Delhi High Court
Sampati Yadav & Ors vs Union Of India on 25 October, 2010
Author: Mool Chand Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
#2.
+ FAO 293/2010
Decided on:25.10.2010
SAMPATI YADAV & ORS ..... Appellants
Through: Mr.Yogesh Swaroop, Adv.
versus
UNION OF INDIA ..... Respondent
Through: Nemo.
CORAM:
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether the Reporters of local papers may be allowed
to see the judgment? No.
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
: MOOL CHAND GARG,J (Oral)
C.M.14037/2010
For the reasons stated in the application, delay in refilling the
appeal is condoned and the application is allowed and disposed of.
FAO 293/2010
1. The appellants are aggrieved by the order passed by the Railway
Claims Tribunal dated 15.04.2010 dismissing a claim petition filed by
them under Section 16 of the Railway Claims Tribunal Act, 1987 read
with Section 124A of the Railways Act filed on the ground that they are
the dependants of the deceased Late Sh. Ram Avadh Yadav who died in
a untoward incident while travelling in rail.
2. Before the Tribunal the appellants had averred that Shri Ram
Avadh Yadav (deceased), boarded train No.5036 from Muradabad to
Delhi on 21.07.2008 after purchasing a ticket from Muradabad. It is
further emphasized that the compartment of the train was overcrowded
and there was heavy rush in the general compartment and due to that
Sh. Ram Avadh Yadav was not feeling well and so he fell down and
received head injuries and became unconscious. Thereafter, he was
brought to hospital where he was attended by the doctor on 21.07.2008
& during treatment he died. Postmortem examination of Shri Ram
Avadh Yadav (deceased) was conducted vide Postmortem Report
No.972/2008 dated 26.07.2008 in Aruna Asaf Ali Hospital, Delhi. It
was further stressed in the claim petition that Sh. Ram Avadh Yadav
(deceased) lost his ticket alongwith other articles in the untoward
incident. Thus, the relief claimed by the appellant was that the
respondent be directed to pay `4,00,000/- along with interest @ 24%
per annum to the appellants till realization of the amount, on account
of death of Sh. Ram Avadh Yadav in an "untoward incident".
3. The respondent contested the claim petition by filing the written
statement wherein they raised certain objections viz that the alleged
incident is not covered under Section 123, 124 and 124A of the
Railways Act, 1989; that the application is vague and does not disclose
the full particulars regarding the incident; that the deceased does not
fall within the ambit of the definition of passenger as per the provisions
of Section 2(29) of the Railways Act. The respondent denied that the
deceased came to Moradabad, regarding admission of his son namely
Jitendra Yadav in Polytechnic College. Rest of the paras of the claim
petition were denied for want of knowledge and for that purpose the
claimants were to be put to strict proof.
4. On the basis of the pleadings of the parties, the following issues
were framed on 08.07.2009:-
1. Whether the deceased Sh. Ram Avadh Yadav S/o Sh.
Bhaggan Yadav was bonafide passenger of passenger train
No.5036 from Muradabad to Delhi as on 21.07.2008?
2. Whether the death of Sh. Ram Avadh Yadav was caused
due to an untoward incident as defined in Section 123(c)
read with Section 124A of the Railways Act?
3. Whether the applicants are the sole dependants of the
deceased Sh. Ram Avadh Yadav and are entitled to get
compensation as claimed?
4. Relief?
5. In support of their claim application, the claimants submitted
the affidavits of Smt. Sampati Yadav and Shri Jitender Yadav in
evidence and both were cross-examined as AW1 and AW2 respectively.
The claimants had also placed on record the documents AW1/2 to
AW1/10 in evidence. As against this, the respondent did not adduce
any evidence on its behalf either oral or documentary.
6. While deciding issue No.1 in favour of the appellants, the
Tribunal decided issue No.2 against the appellants. In this regard the
Tribunal has taken note of the documents which were placed on record
and after analyzing the evidence including the definition of "untoward
incident" as defined under Section 123(c) of the Railways Act has come
to a conclusion that it was not a case where death of Ram Avadh Yadav
was caused in an untoward incident and thus, answered the said issue
in negative. The reasons given by the Tribunal in this regard are
reproduced hereunder:
"After perusal of record & arguments advanced by the
parties, it is clear that AW1 and AW2 are not the
eyewitnesses to the incident and they have no personal
knowledge about the incident. The applicants neither
examined any eyewitness which could establish the
circumstances under which the death of Sh.Ram Avadh
Yadav (deceased) had occurred, nor they have stated that
there was any eyewitness to the incident. The fact that
Sh.Ram Avadh Yadav died, on account of an untoward
incident, must be proved by the applicants in order to claim
compensation under Section 124A of the Railways Act and
there is no such presumption that the death of a person had
occurred on account of an untoward incident merely because
the deceased has died in the train, due to sudden illness,
while travelling in the train. In every case of death of a
passenger, which occurs during the course of the journey by
train, no amount of compensation is given, unless the death
of the (deceased passenger) had occurred on account of an
"untoward incident" within the meaning of Section 123(c) of
the Act. Therefore, the burden of proof rests on the
applicants to prove that the death of the passenger had
occurred on account of an "untoward incident" within the
meaning of Section 123(c) read with Section 124A of the Act.
