Boarding Crowded Mumbai Local Train A "Calculated Risk"; Not A "Criminal Act" : Bombay HC Awards Compensation To Injured Passenger

Justice Bharati Dangre set aside the Railways Claims Tribunal's order rejecting the senior citizen's claim and held that the incident would fall within the meaning of "untoward incident" under Section 123 (c)(2) of the Railways Act.

"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' and [it] wasn't an instance wherein the Railways were exempt from liability."

Moreover, the compensation couldn't be refused merely because someone acted callously or imprudently.

The petitioner Nitin Hundiwala said that he boarded 2nd class compartment of an overcrowded Virar fast local at 5.26pm from one of the busiest local train stations called Dadar. On boarding the train, he was pushed by the crowd. Since he was standing on the edge he lost his balance, his leg slipped between the gap and he fell off the running train onto the platform sustaining injuries to his head and right thigh.

Hundiwala said that he spent 14 days in hospital after the accident and had permanent difficulty in lifting weights etc.

"The provision in the Railway Act, being a part of the beneficial legislation, it cannot be stretched to refuse to award compensation to a person who may act callously or imprudently at times."

The court rejected the Railways' contention that Hundiwala, by attempting to get into an overcrowded train, had committed an imprudent and criminal act and therefore they were exempt from liability. Also, he was not a bonafide passenger as he was found without a ticket.

However, the court noted that Hundiwala was a daily commuter and had specifically deposed having purchased tickets. Therefore, merely because a ticket was not found he couldn't be classified as "not a bonafide passenger."

The court also observed that local trains in Mumbai are often called the 'Life Line of the City' with a huge footfall of city inhabitants relying on them and it was not unusual for a daily commuter to take the risk of commuting in a crowded train.

"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 City, which is affordable and convenient, the calculated risk cannot be surely amounting to 'criminal act.'"

The Court also rejected the Railway's contention that he was not a "bona fide passenger" as no ticket was found on him.

"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".

Hundiwala had filed a petition in the Bombay High Court seeking Rs. 4 lakh compensation in a claim filed under 16(1) r/w 13(1-A) of the Railway Claims Tribunal Act and section 124A of the Railways Act.

However, the court granted him reimbursement of his medical expenses Rs 1,61,098 and Rs. 1,50,000 for the loss caused to him.

Case Title: Nitin Navindas Hundiwala vs Union of India, through the General Manager, Western Railway

Case No: FA 597/ 2017