Smt. Sushma vs Union Of India
2014 Latest Caselaw 1950 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        FAO No.295/2012

%                                                       17th April, 2014

SMT. SUSHMA                                             ....Appellant
                         Through:    None.


                         VERSUS

UNION OF INDIA                                       ...... Respondent

                         Through:    Ms. Rashmi Malhotra, Advocate.

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

To be referred to the Reporter or not? Yes

VALMIKI J. MEHTA, J (ORAL)

1. This first appeal under Section 23 of the Railway Claims

Tribunal Act, 1987 is filed by the widow of the deceased Sh. Surendra

Kumar who died in an untoward incident of falling from the Ranikhet

Express train while travelling from Delhi to Moradabad on 3.9.2010. The

'untoward incident', as per the meaning of the expression in Sections 123(c)

and 124-A of the Railways Act, 1989, took place near Kuchesar Road

railway station i.e at a point in between the journey from Delhi to

Moradabad.

2. The case as pleaded by the appellant before the Tribunal was

that while travelling from Delhi to Moradabad by Ranikhet Express on

3.9.2010 when the train was near Kuchesar Road railway station, the

deceased Sh. Surendra Kumar got up for going to the toilet, and then he fell

down from the train and died as a result of this untoward incident/accident.

The journey ticket was in the cloth bag which was with the deceased Sh.

Surendra Kumar when he fell down from the train and therefore the journey

ticket was lost and accordingly could not be filed and proved before the

Tribunal. However the travel by the deceased in the train was proved by the

mother-in-law who was also travelling with the deceased in the train.

3. The Tribunal has essentially given the following reasons to

dismiss the claim petition:-

(i) No journey ticket was recovered from the person of the deceased Sh.

Surendra Kumar and therefore the deceased was not a bonafide passenger.

Tribunal has buttressed this reasoning by observing that there was no reason

for the deceased Sh. Surendra Kumar to have carried his bag when going to

the toilet although the deceased very much had a seat in the train.

(ii) The position of the body lying in the tracks was such that, that

position could not be so if the deceased had fallen down from the train.

(iii) The mother-in-law Smt. Jagir Kaur who deposed as AW2 is said to

have made contradictions in her deposition because she claimed to have

reached the accident site near the Kuchesar Road railway station after

coming from destination at Moradabad at 10.30 A.M, but, the police records

that she/Smt. Jagir Kaur was present at 9.00 A.M. in the morning for

identification of the body of the deceased Sh. Surendra Kumar.

4. In my opinion, the Railway Claims Tribunal has misdirected

itself to say the very least. The fact of the matter is that the liability of the

Railways is a strict liability in terms of Section 124-A of the Railways Act,

1989 as held by the Supreme Court in the cases of Jameela & Ors. Vs.

Union of India (2010) 12 SCC 443 and Union of India Vs. Prabhakaran

Vijaya Kumar and Ors. (2008) 9 SCC 527.

5. Firstly, it bears note that the body of the deceased was indeed

found on the tracks, and which site is nowhere near the place of residence of

the deceased or a place where the deceased could have been because of any

purpose. Therefore, the body would be on the tracks only because the

deceased Sh. Surendra Kumar would have fallen down from the train.

Secondly, the Tribunal has committed an illegality in stating that there was

no reason why the deceased Sh. Surendra Kumar could have carried his bag

to the toilet inasmuch as the time of accident is about 2 O' clock at night and

surely there can be various reasons for the deceased Sh. Surendra Kumar to

have carried his small bag with him including either for the reason that the

mother-in-law Smt. Jagir Kaur at 2O' clock at night would be sleeping or

may not be in such complete awareness (drowsy) for the deceased Sh.

Surendra Kuamr to have felt confident to leave the small bag of his

belongings at the place where he was sitting in the train. After all theft of

unguarded luggage in trains is routine. Accordingly, the deceased Sh.

Surendra Kumar may have felt it desirable to carry his small bag containing

his belonging with him so as not to leave it unattended in a second class

bogie which would have many many passengers. Therefore, it cannot be

said that it is completely impossible and totally unnatural for the deceased to

carry his small bag alongwith him when he went to the toilet in the bogie at

about 2 O' clock at night.

