$~32
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO 360/2014
Decided on 17th November, 2014
SMT. VIDYA DHEK & ORS. ..... Appellants
Through: Ms. Aruna Mehta, Adv.
Versus
UNION OF INDIA ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK A.K.PATHAK, J.(ORAL) CM No. 18893/2014 For the reasons explained in the application delay in filing the appeal is condoned.
Application is disposed of.
CM No. 18892/2014 Allowed, subject to all just exceptions.
Application is disposed of.
FAO 360/2014
1. Appellant no.1 is widow; whereas appellant nos. 2 and 3 are children of Late Shri Kailash Singh Dhek. They filed a claim petition before the Railway Claim Tribunal, Principal Bench, Delhi seeking compensation of `4 FAO 360/2014 Page 1 of 8 lacs in respect of death of Shri Kailash Singh Dhek, in an alleged „untoward incident‟ dated 20th January, 2008, relating to a train. In the claim petition, it was stated that deceased was working in a firm in Gurgaon. The said firm was having an office at Okhla Industrial Area as well. On 20th January, 2008 deceased was to come to Delhi from Gurgaon in connection with his office work. He boarded train no. 4312 Alla Hazrat passenger at Gurgaon after purchasing a journey ticket. The compartment in which the deceased was travelling was heavily crowded. Deceased was standing at the gate of the compartment. In between Gurgaon and Bijwasan, deceased fell down from the train due to sudden and violent jerk of the train and sustained multiple grievous injuries and died. Bag containing ticket was lost.
2. Respondent denied the incident. It was alleged that deceased was not a „bona fide passenger‟ of any train, inasmuch as, did not die on account of any accidental fall from the train amounting to „untoward incident‟, within the meaning of Section 123 (c) of the Railways Act, 1989 (for short, hereinafter referred to as the „Act‟), thus, appellants were not entitled to compensation under Section 124-A of the Act.
3. Following issues were framed by the Tribunal on 18th December, 2008:-
FAO 360/2014 Page 2 of 8
1. Whether deceased Sh. Kailash Singh s/o Sh. Dan Singh Dhek was a bonafide passenger of Train no. 4312 from Gurgaon to Delhi as on 20.01.2008?
2. Whether the death of Sh. Kailash Singh was caused due to an untoward incident as defined in Section 123 read with Section 124-A of the Railways Act?
3. Whether the applicants are the sole dependants of the deceased Sh. Kailash Singh and are entitled to get compensation as claimed?
4. Relief?
4. Case was listed for appellants‟ evidence. At that stage, an application was filed on 16th July, 2009 for amendment of claim petition. In the amended claim application it was alleged that deceased boarded train no. 1 RDE at Sarai Rohilla Railway Station for going to Gurgaon. Appellants claimed that this fact came to their knowledge after circulation of pamphlets by them on 20th April, 2009 thereby seeking information from the public regarding circumstances that led to the death of Shri Kailash Singh Dhek. Pursuant to the said circulation of pamphlets one Shri Manoj Kumar came forward and informed that he met the deceased at Sarai Rohilla Railway Station on 20th January, 2008 and had purchased the ticket for him; thereafter both of them boarded train no. 1 RDE but in different compartments. He claimed that he was running a chaat stall outside the FAO 360/2014 Page 3 of 8 office of the firm of appellant and deceased used to eat chaat whenever he used to visit Delhi office. Amendment application was dismissed by the Tribunal on 14th October, 2009. However, amendment was later allowed by the High Court vide order dated 4th May, 2011 passed in CM (Main) 20/2010, subject to the condition that correctness of the facts would be decided by the Tribunal, after trial. Accordingly, one additional issue no. 1- A was framed on 6th September, 2011 to the effect: "Whether deceased Shri Kailash Singh S/o of Shri Dan Singh Dhek was a bona fide passenger of train no. 1 RDE from Delhi Sarai Rohilla to Gurgaon as on 20.1.2008?"
