Dwarika Mahto & Ors. vs Union Of India
2011 Latest Caselaw 4724 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         FAO No.100/2011

%                                                    23rd September, 2011

DWARIKA MAHTO & ORS.                                      ...... Appellants
                                   Through:       Mr.    Sanjeev        Mehta,
                                                  Advocate.
                          VERSUS

UNION OF INDIA                                             ...... Respondent

                                   Through:       Ms. Shilpa Singh,
                                                  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)

C.M. No.3755/2011 (condonation of delay) in FAO No.100/2011

This is an application for condonation of delay of 240 days

in filing the appeal on the ground that the appellants are very poor

persons having a hand to mouth existence and therefore they did not

have necessary funds to file the present appeal. It is stated in the

application that time was taken for arranging funds and which funds

were made available from close relations only in the first week of

December, 2010, whereafter counsel was engaged, and who thereafter

took some time to go through the documents before filing the appeal.

Though there is general opposition to this application, I find that there is

truth and credibility in the averments made in the application. The

application is therefore allowed and delay of 240 days in filing of the

appeal is condoned.

+ FAO No.100/2011

1. The challenge by means of this First Appeal under Section

23 of the Railway Claims Tribunal Act, 1987 is to the impugned

judgment of the Railway Claims Tribunal dated 2.12.2009 which

dismissed the claim petition for compensation filed by the appellants

who were the legal heirs of the deceased Smt. Jamuna Devi.

2. The facts of the case are that Smt. Jamuna Devi, the

deceased, on 17.5.2008 purchased a second class train ticket

No.50961406 from New Delhi to Gaya and boarded a train from New

Delhi on the said date. She de-boarded the train on 18.5.2008 on

reaching Mugalsarai railway station alongwith other passengers for

some work. After completion of the work, she again boarded a train on

19.5.2008 from Mugalsarai, being train No.302 Varanasi-Asansol

Passenger, for travelling from Mugalsarai to Gaya. Due to heavy rush

and intense jostling among the passengers in the train, she fell down

from the train resulting in grievous injuries which caused her death.

3. As per the rules of the respondent, it is not disputed that a

person can break the journey after travelling 500 kms., for a period of

two days. The Mugalsarai railway station admittedly was beyond the

distance of 500 kms. from New Delhi from where the deceased de-

boarded the train on 18.5.2008 and then again boarded a train on

19.5.2008. The deceased was thus entitled to break the journey at

Mugalsarai railway station for two days i.e. the deceased was entitled

on the same train ticket purchased from Delhi for Delhi to Gaya to again

travel from Mugalsarai to Gaya railway station since she within a period

of 48 hours of de-boarding took another train for travelling from

Mugalsarai to Gaya.

4. The contention of the respondent before the Railway Claims

Tribunal was that the deceased was not a bonafide passenger on the

train No.302 Varanasi-Asansol Passenger train while travelling from

Mugalsarai to Gaya inasmuch as there was no endorsement of break

journey on the ticket which was purchased by the deceased at New

Delhi on 17.5.2008.

5. The Railway Claims Tribunal accepted this defence of the

respondent by observing as under:-

" The only question that requires determination in this case is, whether the deceased Smt. Jamuna Devi W/o Shri Dwarika Mahto was a bonafide passenger of train No.302 Varanasi-Asansol passenger after purchasing a ticket from New Delhi to Gaya as on 17.5.08.

The time table book "Trains at a glance, Indian Railway July 2008-June 2009" at page 270 gives the answer of the above question (supra) in the following words:-

Question- Can I break my journey at any intermediate station?

Answer- If you hold a journey ticket for more than 500 kms, you can break your journey once for two days at any station enroute. This facility can be availed only after travelling 500 kms, from the starting station. If your ticket is for more than 1000 kms, you will be allowed to break your journey twice. The day of departure & arrival must be excluded while calculating the number of eligible days for break of journey. And remember to get your ticket endorsed

by the Station Master/Ticket Collector at the station, where you intend to break up your journey.

After perusal of record, I find that there is no endorsement on the journey ticket placed on record by the applicants and which was essential for the validity of the journey ticket. So, there is modicum of merit in the submissions of Ld. Counsel for the respondents & there is no momentum of force in the submission of Ld. Counsel for the applicants. Hence, it is clear that Smt. Jamuna Devi (deceased) was not a bonafide passenger of 302 DN Varanasi-Asansol passenger train on 19.5.08 from Mugalsarai to Gaya on the basis of ticket, which was purchased by the deceased on 17.5.08 from New Delhi Railway Station. The applicants are not entitled to get any compensation on account of death of Smt. Jamuna Devi on the ground that the deceased was not a bonafide passenger of the train in question. Hence, Issue No.1 is decided in negation & against the applicants.

Once, the main issue is decided in negation, the other supplementary issues carry no weightage & relevance. So, the claim application is liable to be dismissed."

6. In my opinion, the appeal deserves to succeed and the

impugned judgment is liable to be set aside. The issue before me is

whether lack of endorsement on the train ticket of the break in the

journey at Mugalsarai would necessarily mean that the deceased was

not a bonafide passenger for travelling on the same ticket which was

purchased on 17.5.2008 for the travel on 19.5.2008 by the train No.302

Varanasi-Asansol passenger from Mugalsarai to Gaya.

