Veena Rani vs Union Of India
2013 Latest Caselaw 1687 Del

*                 HIGH COURT OF DELHI AT NEW DELHI

+                  FAO No.422/2011

                                        Decided on : 12th April, 2013

VEENA RANI                                 ...... Appellant
                    Through:     Mr.Deepender Hooda, Advocate.

                      Versus

UNION OF INDIA                       ...... Respondent
              Through Mr.P.K.Shukla, Advocate for Railways

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

1. This is an appeal filed by the appellant against the judgment dated

19.1.2011 passed by the Railway Claims Tribunal in OA 187/2010

dismissing the claim of the appellant on account of the death of her

son.

2. Briefly stated the facts of the case are that on 13.5.2010, one Sumit

(since deceased) was alleged to have been travelling from Okhla to

Faridabad in EMU train and when the train reached near Hazrat

Nizamuddin railway station, the deceased Sumit fell from the

compartment of the train on account of sudden jerk in the train as a

consequence of which, he died on the spot by coming under the

train itself. Accordingly, an amount of Rs.4 was claimed by the

mother of the deceased.

3. The respondent contested the claim of the appellant. It was alleged

that the deceased was neither a bona fide passenger nor did he died

in any untoward incident. On the pleadings of the parties, the

following four issues were framed:

"(i) Whether the applicants prove that they are the dependants of the deceased within the meaning of Section 123(b) of the Railways Act?

(ii) Whether the applicants further prove that the deceased was a bona fide passenger on the train in question on the relevant day?

(iii) Whether the applicants also prove that the death of the deceased had occurred as a result of an untoward incident, as alleged in the claim application?

(iv) Whether the respondent proves that the claim is not covered under the ambit of Sections 123, 124 and 124-A of the Railways Act, 1989?

(v) To what order/relief?

4. So far as issue no.1 is concerned, it was decided in favour of the

appellant being the dependent on the deceased within the definition

of Section 123 (b) of the Railways Act. However, with regard to

issue nos.2 to 4, are concerned, the Tribunal came to the conclusion

that the appellant has failed to prove that the deceased was a bona

fide passenger on the factum of death. It was observed that neither

the ticket was found from the deceased nor did the police record

showed that he had been hit by the train.

5. I have heard the learned counsel for the appellant who has taken

the Court through the report and documents purported to have been

prepared by the police where it was nowhere stated in those

documents that the appellant was hit by the train.

6. I have carefully considered the submission made by the appellant

and gone through the record.

7. There is no dispute about the fact that before a person is entitled to

a claim under the Act, it must be established by preponderance of

probabilities that the deceased was a bona fide passenger. In the

instant case same has not been proved. Simply by saying that the

appellant's ticket was lost or that he had purportedly purchased the

ticket is not good enough.

8. In the instant case, the dead body of the deceased was found with a

broken mobile in his pocket. In addition to this, there were some

other documents but no ticket was found from the possession of the

deceased. Therefore, it is totally unbelievable that ticket would not

have been found with the deceased, if he would have purchased

one. In the absence of the ticket, it cannot be assumed on the basis

of the statement of one Manish whose statement has been recorded

by the police, who has stated that it was he who left the deceased at

the railway station and he had seen him purchasing the ticket.

The evidence which can be taken cognizance of is the one which is

made by a person before the Tribunal on oath or filed by way of an

affidavit EX-AW1/7. Statement purported to have been made by

Manish is before the police, which is a statement u/S 161 Cr.P.C.

No credence can be attached to such a statement purported to have

been recorded by the police under Section 161 Cr.P.C. If Manish

had really seen the accident and was known to the deceased, the

minimum which was expected from the appellant was to procure

the attendance of Manish and make him testify before the Tribunal

that the deceased had admittedly purchased the ticket.

9. So far as the document Ex.AW1/4 and Ex.AW1/5 are concerned,

the learned counsel for the appellant has drawn the attention of the

Court to the fact that in these documents, it has been mentioned

that the appellant might have fallen from the compartment of a

running train. The fact that the police record shows that the

deceased might have fallen from the running train is not good

enough to be established before the Court so as to warrant the

demand of compensation to the appellant. What is required in law

to be proved is that he had actually fallen from the train and

suffered injuries apart from the fact that he was a bona fide

passenger. On both these counts, the appellant's case falls short.

There is no infirmity in the judgment of the tribunal in dismissing

the claim of the appellant on the ground that neither the appellant

has been able to establish that the deceased was a bona fide

passenger nor it has been able to prove that he had died on account

of some untoward incident. Accordingly, the appeal does not have

any merit and the same is dismissed.

V.K. SHALI, J.

APRIL 12, 2013/RN