‘Untoward Incident’

 

 

IN THE judgement of the case- Shri Basir alias Mohd. Ahmed Khan and Mrs Amina Basir Khan v. Union of India through General Manager, Central Railway, CST, Mumbai, delivered on January 8, 2025, Justice Firdosh P. Pooniwalla, at the Bombay High Court in Mumbai has noted that in the light of the evidence, the appellants had clearly discharged the initial burden to show that their deceased son was carrying a valid monthly pass and was a bona fide passenger. Thereafter, the burden shifted to the respondent-Railways to show that the deceased was not carrying any such pass.

 

The respondent could have discharged such burden by cross –examining the appellant-1, the father of the deceased, on this issue. However, no question, whatsoever, had been put to appellant-1, in respect of the deceased being a bona fide passenger carrying valid monthly pass. Not even a case was put to appellant-1 that his statement that the deceased held a valid monthly pass was false or incorrect, in these circumstances, in the Court’s view the appellants have discharged the initial burden of proving that the deceased was a bona fide passenger, and once this burden shifted to the respondent, it failed to establish otherwise. In these circumstances, the finding arrived at by the Railway Claims Tribunal, that it was not established that the deceased was a bona fide passenger, is erroneous and will have to be overturned. For these reasons, the HC has to hold that the deceased was a bona fide passenger. Further, in the Court’s view, in these circumstances, an “untoward incident” as defined in Section 123(c)(2) of the Railways Act, 1989, has been established as there was an accidental falling down of a passenger from a train carrying passengers. The first appeal in this case was filed under section 23 of the Railways Claims Tribunal Act, 1987 impugning judgement of July 24, 2014 passed by the Tribunal’s Mumbai Bench, whereby the Tribunal had dismissed the Claim Application of the appellants.

 

The case of the appellant was that on May 8, 2010, at about 8.30 am, their son Nasir Ahmed Khan had left home for his work. He was a daily commuter in local train holding valid monthly pass from Wadala to Chinchpokli via Sandhurst Road. While travelling, the appellants’ son fell down from the train due to the heavy crowd of passengers inside the compartment pushing each other and this resulted in their son being seriously injured and unconscious. Some passengers of the train directly moved him to J J Hospital. He was admitted in the emergency ward, and while taking treatment, he died at about 3.30 pm on the same day. In the proceedings, the appellants lead the evidence of appellant-1 by filing affidavit of July 25, 2013. He was cross-examined on July 25, 2013.

 

The respondent did not lead any evidence before the Tribunal. The Tribunal had framed three substantive issues as under: “1. Whether the deceased met with an untoward incident within the meaning of section 123 (c)(2) of the Railways Act, during his journey by the train. 2. Whether the deceased was a bona fide passenger. 3. Whether the applicants are the dependents of the deceased.” In this case, the deceased son of the appellants was not found on the road but on the railway track. The injury to the deceased was not that his body was cut into two pieces and his intestine had come out of the body. On the contrary, the injury report, the Cause of Death Certificate and the Post-mortem Report, all showed injuries to the head and body which were clearly consistent with accidentally falling down from the train of the deceased son of the applicants. In these circumstances, in the Court’s view, the judgement the case of Kamrunnissa v. UoI- (2019) 12 SCC 391 does not assist the case of the respondent and is clearly distinguishable on facts. In the Supreme Court’s decision in the case, Union of India v. Rina Devi-(2019) 3 SCC 572, it has been held that mere absence of a ticket with the injured or a deceased would not negative the claim that he was a bona fide passenger. The Court has further held that the initial burden would be on the claimant and can be discharged by filing an affidavit of the relevant facts and then the burden would shift on the Railways and the issue can be decided on the facts shown or the attending circumstances.

 

In the present case, appellant-1, the father of the deceased has categorically stated that his deceased son Nasir Ahmed Khan was a welder working in a workshop at Aboli Deep, Arthur Road, Chinchpokli, Mumbai. He further deposed that his son was a daily commuter in the local train going from Wadala to Chinchpokli on a valid monthly pass, but the same was lost in the untoward incident, as in the Inquest Panchnama produced by the applicants, it has been stated that no paper or article was found near the deceased and police did not seize from the deceased. In the HC’s view, in these circumstances, an ”untoward incident” as defined in section 123 (c)(2) of the Railways Act, 1989, has been established that there was an accidental falling down of a passenger from a train carrying passengers. In the Court’s view the Ration Card clearly shows that both the appellants are the parents of the deceased and are dependents within the meaning of said term, as defined in section 123(b) of the Act, as the deceased was unmarried. In these circumstances the Court has held that the appellants are the dependents of the deceased. The Bombay High Court has allowed the appeal and quashed and set aside the impugned judgement delivered by the Railway Claims Tribunal, Mumbai, on July 24, 2014.

 

The HC has directed the respondent-Railways to pay to each of the two appellants Rs four Lakh within 8 weeks from the date of on which the applicants intimate to the respondent the details of their respective bank accounts. In case of failure to pay the amounts in 8 weeks; thereafter, the amounts will carry 7% per annum interest from the date of expiry of the said period till the date of actual payment of the amounts.