LATC SIDE JURISDICTION

FIRST APPrAL
(Stamp NO. of 2021
No. of 2021)
Under Section 23 of the
Railway Claims Tribunal Act,
1987

District :Mumbai

Ramdas Omkar Sonawane

1) Shri.
60 years, Occ. Rickshaw Driver
Age Sonawa
Ramdas
2) Ishwar
40 years, OcC. Service
Age
Ravi Ramdas Sonawane
3)
38 years, Occ. Service
Age
All R/o: Kausal Nagar, Behind Ulhasnas
Dhamma
Municipal Corporatión,
Kranti Boudha
Vihar, Opp. Water Tank,
Ulhasnagar 3, District: Thane Appellants
(Original Applicants)
V/s.
Union of India, .
Through General Manager,
Central Railway, CSMT
Mumbai - 400 001 ..Respondent

CHALLENGING IN BRIEE
The Appellants filed Claim Application before the
Railway Claims Tribunal for granting
compensation on account of death cause to
Dagubai Ramdas Sonawane, wife of Appellant No.
1
and mother of Appellant No. 2 & 3, who died in

the railway untovward incident on 10/07/2013. The

Ld. Tribunal pleased to dismiss the claim
appiication No. OA (II u) MCC/1134/2013 on
 10/07/2013 of' the appellant hence the appellanAro
challenging the impugned judgment and order
passcd by the Ld. Tribunal by way of First Appeal
before this Hon'ble High Court.

DATCAND EVIENTS

Date Event
Sr. No. 10/07/2013 Railway untward incident took
place
07/08/2013 Application for granting
compensation filed by the Applicant
before the Hon'ble Railway Claims
Tribunal.
31/01/2020Application for compensation
dismissed.

POINTS TO BE URGED
A) The Hon'ble Railway Claims
Tribunal ought to have held that, the
alleged incident comes within the
ambit of Sec. 123(c)(2) of the
Railways Act 1989.

B) That the Hon'ble Tribunal ought to

have held that Sec. 124-A of the
Railway Act laid down 'no fault
liability'/ strict liability for an
untoward incident' U/s. 123 (c) and
124-A of the Railway Act. Hence
negligence is not ground to deny the
compensation to the dependents.
 3
C) That the Hon'ble Tribunal ought to
have held that deceased was bonafide
passenger on the train at the time of
accident.

ACTS AND CODES

a) Indian Railway Act, 1989,
Act Code 68

AUTHORITIES AND JUDGEMENT RELIED UPON

At present nil. At the time of
argument judgment will be cited with
the permission of this Hon'ble Court.

Date
Place : Mumbai
Vasant N. More
(Advocate for Appellant)
 NDIA

a aFIVE RUPEES

TN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT MUMBAI
CIVIL APPELLATE SIDE JURISDICTION
FIRST APPEAL NO. of 2021
(Stamp No. of 2021)
Under Section 23 of the
Railway Claims Tribunal Act, 1987

District : Mumbai

1) Shri. Ramdas Omkar Sonawan.

Age 60 years, Occ. Rickshaw Driver,
2) Ishwar Ramdas Sonawane
Age 40 years, Occ. Service
3) Ravi Ramdas Sonawane
Age 38 years, Occ. Service
All R/o: Kausal Nagar, Behind Ulhasnagar
Municipal Corporation, Dhamma
Kranti Boudha Vihar, Opp. Water Tank,
Ulhasnagar 3, District: Thane ..Appellants
(Original Applicants)

V/s.

Union of India,
Through General Manager,
Central Railway, CSMI Mumbai ...Respondent

m
 6
(Valuntintn & Claim: Rs.
8,00,000/- Both
for Jurisdiction and Valuation
of Claim)

Fixcd Court Fec of Rs. 25/

To
The Hon'blc
Chicf Justice &
Judges
His Puisne Hon'ble
High Court.
of Bombay

THE APPELLANTMOST
RESPDCTFULLY SHWETHE
AS
UNDER:
1) The Appellants are the Original Applicants
who had filed an application for granting
compensation of Rs. 4,00,000/- in Railway
Claims Tribunal at Mumbai on account of
death cause to Dagubai Ramdas Sonawane
in an untoward incident on 10/07/2013.

