Bombay High Court
Shri. Damodar Purshottam Thakkar And … vs The Union Of India, Represented By The … on 24 June, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-AS:25025
-FA-1694-2016.DOC
Arun Sankpal
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 1694 OF 2016
1. Damodar Purshottam Thakkar
2. Rita Damodar Thakkar
Both residing at 206, Shanti Niketan,
Bapu Nagar, Jakat Naka,
Ahmadabad, State - Gujarat. ..Appellants
Versus
The Union of India,
Represented by the General Manager,
Western Railway, Churchgate, ...Respondent
Mumbai 400020.
Mr. Mohan Rao, for the Appellants.
Adv. Smita Thakur, i/b Suresh Kumar, for the Respondent.
CORAM: N. J. JAMADAR, J.
DATED : 24th JUNE 2025
JUDGMENT:
1. This Appeal under Section 23 of the Railway Claims Tribunal Act
1987 (“the Act of 1987”) is directed against the judgment and award
dated 21st April 2016, passed by the Railway Claims Tribunal, Mumbai
Bench, Mumbai, whereby the Claim Application No. OA (IIU)/
MCC/840/2010, preferred by the Appellants-Applicants under Section
124-A of the Railways Act, 1989 (“the Railways Act“) for compensation
1/17
-FA-1694-2016.DOC
on account of death of their son, Kaushik (“the deceased”) in an
untoward incident on 7th July 2010, came to be dismissed.
2. The background facts leading to this Appeal can be stated in brief
as under:
2.1 The deceased, then 25 years of age, was a bachelor. The
deceased was working as a salesman in an Ayurvedic Company.
The Appellants-Applicants, the parents of the deceased, are
staying at Ahmadabad, State of Gujarat.
2.2 On 7th July 2010 at 12.00 midnight, the deceased was
travelling by a local train on a valid second class CVM coupon
ticket, on his way to Bandra from Bhayandar. The deceased fell
off from local train on Platform No. 3 of the Bhayandar Station,
and sustained fatal head injuries. The deceased was declared
dead before admission. Hence the Application for compensation
under Section 124-A of the Railways Act.
2.3 The Respondent resisted the Application by filing a Written
Statement. It was denied that the deceased was a bona fide
passenger as no ticket or pass was found on the person of the
deceased while conducting inquest panchnama. The Respondent
refuted that the alleged incident was an “untoward incident”. It
was contended that the report of the Guard of Train No. 940A UP
revealed that while boarding a running train the deceased fell off
2/17
-FA-1694-2016.DOC
on account of his own negligence and carelessness. Thus, the
incident in question did not amount to an “untoward incident”
within the meaning of Section 123 (c)(2) of the Railways Act.
2.4 The Tribunal recorded the evidence of Damodar Thakkar
(A1)-Applicant No.1 and that of Jayesh M Parmar (R1), the
Guard of the said train.
2.5 After appraisal of the oral evidence and the documents
tendered for it’s perusal, the Tribunal was persuaded to dismiss
the Application holding, inter alia, that the deceased was not a
bona fide passenger and that the Applicants failed to establish
that the deceased died on account of an “untoward incident”
within the meaning of Section 123(c)(2) of the Railways Act. The
evidence of Jayesh Parmar (R1) that the deceased allegedly fell
down while trying to board a running train and the statement of a
friend of the deceased, namely, Jatin Mahendra Shah that he and
the deceased had consumed liquor at RC Beer Bar, weighed with
the Tribunal to return the finding that the deceased himself
endangered the safety of his life while trying to board a running
train under the influence of the liquor.
3. Being aggrieved, the Applicants have preferred this Appeal.
4. I have heard Mr. G.S. Mohan Rao, the learned Counsel for the
Appellants, and Ms. Smita Thakur, the learned Counsel for the
3/17
-FA-1694-2016.DOC
Respondent, at some length. The learned Counsel took the Court
through the material on record especially the depositions of witnesses
and contemporaneous documents tendered for the perusal of the
Tribunal.
5. Mr. Rao, the learned Counsel for the Appellants, submitted that
the Tribunal committed a gross error in law in holding that the incident
in question did not fall within the ambit of “untoward incident”.