5. After trial, Tribunal dismissed the claim petition vide judgment dated 26th February, 2014, but without noticing the facts as contained in the amended application. Accordingly, Review Petition was filed by the appellants which has been disposed of vide order dated 13th February, 2014 and findings on additional issue no. 1A has also been returned. However, claim application was dismissed. Tribunal has held that appellants had failed to prove that deceased was a „bona fide passenger‟ in the train. Contradictory stand taken by the appellants has been considered to disbelieve the story as propounded by the claimants. Tribunal held that AW2-Shri Manoj Kumar was not a trustworthy and reliable witness, FAO 360/2014 Page 4 of 8 inasmuch as, he was not even an eye witness to the incident. Tribunal has further noted that dead body was lying between the railway lines which indicated that he did not fall from the train. Had he fallen from the train, body would have been at least few feet away from railway line and not between the railway lines.
6. I have carefully perused the judgment as well as the order passed on review application and other material placed on record and do not find any perversity in the impugned judgment, for the reasons to follow. In the original application appellants have taken a categorical stand that deceased was travelling from Gurgaon to Delhi in Ala-Hazrat passenger train as he was to come to Delhi office. However, in the amended claim application totally different story has been propounded. It is stated that deceased boarded train no. 1 RDE from Sarai Rohilla Railway Station to go to Gurgaon office. Both these pleas are contradictory and falsify the theory of deceased falling down from any train between Bijwasan and Gurgaon. Deceased died within the jurisdiction of Police Station Gurgaon, inasmuch as his post martem was conducted in District Hospital Gurgaon. Office of the deceased was also situated in Gurgaon. It may further be noted that Sarai Rohilla is miles away from Okhla Industrial Area. Even if it is FAO 360/2014 Page 5 of 8 accepted that deceased had come to Delhi office for some work and was returning to Gurgaon office there was no occasion for him to go to Sarai Rohilla. Okhla Industrial Area is in South Delhi District; whereas Sarai Rohilla is in North District at about 19 KM away. Not only the destination has been changed in the amended petition but even train numbers have been changed. All this makes appellants‟ case highly suspicious.
7. AW2-Shri Manoj Kumar appears to be a planted witness. He has surfaced for the first time after more than one year of the incident. His statement was not recorded by the police. He claims that he was travelling in the same train in which deceased was travelling. He claims that he had purchased the tickets for himself and also for the deceased. It is very unusual that he would not have come to know about the incident for such a long time. In his cross-examination he stated that he made enquiry from other staff of the company as deceased was not seen for a long time but was told that deceased might have gone to his village. It is improbable that even staff members of the deceased would have been unaware about the death of deceased. In his examination-in-chief AW2 deposed that he was going to Gurgaon to meet his relative but in his cross-examination he admitted that FAO 360/2014 Page 6 of 8 none of his relative was living at Gurgaon. It is thus, clear that he is a planted witness and has been rightly disbelieved by the Tribunal.
8. No witness from the office of deceased was produced to prove that deceased was deputed by his office to visit Delhi for some work and was returning from Delhi to Gurgaon. Incident did not take place in the morning or evening hours. Incident took place during the day time, that is, during the office hours of deceased that too in Gurgaon District, thus, the story propounded by the appellant is highly suspicious and rightly has not been accepted by the Tribunal.
9. In the facts and circumstances narrated above, non-recovery of ticket assumes importance. The plea of appellants that ticket was lost cannot be accepted in view of the fact that clothes of deceased were not found in torn condition, inasmuch as, identity card and diary were recovered from him. It is not the case that nothing was recovered from the deceased. Thus, it is highly improbable that only ticket would have been misplaced in the incident. Non-recovery of the ticket, thus, creates a doubt about the version of the appellants more particularly, when contradictory and shifting stand has been taken in the original and amended applications. Except the bald statement of appellant no.1 no other evidence could be led to show that FAO 360/2014 Page 7 of 8 deceased had boarded train no.1 RDE at Sarain Rohilla Station for going to Gurgaon and fell down from the said train on the fateful day resulting in his death.
10. For the foregoing reasons, I do not find any perversity or the illegality in the impugned order and judgment. Appeal is dismissed.
A.K. PATHAK, J.
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