4-FA-361-2020

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

FIRST APPEAL NO. 361 OF 2020

Smt. Maya Banyappa (Ram) Nedgee And Anr. ...Appellants

Versus

Union Of India, Through The General Manager ...Respondent

______

Mr. Mohan Rao, for the Appellants.

Mr. T. J. Pandian a/w. Mr. Gautam Modanwal and Ms. Aarti Gupta, Ms. Vaishali

Barot, and Ms. Noorjahan Khan for the Respondent.

______

CORAM : ARIF S. DOCTOR, J

RESERVED ON : 13

th

AUGUST, 2026

PRONOUNCED ON : 22

nd

OCTOBER 2026

JUDGMENT:

1. The present First Appeal has been filed under the provisions of Section 23 of

the Railway Claims Tribunal Act, 1987, and impugns an Order dated 29

th

March 2019 by which the Railway Claims Tribunal, Mumbai (“Tribunal”),

has rejected the Application under Section 16(1), read with Section 13 of the

Railway Claims Tribunal Act, 1987, filed by the Appellants seeking

VAIBHAV

NAMDEV

BARE

Digitally

signed by

VAIBHAV

NAMDEV

BARE

Date:

2026.10.23

14:38:38

+0530

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compensation for the death of one Banyappa (Ram) Hanumantha Nedgee

(“deceased”).

2. The Appellants are the wife and son of the deceased.

A brief background:

3. It is the case of the Appellants that on 11

th

January 2010, the deceased was

travelling by train from Ambernath to Badlapur when he accidentally fell

from the train and sustained severe head injuries, which proved fatal.

4. It was thus that the Appellants approached the Railway Claims Tribunal,

Mumbai, seeking compensation of Rs. 4,00,000/-.

5. The Appellants' claim was resisted by the Respondents principally on the

ground that (i) the deceased was not a bona fide passenger and (ii) the

incident which led to the death of the deceased was not an untoward incident

within the meaning of Section 123(c)(2) of the Railways Act, 1989

(“Railways Act”).

6. Accordingly, the Tribunal framed the following issues for determination:

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“i) Whether the applicants prove that they are the dependents of the deceased

within the meaning of Sec. 123(b) of the Railways Act?”

ii) Whether the applicants prove that the deceased was a bonafide

passenger of the train, in question, on the relevant day?

iii) Whether the applicants prove that the death of the deceased had

occurred as a result of an untoward incident, as alleged in the claim

application?

iv) To what order/relief?”

7. The Appellants examined two witnesses, i.e., Appellant No. 1, Mrs. Maya

Banyappa (“AW-1”), as well as Mr. Dipak Bhiku Gaikwad (“AW-2”), inter

alia, to establish that (i) the Appellants were the dependents of the deceased

as per Section 123(b) of the Railways Act (ii) the deceased was a bona-fide

passenger and (iii) that the deceased had passed away on account of an

untoward incident.

8. The Appellants also relied upon various documents, including the Station

Master’s Memo (“SM Memo”), Inquest Panchanama, Police Report, Post-

Mortem Report and the Death Certificate of the deceased, in support of their

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claim that the deceased met with an untoward incident on 11

th

January 2010

which resulted in his death.

9. The Tribunal, having answered Issue No. 1 in the affirmative, then proceeded

to answer the remaining Issue Nos. 2 and 3 in the negative.

10. Hence the present Appeal.

Submissions on behalf of the Appellants:

11. Mr. Rao, learned counsel appearing on behalf of the Appellants, submitted

that the fact that the deceased was a bona fide passenger was established by

the evidence of AW-2. He submitted that AW-2 was an eyewitness who had

seen the deceased at the railway station and had specifically deposed that the

deceased had purchased a ticket before boarding the train. He was then at

pains to point out that the evidence of AW-2 on this crucial aspect had not

been challenged in cross-examination, nor had the Respondent led any

evidence in support of its case.

12. Mr. Rao submitted that the Tribunal had gravely erred in placing reliance

upon the Police Report, Inquest Panchanama and SM Memo to conclude that

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the deceased was not a bona fide passenger merely because no railway ticket

was found on his person after the accident. He submitted that the absence of

the ticket on the deceased’s body could not, by itself, establish that the

deceased had not purchased a ticket, particularly when there was direct

evidence of AW-2 that the deceased had purchased a ticket on the date of

the accident.