Indisputably, the deceased fell off the local train near Platform No.3 of
Bhayandar Railaway Station. Mr. Jayesh Parmar (R1) claimed to have
witnessed the incident, and halted the train. The Postmortem report
indicates that the deceased died on account of “Haemorrhage and shock
due to fracture and dislocation of C1, C2, C3 and C4 vertebrae”. In this
view of the matter, the finding of the Tribunal that, the incident in
question was not an untoward incident is plainly unsustainable.
6. Mr. Rao would urge that boarding into and de-boarding from a
train clearly falls within the ambit of untoward incident. To buttress this
submission, Mr. Rao placed reliance on the decisions of the Supreme
Court in the cases of Union of India Vs Prabhakar Vijaya Kumar &
Others1 and Union of India Vs Rina Devi. 2 Mr. Rao would further
submit that, the Tribunal was also in error in holding that the deceased
was not a bona fide passenger as no train ticket was found on the
1 2008 ACJ 1895.
2 (2019) 3 SCC 572.
4/17
-FA-1694-2016.DOC
person of the deceased while conducting the inquest. The Applicants
had placed on record the CVM Coupon Ticket which the deceased
possessed. The testimony of the Damodar Thakkar (A1) that, the
deceased had the CVM Coupon ticket could not be impeached during
the course of cross-examination. Therefore, the Tribunal could not have
held that the deceased was not a bona fide passenger.
7. Mr. Rao would further submit that, the Tribunal completely lost
sight of object of the provisions contained in Section 124-A of the
Railways Act and the settled position in law that the said measure is in
the nature of compensation premised on ‘no fault liability’. It was thus
not open for the Respondent to urge that there was contributory
negligence on the part of the deceased.
8. Lastly, Mr. Rao would urge that the reliance placed on the
statement of the friend of the deceased, Jatin Shah, that he and the
deceased had drinks at a Beer Bar, is not sufficient to draw an inference
that the deceased attempted to board the running train under the
influence of liquor. No scientific evidence was adduced though the
blood samples were collected. In the absence of the scientific evidence,
it would be hazardous to draw an inference that the deceased was in a
state of intoxication at the time of the untoward incident. To this end,
Mr. Rao placed reliance on a judgment of a learned Single Judge of this
Court in the case of Ankush Ramaji Amzare Vs Union of India, 3 wherein
3 2021 (3) Mh.L.J.
5/17
-FA-1694-2016.DOC
it was enunciated that scientific investigation and evidence is necessary
to hold that a person was in a state of intoxication when the untoward
incident occurred.
9. Per contra, Ms. Smita Thakur, the learned Counsel for the
Respondent, supported the impugned judgment and award. It was
submitted that the Tribunal committed no error in holding that the
deceased was not a bona fide passenger. No train ticket or pass was
found on the person of the deceased. CVM coupon ticket, according to
Ms. Thakur, does not by itself establish the fact that the passenger was a
bona fide passenger. Ms. Thakur further submitted that the statement
of the friend of the deceased recorded by the police clearly indicates
that, the deceased had consumed whisky. Therefore, the Tribunal was
justified in holding that the deceased met an accident on account of the
negligence on his part, in a state of intoxication.
10. Evidently, there is no dispute over the fact that the deceased fell
off the train while boarding at Bhayandar Railway Station. Jayesh
Parmar (R1) categorically stated that the deceased slipped and fell
under the train while attempting to board a running train. Nor the
factum of death of the deceased on account of the fatal injuries
sustained in the said incident is in dispute. It would be contextually
relevant to note that the Tribunal has held that the Applicants were the
dependents within the meaning of Section 123(b) of the Railways Act.
6/17
-FA-1694-2016.DOC
The Tribunal negatived the claim for compensation on the ground that,
the deceased was not a bona fide passenger and the incident in question
did not constitute an, “untoward incident”.
11. Whether the aforesaid approach of the Tribunal is justifiable?
Before exploring an answer, it may be apposite to appreciate the nature
of the liability of the Railway administration under Section 124-A of
the Railways Act. As is evident, Section 124-A is a beneficial piece of
legislation. Section 124-A, in a sense, incorporates the principle of strict
liability. The avowed object of Section 124-A is to award compensation
to the injured or the dependent (s) of the deceased, who suffered
injuries or death, in an untoward incident, without delving into the
question as to whether there has been any wrongful act, neglect or
default on the part of the Railway Administration. Section 124-A, thus,
incorporates the principle of “no fault liability” in contradistinction to
the tortious fault liability. The strict liability of the Railway
Administration in the event of death or injury on account of untoward
incident can only be avoided, where the case falls in any of the
exclusionary clauses of the proviso to Section 124-A.
