Farhat Jahan vs Union Of India
2013 Latest Caselaw 5194 Del

*                    HIGH COURT OF DELHI AT NEW DELHI


+                             F.A.O. No.360 of 2011


                                    Decided on : 13th November, 2013


FARHAT JAHAN                                              ...... Appellant

                       Through:   Mr. Anshuman Bal, Advocate.

                         Versus

UNION OF INDIA                                        ...... Respondent

                       Through:   Ms. Mamta Binjola, Advocate.

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

V.K. SHALI, J.

1. This is an appeal under Section 23 of the Railway Claims Tribunal

Act, 1987 against the order dated 25.3.2011 by virtue of which the claim

petition of the appellants was dismissed by the Railway Claims Tribunal

for grant of compensation.

2. Briefly stated the facts of the case are that one Jamil Akhtar, s/o

Late Naziruddin and husband of appellant No.1, who was aged around 32

years, working as a private employee, was allegedly travelling by Train

No.5610, Awadh Assam Express on a valid 2nd class journey ticket from

Nangloi to Delhi Kishan Ganj on 19.9.2008 at about 7.00 hours. It was

alleged that he was standing near the gate of the compartment and due to

heavy rush in the train, he accidently fell down from the running train at

Nangloi railway station as a consequence of which he sustained grievous

multiple injuries on his person, whereupon he was taken to Bhagwan

Mahavir Hospital, Pitampura, Delhi. It was alleged that he succumbed to

his injuries and was survived by appellant No.1, Farhat Jahan, his wife,

three daughters, namely, Kumari Arfi Firdos, Kumari Arshi Firdos &

Kumari Fahdas Zamel and Atiman Khatoon, his mother, who are

appellant Nos.2 to 5 herein.

3. The respondent filed its written statement and contested the claim

that the deceased was a bona fide passenger. It was alleged by the

respondent that the deceased died on account of self-inflicted injuries

because of his own negligence and, therefore, the case of the deceased

was not covered under Section 123 (c) (2) of the Railways Act. It was

also alleged that the railways are exempted from any liability under

Section 124-A of the Railways Act.

4. On the pleadings of the parties, following issues were framed :-

"(1) Whether the deceased Jamil Akhtar, s/o Late Shri Zamiruddin, was a bona fide passenger of (train No... not given) Awadh Assam Express Train from Nangloi to Delhi Kishan Ganj as on 19.09.2009.? (2) Whether the death of Jamil Akhtar was caused due to an untoward incident as defined in Section 123 read with Section 124-A of the Railways Act?

(3) Whether the applicants prove that they are dependents of the deceased Shri Jamil Akhtar within the meaning of Section 123 (b) of the Railways Act and are entitled to get compensation?

(4) To what order/relief?"

5. In support of the claim petition, the appellant No.1 filed her own

affidavit exhibit AW 1/1 along with certain documents. The respondent

did not adduce any witness; however, it filed only DRM‟s Report along

with certain documents. The learned Railway Claims Tribunal arrived at

a conclusion that the deceased was not a bona fide passenger. The

reasons for arriving at this conclusion was the submission made by the

respondent that the deceased was found in possession of a passenger

journey ticket while the journey was being undertaken by an express

train. It was further observed by the Railway Claims Tribunal that there

was a DRM‟s Report wherein it was recorded as under :-

"As rep. By Dr. of 5610 Dn Exp., one man run over and injured at Km.17/3 on Main Line NNO Yd. The injured

person send to SSB in 5610 Dn and message given to DMO/SSB for first aid".

6. On the basis of this, the Railway Claims Tribunal observed that

there was a strong probability that the deceased was crossing the railway

track at Nangloi when he was hit by a train in question because of which

he had died. This fact was sought to be corroborated by placing reliance

on the DRM‟s Report.

7. I have heard the learned counsel for the appellants as well as the

learned counsel for the respondent. The main contention of the learned

counsel for the appellants is that the finding returned by the Railway

Claims Tribunal is not only erroneous but is also bereft of any

appreciation of evidence inasmuch as there is a positive evidence

produced by the appellants to show that the deceased was a bona fide

passenger and he had suffered death on account of the accident while

undertaking the travel by train. This was sought to be refuted by the

learned counsel for the respondent by drawing the attention of the court to

the order passed by the Railway Claims Tribunal.

8. I have carefully considered the submissions and have gone through

the impugned order as well as the record. It must be stated at the outset

that the Railway Claims Tribunal has completely arrived at an erroneous

finding that the deceased was not a bona fide passenger. The case of the

appellants was that the deceased was travelling by Awadh Assam Express

on 19.9.2008 from Nangloi to Kishan Ganj. It has also come in evidence

that the deceased had admittedly suffered injuries while undertaking the

said journey. This is evident from the fact that even in the report (a copy

of which is placed on the record), it is stated that the matter was enquired

into by Railway Protection Force and their investigations showed that

"Jamil Akhtar was a bona fide passenger of railways but he was trying to

get down from the running train and during this process, he fell down and

died". This factum of the report prepared by the railways

contemporaneously gets corroborated by the fact that affidavit AW-1

wherein it is stated by the appellant that on the date of accident, the

deceased was undertaking travel from Nangloi to Kishan Ganj.

Admittedly, while taking the personal search of the deceased, a railway

ticket has been found from the person of the deceased which has also

been accepted. These facts clearly impel the court to draw an irresistible

conclusion that the deceased was a bona fide passenger of a train. The

contention of the learned counsel for the respondent that the deceased

was having a ticket of only `4/- which showed that this was a ticket for a

passenger train while as the train in question in which he was undertaking

the journey was an express train is not supported by any evidence. This

is only a conjecture urged by the learned counsel for the respondent.

Even if it is assumed that the deceased was in possession of a ticket of a

passenger train but he was undertaking the travel by an express train, still

he does not cease to be a bona fide passenger inasmuch as the factum of

unauthorized travel by the deceased in a train in which he was not legally

authorized to undertake the journey must be clearly established by a

positive evidence to refute the prima facie evidence which has been

produced by the appellants, the legal heirs of the deceased. This onus has

not been discharged by the railways in the instant case and simply by

making an oral submission, the court cannot be compelled to rely on the

same and I feel that the Railway Claims Tribunal in accepting this

contention of the Union of India has erroneously fallen into an error

which deserves to be rectified.

9. Therefore, in the light of the aforesaid facts, it is clearly established

that the issue Nos.1 and 2 with regard to the deceased being a bona fide

passenger in the train, namely, Awadh Assam Express as well as the

Jamil Akhtar having suffered the death on account of the „untoward

incident‟ having been decided negatively is not borne out from the record

rather it is established in one of the few cases by way of a positive

evidence that the deceased was a bona fide passenger because he had a

valid ticket. I, accordingly, feel that the judgment returned by the

Railway Claims Tribunal is erroneous and the same deserves to be set

aside.

10. So far as the payment of compensation to the appellants is

concerned, the appellants have claimed a compensation of `5 lacs on

account of the death of their relations, namely, the husband of the

appellant No.1, father of appellant Nos.2 to 4 and the son of the appellant

No.5. The deceased is claimed to be of 32 years of age and was

employed in some private concern. No evidence has been brought on

record by the appellants to show his income; however, keeping in view

the age and the factum of his being survived by three daughters, I feel he

deserves to be given the limited compensation fixed by the statute, that is,

`4 lacs.

11. Accordingly, I allow the appeal of the appellants and direct the

respondent to pay a compensation of `4 lacs to the appellants along with

interest @ 6 per cent per annum from the date when it became due

according to the statute.

V.K. SHALI, J.

NOVEMBER 13, 2013 'AA'