Delhi High Court
Sudha Choudhary & Ors vs Union Of India on 13 April, 2012
Author: Veena Birbal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO 414/2011
% Date of decision: 13.04.2012
Sudha Choudhary & Ors ..... Appellants
Through : Mr.D.K.Sharma, Adv.
versus
Union of India ..... Respondent
Through : Ms.Shilpa Singh, Adv.
CORAM:
HON'BLE MS. JUSTICE VEENA BIRBAL
VEENA BIRBAL, J.
*
1. Present is an appeal under section 23 of the Railway Claims
Tribunal Act, 1987 (hereinafter referred to as `the Act') against the
impugned judgment dated 15th July, 2011 passed by the Railways
Claims Tribunal, Principal Bench, New Delhi (hereinafter referred to
as `the Tribunal') whereby claim application of the appellants has been
dismissed.
2. The appellants are family members/dependents of deceased who
had filed claim application before the Tribunal alleging therein
deceased was an employee of a finance company as Senior Executive
at Okhla. On 21st April, 2010, he was travelling with his colleague
from Okhla to Faridabad by an EMU train on a valid MST bearing
no.AB-56186820 valid from 12.4.2010 to 11.5.2010 with I card
bearing no.205T9SP204. It is alleged that there was heavy rush in the
train due to which deceased and his colleague were compelled to stand
near the gate of the compartment. When the train started from
Tuglakabad Railway Station at about 3.30 pm, it gave a sudden jerk,
due to which, deceased fell down from the train, as a result of which
he sustained grievous injuries all over his body and succumbed to his
injuries on the spot. They had alleged that the alleged incident was an
"untoward incident" as defined under the Act. The postmortem of the
deceased was conducted on 22.4.2010.
3. The respondent had contested the claim by filing written
statement wherein it is contended that deceased was not a bonafide
passenger and he sustained injuries due to his own negligence, as such,
the alleged incident was not covered under the provisions of Section
123(c)(2) of the Act.
4. On the basis of the pleadings of the parties, issues were framed.
In support of the claim application, appellant no.2 had filed his own
affidavit along with other relevant documents. Co-passenger Shams
Pervez had also filed an affidavit supporting the case of appellants.
Both the aforesaid witnesses were cross-examined by respondent. No
evidence was led by respondent and only DRM's report along with
various documents were filed.
5. After hearing the arguments, the Tribunal held that appellants
had failed to prove their case and accordingly dismissed the claim
application on the ground that alleged incident is not covered within
the term "untoward incident" as defined under section 123(c)(2) of the
Act.
6. Learned counsel for the appellants has argued that the Tribunal
has failed to appreciate the material on record. It is contended that
entire material on record has not been considered while deciding the
issues. Learned counsel has contended that there is ample evidence
on record to show that deceased was a bonafide passenger and he died
as a result of "untoward incident". It is contended that Tribunal has
relied upon postmortem report/inquest report ExAW-1/10 and
thereafter referring to judgment of this court in Dharambiri Devi & ors
Vs. Ministry of Railways & Anr 149(2008) DLT 435, the Tribunal has
held that body could not be cut into two halves if the deceased fell out
of the bogie through the exit. It is contended that if entire material is
taken into consideration, the claim of the appellants stands fully
established.
7. On the other hand, learned counsel for the respondent has
contended that no illegality is seen in the impugned order which calls
for interference of this court.
8. I have considered the submissions made.
9. The stand of respondent in written statement is that deceased
was standing near the gate of the compartment and due to his own
negligence, he fell from the running train. While the stand of the
respondent in the arguments is that deceased had not fallen from the
running train as injuries sustained by him were not possible by falling
from the running train. The DRM report on record filed by respondent
shows that deceased had fallen from running train and due to fall he
was run over by the train. There is also a report dated 19.1.2011
on record filed by respondent wherein it is reported that deceased had
fallen from the running train due to which he sustained injuries and
died.
10. Learned counsel for the appellant has also pointed out there is
evidence on record to show that the train in question was changing
track when the deceased had fallen from the running train. It is
contended that in these circumstances, even the judgment of this court
referred above has not been correctly applied by the Tribunal. In
support of his contention, Learned counsel for the appellant has
referred to para 15 of the aforesaid judgment.
11. Perusal of the record shows that there is also evidence of eye
witness Shri Shams Pervez who was travelling with the deceased at the
time of accident who has categorically deposed that there was heavy
rush in the train due to which deceased was standing was standing near
the gate of compartment and due to sudden jerk, deceased fell down
from the running train and died on the spot. He has also stated in the
affidavit that valid MST and I card were recovered from the pocket of
deceased. The said evidence was also not demolished in evidence.
Even the documents on record i.e. report of the Inspector, RPF also
shows recovery of MST from the search of the deceased. It is noted
that the Tribunal while deciding the case has not considered the entire
evidence on record and has only considered postmortem report and
inquest report.
12. In view of the above discussion, the matter is remanded back to
the Tribunal to consider the entire evidence on record i.e oral as well
as documentary and thereafter return fresh findings on the issues.
Accordingly, the impugned order is set aside.
The parties shall appear before the Tribunal on 7th May, 2012 for
further proceedings.
Appeal stands disposed of accordingly.
VEENA BIRBAL, J
APRIL 13, 2012
ssb