12. Under Section 123(c)(2), “untoward incident” means the
“accidental falling” of any passenger from a train carrying passenger.
The expression “accidental falling” is the linchpin of the definition of
“untoward incident”. The expression, “accidental falling” is susceptible
7/17
-FA-1694-2016.DOC
to different connotations in the context of facts of the case. “Accidental
falling” can be in myriad situations and does not envisage only a case
where a person falls off the train, after having comfortably boarded the
same. Thus in the light of the object of the welfare legislation, the term
“accidental falling” is required to be construed in a purposive manner
and not in a very restricted sense.
13. The observations of the Supreme Court in paragraphs 11, 12, 14
and 17 of the judgment in the case of Prabhakaran (Supra) are
instructive and, hence, extracted below:
“11. No doubt, it is possible that two
interpretations can be given to the expression
‘accidental falling of a passenger from a train
carrying passengers’, the first being that it only
applies when a person has actually got inside the
train and thereafter falls down from the train,
while the second being that it includes a
situation where a person is trying to board the
train and falls down while trying to do so. Since
the provision for compensation in the Railways
Act is a beneficial piece of legislation, in our
opinion, it should receive a liberal and wider
interpretation and not a narrow and technical
one. Hence in our opinion the latter of the
abovementioned two interpretations i.e. the one
which advances the object of the statute and
serves its purpose should be preferred vide Kunal
Singh vs. Union of India (2003) 4 SCC 524 (para
9), B. D. Shetty vs. CEAT Ltd. (2002) 1 SCC 193
8/17
-FA-1694-2016.DOC
(para 12), Transport Corporation of India vs. ESI
Corporation (2000) 1 SCC 332 etc.
12. It is well settled that if the words used in
a beneficial or welfare statute are capable of two
constructions, the one which is more in
consonance with the object of the Act and for the
benefit of the person for whom the Act was
made should be preferred. In other words,
beneficial or welfare statutes should be given a
liberal and not literal or strict interpretation vide
Alembic Chemical Works Co. Ltd. vs. The
Workmen AIR 1961 SC 647( para 7), Jeewanlal
Ltd. vs. Appellate Authority AIR 1984 SC 1842
(para 11), Lalappa Lingappa and others vs.
Laxmi Vishnu Textile Mills Ltd. AIR 1981 SC 852
(para 13), S. M. Nilajkar vs. Telecom Distt.
Manager (2003) 4 SCC 27(para 12) etc.
………
14. In our opinion, if we adopt a restrictive
meaning to the expression ‘accidental falling of a
passenger from a train carrying passengers’ in
Section 123(c) of the Railways Act, we will be
depriving a large number of railway passengers
from getting compensation in railway accidents.
It is well known that in our country there are
crores of people who travel by railway trains
since everybody cannot afford traveling by air or
in a private car. By giving a restrictive and
narrow meaning to the expression we will be
depriving a large number of victims of train
accidents (particularly poor and middle class
people) from getting compensation under the
9/17
-FA-1694-2016.DOC
Railways Act. Hence, in our opinion, the
expression ‘accidental falling of a passenger from
a train carrying passengers’ includes accidents
when a bona fide passenger i.e. a passenger
traveling with a valid ticket or pass is trying to
enter into a railway train and falls down during
the process. In other words, a purposive, and not
literal, interpretation should be given to the
expression.”
… … …
17. Section 124-A lays down strict liability or
no fault liability in case of railway accidents.
Hence, if a case comes within the purview of
section 124-A it is wholly irrelevant as to who
was at fault.”
14. Following the aforesaid pronouncement, in the case of Rina Devi
(Supra), on which reliance was placed by Mr. Rao, the Supreme Court
construed the principle of strict liability in the context of a submission
that the negligence on the part of the victim could be taken into account
and the liability could be avoided by terming it as a self-inflicted injury,
excluded by Clause (b) of the proviso to Section 124A. The Supreme
Court in terms enunciated that, the plea of the negligence on the part of
the victim as a contributory factor cannot be countenanced when the
claim is filed under Section 124 A of the Railways Act. The observations
in paragraph 25 are material and hence extracted below.
