, it could not beheld that the deceased was travelling from Sandhurst Road to Govandi Railwaystation and met with untoward incident. incident.I now proceed to examine the evidencesand documents on record produced by Respondent.

14.

Per contra, Respondenthas produced Motorman Shri.

Krishna Kant Bajpai(R.W.-1) of the Local Train No.V-03, involved in this incident.

Motorman, Shri.

Krishna Kant Bajpai (RW.1) isa direct witness to the incident as he has seen the deceased suddenly jump onthe track and coming in front of his train, from platform No.

01.

The photocopyof the Motorman?s Memo Book for the day ofincidence, submitted by Motorman along with his affidavit, was maintained byhim during discharge of his duty and it corroborate the incidence narrated bythe Motorman.

The deposition of the Motorman, Shri.

Krishna Kant Bajpai(R.W.-1) remained consistent with his Affidavit during his Cross Examination.

Further, the statement of Motorman, Shri.Krishna Kant Bajpai, recorded by RPF on 15.02.2020, filed along with hisaffidavit corroborates with his affidavit and deposition.

In this case, Respondent has produced CCTVfootage of Govandi railway station for the day of incidence i.e.

13.07.2019along with Certificate from competent authority under Sec.

65-B of IndianEvidence Act, wherein it is seen that on13.07.2019 at 08.53 hours, the victim jumped on the railway track from platformNo.

01 and was crossing the railway track in order to board the local trainarriving on platform No.

02 and that time he was knocked down by the Train No.V-03.

Further, the injuries recorded on the body of thedeceased in the Post Mortem reports further strengthen the submission of the Respondent that thedeceased was knocked down while trespassing on railway tracks.

15.

In this case, except for the affidavit ofApplicant No.1, Mohmad Muslim (A.W.-1) who is not a witness of the incident,nothing concrete has been produced by the Applicants in support of theiraverment in O.A. about the journey of the deceased and subsequent fall from thetrain.

On the other hand Respondent has produced evidence to prove its defence. s defence.

There is no reasonto disbelieve the evidence produced on oath.

The Government Servant (Motorman of Local Train No.

V-03) has recordedthe incident in hisMotorman Memo Book, maintained by them in the normal coursesof his duty and further the said document are in synchronisation and consonancewith the timings on record to negate accidental fall from train.

In view ofevidence of Motorman of Local Train No.

V-03 corroborated with CCTV footage ofGovandi railway station for the day of incident, related documents on record,grievous injuries inflicted on the deceased and location of the body on thetracks, it is concluded that the deceased was not travelling by a train at thetime of incidence but was trespassing on the tracks and was hit/knocked down byLocal Train No.

V-03 at the time of incidence.

16.

In this case, except the recovered ticketand for the affidavit of Applicant No.1 Mohmad Muslim (A.W.-1), who is not awitness to the incident and his affidavit is based on presumptions onlynothinghas been produced by the Applicants in support of their claim about the journeyof the deceased and subsequent fall from the train.

In Mumbai Metropolitan Citymost of the daily commuters of local train have season ticketsbeing iteconomical and also to avoid delay in queue for purchase of ticket.

The availability of season ticket does notconclusively establish that victim was travelling by a train at the time ofincident.

In consideration of grievoushead injuries and other serious injuries on the body of the victim, the victim being a local to the place ofincident and no evidence from the Applicants side even for the alleged journeyof the victim, I have no hesitation in concluding that this is not a case ofaccidental fall but is a case of hit/knock down by a train.

17.

Further,since in this case, it is established that the alleged incident is not a caseof accidental fall from train as defined under Sec. under Sec.

123 (c) of Railways Act but of hit/knocked down by train whiletrespassing the railway tracks.Therefore, the deceased was not a bonafide passenger of any train or even thetrain ?In Question? as he was not travelling by the train involved in theincident.

18.

Thus,keeping in view the facts and circumstances of the case and preponderanceof evidence on record, it is held that the Applicants have failed to prove that the deceased had accidentally fallendown from the running local train while travelling as a bonafide passenger fromSandhurst Road to GovandiRailway Station and was involved in the allegeduntoward incident on 13.07.2019, as defined within the meaning of section 123 (c)of the Railways Act, 1989.

AccordinglyIssue No. (1) & (2) are decided in the negative, against the Applicants.

IssueNo. (3): 19.

TheApplicant No.

1, Mohmad Muslim (AW-1), categorically deposed in his affidavitby way of his examination in chief, that he is the father of the deceased andApplicant No.

2, Mashibubunnisha @ Masibun W/o Mohmad Muslim is the mother ofthe deceased.

The applicants haveproduced their Ration Card, Aadhar Cards, PAN Cards and Aadhar Card and PANCard of deceased, to establish their identities and array of dependents of thedeceased.

Respondent did not put thisfactual aspect into controversy.

Therefore, there is no impediment to conclude that the Applicants, beingthe parents, are the dependents of the deceased Imran S/o Mohmad Muslim, as perSection 123 (b) of Railways Act, 1989.

Issue No. (3) is decided accordingly.

Issue No. (4) : 20.

Inview of my findings on issue (1)& (2) above, Applicants are not entitled toany compensation or relief.

IssueNo. (4) is decided accordingly against the Applicants.

O R D E R The OAis dismissed.

There shall be no order as to costs.

Registryis directed to send a certified copy of this judgment to the parties in view ofRule 34 (3) of the Railway Claims Tribunal (Procedure) Rules, 1989.

Judgement pronounced on 29thAugust, 2024. ust, 2024. (AlokUpasani) Member(Technical)