Boarding overcrowded Mumbai local not 'criminal act' which disentitles accident victim from claiming damages: Bombay High Court

In a significant ruling, the Bombay High Court earlier this month held that a calculated risk of boarding an overcrowded local train will not amount to a "criminal act" under Section 124A of the Railways Act of 1989 [Nitin Hundiwala vs Union of India].Thus, if a passenger attempts to gain an entry into an overcrowded train but falls after he is pushed by other passengers resulting in injury, such a person would be entitled to claim compensation against the Railways."The local trains in Mumbai, which are often called as ‘Life Line of the City’ with almost huge number of city’s inhabitants relying on them to get to work or other destinations at some point of time. Even, it is not unknown, for the residents of Mumbai who, commute through railways to undertake risk at some point of time, in order to reach their destinations within time and with the limited number of vehicles to travel in overcrowded train ... the calculated risk cannot be surely amounting to ‘criminal act’," the Court observed. Such a fall and injury would be covered by the definition of 'untoward incident' under Section 123(c)(2) of the Railways Act, Justice Bharati Dangre ruled.She, therefore, ordered the Western Railways to pay an amount of ₹3.10 lakh to a 75-year-old man who sustained severe injuries after falling off an overcrowded train on November 23, 2011.Nitin Hundiwala, a worker of an enterprise in suburban Vikhroli, had boarded an overcrowded Virar-bound train from the Dadar Station, and fell down from the moving train resulting in injuries to his head and left knee and disability. Hundiwala challenged the decision of the Railway Claims Tribunal (RCT), which by a decision dated July 17, 2013, had rejected his claim seeking ₹4 lakh compensation from the Railways.The RCT while dismissing his claim had accepted the contention of the Railways that Hundiwala had resorted to an "imprudent and criminal act" of boarding a running local train.Under the proviso to Section 124A of the Railways Act, no compensation is payable by the railways, if the passenger dies or suffers injury due to his own 'criminal act'.The Court noted that 'criminal act' is not defined in the Railways Act, but the two provisions in the Act which impose penalty for the offences under the Act are Sections 154 and 156 of the Railways Act.Section 154 criminalises the act of endangering safety of persons travelling by railway by rash or negligent act or omission. Section 156 deals with entering into a compartment reserved or resisting entry into a compartment not reserved. "A careful reading of the two provisions would lead to an irresistible conclusion that only the two acts described above which endanger safety of persons travelling by railway or travelling on step or engine of train are covered. If in the daily chores, a passenger attempts to gain an entry, into an overcrowded train and is pushed by other passengers, resulting into his fall, there is no reason why such incident cannot fall within the ambit of ‘untoward incident’," the Court said. The single-judge further noted that citizens do risk their lives at some point of time by travelling in the local trains in the city."The Tribunal has, therefore, erred in making the case of the applicant fall within the scope of ‘Criminal Act’, as it lack any means rea," the judge said.The finding of the RCT that Hundiwala was not a bonafide passenger since no valid ticket was found from his belongings while he was being taken to hospital, was also rejected by the High Court since the applicant had validated his tickets through a Coupon Validating Machine (CVM)."Here is a person who is undertaking travel everyday for attending his work and merely because no ticket is found in his pocket, will not amount to he being classified as ‘not a bonafide passenger’ The railway has failed to discharge its burden to establish that he was not a bonafide passenger, and therefore the Tribunal has grossly erred in recording that, in absence of the ticket being found, he is not a bonafide passenger," the single-judge held.Advocate Chaitrali Deshmukh appeared for Hundiwala. The Railways were represented by advocate Chetan Agrawal..[Read Judgment]