Union Of India vs Smt. Suresh Devi & Ors.
2010 Latest Caselaw 2657 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+     FAO 651/2002

%                              Decided on: 19th May, 2010

UNION OF INDIA                                   ..... Appellant

                         Through:    Mr. P.K. Dey and Mr. Kaushik
                                     Dey, Advs.
                         Versus

SMT. SURESH DEVI & ORS.                           .... Respondents

                         Through:    Mr. Ajay Dahiya, Adv.

CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK

      1.Whether the Reporters of local papers   Not necessary
      may be allowed to see the judgment?

      2.To be referred to Reporter or not?      Not necessary

      3.Whether the judgment should be
        reported in the Digest?                 Yes


A.K. PATHAK, J. (Oral)

CM No. 4818/2010 (Restoration)

Appeal was dismissed in default on 15th February, 2010. By

this application Appellant seeks restoration of the appeal. It is

alleged that counsel for the appellant was busy in some other

court, therefore, could not appear when the Appeal was taken up

for hearing. Consequently, Appeal was dismissed in default.

Respondent has not filed any reply to this application nor is there

any serious opposition. Accordingly, appeal is restored at its

original number.

FAO 651/2002

1. With the consent of learned counsels, I propose to dispose of

this Appeal today itself.

2. Appellant has assailed the order dated 6th June, 2002

passed by the Railway Claims Tribunal (Principal Bench), Delhi

(hereinafter referred to as "Tribunal") whereby Appellant has been

directed to pay Rs.4 lakhs by way of statutory compensation under

Section 124-A of the Railways Act, 1989 (hereinafter referred to as

"Act") together with interest @ 9% per annum from the date of

application till its realization and the cost of proceedings.

Appellant was directed to pay this amount within sixty days failing

which to pay interest at the enhanced rate of 12% per annum. Out

of the total amount of compensation Respondent No. 1 was held

entitled to Rs.2 lakhs and Respondent Nos. 2 and 3 Rs.1 lakh

each.

3. The facts, relevant for the disposal of this Appeal, are that

the deceased Dharampal Dahiya used to daily commute from

Sonepat to Faridabad by a train. He was holding a second class

monthly pass bearing No. 56805352 with the validity period from

19th September, 2000 to 18th October, 2000. On 11th October,

2000 at about 6 pm while he was trying to enter the compartment

of train no. 1 GPM at Subji Mandi Railway Station for his onward

journey, all of a sudden train started moving as consequence

whereof, he slipped from the foot board of the train and died.

Respondents being widow and minor children of late Shri

Dharampal Dahiya preferred a claim petition under Section 124-A

of the Act before the Tribunal.

4. In the written statement Appellant simply denied the

averments made in the claim petition. No specific stand was taken

negating the entitlement of the Respondents to the statutory

compensation under Section 124-A of the Act.

5. On the basis of pleadings of the parties Tribunal framed

following issues :-

1. Whether the applicant is entitled to the amount claimed as compensation on the grounds stated in the claim application?

2. Relief?

6. Both the parties adduced evidence. Respondent No. 1

examined herself as AW1. She also examined eye witness Mr. Raju

as AW2 to prove the incident, inasmuch as AW2 happened to be

co-passenger of the deceased as on the date of incident. So far as

Appellant is concerned, it produced driver of the train Mr. Arjun

Singh as RW1 and Station Master of Subzi Mandi Railway Station

Mr. S.K. Prasad as RW2. Tribunal was of the view that the

negative evidence of RW1 that he did not come to know about any

such accident on 11th October, 2000 i.e the date of the incident,

could not have been preferred as against the categorical statement

of AW2, who was an eye witness to the incident. So far as

statement of R2 is concerned, as per the Tribunal, corroborated

the positive evidence of AW2 Raju that the incident did take place,

since he had admitted having received the information on 11th

October, 2000 regarding a dead body lying near the foot over

bridge of the Railway Station. Tribunal preferred the testimony of

AW1 and AW2 as against the RW1 and RW2 and concluded that

the deceased had in fact slipped from the footboard of the

compartment of train resulting in serious injuries and

consequential death which was an "untoward incident" within the

meaning of Section 124-A of the Act, as such, Respondents were

entitled to statutory compensation.

7. Learned counsel for the Appellant has vehemently contended

that the Respondents had failed to adduce any cogent evidence to

show that deceased was a bonafide passenger of the train from

which he allegedly fell down. Per contra learned counsel for the

Respondents has contended that the AW1 has categorically

deposed that deceased was a daily commuter and was having

second class monthly pass bearing No. 56805352 which was valide

from 19th September, 2000 to 18th October, 2000. Copy of the said

pass was even produced before the Tribunal. AW2 has

categorically deposed that on 11th October, 2000 while deceased

was attempting to enter in the compartment of train at Subzi

Mandi Railway Station, it moved suddenly and deceased slipped

from the footboard of the compartment and sustained severe

injuries as a result of which he died at the spot itself. This clearly

proves that deceased was a bonafide passenger having a valid

monthly pass.

