Smt. Rani & Ors vs Union Of India
2011 Latest Caselaw 2088 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         FAO No.175/2009

%                                                       April 19th, 2011

SMT. RANI & ORS                                              ...... Appellants
                                Through:    Mr. M.K.Gupta, Advocate.



                          VERSUS

UNION OF INDIA                                               ...... Respondent
                                Through:     A.S.Dateer, Advocate.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    1.   Whether the Reporters of local papers may be
         allowed to see the judgment?

    2.   To be referred to the Reporter or not?   Yes

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


VALMIKI J. MEHTA, J (ORAL)

1.       The present first appeal under Section 23 of the Railway Claims

Tribunal Act, 1987 challenges the impugned judgment dated 23.2.2009

passed by the Railway Claims Tribunal, dismissing the claim of the

appellants/dependants of the deceased one Sh. Hukum Singh.            It was not

disputed by the Railways before Railway Claims Tribunal on account of death

report proved as Ex.AW1/5, that death of the deceased took place on

account of a fall from the train and hence there was an 'untoward incident'

within the meaning of the said expression as found in Sections 123(c) and


FAO No.175/2009                                                         Page 1 of 6
 124-A of the Railway Act, 1989. The claim was dismissed as the deceased

was held not to be a bonafide passenger as the appellants failed to file/prove

the original ticket for the date of travel on 10.4.2007.


2.     The case which was set up by the appellants/dependants was that the

deceased on 9.4.2007 had purchased railway ticket to and fro from his place

of residence in Ballabhgarh for travelling to Delhi. It was the further case of

the appellants that on account of delay caused in purchase of stationary etc.,

for which the deceased had come to Delhi, he did not return from Delhi on

the same day and stayed overnight at the residence of the relative Sh.

Vijender.   The deceased returned on the next date i.e. 10.4.2007, and on

which date he died on account of fall from the train.


3.     The Railway Claims Tribunal has basically given the following reasons

for rejecting the claim of the appellant/dependants:-


(i)    No valid ticket was filed/proved for travel on 10.4.2007, although, the

original to and fro tickets from Ballabhgarh; Ex.AW1/2 and Ex.AW1/3; were

placed on record which related to the previous date i.e. 9.4.2007. Since the

original ticket for travel on 10.4.2007 was not produced by the appellants,

the Railway Claims Tribunal held that the deceased was not a bonafide

passenger.


(ii)   The testimonies of the widow AW-1 Smt. Rani and the relative AW-2

Sh. Vijender were disbelieved. The testimonies were disbelieved because

FAO No.175/2009                                                       Page 2 of 6
 though it was stated that one gents purse containing 200 rupees was lost

however no proof was filed as to what happened to this purse and the

contents of Rs.200/-. It was also held that the testimony of AW-2 that the

ticket was purchased in his presence for travel on date of accident should

not be believed as he was a relative and an 'interested'/'obliging' witness.

The case of the appellants that the train ticket for travel on 10.4.2007 was

lost during the course of incident was disbelieved including for reason that

the stationary which the deceased had gone to purchase was not found

along with the body at the spot of the accident.


4.    The admitted facts which appear in this case are that the deceased did

fall from a train and died in the accident. There is no dispute that this is an

'untoward incident' as per Sections 123(c) and Section 124-A.        The only

aspect to be considered is that whether the deceased was a valid passenger

or not. In my opinion, once, the valid train tickets both for to and fro travel

of the previous date 9.4.2007 were in fact filed and proved by the appellants,

it is quite clear that the deceased was normally a valid passenger and did

not ordinarily travel without tickets and thus it should be held that he was a

bonafide passenger even for 10.4.2007 because AW-2 Sh. Vijender had

deposed that the ticket for travel on 10.4.2007 was purchased by the

deceased in his presence. Merely because the original train ticket could not

be produced for the date when the incident took place, would not mean that

the deceased was not a valid passenger because it is not unknown that when

FAO No.175/2009                                                       Page 3 of 6
 such untoward incidents causing death takes place, the original ticket can

indeed get lost and which did happen in the present case. Consequently, the

Railway Claims Tribunal is wholly unjustified in holding the deceased not to

be a lawful passenger.   I must at the cost of repetition reiterate that the

deceased had purchased tickets of the previous day not only from travel

from Ballabhgarh to Delhi but he had also purchased the return ticket from

Delhi to Ballabhgarh showing his bonafides. Thus, it was not that he was not

a bonafide passenger, but only that, his ticket could not be traced. The

Railway Claims Tribunal ought to have believed the appellants that the

original ticket, which ordinarily is always with the passenger, had got

lost/misplaced when death took place of such deceased passenger by falling

from the train, especially in the facts of this case where no one else was

travelling with the deceased, and who would have taken care of the

belongings of the deceased when the accident happened. Reasoning of the

Tribunal that stationary was not found at the site of the accident and which

ought to have been as the deceased had purchased stationary or that PW-2

was a relative and hence should be disbelieved are hardly good enough

reasons for dismissing a claim such as the present when there is already a

huge blow to the dependents by the head/earning member having died and

who otherwise was shown to have ordinarily purchased both travel and

return travel journey tickets.   Besides a host of other reasons, it Is not

unnatural that the packet containing stationary may well have been left in


FAO No.175/2009                                                    Page 4 of 6
 the train from which the deceased had fallen, and, a relative in these cases

with whom the deceased had stayed overnight can surely depose in favour

of the appellants and there is nothing so as to hold that the testimony of

such witness is only a testimony of an 'obliging'/'interested witness'. A civil

case is decided on balance of probabilities and the balance of probabilities is

that the ticket of the date of the accident got lost in the accident which

caused the death of the deceased.


5.    It is no longer res integra in view of the decision of the Supreme Court

in the case of Jameela Begum Vs. Union of India 2010 (12) SCC 443

that an accidental fall from a train is included in the principle of strict liability

as imposed on the Railways under Section 124(c) and 124-A of the Railways

Act, 1989.


6.    I, therefore, hold that the deceased Sh. Hukum Singh was a bonafide

passenger who did in fact have a valid train ticket for travelling on the date

10.4.2007 when he died as a result of fall from the train but which ticket had

been lost in the unfortunate event of death caused by the accident.


7.    In   terms    of   the   Railways    Accident    and   Untoward      Incidents

(Compensation) Rules 1990, in case of death of a person for an untoward

incident, compensation is fixed at a sum of Rs.4 lacs and which amount I

award in favour of the appellants/dependants. The Supreme Court in the

case of Tahazhathe P. Sarabi vs. Union of India 2009 (7) SCC 372 has


FAO No.175/2009                                                            Page 5 of 6
 held that courts are entitled to grant interest either from the date of accident

or from the date of filing of the petition before the Railway Claims Tribunal.

In the facts and circumstances of the case, I deem it fit that interest also be

granted at 9% simple from the date of filing of the petition till payment to

the appellants by the respondent. An amount of Rs.2 lacs with accrued

interest be paid to the widow-appellant no.1. An amount of Rs.50,000/- with

accrued interest be kept in a fixed deposit so as to earn maximum interest in

a Nationalised Bank in the names of each of the minors-appellants 2 to 5 and

which fixed deposit will be paid to each of the appellants 2 to 5 on their

attaining the age of majority. The interest accrued on the fixed deposit can

however be used by the appellant no.1 towards the expenses for taking care

of the appellants no.2 to 5 till they attain the ages of majority. Accordingly,

the appeal is allowed and disposed of in terms of the above observations.

No costs.




April 19, 2011                                   VALMIKI J. MEHTA, J.

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