Union Of India vs Durga Devi & Ors.
2014 Latest Caselaw 1882 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           FAO No. 97/2012
%                                                         15th April, 2014
UNION OF INDIA                                            ......Appellant
                            Through:     None.


                            VERSUS

DURGA DEVI & ORS.                                        .... Respondents
                            Through:     Mr. Yogesh Swaroop, Adv.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

CM No. 4092/2012 (delay of 42 days)

      For the reasons stated in application delay in filing the appeal is

condoned. CM stands disposed of.

FAO 97/2012 & CM No. 11219/2012 (stay)

1.    No one appears for the appellant, although it is 4.10 PM. I have heard

the counsel for the respondents and after perusing the record am proceeding

to dispose of the appeal.

2.    This first appeal is filed under Section 23 of the Railway Claims

Tribunal Act, 1987 impugning the judgment of the Tribunal dated 21.9.2011


FAO 97/2012                                                                 Page 1 of 5
 by which the Tribunal allowed the claim petition filed by the respondents

herein. Claim petition was allowed for the statutory compensation of Rs.4

lacs on account of death of Sh. Banwari Lal, and who was the husband of

respondent no.1 herein. The other respondents are sons and daughters of

late Sh. Banwari Lal.

3.    The facts of the case are that Sh. Banwari Lal was travelling on

25.6.2007 from Delhi Junction to Nangloi Railway Station in Train No. 1-

DR and while passing through Km. 16/4-5 near Kavita Colony, Phatak No.2,

Nangloi Railway Track, on account of sudden jerk and jolt of the train, Sh.

Banwari Lal fell down from the train and died in the untoward incident as

per the meaning of the expression found in Section 123(c) and Section 124-

A of the Railways Act, 1989.

4.    The Railway Claims Tribunal has allowed the claim petition by

making the following observations.

      "ISSUE NO.1 & 2
      Since both the Issues are co-related, these are taken up for
      consideration simultaneously for the sake of convenience.

      The case of the applicants is that on 25th June 2007, Sh.
      BanwariLal purchased second class ordinary railways ticket
      from Delhi Junction for journey upto Nangloi railway station.
      The claimants have also alleged in the claim petition that purse
      containing money & railway journey ticket was lost in the
      accident. It is admitted case of the parties that no ticket was
FAO 97/2012                                                              Page 2 of 5
       recovered from the possession of the deceased, and, the body of
      the deceased was identified by Sh. Sunil Kumar, who is the son-
      in-law of the deceased. On 25th June 2007 the statement of Sunil
      Kumar was recorded by A.S.I., who has stated that his father-in-
      law came along with him to the Old Delhi Railway Station
      where he purchased a railway ticket for his father-in-law for 1-
      DR train, for journey up to Nangloi Railway Station, and, in his
      presence, his father-in-law, Sh. Banwari Lal boarded 1-DR
      train, and, thereafter he received a telephonic message from
      Chowki Kishanganj about his death. The statement of Durga
      Devi was also recorded by A.S.I. on the same day i.e. 25 th June
      2007. The respondent has filed a copy of the massage, which
      was received at 11.24 hrs. From the driver of good train
      TKD/EBCNUCA along with the D.R.M.'s Report, and
      according to this message, the driver of the goods train
      informed Station Supdt., Nangloi that 'a man run over the
      train'. According to the respondent, the passenger train 1-DR
      reached Nangloi railway station at about 11.38 hrs. The learned
      counsel for the respondent has relied upon Section 191 of the
      Railways Act 1989, but in support of their case, the respondent
      has not adduced any oral evidence to prove the contents of the
      message, which was received by the Station Supdt., Nangloi
      from the driver of the goods Train. The driver fo the goods train
      was a material witness in the instant case to prove that the
      deceased died due to run over from the train, of which he was
      the driver, on the relevant day. It is admitted case of the parties
      that the body of the deceased, Sh. Banwari Lal, was recovered
      from the track, and, from the message, it is also evident that the
      driver has also conveyed to station Supdt. Nangloi that a body
      in the track at Kms. 16/4-5 Up Line between SSB/NNO is lying.
      The respondent has also not adduced any oral evidence to prove
      that passenger train no. 1-DR left Shakurbasti at 11.26 hrs. And
      reached Nangloi railway station at 11.38 hrs. The C.M.I., who
      submitted the Report dated 12th May 2011, was also not
FAO 97/2012                                                                 Page 3 of 5
       examined by the respondent to prove the Report. There is also
      no oral evidence adduced byte respondent that the deceased was
      not a bonafide passenger of the train on the relevant day. The
      Judgments, which have been cited by the learned counsel for the
      applicant reported in 2009 (1) T.A.C. 644; 2005 ACC page 126;
      2011 ACC 88 specifically provides that oral evidence is needed
      to prove the allegation made in the written statement. The
      contents of the statement of Sh. Sunil Kumar, which was
      recorded by the A.S.I on 25th June 2007, cannot be ignored, as
      he has specifically stated that he along with the deceased went
      up to Old delhi railway station, and, he purchased an ordinary
      second-class ticket for 1-DR train for his father-in-law. The
      statement of applicant no. 1, Smt. Durga Devi, was also
      recorded by the A.S.I. on 25th June 2007, and, she has also
      stated that her husband has fell down for the moving train. I,
      therefore, hold that the deceased, Banwari Lal, was a bonafide
      passenger of the train no. 1-DR on 25th June 2007. Issue no. 1 is
      decided in favour of the applicant.

      The body of the deceased was recovered from the railway
      station. There is no evidence adduced by the respondent to the
      effect that Banwari Lal committed suicide. The applicants are
      successful in establishing that the deceased while travelling in
      the train fell down, had sustained injuries which eventually led
      to his death. I, therefore, hold that it is an untoward incident
      prescribed under Station 123(c) of Railways Act 1989. The
      Issue no. 2 is decided in favour of the applicants and against the
      respondent."

5.    I do not find any illegality in the judgment of the Tribunal inasmuch

as no doubt the train ticket was not found, however, it is not unknown that

train tickets in considerable number of cases get lost when the passenger

falls from a moving train. There is no malafides of the respondents/claimants
FAO 97/2012                                                                Page 4 of 5
 because on the same date of the incident mention is made of the train travel

by both the widow/respondent no.1 and son-in-law of the deceased Sh. Sunil

Kumar. The Railway Claims Tribunal has rightly held that driver of the

goods train who talked of a body lying on the tracks and even if this

deposition of driver is considered, at best that will show a body lying on the

tracks and not that the deceased did not fall down from a running train.

      I may at this stage mention that the original claim petition was filed

with a delay of 503 days, and which delay was condoned by the order of the

Tribunal dated 4.5.2010. This order was not challenged by the appellant and

the same has become final. The delay in filing the claim petition in fact

shows that respondents/claimants would have no malafides of mentioning

the factum of happening of an untoward incident of falling from the train,

inasmuch as, if the claim was a make believe one, the same would have been

filed immediately after the accident and not after a delay of 503 days i.e after

the expiry of period of limitation.

6.    There is hence no merit in the appeal, and the same is therefore

dismissed, leaving the parties to bear their own costs.




APRIL 15, 2014                                    VALMIKI J. MEHTA, J.

ib