8. I do not find any force in the contention of learned counsel

for the Appellant. First of all, Appellant did not take any stand in

his written statement that deceased was not a bonafide passenger

nor has led any evidence in this regard. On the contrary, it was

specifically mentioned in the written statement that genuineness of

second class monthly pass bearing No. 56805352 from Sonepat to

Faridabad with the validity period from 19th September, 2000 to

18th October, 2000, was being verified; meaning thereby that

Appellant had accepted the existence of the said second class

monthly pass. No evidence was led by the Appellant to indicate

that the monthly pass was fake or fabricated one. The fact that

deceased was having a monthly pass for travelling from Sonepat to

Faridabad supports the statement of AW1 that deceased used to

commute from Sonepat to Faridabad daily via train. AW2 has

deposed that on 11th October, 2000 deceased met with an accident

while boarding the train. From the statements of AW1 and AW2 it

is clear that the deceased was a bonafide passenger in the train on

the date of accident.

9. Learned counsel for the Appellant next contended that the

deceased fell down while boarding a moving train and was himself

negligent, thus, was not entitled to compensation. Deceased died

due to his own negligence. I do not find any force in this argument

as well. Neither a plea has been taken in the written statement

that the deceased was trying to board a running train nor any

evidence has been led in this regard. Neither RW1 nor RW2 have

whispered a word on this score. On the contrary AW2 has

categorically stated that while deceased was boarding the train it

suddenly started moving. In this scenario, no rash and negligent

act is attributable to the deceased.

10. Section 124-A of the Act reads as under :-

"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 dependant 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 the 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.

Explanation.-For the purposes of this section, "passenger" includes-

  (i)      A railway servant on duty; and
  (ii)     A person who has purchased a valid ticket for

travelling by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident."

(Emphasis supplied)

11. Bare perusal of the aforesaid provision clearly demonstrates

that if a passenger dies because of an "untoward incident" while

travelling in a train, his dependents are entitled to claim

compensation from the Railways irrespective of there not being

wrongful act, neglect or default on the part of Railways

Administration. In the application claiming compensation

claimants are not required to prove that "untoward incident" had

happened because of wrongful act, neglect or default on the part of

the Railway administration. In view of the proviso to Section 124-A

of the Act, the passenger or his dependents would be precluded

from claiming compensation only if injured or deceased, as the

case may be, had suffered injuries because of his own criminal act.

12. Accidental falling of any passenger from a train carrying

passengers would amount to an "untoward incident" as envisaged

under Section 123(c)(2) of the Act.

13. In this case, Respondents have succeeded in proving that the

deceased had fallen from the train and died at the spot itself. This

accidental falling of the deceased from the train would be an

"untoward incident" entitling his dependants to compensation in

terms of Section 124-A of the Act.

14. In Union of India vs. Krishan Lal & Ors. reported in

149(2008) DLT 457, deceased was in the process of boarding the

train at the platform when the train suddenly moved with a jolt as

a consequence of which the deceased fell down and got crushed.

This court held that deceased falling accidentally from a train

carrying passengers could be an "untoward incident" within the

meaning of Section 124-A of the Act entitling the claimants to

receive compensation. In the said case also, plea was taken by the

Railways that the deceased had contributed to the accident as she

was trying to board a moving train. This court repelled this

contention by saying that the Railway authorities have no business

to issue tickets in excess of the carrying capacity of a train,

inasmuch as, each and every person to whom a ticket is issued

would be entitled to believe that the Railway authorities has

assured his or her of a safe journey.

15. In Union of India (UOI) vs. Smt. Murti Devi reported in AIR

2004 (Delhi) 216, learned Single Judge of this Court, held that if

a passenger dies because of an "untoward incident" while travelling

in the train his dependents are entitled to claim compensation

from the Railways and in the application claiming compensation

they are not required to prove that the "untoward incident"

happened because of a wrongful act, neglect or default on the part

of the Railway administration. "Untoward incident" includes the

accidental falling of any passenger from a train. The only ground

on which the Railways could avoid its liability was by showing that

deceased had suffered injuries because of his own criminal act,

which the Railways in the present case have failed to prove.

16. In Union of India vs. Ram Asra Sharma and Smt. Sheela

Devi reported in MANU/DE/7197/2007, learned Single Judge of

this Court, held that in case a passenger falls from a running train

it amounts to an "untoward incident". There is no 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

officials or Railway administration.

17. In this case, from the testimony of AW1 and AW2 it was

sufficiently proved that deceased was a bonafide passenger of the

train from which he fell down. From the unshattered testimony of

AW2 it was also proved that while deceased was trying to enter the

compartment of the train at Subzi Mandi Railway Station, the train

suddenly started moving as a consequence of which deceased

slipped from the foot board and fell down and sustained fatal

injuries. This act of deceased falling down from the train would

certainly be an "untoward incident" as envisaged under Section

123(c)(2) of the Act making the dependents of the deceased i.e.

Respondents entitled to compensation under Section 124-A of the

Act. Thus, in my view, Tribunal has rightly awarded compensation

to the Respondents. I do not find the view taken by the Tribunal to

be erroneous or factually incorrect or contrary to the settled legal

position.

18. in view of above discussions, appeal being devoid of merits is

dismissed with costs.

A.K. PATHAK, J.

May 19, 2010 ga