Pinki vs Union Of India
2011 Latest Caselaw 3428 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         FAO No.427/2010

%                                                             19th July, 2011

PINKI                                                     ...... Appellant
                          Through:      Mr. D.K.Sharma, Adv.


                          VERSUS

UNION OF INDIA                                             ...... Respondent

                          Through:      Mr. Sharat Kapoor with
                                        Mr. Sourabh Chugh, Advs.

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. The challenge by means of this first appeal under Section 23

of the Railway Claims Tribunal Act, 1987 is to the impugned order dated

21.07.2010 whereby the claim petition of the appellant seeking

compensation for death of her husband, Sh. Hukum Singh was dismissed.

2. The facts as alleged in the complaint, are that Sh. Hukum

Singh on 05.06.2009 was travelling from Delhi to Ghaziabad by

Chhattisgarh Mail and when the train was passing through Sahibabad

Railway Station, due to heavy rush of passengers and pushing from inside

FAO 427/2010 page 1 of 6 the compartment, Hukum Singh fell down from the train and died. In the

written statement filed by the respondent before the Tribunal, the defence

was that the deceased was not a bonafide passenger and there was no

pushing from inside the train and hence there was no untoward incident

entitling the claim of compensation.

3. The Railway Claims Tribunal has dismissed the compensation

claim firstly on the ground that the deceased was not a bonafide

passenger, and secondly the deceased died by trying to get down from a

running train and in the process fell down and died. Finally, inconsistency

in the postmortem report with the other evidence was relied upon.

4. In my opinion, the appeal has to succeed. Firstly, the Tribunal

was unjustified in holding that the deceased was not a bonafide passenger

merely because the railway pass was not signed at the earmarked place

before the commencement of the journey. Merely, because there is a

technicality of non-signing of the railway pass cannot mean that the

deceased was not a bonafide passenger inasmuch as the railway pass

does show that the same was issued in the name of the deceased Hukum

Singh, and for travel from Delhi to Ghaziabad, and on which route

Shahibabad Railway Station falls. A reference to the railway pass further

shows that the basic reason for the requirement of the signature appears

to be utilization of the pass by a person other than the person in whose

name the pass is issued and who has to be a family member. However, a

mere non-signing would not mean that there is actually no bonafide

railway pass. I may further note that the deceased was, in fact, an

FAO 427/2010 page 2 of 6 employee of the railways itself. Secondly, the Tribunal has fallen into an

error in relying upon the DRM's report which states that the deceased was

trying to get down from the running train and in the process fell down and

died. This was not even the case which was pleaded by the respondent

before the Claims Tribunal. The written statement filed by the respondent

in the Tribunal simply denied that the deceased did not die on account of

pushing/jostling and resulting in falling down from the train. There was no

positive case laid out of the death of the deceased having been caused on

account of his trying to climb down from a running train and falling down.

So far as the postmortem report is concerned, it may show that the death

had taken place prior to the date of the alleged incident, however, the

other documents totally contradict such fact as stated in the postmortem

report. This fact of the deceased having died a few days before the

incident is contradicted, firstly by the report of the DRM itself which is

relied upon by the Tribunal and which shows, the deceased, in fact, did

fall down from the train on the stated date as from the search of the

person of the deceased, the identification of the deceased as also the

railway pass was recovered. Further, there is a report of the Station

Master of the date of the incident of a person having fallen down from the

train and grievously injured and which report pertains to the same time of

the accident/incident and also mentions the same platform No. 1 as

mentioned in the report of the office of the DRM.

5. A civil case is decided on balance of probabilities. After all the

facts and evidence have come before the Civil Court/Tribunal, they are put

FAO 427/2010 page 3 of 6 in a scale so as to decide the conclusion which should emerge therefrom.

A reference to the facts aforesaid shows that the deceased railway

employee was in fact a bonafide passenger because there was in fact a

railway pass issued in his name for journey from Delhi to Ghaziabad of the

date of the accident. Further, merely because there are certain

inconsistencies cannot take away from the fact that the DRM's report and

the Station Master's report show that the deceased had fallen down from

the train and had suffered grievous injuries and had subsequently died.