2) The Appellahts case is that, Smt. Dagubai

Ramdas Sonawane, aged about 45 years,
resident of Kausal Nagar, Ulhasnagar,
District Thane, wasa house wno on
wife and
n
10/07/2013, on the strength of valid second
class railway return ticket, was travelling as
a bonafide passenger of local train from
Ulhasnagar to Kalyan station and when the
said train was running between Vithalwadi
and Kalyan stations, she accidentally fell
down from the said train, came under it; her
Dody got cut into two pieces from the waist
and she died on the spot, leaving behind her
husband Ramdas Omkar Sonawane

mOY
 (applic No. 1) and sons Ishwar Ramdas
ane (applicant No. 2) and Ravi
Ramdas
las Sonawane (applicant No. 3), as
So
dependents. It is further stated that thee
ilway ticket, on the strength of which the
ceased had travelled, got lost in the said
incident.

Respondent contested the claim

3) The
nlication by filing the written statement

along with the DRM repot and denied all

fhe
averments made by the applicants in the

claim application. It is further stated that the

applicants have tailed to produce any
material evidence to prove that the deceased
had accidentally fallen down from train
carrying passengers, that as per the DRM
report, it is observed that the deceased was
knocked down by an unknown local train,
while crossing the railway track, at Km. No.
54/39-37; that the said incident occurred due
the deceased's own criminal act,

negligence and carelessness and that she

sustained self-inflicted injuries, for which
the railway administration is not responsible.
As such the alleged incident, dated

10/07/2013, cannot be termed as an

untoward incident, as defined under Sec.

123(c)(2) of the Railway Act, 1989. It is
further that the GRP has not
stated
mentioned about recovery of any railway
ravelling authority from the possession
of

applicants to
he deceased; that it is for the
 Droye that the deceased was a bonafide
passenger by producing the original railway

ticket; that the deceasedbeing a trespasser

was not a bonatide passenger. As such the
applicants cannot be compensated.

4) That, the learned Railway Claims Tribunal

Mumbai was pleased to dismiss the
abovesaid application for compensation onn

31/01/2020.

5) The Appellant on being aggrieved by the

order in respect of the original application
No. OA No. (II u)/MCC/1134/2013 had
off
approached this Hon'ble court by way
First Appeal U/s. 23 of the Railway Claims
Tribunal Act, 1987 on the following among
other grounds;

GROUNDS OF APPEAL
The impugned order is illegal, bad
in
a)
law.

b) The impugned order is against the

equity, good conscience and natural
justice.

c) That the impugned order is erroneous

as well as very much hyper technical.

d) That the Hon'ble Railway Claims

Tribunal had erred in assuming that
the deceased either been knocked
 down or run over by some train in the
absence of any admissible evidence
on record.

e The Hon'ble Railway Claims

Tribunal ought to have noted that, the
deceased was injured at the time of
accident he was rushed to the hospital
without carrying out spot panchnama.
Therefore the Hon'ble Railway claims
Tribunal ought to have accepted that
the deceased was bonafide passenger
and ought to have not termed him
ticketless passenger in the absence of
any controvertible material on record.

) That the Hon'ble Railway Claims

Tribunal ought to have noted that the
appellant had produced original and
valid ticlket of the deceased, if only
the police personnel had taken any
effort to searched the ticket at the site
of incident.

The Hon'ble Railway Claims

Tribunal ought to have noted that
none stopped the respondent to assert
and prove their case. It is the duty of
the respondent to prove the nature of
the accident and take that the
deceased was not holding valid ticket.
The Hon'ble Railway Claims
Tribunal ought to have noted that the
 facts especially are within the
knowledge of the railways.

) The Hon'ble Railway Claims

Tribunal erred in holding that,
Applicant No. 1 has made
contradictory statements in the claim
application and his affidavit, hich
make his evidence doubtful on the
point of journey ticket.

