Union Of India vs Ashok Kumar & Anr
2012 Latest Caselaw 1906 Del

*      HIGH COURT OF DELHI AT NEW DELHI

%                            Judgment delivered on: March 20, 2012

+      FAO 56/2012

Union of India                                   ..... Appellants
                     Through:Mr.Tej Vir Singh Dua with Mr.Ajay
                             Goel, Advocate.

                            -versus-

Ashok Kumar & Anr                                   ..... Respondents
              Through: None

CORAM:-
HON'BLE MS. JUSTICE VEENA BIRBAL

Veena Birbal, J.

*

1. By way of First Appeal under Section 23 of the Railway Claims Tribunal Act, 1987 challenge has been made to the impugned judgment dated 13th September, 2011 passed by the Railway Claims Tribunal, Principal Bench, Delhi (hereinafter referred to as `the Tribunal') whereby compensation of Rs.4 lacs with interest @ 8% per annum has been granted to the respondents from the date of filing of the claim application till its realization.

2. The respondents i.e., parents of deceased Nitish Kumar had filed a claim petition before the Tribunal alleging therein that their son Nitish Kumar aged about 22 years, a labourer by profession, on 1st September, 2010 was travelling by Train No.2367 UP Vikramshila

Express with a valid 2nd class journey ticket along with his uncle Masudan Prasad and was going upto Fatuha for official duty. There was heavy rush in the general compartment of the train, due to which deceased was compelled to stand near the door of the compartment. It is further alleged that due to jostling amongst passengers, deceased fell down from the running train near pole no.484/3 and succumbed to his injuries at the spot.

3. The co-passenger Masudan Prasad narrated the incident to the Railway Police at Barh Railway station. Police also investigated the matter. Respondents i.e., parents of the deceased filed a claim petition before the Tribunal claiming compensation of Rs.4 lacs with interest @ 12% per annum.

4. The appellant contested the claim before the Tribunal by filing a written statement wherein it is stated that deceased was not a bonafide passenger and no documents had been filed to substantiate the same and the injuries sustained were self inflicted due to negligence and carelessness of the deceased and the incident is not covered under the provisions of Section 124-A of the Railway Act, 1989.

5. In support of claim petition, respondent no.1 Ashok Kumar had filed his own affidavit along with certain documents. Appellant did not produce any witness nor file any documents to substantiate their stand. After hearing both parties, the Tribunal awarded compensation of Rs.4 lacs along with interest @ 12% p.a. in favour of respondents. Aggrieved with the same, present appeal is filed.

6. Learned counsel for the appellant has contended that deceased himself endangered his life and it is a case of self inflicted injury, as such, no compensation could have been awarded by the Tribunal under Section 124 A of the Act. In support of his contention, learned counsel has relied upon the postmortem report Ex.AW 1/5 of the deceased as well as inquest report Ex.AW 1/4. Ld. Counsel for appellant has also placed reliance on Haran Haldar & Ors v. Union of India, 2008 VI AD (Delhi) 341.

7. Section 124-A of the Railways Act, 1989 reads as under:-

"124A. Compensation on account of untoward incident - When in the course of working in railway an untoward incident occurs, then whether or not there has been any wrongful act, neglect or default on the part of the railway administration such as would entitle a passenger who has been injured or the dependent of a passenger who has been killed to maintain an action and recover damages in respect thereof, the railway administration shall, notwithstanding anything contained in any other law, be liable to pay compensation to such extent as may be prescribed and to that extent only for loss occasioned by the death of, or injury to a passenger as a result of such untoward incident: Provided that no compensation shall be payable under this section by the railway administration if the passenger dies or suffers injury due to-

(a) suicide or attempted suicide by him;

(b) self - inflicted;

(c) his own criminal act;

(d) any act committed by him in a state of intoxication or insanity;

(e) any natural cause or disease or medical or surgical treatment unless such treatment become necessary due to injury caused by the said untoward incident. Explanation- For the purposes of this section, "passenger" includes -

(i) a railway servant on duty; and

(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."

8. The proviso to aforesaid Section carves out an exception wherein there is no liability of railway administration to pay compensation if the passenger suffers injury or dies due to an act falling under any of the sub-clauses (a) to (e) of the proviso. Self inflicted injury, own criminal act or an act committed in the state of intoxication would entitle, upon proof of the fact, the railway authorities to deny compensation.

9. I have perused the inquest report Ex.AW 1/4 which shows injuries on the back portion of the head which is profusely bleeding. The post mortem report Ex.AW1/5 shows multiple bruises and abrasions on both side of buttock and cause of death is "Acute circulatory failure due to crushing of head - shock and haemorrhage caused by train accident."

10. Reliance upon Haran Haldar & Ors Vs. Union of India (supra) is of no help to the appellant as facts of the said case are different. In

the said case co-passenger was held to be a planted witness. Further there was smell of alcohol in the breath of deceased. The inquest report in the said case was suggestive of the fact that the head of the deceased was extending outside the train when in action. The position in the present case is different. In the inquest report Ex. AW1/4, it is clearly recorded that witnesses had stated that deceased had accidentally fallen from the train and his head got struck against a pole. Even in Ex. AW1/3, i.e. memo dated 01.09.2010, issued by Dy. Manager/ East Central Railway/Barh, it is recorded that deceased accidentally fell from the train.

11. The burden was on the appellant to prove that deceased died due to self inflicted injuries. However, no evidence was led by the appellant before the Tribunal or before the court to substantiate the same. Reading the postmortem report Ex.AW1/5 and inquest report Ex.Ex.AW1/4 and other evidence on record, it cannot be said that injuries sustained were self inflicted, as is contended.

12. In view of the above, no illegality or infirmity is seen in the order of the Tribunal which calls for interference of this court. I find no merits in the appeal. The appeal is dismissed. CM No. 1951/2012 (stay) In view of the order on the main appeal, no further orders are required on this application.

The same stands disposed of.

VEENA BIRBAL, J.

March 20, 2012/ssb