Of course, as per the rules of the respondent, once there

takes place a break in the journey, it is necessary that endorsement be

made on the ticket, and, in the absence of endorsement, the same

ticket cannot be used again for further travel to the destination

mentioned in the original ticket, inasmuch as, it is only the required

endorsement will show when there was break in the journey and when

the journey again recommenced inasmuch as the recommenced journey

has to be within 48 hours of the break in the journey.

7. The facts of the present case are not in dispute that there

has been filed and proved on record the necessary ticket bearing

No.50961406 for travelling from New Delhi to Gaya on 17.5.2008. It is

also not in dispute that the deceased in fact commenced journey from

New Delhi on 17.5.2008, de-boarded the train at Mugalsarai on

18.5.2008 and then again re-boarded a train on 19.5.2008; being Train

no. 302 Varanasi-Asansol Passenger; for travelling from Mugalsari to

Gaya on the existing ticket bearing No.50961406. I have deliberately

used the word admittedly with respect to the aforesaid facts because it

is not the case of the respondent/railways in the written statement that

there was no travelling on 17.5.2008, there was no de-boarding at

Mugalsarai on 18.5.2008 and there was no re-boarding on 19.5.2008 for

travelling from Mugalsarai to Gaya. Even assuming such be the case,

however, no evidence whatsoever was led by the respondent with

respect to the fact that there was no travelling on 17.5.2008, de-

boarding on 18.5.2008 and re-boarding on 19.5.2008. Once the

aforesaid facts are proved and established on record, the only issue

which remains will be the technical violation of non-endorsement, and it

is not as if there was ticketless travelling in violation of the rules,

leaving aside for the moment the issue of non-endorsement.

8. In my opinion, with respect to cases which come under the

Railway Claims Tribunal Act, 1987, such technical violation should not

result in holding that the deceased was not a bonafide passenger. The

term bonafide passenger is basically meant under the Railway Claims

Tribunal Act, 1987 to ensure that a ticketless traveller should not be

given the compensation. In admitted facts, once there is a valid ticket

of travel and the boarding, then de-boarding and then again re-boarding

took place within the period required in accordance with rules, I would

hold that the deceased was a bonafide passenger, and the deceased did

not cease to be so merely because of the lack of the endorsement. Of

course, if the respondent/railways had pleaded and proved that there

was travelling after the break in journey beyond the period of 48 hours

and consequently besides the technical violation of non-endorsement

there would in fact have been a genuine violation of the rules because

the ticket would have been invalid after 48 hours, the decision of this

case would have been different, but since all the rules except the

requirement of endorsement have been complied with, I would hold that

the deceased was a bonafide passenger in terms of the expression as

required under the provision of Section 2(29) of the Railways Act, 1989.

One must not lose sight of the fact that the provisions of Sections

123(c) and 124A of the Act are enacted in a legislative scheme for

social welfare. These sections are part of the scheme of beneficial

social legislation. This is no longer res integra and it has been so held

by the Supreme Court in the case of Union of India vs. Prabhakaran

Vijaya Kumar and Ors., 2008 (9) SCC 527. The Supreme Court in

this judgment of Prabhakaran (supra) has reiterated that the

provisions of Sections 123(c) and 124A of the Railways Act, 1989

provide for a no fault liability. In fact, recently the Supreme Court in the

case of Jameela & Ors. vs. Union of India 2010 (12) SCC 443 has

gone to the extent of stating that even if there is negligence yet there

still is an untoward incident entitling compensation, unless it is proved

that the negligence is a criminal negligence involving self-inflicting

injuries.

9. I am strengthened in my aforesaid view of the deceased

being a bonafide passenger in view of explanation (ii) of Section 124A of

the Railways Act, 1989 which reads as under:-

"Section 124A(ii) a person who has purchased a valid ticket for travelling by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident."

This explanation provides that a person will be a passenger

i.e. a valid passenger/bonafide passenger for the purpose of this Section

124A of the Act as long as he had purchased a valid ticket. Obviously,

this explanation was added to lay emphasis on the social nature of

legislation that once it is found that a person is not a ticketless traveller

and has a valid ticket for travelling by train, such person would be a

passenger entitled to compensation for an untoward incident. The

emphasis is thus for denial of compensation only to a ticketless

traveller. This explanation (ii) of Section 124A of the Act makes it

abundantly clear that even in the absence of a valid endorsement of the

break in the journey as long as the other requirements of the break in

journey were complied with, the passenger would be a bonafide

passenger once he is found to have been otherwise travelling on a valid

ticket.

10. The appeal is accordingly allowed. Appellants are entitled

to statutory compensation of Rs.4 lacs alongwith interest from the date

of filing of the claim petition @ 6% per annum simple till a period of two

months of passing of this judgment and if the amount is not paid within

two months, thereafter, interest will be paid @ 9% per annum simple till

the date of actual payment. The compensation granted by this

judgment will be equally distributed among all the appellants. The

respondent is directed to ensure that cheques for compensation are

encashed only by the appellants and necessary intimation be sent to

the bank so that the funds are withdrawn by the appellants only and not

misused by anyone else.

11. With the aforesaid observations, the appeal stands allowed

and disposed of.

SEPTEMBER 23, 2011/Ne                           VALMIKI J. MEHTA, J.