13. Placing reliance upon the decision of the Hon’ble Supreme Court in Union

of India v. Rina Devi

1

he submitted that the mere absence of a railway ticket

from the body of the deceased was not, by itself, conclusive that the deceased

was not a bona fide passenger. He pointed out that the Hon’ble Supreme

Court had held that while the initial burden lies upon the claimant to

establish the claim of bona fide traveller, this burden could be discharged by

filing an affidavit or by placing other relevant material on record, and once

this initial burden is discharged, the burden shifts upon the Railways, and

the question of whether the deceased was a bona fide passenger is to be

1

(2019) 3 SCC 572.

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determined on the basis of the facts and attending circumstances of each

case.

14. In the present case, he submitted that the Appellants had discharged this

initial burden by leading the evidence of AW-2, who had specifically

deposed to the fact that the deceased had purchased a railway ticket prior to

the accident. He submitted that this evidence was not challenged and

therefore remained unimpeached. He also submitted that the Respondent-

Railways had not led any evidence to establish anything to the contrary. He

therefore submitted that the Respondent could not have, on the basis that no

ticket was found on the deceased, held that the deceased was not a bona fide

passenger.

15. Mr. Rao further submitted that the Tribunal had also erred in holding that

the incident was not an “untoward incident” on the ground that the Police

Report recorded that the deceased was knocked down by the S/38 Local

Train while trespassing on the railway tracks. He submitted that the

Respondent had not produced any material or led any evidence to establish

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that the deceased was trespassing at the time of the incident. He submitted

that the Respondent had not even pleaded before the Tribunal that the

deceased was a trespasser or that the incident was otherwise excluded from

the scope of Section 124-A of the Railways Act.

16. Mr. Rao therefore submitted that, in the absence of any specific pleading

and any positive evidence to establish that the deceased was trespassing, the

Tribunal ought not to have accepted such a defence or relied upon the same

for rejecting the Appellants’ claim. He further submitted that the SM Memo

relied upon by the Tribunal merely contained information recorded after the

incident and that none of the railway officials who prepared the said

document had actually witnessed the accident. Consequently, the SM Memo

could not be treated as conclusive evidence of how the accident occurred.

17. Mr. Rao also submitted that the Tribunal had incorrectly applied Section

123(c)(2) of the Railways Act to the facts of the present case. He submitted

that the Tribunal had proceeded on an erroneous understanding of the

circumstances in which the deceased sustained the fatal injuries and had

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incorrectly treated the incident as falling outside the statutory definition of

an “untoward incident”.

18. He then placed reliance upon the decision of the Hon’ble Supreme Court in

Jameela & Ors. v. Union of India

2

, to point out that the Hon’ble Supreme

Court had observed that a negligent act cannot, in the absence of the requisite

mens rea, be treated as a criminal act. He submitted that, in the facts of the

present case, even assuming without admitting that the deceased had been

on the railway tracks at the time of the accident, such conduct, by itself,

could not be treated as a criminal act unless the necessary criminal intent

was established.

19. He also placed reliance upon the decision of the Hon’ble Supreme Court in

Union of India v. Prabhakaran Vijaya Kumar & Ors.

3

, to point out that the

Supreme Court held that it was immaterial whether a passenger had already

entered the train and thereafter sustained a fall, or whether the fall was

sustained while boarding the train since “accidental falling of a passenger

2

AIR 2010 SC 3705.

3

2008 ACJ 1895.

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from a train carrying passengers” encompassed both eventualities and

would, therefore, constitute an “untoward incident” within the meaning of

Section 123(c) of the Railways Act. He also pointed out that the Hon’ble

Supreme Court, in the said decision, had held that, being a beneficial piece

of legislation, the provisions of the Railways Act must receive a liberal and

purposive interpretation rather than a narrow or technical construction.

20. Applying the aforesaid principles, he submitted that, even assuming without

admitting that the deceased was not inside the train at the precise moment

when he sustained the injuries but was instead knocked down by the moving

train, the incident ought nevertheless to be considered in the context of the

beneficial object of the Railways Act. He submitted that the Tribunal,

therefore, ought not to have adopted a narrow and technical interpretation to

deny the Appellants’ claim.

