Union Of India Thru G.M., Northern ... vs Smt. Kalpana Chaturvedi & 2 Ors. ...
2014 Latest Caselaw 8195 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 
Court No. - 18
 

 
Case :- FIRST APPEAL FROM ORDER No. - 252 of 2008
 

 
Appellant :- Union Of India Thru G.M., Northern Railway
 
Respondent :- Smt. Kalpana Chaturvedi & 2 Ors. (Objection Filed)
 
Counsel for Appellant :- Anil Srivastava,Chandra Shekhar Sinha
 
Counsel for Respondent :- A.K.Srivastava,G.S.Srivastava,Virendra Kumar Srivstava
 

 
Hon'ble Anil Kumar,J.

Heard Sri Chandra Shekhar Sinha, learned counsel for appellants, Sri A.K. Srivastava, learned counsel for respondents and perused the record.

By this First Appeal From Order under Section 23 of Railway Claims Tribunal Act, 1987 (hereinafter referred to as the Act) against the judgment and award dated 04.12.2007 passed in Claim Case No. O.A. 0400128 passed by Railway Claims Tribunal, Lucknow by which the claim application of the applicant-respondent has been allowed.

Facts of the present case are that Smt. Kalpana Chaturvedi filed a claim petition/case before the Railway Claims Tribunal inter alia stating therein that late Sri Satish Chaturvedi (her husband) was traveling on 15.11.2003 in the Train No. 2402, Shramjivi Express in Coach No. AS-1 on Birth No. 64 from New Delhi to Lucknow, he fell down, near Rasuia Railway Station due to the jerk and jolt, taken into the hospital, died in the way. Further, inquest report was prepared by the police and the post mortem was conducted by District Hospital, Bareilly. Confirmed the said fact. Accordingly, a compensation of Rs. 4.00 lacs with interest has been claimed.

Appellant-defendant in their written statement denied the pleadings as taken by the claimants in the claim petition. It was further contended that the deceased was not a bona fide passenger of the said train traveling from New Delhi to Lucknow, no accident took place at Rasuia Railway Station and the case of the deceased does not fall within the ambit and scope of Section 124-A of the Railway Act read with Section 123(c), so the railway is fully protected under the exemption clause, hence not liable to pay any compensation.

On the basis of material/evidence on record, by means of the judgment and award dated 04.12.2007, the Railway Claims Tribunal has allowed the claim petition thereby awarding compensation of Rs. 4 lakhs to the claimant.

Aggrieved by the said judgment and award, present appeal has been filed by the appellant under Section 23 of Railway Claims Tribunal Act, 1987.

Sri Chandra Shekhar Sinha, learned counsel for appellants submits that the controversy involved in the present case is not covered either under Section 123(c)(2) or Section 124-A of the Railway Act but the Tribunal fell in gross error to record a contrary finding without actually recording any findings as to how and which manner it was an accidental fall which has resulted in miscarriage of justice.

It is further argued by learned counsel for appellant that for an adult person to fall down from the trail due to jerk is only possible when the said jerk is so heavy or forceful causing an adult man of considerable wight to fall down outside the compartment but in such a case he could not be the only victim but several other passengers of the said train were also expected to similarly fell down simultaneously but the fact that no other incident was reported or took place on the alleged date, time and place itself is indicative of the fact the deceased did not fell down only due to jerk but due to his own negligence, rashness, carelessness, his own fault in not taking sufficient precautions and the said lack of care and caution resulted in the alleged incident for which appellant are absolutely not liable or responsible for the same but the learned Tribunal below failed to appreciate the same which has resulted in miscarriage of justice, as such judgment under challenged, liable to be set aside.

Sri A.K. Srivatava, learned counsel for respondent/claimant while defending the impugned judgment submits that on the basis of the material on record, the Tribunal has given a finding that late Sri Satish Chaturvedi has failed due to jerk and jolt, as such the Tribunal has rightly awarded the compensation to the claimant.

I have heard learned counsel for parties and gone through the record.

So far as the first argument advanced by learned counsel for appellant, that deceased/Satish Chaturvedi is not a bona fide passenger, in this regard, the Tribunal has framed the Issue No. 1 and on the basis of the pleadings and material evidence on record had given following findings:-

"In the case of Agam Shanthamma Versus Union of India, 2004 (3) TAC 686 (A.P.), it has been propounded by the H Andhra Pradesh High Court that the burden of proof lies on the Railway.

It is, therefore, obvious that the burden to prove this issue lies on the Railway. The Railway ha snot adduced any oral or documentary evidence except the affidavit of Shri Ashok Kumar Dwivedi, who in para-3 had deposed that since no ticket was recovered from the possession of the deceased, therefore, he was travelling without ticket. Except this no other evidence is adduced. The Railway had discharged the burden on the basis of presumption but no evidence is adduced that the deceased was tavelling without ticket on that day. It has been held by the Lordship of the Hon'ble Rajasthan High Court in Union of India versus Saram Bai & others, 1998 (2) TAC 688 (Raj.) that the Railway Administration was afforded opportunity to adduced evidence but no evidence was produced showing that the deceased was travelling without ticket, therefore, the learned Tribunal rightly drawn presumption U/s 114 of the Evidence Act and has rightly held that the deceased was a bonafide passenger.