1) The Hon'ble Railway Claims

Tribunal ought to have held that, the
Appellant made statement on oath
before the Court and ought to have
held that there 1s no material
contradiction come on record on the
point of journey ticket.

i) That, the passenger has to be

presumed bonafide passenger in the

absence of evidence to the contrary.
Respondent had produced no

evidence to prove that the deceased

was not bonafide passenger.

k) That the burden to prove the untoward

incident and victim was not bonafide
passenger rest upon railways. It is
impossible to be discharge by the
dependants who have no knowledge
about the custody of the ticket. It is
likely that such a deceased passenger
 had valid ticket but same was lost in
the accident. To place the onus of
proof on the dependent would amount
to denial of benefits of the legislation
to them for the reason beyond their
control.

That, the Railway Claims Tribunal

had erred in not noting that station
master who had issued station
master's memo he was not an eye
witness and he was not examined
before the Hon'ble Railway Claims
Tribunal. The station Master
erroneously mentioned in the memo
that the deceased was hit by unknown
train. Station Master had not seen the
accident taking place. The station
master was in his cabin at Vithalwadi
Station. Therefore mere mentioning
does not even qualify as to hearsay
evidence. The Hon'ble Railway
Claims Tribunal ought to have
discardecd it out rightly as in
admissible evidence.

m) The Hon'ble Railway Claims ought to

have noted that the remark of the
police and panchas were not based
upon positive findings during the
investigation it had to be proved with
cogent evidence.
 The Hon'ble Railway Claims
Tribunal ought to have noted that the
policeman as deseribed in the
documents iS modestly educated
person and the panchas are the
ordinary labourer persons having no
fixed place of residence. They cannot
be expected to form a credible
opinion in the absence of any credible
findings on record. The contents of
police report and inquest panchnama
cannot be admitted as evidence. It can
only be used for the purpose of
contradictions and admission of the
fact of occurrence of the incident, but
not the manner in which the evident
took place. The purpose of the inquest
panchnama only used the cause of
death is being accidental or suicide.
Neitherr the panchas nor the police
persons were examined in the Hon'ble
Railway Claims Tribunal for
determination of the manner in which
the accident had taken place, therefore
no reliance can be placed upon the
Imere mentiobn in the inquest

panchnama about the manner in

which the accident had occurred,

o) That the Hon'ble Railway Claims

m
Tribunal had erred in not notling that
the deceased is alleged to have
committed criminal offence Under

moz
 12
Section 147 of the Railway Act had
there becn sufficient material on
record the investigating officer ought
to have registered FIR and the
chargesheet should have been filed by
the Railway police, in the present case
the incident is registered as accidental
death U/s. 147 of the Cr.P.C. and in
the present case the accidental death
report is filed by the investigating
accepted by the Executive Magistrate
as accidental death report. It is
submitted with due respect that the
dependent of the deceased cannot be
denied the benefits under the welfare
legislation without proving the
deceased guilty in the Court of law of
the offence attributed to him.

P) That the Civil law is based upon the

principle preponderance of
probabilities. The only probability in
the abovesaid circumstances is that
the deceased had fallen down from
the running train while travelling ona
train. Accidentally falling down from
the running train is covered U/s.
123(c)(2) of the Indian Railway Act
as an untoward incident.

When the accident and death is

admitted, it is the duty of the railways
to prove the exception from the
 exceptions (a) to (o) of Section 124-A
of the Indian Railway Act to deny the
liability of payment of compensation
to the victim. They had failed to prove
any exception from (a) to (e) under
Section 124-A of the Railway Act.