“25. We are unable to uphold the above view as the
concept of ‘self inflicted injury’ would require intention to
10/17
-FA-1694-2016.DOC
inflict such injury and not mere negligence of any
particular degree. Doing so would amount to invoking
the principle of contributory negligence which cannot be
done in the case of liability based on ‘no fault theory’. We
may in this connection refer to the judgment of this Court
in United India Insurance Co. Ltd Vs Sunil Kumar (2019)
12 SCC 398 laying down that plea of negligence of the
victim cannot be allowed in claim based on ‘no fault
theory’ under Section 163-A of the Motor Vehicles Act,
1988. Accordingly, we hold that death or injury in the
course of boarding or de-boarding a train will be an
‘untoward incident’ entitling a victim to the
compensation and will not fall under the proviso to
Section 124-A merely on the plea of negligence of the
victim as a contributing factor.”
(emphasis supplied)
15. In view of the aforesaid enunciation of law that liability under
Section 124-A is in the nature of no fault liability and the question as to
whose fault contributed to the untoward incident is irrelevant, the
submission on behalf of the Respondent that, the evidence of Jayesh
Parmar (R1) establishes that the deceased fell off while boarding the
running train on account of his fault, cannot be countenanced. Under
no circumstances the Railway administration, can be permitted to
invoke the principle of contributory negligence on the part of the victim
to bring the case within the exception of ‘self-inflicted’ injury’ as it
would be in negation of the principle of “no fault liability”. Since the
11/17
-FA-1694-2016.DOC
deceased suffered death while boarding a train, it clearly amounted to
an untoward incident. The Tribunal was thus in error in holding that
the incident in question was not an untoward incident.
16. With regard to the defence of the deceased being in a state of
intoxication at the time of alleged incident, it would be suffice to note
that the edifice of the defence was sought to be built on the statement
of a friend of the deceased recorded by police during the course of
investigation. The said person was not examined as a witness before the
Tribunal. Though the postmortem report indicates that the blood was
collected to ascertain whether the deceased was in an intoxicated state,
yet, no report of chemical analyzer was placed on record. In the absence
thereof, the Tribunal committed an error in holding that, the deceased
was under the influence of intoxicant.
17. Reliance placed by Mr. Rao on the judgment of a learned Single
Judge of this Court in the case of Ankush Ramaji Amzare (Supra)
appears to be well-founded. In the said case, this Court, in terms
enunciated that it cannot be presumed that, a person who consumed
alcohol cannot control himself. Therefore, percentage of alcohol in the
blood is very material and that has to be determined by scientific
investigation. In the absence of chemical analyzer’s report to show that
the victim was under the influence of liquor, a bare report of the
12/17
-FA-1694-2016.DOC
medical officer that the victim was under the influence of liquor cannot
be pressed into service.
18. This propels me to the consideration of the legality and
correctness of the finding of the Tribunal that, the deceased was not a
bona fide passenger. The explanation to Section 124-A provides that for
the purpose of said Section, passenger includes a person who has
purchased a valid ticket for travelling by a train carrying passengers, on
any date or a valid platform ticket and becomes a victim of an untoward
incident.
19. In the case at hand, the Appellants claimed that the deceased
was having CVM coupon ticket issued on 7th July 2010 bearing No.
21442561. A copy of the said coupon was annexed to the Application.
The Tribunal was not prepared to place reliance on the claim of the
Appellants primarily for the reason that, no ticket was found on the
person of the deceased when the inquest was held.
20. As noted above, the Explanation to Section 124-A defines a
passenger to include a person who has a valid ticket for travelling by a
passenger train. Nonetheless, the proof of possession of a valid ticket
cannot be construed as a sine qua non for entertaining an application
for compensation, in all situations and the factual context throws a
variety of complex situations. In the case of Raziya Abdul Kadir Shaikh
Vs Union of India,4 this Court had an occasion to deal with the
4 2022 (2) ABR 251.
