Jagwati & Ors. vs Union Of India
2011 Latest Caselaw 2350 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         FAO No.82/2011
%                                                       2nd May 2011

JAGWATI & ORS.                                         ...... Appellants
                          Through:    Mr. N.K.Gupta, Adv.


                          VERSUS

UNION OF INDIA                                          ...... Respondent
                          Through:

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 challenge by means of the first appeal under Section 23 of the
Railway Claims Tribunal Act, 1987 is to the impugned order dated
29.11.2010 of the Railway Claims Tribunal which dismissed the claims of the
appellants on the ground that the deceased died in the train on account of
heart failure and therefore, the Railways was not responsible.
2.       Learned counsel for the appellants argues that the deceased died as a
result of poisoning by a fellow passenger with intent to commit robbery and
therefore the Railways is liable.
3.       Let us for the sake of arguments presume that the deceased died not
as a result of heart attack as was the case of the railways but the deceased
in fact died on account of poisoning as per the case of the appellants. Can
the railways be held liable in such circumstances ? In order to appreciate this

FAO 82/2011                                                                Page 1 of 3
 contention, it is necessary to refer to and reproduce Section 123(c) of the
Railways Act, 1989 which reads as under:-
         " 123 (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 (28 of 1989); 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
         (2)      the accidental falling of any passenger from a
         train carrying passengers."

4.    Even a cursory reading of the aforesaid provision shows that for an
incident to be an untoward incident, there must be a terrorist attack or
violent attack or commission of robbery or dacoity or indulging in rioting,
shoot out or arson, all which aspects concern the failure of the security to be
provided by the Railways. The only other subject of an untoward incident is
accidental falling of a passenger from a train and which is not so in the facts
of the present case. In view of the above, I do not think that there is an
untoward incident within the meaning of Section 123(c) of the Railways Act,
1989 even assuming as the case as set up by the petitioners/appellants to
be correct that there was no heart failure but the deceased died on account
of poisoning by a fellow passenger.
5.    Learned counsel for the petitioner sought to argue that the deceased
was carrying an amount of Rs 2 lacs which he received on retirement from
the armed forces with him and which was lost when he died on account of
poisoning by a fellow passenger and thus the claim was maintainable as
there was robbery and death of the deceased.
6.    The claims which are filed under the Railway Claims Tribunal Act are
not any and every claims against the Railways. The claims can only be those

FAO 82/2011                                                           Page 2 of 3
 as mentioned in Section 13 of the said Act. In the present case, the claim has
been filed on the basis that there is an "untoward incident" within the
meaning of Section 123(c) of the Railways Act, however, a reference to
Section 123 (c) shows that this is not a case of an untoward incident because
a reference to this section shows that the rule of strict liability contained in
the section applies only when the acts are of terrorism, dacoity, looting,
arson etc and which acts have their origin in the failure of the railways to
provide security. A case of poisoning with the intent to commit theft/robbery
by a traveler cannot be included in S. 123(c) because the railways cannot
provide one guard for each and every passenger.
7.    If the appellants have any other entitlement or cause of action which is
not covered under the Railway Claims Tribunal Act, 1987 against the
Railways, then the appellants in accordance with law can approach the
appropriate court for such relief.
      With the aforesaid observations, the appeal is dismissed.




MAY 02, 2011                                     VALMIKI J. MEHTA, J.

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