Accordingly, there is a death of a bonafide passenger on account of falling

down from a train. As already stated above, no case was pleaded by the

respondent before the Tribunal that the deceased died on account of his

own negligence trying to alight from a moving train. The Tribunal

therefore could not have dismissed the compensation claimed on a

ground which was not even pleaded by the respondent.

6. Let us even assume that the case of the respondent is at the

best is that the death of the deceased was caused on account of trying to

alight from a moving train. Firstly, there is no evidence at all before the

Claims Tribunal of the respondent to this effect. The respondent has

chosen not even to file an affidavit of evidence to rebut the affidavit of

evidence which was filed by the appellant/claimant. Further, the issue

that a rash and negligent act of the deceased will not prevent entitlement

of the compensation to the dependents is no longer res integra and has

been decided by the Supreme Court in its recent judgment reported as

FAO 427/2010 page 4 of 6 Jameela & Ors. vs. UOI, (2010) 12 SCC 443. Paras 7, 10 and 12 of the

said judgment are relevant and which read as under:-

"7. We are of the considered view that the High Court gravely erred in holding that the applicants were not entitled to any compensation under Section 124-A of the Act, because the deceased had died by falling down from the train because of his own negligence. First, the case of the Railways that the deceased M.Hafeez was standing at the open door of the train compartment in a negligent manner from where he fell down is entirely based on speculation. There is admittedly no eyewitness to the fall of the deceased from the train and, therefore, there is absolutely no evidence to support the case of the Railways that the accident took place in the manner suggested by it. Secondly, even if it were to be assumed that the deceased fell from the train to his death due to his own negligence it will not have any effect on the compensation payable under Section 124-A of the Act.

10. It is not denied by the Railways that M. Hafeez fell down from the train and died while travelling on it on a valid ticket. He was, therefore, clearly a "passenger" for the purpose of Section 124-A as clarified by the Explanation. It is now to be seen, that under Section 124-A the liability to pay compensation is regardless of any wrongful act, neglect or default on the part of the Railway Administration. But the proviso to the section says that the Railway Administration would have no liability to pay any compensation in case death of the passenger or injury to him was caused due to any of the reasons enumerated in clauses (a) to (e).

12. The manner in which the accident is sought to be reconstructed by the Railways, that the deceased was standing at the open door of the train compartment from where he fell down, is called by the Railways itself as negligence. Now negligence of this kind which is not very uncommon on Indian trains is not the same thing as a criminal act mentioned in clause (c) to the proviso to Section 124-A. A criminal act envisaged under clause (c) must have an element of malicious intent or mens rea. Standing at the open doors of the compartment of a running train may be a negligent act, even a rash act but, without anything else, it is certainly not a criminal act. Thus, the case of the Railways must fail even after assuming everything in its favour." (Emphasis added).

FAO 427/2010 page 5 of 6 The emphasized portion of the paras 7 and 12 reproduced

above shows that a rash and negligent act of the deceased would not

prevent the incident to be an untoward incident within the meaning of

Section 124-A of the Railways Act, 1989. The Supreme Court has

emphasized that unless the criminal act has an element of malicious

intent or mens rea the same cannot be a criminal act. A negligent act or

own negligence of the deceased will not effect on the compensation

payable under Section 124-A. A negligent act and a rash act, without

anything else, is not a criminal act. In the case of Jameela (supra)

before the Supreme Court, the facts were nearly same as the facts of the

present case as there was no eye witness to the incident and the GRP had

found the dead body of a male person at the Magarwara Railway Station

and on the search of the person of the deceased in Jameela's case

(supra) the railway ticket was found along with a phone number by which

the identity of the deceased came to light.

7. Accordingly, the appeal is accepted. The appellant is granted

the statutorily fixed compensation of Rs.4,00,000/-. The appellant will

also be entitled to interest at the rate of 9% per annum simple from the

date of filing of the complaint before the Railway Claims Tribunal and till

payment by the respondent. The appeal is disposed of accordingly. Trial

Court record be sent back.

JULY 19, 2011                                    VALMIKI J. MEHTA, J.
ak


FAO 427/2010                                                       page 6 of 6