13/17
-FA-1694-2016.DOC
submissions based on the absence of the ticket on the person of the
deceased when the inquest panchnama was held. This Court observed,
inter alia, as under:
“14. … … …
In a case, where the application is preferred by
the dependents, who did not accompany the
deceased, the insistence on strict proof of the
deceased having a valid ticket may operate
onerously. Even where the deceased was carrying
a valid ticket, the outcome depends upon a
number of variables like whether the persons,
who found the deceased in a fatally injured state,
have had the opportunity to ascertain the
existence or otherwise of the valid ticket or made
diligent efforts to locate the ticket and, even after
having found the ticket, made it a point to make a
record of the same in the contemporaneous
documents. Therefore, a claimant – dependent
can not be non-suited on the sole ground that on
the person of the deceased a valid ticket was not
found.”
21. In the case of Rina Devi (Supra), on which reliance was placed by
Mr. Rao, the Supreme Court, inter alia, considered the question of
burden of proof when body was found on the railway premises, in the
context of the definition of passenger. After referring to the previous
pronouncements, including the judgment of the Supreme Court in the
14/17
-FA-1694-2016.DOC
case of Kamrunnissa Vs Union of India,5 the Supreme Court expounded
the legal position as under:
“29. We thus hold that mere presence of a body
on the Railway premises will not be conclusive to hold
that injured or deceased was a bona fide passenger
for which claim for compensation could be
maintained. However, mere absence of ticket with
such injured or deceased will not negative the claim
that he was a bona fide passenger. Initial burden will
be on the claimant which can be discharged by filing
an affidavit of the relevant facts and burden will then
shift on the Railways and the issue can be decided on
the facts shown or the attending circumstances. This
will have to be dealt with from case to case on the
basis of facts found. The legal position in this regard
will stand explained accordingly.”
(emphasis supplied)
22. The aforesaid enunciation of law would indicate that, mere
absence of ticket would not negate the claim that the victim was a bona
fide passenger. Initially the burden to establish that the victim was a
bona fide passenger would be on the claimants. Once such initial
burden is discharged, then it would be for the Respondent to prove to
the contrary, and question of the victim being a bona fide passenger or
not, is required to be determined on the basis of the evidence adduced
in a given case.
5 (2019) 12 SCC 391.
15/17
-FA-1694-2016.DOC
23. In the instant case, Damodar Thakkar (A1) categorically affirmed
that the deceased was travelling on a CVM coupon ticket from
Bhayandar to Bandra. The said CVM coupon (A5) and other belongings
of the deceased were delivered to him by the police. During the course
of cross-examination of Damodar Thakkar (A1), no endeavour was
made to challenge the aforesaid version. Even a suggestion was not
given to Damodar Thakkar (A1) that the deceased was travelling
without a valid ticket.
24. The situation which, thus, obtains is that, the testimony of
Damodar Thakkar (A1) that the deceased was travelling on a CVM
coupon ticket found support in the CVM coupon ticket bearing No.
21442561 (A5), placed on the record of the Tribunal. The initial burden
was thus discharged by the Applicants. As the testimony of Damodar
Thakkar (A1) went unimpeached, the Respondent failed to show to the
contrary.
25. In the aforesaid view of the matter, the Tribunal could not have
held that the deceased was not a bona fide passenger merely for the
reason that the ticket was not found on the person of the deceased,
when the inquest panchnama was conducted. As noted in the case of
Raziya Abdul Kadir Shaikh (Supra), many variables came into play and
it would be rather hazardous to non-suit the dependants who are
entitled to the compensation under a beneficial and welfare legislation,
16/17
-FA-1694-2016.DOC
on the ground that the ticket could not be found on the person of the
deceased. Such a rigid view would run counter to the legislative object.
26. For the forgoing reasons, the Appeal deserves to be allowed.
27. Hence the following order:
: O R D E R:
(i) The Appeal stand allowed with costs.
(ii) The impugned judgment and award stands quashed and set aside.
(iii) The Application No. OA (IIU)/ MCC/840/2010 stands allowed.
(iv) The Respondent do pay compensation of Rs. 4,00,000/- along
with interest @ 8 % per annum from the date of the accident, i.e., 7 th
July 2010, till the date of deposit or realization.
[N. J. JAMADAR, J.]
Signed by: S.S.Phadke 17/17
Designation: PS To Honourable Judge
Date: 24/06/2025 20:00:57