But, this does not mean that the applicants, who have come
before the Tribunal for relief, must necessarily prove it by
direct evidence, they may prove it by circumstantial
evidence. It is of course, impossible to lay down any rule as
to the degree of proof, which is sufficient to justify an
inference being drawn, but the evidence must be such as
would induce a reasonable man to draw it. In the instant
case, admittedly AW1 and AW2 are neither direct nor
circumstantial witnesses. However, the fact that Sh. Ram
Avadh Yadav had died due to some illness during the course
of his journey in the train, appears to be not in dispute. But
the circumstances leading to the death of Sh.Ram Avadh
Yadav were not witnessed by any one. Death due to
sickness or illness does not attract the definition of
"untoward incident" under Section 123(c) of the Railways
Act, nor it comes within the purview of Section 124A. The
document AW1/5 clearly revealed that the deceased
developed sudden illness during his journey and became
unconscious and was brought to the hospital by the police,
where he expired. Therefore, the evidence adduced on behalf
of the applicants is neither sufficient nor satisfactory to show
that the deceased had died on account of "untoward
incident" within the meaning of Section 123(c) read with
Section 124A of the Act. On the other hand, the material
placed on record by the applicants themselves, would clearly
reveal that the deceased had developed sudden sickness
during his journey by a train and had died on account of
such illness. Under such circumstances, it is clear that
death of Sh.Ram Avadh Yadav, did not occur on account of
an "untoward incident" within the meaning of Section 123(c)
of the Act. Therefore, the incident in question does not come
within the purview of Section 124A of the Act. Therefore, the
incident in question is neither an "untoward incident" under
Section 124A nor a train accident under Section 124A of the
Act. In the facts and circumstances of the case, no
legitimate inference can be drawn about the cause of death
either due to an untoward incident or due to a train
accident. Therefore, by no stretch of imagination the death
of Sh.Ram Avadh Yadav could be said to have occurred on
account of an "untoward incident". The documents placed
on record by the applicants also prove that it was not an
"untoward incident" and I observe that the facts of the claim
application are also not convincing, so they cannot be
considered. The maxim "allegiance contratia non est
audiendus" is applicable in this case which means that he,
who alleges contradictory things, is not to be heard. A man
shall not be permitted to "blow hot & cold". All the
inferences go against the appellants. I find modicum of
merit in the submissions of Ld. Counsel for the respondent
and there is no momentum of force in the submissions of Ld.
Counsel for the applicants. Hence, the applicants failed to
prove the above mentioned issue. So, this issue is decided in
negation & against the applicants & in favour of the
respondent.
Once the main issue No.2 is decided in negation, the other
supplementary issues carry no weightage & relevance."
7. Section 123(c) of the Railways Act which defines "untoward
incident" reads as under:
"123. Definitions.- In this Chapter, unless the context
otherwise requires, --
........
(c) "untoward incident" means--
(1) (i) the commission of a terrorist act within the
meaning of sub-section (1) of section (3) of the
Terrorist and Disruptive Activities (Prevention) Act,
1987; or
(ii) the making of a violent attack or the commission
of robbery or dacoity; or
(iii) the indulging in rioting, shoot-out or arson, by
any person in or on any train carrying passengers, or
in a waiting hall, cloak room or reservation or booking
office or on any platform or in any other place within
the precincts of a railway station; or"
8. Nothing has been brought to my notice by learned counsel for the
appellant as to how the claim of the appellant could succeed inasmuch
as he has not been able to show as to how the incident in which the
illness of the deceased Ram Avadh Yadav occurred while traveling and
his death after he was taken to the hospital could have occurred on
account of untoward incident within the meaning of 123(c) of the
Railways Act.
9. Accordingly, I find no reason to interfere with the findings
returned by the Tribunal which are in accordance with law.
Consequently, the appeal filed by the appellant is dismissed at this
stage itself.
10. No costs.
MOOL CHAND GARG,J
OCTOBER 25, 2010
'anb'
