Union Of India (Uoi) vs Ram Ashra Sharma And Smt. Sheela ...
2007 Latest Caselaw 281 Del

JUDGMENT

J.M. Malik, J.

1. In this appeal, Manager, Northern Railway, Baroda House has called into question the compensation awarded to the respondents by Railway Claims Tribunal vide its order dated 08.03.2002 in the sum of Rs. 4 lacs, which was to be divided in equal shares by respondents No. 1 & 2, respectively. The Railway Claims Tribunal also ordered that the said compensation be paid within 60 days failing which the respondent would be liable to pay interest @ 9% per annum from the date of the order till the payment is made.

2. The facts adumbrated in brief are these. Krishan Sharma, son of the respondents, was traveling from Rohtak to Delhi Junction, in train No. 4/DJ/DMU on 08.12.1997. The train started from Ismaila station, brakes were applied out of blue, without giving any signal or indication, due to the said jerk, the deceased who, was standing near the gate because of heavy rush, got imbalanced and fell out of the door. Krishan Sharma succumbed to his injuries at the spot instantaneously. The main defense set up by the Railways was that the said accident occurred due to negligence and careless manner of the deceased for which Railways is not liable to compensate the applicants. It explained that Krishan Sharma died while trying to board the moving train. It was categorically denied that the accident took place due to reckless and negligent driving of the train driver. Again, his parents were not dependent upon the deceased. Lastly, the case does not come within the ambit of "untoward accident."

3. The only submission made by the counsel for the appellant before this Court was that Krishan Sharma died due to his own negligence. It was also argued that one is likely to get jerks when he is traveling in a train. The deceased should have been vigilant and should not have stood near the gate. It was stressed that under these circumstances, no fault can be attributed to the Railway Department.

4. All these arguments have left no impression upon the court. After having marshalled the evidence on record, I find that the appellant is liable to pay the above said compensation. I list the following grounds for coming to this conclusion.

5. The respondents filed affidavit of Chander Prakash, Ex.AW2/1 Chander Prakash claimed that he was a co-passenger along with the deceased. In his affidavit, he made the statement to the following effect. There was heavy rush in the train, there was no seat and all the seats were occupied. Krishan Kumar was standing in the corridor of the compartment. When the train departed from Ismaila railway station, the driver of the train without giving any whistle, applied brakes all of a sudden and due to a jerk, Krishan Sharma who was standing near the gate got imbalanced and fell out of the door. Chander Prakash was cross-examined but nothing of importance was elicited during his cross-examination.

6. On the other hand, Ram Kumar, Guard, Jind, Northern Railway also filed his affidavit to the effect that no `untoward incident' occurred with the subject train as is evident from his Guard's Memo Book dated 08.12.1997. He pointed out that nobody pulled the chain. Chander Prakash stated in his affidavit that he, along with others, tried to pull the chain but they could not succeed. Under these circumstances, it is quite possible that the guard may be not knowing about the above said accident. If the train was not stopped in that eventuality, how there can be any entry in the Memo of Guard when he was not aware of the accident itself.

7. The defense set up by the appellant in its written statement is that the deceased died while trying to board the moving train. What has raised eyebrows further is that no evidence was adduced in this respect. The appellant is trying to make bricks without straw. There is not even an iota of evidence to show that the deceased had boarded the train or was trying to board the train from Ismaila Station. His ticket goes to show that he had boarded the train from Rohtak as per Second Class Monthly Seasoned Ticket at page 93 of the file of Railways Claim Tribunal. The story propounded by the appellant is made out of whole cloth. The version given by Ram Kumar, Guard, is ajar with the facts disclosed in the written statement filed by the appellant. The version given by Chander Prakash rings true. There is hardly any ground to dub him unreliable.

8. Above all, I am of the considered view that the present case falls within the ambit of Section 124A of Railways Act, 1989, which was inserted by Act 28 of 1994. Section 124A is reproduced as hereunder:

124A. Compensation on account of untoward incident - When in the course of working a railway an untoward incident occurs, then whether or not there has been any wrongful act, neglect or default on the part of the railway administration such as would entitle a passenger who has been injured or the dependent of a passenger who has been killed to maintain an action and recover damages in respect thereof, the railway administration shall, notwithstanding anything contained in any other law, be liable to pay compensation to such extent as may be prescribed and to that extent only for loss occasioned by the death of, or injury to, a passenger as a result of such untoward incident:

Provided that no compensation shall be payable under this section by railway administration if the passenger dies or suffers injury due to -

(a) suicide or attempted suicide by him;

(b) self-inflicted injury;

(c) his own criminal act;

(d) any act committed by him in a state of intoxication or insanity;

(e) any natural cause or disease or medical or surgical treatment unless such treatment becomes necessary due to injury caused by the said untoward incident.

The Railway Claims Tribunal has already found that deceased Krishan Sharma was a passenger within the meaning of Section 124A, as he was holding Monthly Seasoned Ticket and was a daily passenger. The present case does not fall within the Clauses (a) to (e) of proviso appended to Section 124A. In case a passenger falls from the running train, it amounts to untoward incident. This is not the requirement of law that the legal representatives of the deceased must prove rashness or negligence on the part of the driver or any of its other officials or railway administration. Section 124A has crystalline clarity in this respect. The only exception is that the death should not have occurred due to deceased's own commission or omission or due to his health reasons. The word "untoward" means clumsy, inopportunate, inexpedient, unfavorable, difficult to manage, which cannot be equated with words `rash' or `negligence'. In view of this discussion, it is clear that all the assumptions drawn by the appellant have proved to be wet. The appeal is lame of strength and therefore, it is dismissed with costs. The copy of this order be sent to the Railway Claims Tribunal along with its record forthwith.

CM No. 14765/2005

In view of the dismissal of the appeal, no further orders are required to be passed in this application and the same is dismissed.