21. He placed reliance upon the decision of this Court in the case of Sadashiv

Ramappa Kotiyan v. Union of India

4

to point out that, in the absence of

4

Judgment dated 15

th

March 2021 passed by Bombay High Court in FA No. 658 of 2018.

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appropriate evidence, the Tribunal ought not to have substituted its own

personal opinion for evidence while determining the manner in which the

accident occurred. He reiterated that the Railways Act, being beneficial

legislation, was therefore required to receive a liberal and purposive

interpretation rather than a narrow or technical construction.

22. Mr. Rao submitted that, in the present case, the Respondent had neither

pleaded nor established by cogent evidence that the deceased was a

trespasser, despite which the Tribunal had proceeded to reject the

Appellants’ claim on the basis that the deceased was a trespasser. He

submitted that this finding was plainly unsustainable in law.

23. He concluded by submitting that the Appellants had claimed an amount of

Rs.4,00,000/- since the claim had been filed prior to the amendment to the

Railway Accidents and Untoward Incidents (Compensation) Rules, 1998,

which was effected in 2017. He, however, placed reliance upon the decision

of the Hon’ble Supreme Court in the case of Union of India v. Dilip &

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Ors.

5

, to point out that the Appellants would be entitled to interest at the

rate of 7.5% per annum from the date of the accident, i.e., 11

th

January 2010.

24. Mr. Rao, therefore, submitted that the present Appeal deserves to be allowed

and that the Judgement and Order dated 29th March 2019 passed by the

Tribunal be set aside. He submitted that the Appellants ought to be awarded

compensation of Rs. 4,00,000/- together with interest at the rate of 7.5% per

annum from the date of the accident, i.e. 11th January 2010, in accordance

with law.

Submissions on behalf of the Respondent:

25. Mr. Pandian, learned counsel appearing on behalf of the Respondent, at the

outset submitted that the impugned order did not merit any interference since

the incident in question fell within the exceptions to the liability for an

“untoward incident” contemplated under Section 124-A of the Railways

Act.

5

(2024) 11 SCC 415.

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26. He submitted that the contemporaneous material on record, including the

SM Memo, Inquest Panchanama and Police Report, clearly established that

the deceased was knocked down by the S/38 Up Local train and that the

incident was not a case of the deceased accidentally falling from a train. He

was also at pains to point out that these documents were all prepared by

Government officials in the discharge of their official duties, who had no

personal interest in the matter. He therefore submitted that the said

contemporaneous official records ought to be given due weight and relied

upon in determining the manner in which the incident occurred.

27. In contrast, Mr. Pandian submitted that the testimony of AW-2 ought not to

be accepted at face value, as AW-2 was a neighbour of the deceased and

was, therefore, an interested and biased witness. He further submitted that

none of the witnesses examined on behalf of the Appellants were

eyewitnesses to the actual accident. Consequently, their evidence could not

be relied upon to establish the precise manner in which the deceased

sustained the fatal injuries.

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28. Mr. Pandian further submitted that the name or particulars of AW-2 were

also not disclosed either in the Claim Application or in the statement made

by the Appellants before the Police. He submitted that the subsequent

introduction of AW-2 as a witness, despite his name not having been

disclosed at the earliest opportunity, raised a serious doubt as to the

genuineness and reliability of the evidence of AW-2.

29. Basis the above, Mr. Pandian submitted that the Appellants had failed to

establish that the deceased was a bona fide passenger or that his death

resulted from an untoward incident within the meaning of the Railways Act.

30. He therefore submitted that the Appeal did not raise any substantial or

tenable ground for interference with the impugned Judgment and Order,

which he submitted was passed upon a proper appreciation of the material

on record. He accordingly submitted that the Appeal be dismissed with

costs.

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Reasons and Conclusions:

31. Having heard learned counsel for the parties, perused the record and having

considered the case law upon which reliance has been placed, I am of the

view that the present Appeal deserves to be allowed for the following

reasons, viz.

A. The Tribunal has rejected the claim essentially on two grounds (i) that

the deceased was not a bona fide passenger and (ii) that the incident

resulting in the death of the deceased was not an “untoward incident”

within the meaning of Section 123(c)(2) of the Railways Act but was

attributable to trespassing on the railway tracks.

B. Insofar as the first aspect, i.e., that the deceased was not a bona fide

passenger, the finding of the Tribunal cannot in my view be sustained

in light of the decision of the Hon’ble Supreme Court in the case of.