That respondent had not produced any

contra evidence during the
investigation and trial. The
Respondent had not examined any
witness in the Hon'ble Court to
support their contentions.

s) That the charge alleged by the

respondent is that the deceased was
crossing the railway track which is an
offence under Section 147 of the
Railway Act, if there was sufficient
material before the police, they ought
to have filed FIR followed by the
charge sheet which has not been done
by the police and the cas closed as
accidental death Report so there being
no criminal liability. So it is clear that
the deceased was not involved in any
criminal liability. There can be no
denial of benefits under welfare
legislation to which the dependents of
the deceased are entitled for
compensation on account of death of
deceased in railway accident.
 is well settled that the standard of
It
evidence required to prove the

criminal liability must, 'be beyond

reasonable doubt and for civil

liability it is based upon the principle

at 'preponderance of
probabilities.

As per the order of the

Hon'ble
and
Supreme Court in the Jamila
admittedly
other case it is held that
to the incident
there is no eyewitness
railways that the
and the case of the
door of
deceased was standing at the
in negligence
the train compartment
fell down is
manner from where he
speculation
entirely based upon
fell down
assuming that the deceased
due to his own
from the train
so
negligence it is not a criminal act
to
as to attract clause (c) of provision
Section 124(A) of Railway Act.

probable's
u) That even if two equally
the
inference can be drawn about
had
manner in which the incident
favorable
occurred, the one which is
the act is
to the victim. The object of

to make payment of compensation to

to
the victim of the accident, but not

deny the payment of compensation

to

the victims.

to have
6) That the Hon'ble Tribunal ought
Railway Act laid
held that Sec. 124-A of the

AmP
 IS
down 'no fault liability' / strict
liability for

an 'untoward incident' U/s. 123(c) and

124-

A of the Railway Act. Hence negligence is

hot ground to deny the compensation to the
dependents.

7)
The appellant have not filed any writ or
appeal either in this Hon'ble Court or in the
Supreme Court of India relating to the
subject matter of the present appeal save and
except this present first appeal.

3) n the circumstances narrated and explained

above the appellant most respectfully
Submitted and prayed that, the said order
dated 31/01/2020 passed by the Railway
Claims Tribunal in OA No. (I u)/MCC/
1134/2013 be set aside.

9) The Appellant not received any notice of

caveat.

10) The Appellant's appeal U/s. 23 of the

Railway Claims Tribunal Act 1987 be
registered as a First Appeal and allowed
under the provisions of Civil Procedure
Code.

11) That the Govermment of India had revised

the amount of compensation payable under
the Rules of payment of compensation as
per PART-I of the Schedule appended to
Rule 3 of the Railway Accidents and

Vn
 6
(Compe
npensation) Rules 1990 as amended in
201
7 Appellant is entitled to get
the
Densation of Rs.8,00,000/- with
interest.

O0T NOTES:
Limitation
As
Per Section 23 of Railway Claims
Trib
bunal Act, 1987, the limitation period is
90
days for filing first appeal. The Railway
Claims
Tribunal passed order n
1.01.2020, applied for certified copy on
101.2020, copy prepard on 05.03.2020
and The copy supplied on 06.03.2020 and
ne appeal filed on 20.06.2021. If there is
any delay, due to Covid19 Pandemic the
o
same may be condoned as per the Suo
Motu Writ Petition (Civil) No.3 of 2020 of
Hon'ble Supreme Court.

() Caveat:.
The Appellant havé not received any caveat
from the Respondent.

(III) Jurisdiction
The impugned order and judgment dated
31.01.2020 passed by the Hon'ble Railways
Claims Tribunal, Mumbai Bench at

Mumbai and this Hon'ble Court is the First

Appellate Court and therefore has
jurisdiction to try and adjudication.
TV) Valuation:
AS per Part-I of Schedule appended to Rule
3 of the Railway Accidents and untoward

incidents (compensation ) Rules,1990 as

 to
amended in 2017 the appellant is entitled

Bet compensation of Rs. 8,00,000/-

(V) Court Fees
The Appellant had paid Rs. 25/- court fees
asper Clause 13(c) of Schedule II of
Maharashtra Court, Fee Act, 1959.

Shri. V.N. More

Advocate for the Appellant,
Having office at : Plot No. 16,
Deepali CHS. Ltd., Room No. 13,
Third Floor, Shivai Nagar,
Thane (W).
ROLL NO. MAH/1753/1999