In the case in hand, the applicant has filed the copy of the search for the PNR, Annexure No. 1, which clearly goes on to show that the deceased was travelling in bogi No. AS-1 at Birth No. 64 by purchasing the ticket.

It is, therefore, abundantly proved that the deceased was a bonafide passe4nger. The issue is decided against the Railway and in favour of the applicants."

The abovesaid finding given by the Tribunal holding that Sri Satish Chaturvedi is a bona fide passenger as no evidence no evidence has been led by the Railway Administration to prove and establish that the deceased was traveling without ticket is perfectly valide as the same is based on record that the deceased was a bona fide passenger needs no interference in the present case.

The next point is concerned whether the accident is covered under Section 123(c)(2) read with Section 124-A of the Railway Act, 1989 is concerned, the Railway Claims Tribunal in this regard in the judgment under challenge has given the following finding:-

"The case of the Railway is that the aforesaid accident of the deceased is not covered U/s 123(c)(2) read with Section 124-A of the Railway Act, therefore, the applicant is not entitled to claim any compensation.

In Section-123 of the Railways Act, after clause (b) on amendment has been inserted by Act No. 28 of 1994 w.e.f. 01.08.1994. In amendment of sub- section (2) is that 'untoward means' the accidental falling of any passenger from a train carrying passengers. The word 'accident' generally means some unexpected event happening without design even though there may be negligence on the part of the workman. It is used in the popular and ordinary sense and means a mishap or an untoward event not expected or designed.

The case put forward by the applicant is that on 15.11.2003 Satish Chaturvedi after booking the seat in the Bogi No. AS-1 (Birth No.. 64) was travelling in Shramjivi Express bearing No. 2402 and while travelling he accidentally fell down from that train on theat day near Rasuia Railway Station as a result of the jerk and jolt of the train and died in the Hospital. The burden to prove this issue lies on the Railway and the applicants have filed the affidavit of Smt. Kalpana Chaturvedi, who has deposed that on 15.11.2003, the deceased, Satish Chaturvedi accidentally fell down due to jerk at Rasuia Railway Station and died on spot. This witness was subjected to cross examination but no contradiction has come out in the testimony of this witnesses. It is submitted by the counsel for the Railway this cannot be believed as she admitted in the cross examination that she was not travelling with the deceased on that day, therefore, no reliance can be placed. I do not agree with the contention raised by the learned counsel for the Railway in this regard. It is nowhere laid down that the applicant has to prove the incident on the basis of the eyewitness. Moreover, it is a matter of common observation that no eyewitness come forward to depose in favour of such applicant in as much as, such eyewitness are not known to each other and their destination is also not known to such applicants. It may be stated here that the Railway has not specifically denied the accident but has laid a different story. Further, the Railway has not claimed any exemption as laid down under Section-124 of the Railway Act.

The applicant has also filed the various police papers including the inquest report prepared by the police in respect of the deceased. The inquest report clearly goes on to show that the deceased died as a result of the accident. It the police report supports the case of the applicant, the applicant must be given the compensation as observed by the Hon'ble High Court of Allahabad in Union of India versus Sushila Devi & others, 2006 ACJ 806.

As stated earlier, the Railway has not filed any papers in support of his contention, therefore, the applicant is entitled for compensation. This observation was made by the Hon'ble Allahabad High Court in Union of India versus Sanjana Paswan, 2005 ACJ 823.

In view of the above, the case of the applicant is covered within the ambit of untoward incident as defined U/s 123 (c)(2) read with Section 124-A of the Act. The issue is decided in favour of the applicant and against the respondent."

Keeping in view the said finding, I am of the considered opinion that the stand taken by the Railway that the accident in question is not covered under Section 123 (c)(2) read with Section 124-A of the Railway Act, so claimants are not entitled for compensation is not correct rather on the basis of the material on record Tribunal held that the case of the appellant falls within the ambit and scope of untoward accident as defined under Section 123(c)(2) read with Section 124-A of the Act is perfectly valid, because the liability under Section 123(c) read with Section 124A of the Railways Act, 1989 is a strict liability of the Railways in view of the judgments of the Supreme Court in the cases of Union of India Vs. Prabhakaran Vijaya Kumar & Ors. (2008) 9 SCC 527 and Jameela and Ors. Vs. Union of India (2010) 12 SCC 443 and once the deceased was found to be a bona fide passenger with a valid train ticket, onus of proof has shifted to the Railway to show that the death was not on account of 'untoward incident'.

For the foregoing reasons, the appeal lacks merit and the same is dismissed.

No order as to costs.

Order Date :- 11/Nov./2014

Ravi/