Rina Devi. The Appellants have discharged the initial burden cast upon

them to establish that the deceased was a bona fide passenger by leading

the evidence of AW-2, who has specifically deposed that the deceased

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had purchased a railway ticket on the date of the accident. The

Respondent has admittedly not led any evidence to rebut or displace the

evidence of AW-2. Crucially, no question on this aspect was even put

to AW-2 in cross-examination.

C. The attempt made by the Respondent to discredit the evidence of AW-

2 on the ground that AW-2 was a neighbour of the deceased and was,

therefore, an interested or biased witness cannot, by itself, be a ground

for discarding his testimony. The evidence of AW-2 has remained

unimpeached, and there is no material on record which would warrant

its rejection merely on account of his relationship or acquaintance with

the deceased.

D. Similarly, the omission of the name or particulars of AW-2 from the

Claim Application or the statement made before the Police is, at best, a

circumstance which may be considered while appreciating his evidence

but cannot, in the facts of the present case, outweigh the unrebutted

evidence of AW-2. Nothing prevented the Respondents from leading

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evidence or cross-examining AW-2 on this aspect. The Respondents

have, however, consciously chosen not to do so.

E. The second ground on which the Tribunal rejected the claim was that

the death did not result from an “untoward incident” because the

deceased had been knocked down by the S/38 Up Local train while

trespassing on the railway tracks. In arriving at this conclusion, the

Tribunal has principally relied upon the SM Memo, Inquest

Panchanama and Police Report. However, the Respondents have not

led any evidence to establish the case sought to be made out by the

Respondents on the basis of these documents. None of the officials who

prepared the aforesaid documents were eyewitnesses to the incident.

The documents, therefore, could not, in the absence of supporting

evidence, be treated as conclusive proof of the precise manner in which

the accident occurred.

F. In any event, even assuming the Respondents' version of events is

accepted, the Appellants’ claim cannot be defeated in the manner that

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the Tribunal has in view of the decision of the Hon’ble Supreme Court

in Union of India v. Prabhakaran Vijaya Kumar & Ors., which inter

alia held that where a passenger suffers an accident while attempting to

board a train, the incident would fall within the expression “accidental

falling of a passenger from a train carrying passengers” under Section

123(c) of the Railways Act. The Supreme Court has held that the said

provision must receive a liberal and beneficial interpretation.

G. The Railways Act is a beneficial piece of legislation, as recognised in

Sadashiv Ramappa Kotiyan v. Union of India, and its provisions must

therefore be given a liberal and purposive interpretation. In the present

case, the Tribunal, in the absence of cogent evidence establishing

trespass or the precise manner in which the accident occurred, was not

justified in proceeding on the basis of inference or assumption to

conclude that the deceased was trespassing and that the incident fell

outside the scope of an “untoward incident”. This would plainly be

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contrary to the law laid down by the Hon’ble Supreme Court in the case

of Sadashiv Ramappa Kotiyan v. Union of India.

H. The Appellants had, in the claim filed before the Tribunal, prayed for

an amount of Rs. 4,00,000/– as compensation, since the accident had

occurred on 11

th

January 2010, which was prior to the amendment to

the Railway Accidents and Untoward Incidents (Compensation) Rules,

1998, which was in fact, effected in 2017. However, in view of the law

as laid down by the Hon’ble Supreme Court in Union of India v. Dilip

& Ors., the Appellants would be entitled to interest on the amount of

Rs. 4,00,000/– at the rate of 7.5% per annum from the date of the

incident, i.e., 11

th

January 2010.

31. Accordingly, for the reasons set out in (A) to (H) above, the impugned

Judgment and Order dated 29

th

March 2019 passed by the Tribunal is liable

to be set aside, and the Appellants are entitled to compensation of Rs.

4,00,000/- together with interest at the rate of 7.5% per annum from 11

th

January 2010.

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32. Hence, I pass the following Order:

i. The Appeal is allowed, and the Judgment and Order dated 29

th

March

2019 is set aside.

ii. The Respondent shall pay the Appellants Rs. 4,00,000/- with interest at

7.5% p.a. from 11

th

January 2010 within a period of eight weeks from

today.

[ARIF S. DOCTOR, J.]