Suman vs Union Of India
2011 Latest Caselaw 2172 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         FAO No.139/2010

%                                                       25th April, 2011

SUMAN                                             ...... Appellant
                          Through:    Mr. S.K.Vashisth, Advocate

                          VERSUS

UNION OF INDIA                                    ...... Respondent
                          Through:     Mr. Manoj V. George, 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?

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


VALMIKI J. MEHTA, J (ORAL)


1.            This first appeal is filed by the appellants, the widow and the

minor son (today approximately 4 years in age) of the deceased, under

Section 23 of the Railway Claims Tribunal Act, 1987 challenging the order

dated 17.02.2010 which dismissed the claim of the appellants.


2.            The facts of the case are that the deceased, Sh.Lal Bahadur,

on 10.12.2008 was returning from Rohtak to Dayabasti, Delhi by train, and

due to heavy rush of passengers resulting in pushing/jostling, Sh.Lal

Bahadur was thrown out of the train at Dayabasti resulting in his death.

The respondent disputed the claim petition by alleging that no accident

FAO No.139/2010                                                Page 1 of 5
 occurred on 3 DR train on the particular day, and that the rail ticket placed

on record is fake.


3.          The Railway Claims Tribunal held that as per the certified copy

of the seizure memo, Ex.AW1/3, there was in fact found one rail ticket

from Rohtak to Dayabasti and similarly a DD No.17-PP, Ex.AW1/2 was also

proved which showed that due to heavy rush of passengers one person

had fallen out of the window of the train 3 DR. The    Railway        Claims

Tribunal however, believed the case of the respondent/railways on the

ground that the train no. 3 DR is a train which does not come back to Delhi

from Rohtak but goes from Delhi to Rohtak and the ticket found was from

Rohtak to Dayabasti, Delhi.


4.          I have heard learned counsel for the parties and perused the

original Trial Court record. The impugned order is completely and totally

perverse, inasmuch as, there were two clinching documentary evidences

which were filed and proved before the Railway Claims Tribunal and which

showed that the deceased in fact had died by falling off the train. The first

is a report of the Railway Constable, Sh. Hazari Lal, who was an eye-

witness to the incident and whose report as DD No.17-PP of the date of the

accident 10.12.2008 was proved as Ex.AW1/2, in which the Railway Police

Constable clearly reported that from the train no. 3 DR one person fell

down from the window and he died on the spot and which was reported to

the Station Master. Surely, there cannot be a more independent and

credible witness to the incident than an employee of the respondent itself.

FAO No.139/2010                                              Page 2 of 5
 This Constable himself in the report has quoted the train no. as 3 DR.

Obviously, the appellant/defendant picked up the train no. 3 DR from this

DD entry no. 17-PP dated 10.12.2008, Ex.AW1/2 and wrote the same train

no. in the claim petition filed before the Railway Claims Tribunal.

Therefore, merely because in the claim petition before the Railway Claims

Tribunal, a wrong train no. has been noted would not mean that the

deceased did not die as a result of an "untoward incident" by falling off

from the train. Whatever be the train number that is, 3 DR or not, the fact

is that there was a train which was travelling from Rohtak to Delhi, New

Delhi and the deceased fell down from this train and died.


           The second clinching evidence is the report of the Station

Master, Delhi itself where he has reported that (Ex.RW1/1) a man was

crushed by the train ECR 3DR. This aspect of a person being run over by

the train no.ECR 3DR is also stated in another report, Ex. RW1/2 filed

before the Railway Claims Tribunal.


5.         What actually seems to have happened was that the deceased

was travelling on a train from Rohtak to Dayabasti, Delhi and to prove

which, there is the relevant train ticket for travel from Rohtak to

Dayabasti, Delhi. Due to rush of passengers in the train he was pushed

from the train and he, thereafter, was crushed by a train ECR 3DR and not

that the deceased was travelling by the train 3DR. Therefore, it is quite

clear from the record that except the confusion regarding the train

number in which the deceased was travelling, it is not an issue that the

FAO No.139/2010                                              Page 3 of 5
 deceased was in fact crushed by a train, and that he was travelling on a

valid ticket making him a         bonafide passenger.   When we take into

account the report of the eye-witness Sh.Hazari Lal, whose report was

proved as Ex.AW1/2, it becomes clear that the deceased in fact died as a

result of an untoward incident.


6.          A civil case is decided on balance of probabilities, and the

balance of probabilities clearly proved that:-


a) The deceased was a bonafide passenger on a rail ticket (recovered from

the body of the deceased) which was valid for the date of travel from

Rohtak to Dayabasti, Delhi,


b) The deceased died by being crushed by a train ECR 3DR,


c) The deceased fell from the train as proved by eye-witness Sh.Hazari Lal.

Thus, there is an untoward incident within the meaning of Section 123(c)

of the Railways Act, 1989 and consequently railways are liable to

compensate the appellants/defendants in terms of Section 124(a) of the

Railways Act,


d) There should be no confusion on the ground that the deceased died

while travelling on train 3 DR because the deceased died on a train

(number not known) travelling from Rohtak to Delhi and the confusion of

wrongly mentioning the train as numbered 3DR took place because the

eyewitness Sh.Hazari Lal had wrongly mentioned the train number as 3DR


FAO No.139/2010                                             Page 4 of 5
 as the one in which the deceased was travelling whereas the deceased

was travelling in a train from Rohtak to Delhi and was crushed after falling

of this train by a train which was numbered 3DR.


7.          I, therefore, accept the appeal by setting aside the order dated

7.12.2010 and hold that the appellants are entitled to the compensation of

Rs.4,00,000/-, which is the compensation statutorily fixed for death of a

person by an untoward incident in terms of Railways Accident and

Untoward Incidents (Compensation) Rules, 1990. The appellants will also

be entitled to pendente lite and future interest @ 12% simple till payment

in accordance with the decision in the case of Tahazhathe P. Sarabi Vs.

Union of India 2009 (7) SCC 372.


8.          Since there are two dependents, one the widow and the other

a minor child who was about 9 months on the date of the accident, a sum

of Rs.2,00,000/- alongwith accrued interest would be paid to the widow

and the balance amount of Rs.2,00,000/- will be kept in a fixed deposit in a

Nationalized Bank and which shall be payable to the minor son on his

attaining majority. Interest, however, on this fixed deposit can be utilized

by the appellant/widow/Smt. Suman for the maintenance and up-keep of

the minor son. Appeal is accordingly disposed of.




APRIL 25, 2011                                  VALMIKI J. MEHTA, J.

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