6. Secondly, an important aspect to be noted is that the deceased

was just a labour class person travelling with his mother-in-law Smt. Jagir

Kaur AW2. When Smt. Jagir Kaur reached the destination at Moradabad, as

per the deposition which has come on record, she could not find her son-in-

law i.e the deceased Sh. Surendra Kumar. She thus made enquiries with the

Station Master who as a noble soul and helped the mother-in-law Smt. Jagir

Kaur by making certain telephone calls and it transpired that there was a

body lying near the tracks at Kuchesar Road railway station. Smt. Jagir

Kaur, AW2 thereafter went all the way back from Moradabad to the accident

site where she identified the body of her son-in-law before the police.

Surely, in such circumstances there can be minor discrepancies with respect

to timing of giving of statement to the police of identifying the dead body of

Sh. Surendra Kumar, and therefore not too much unnecessary inference

should be made out from the alleged contradiction that the police stated that

the body was identified by Smt. Jagir Kaur at 9.00 A.M. in the morning

whereas Smt. Jagir Kaur stated that she had reached the site at about 10.30

A.M in the morning. Really, the crux of the matter is that the identification

took place in the early part of the morning and hence not too much stress

should be laid in these type of cases to a difference in timing of 9.00 A.M or

10.30 A.M. and as has been done by the Tribunal.

7. It is relevant to note that if the death did not take place on

account of an untoward incident of falling from the train there was no reason

why the mother-in-law Smt. Jagir Kaur could be at Moradabad in the middle

of the night and the Station Master helping her by making phone calls and

thereafter of her/Smt. Jagir Kaur travelling in the night/early part of the day

back from Moradabad to Kuchesar Road railway station. There cannot be

hence any falsity about the case as put up on behalf of the

applicant/appellant in a case such as the present because the mother-in-law

Smt. Jagir Kaur cannot be said to have imagined the accident happening for

her first to be at the Moradabad railway station at night and then to reach

near the Kuchesar Road railway station in the night/early hours of the

morning.

8. In view of the above, I am of the opinion in the facts of the case

as stated above that once the body of the deceased was found lying on the

tracks, and the train travel was deposed to by Smt. Jagir Kaur taken with her

subsequent actions, it can be safely held that the deceased did in fact fall

down from the train and hence there was an 'untoward incident' in terms of

expression as found under Sections 123(c) and 124-A of the Railways Act,

1989.

9. So far as the aspect that train ticket was not found on the search

of the person/body of the deceased, all that is required to be noted and stated

is that it is not unknown that in many of these cases of untoward incidents of

falling from the train the ticket which is said to be lying in a small bag of the

deceased can get lost. Once bonafide travel in a train is otherwise

established, as in the facts of this case, this Court would be doing gross

injustice if it holds that the deceased was not a bonafide passenger travelling

on a train ticket simply because the train ticket is not recovered from the

person of the deceased or the belongings of the deceased.

10. That takes us to the final aspect of the conclusion of the

Tribunal that the positioning of the body on the tracks shows that the

deceased would not have fallen from the train. In this regard, I would like to

observe that I have in many cases held that there is no divine camera which

records the exact sequence of events and which can be replayed before the

Tribunal to give an exact judgment. After a person falls from a train, what

sequence of facts exactly take place, no one can recreate with certainty, and

it is nothing unusual if in certain cases after falling from the train the

passenger would have some amount of life left and have strength to get up

and thereafter again fall down on the adjacent tracks. Therefore, merely

because the body is found lying on the adjacent tracks in a particular

position does not necessarily negate the incident being an untoward incident

of falling from the train and each case have to be examined as per its own

peculiar facts.

11. In view of the above, appeal is allowed. Impugned judgment of

the Tribunal dated 16.4.2012 is set aside. Appellant alongwith her children

whose details are given in the claim petition will be entitled to the statutory

compensation of Rs.4 lacs in equal proportion. So far as those children of

the appellant who are minors are concerned; their portion of compensation

awarded to them; will be deposited in a fixed deposit in a nationalized bank

and only interest thereof will be used for the maintenance and upkeep of the

minors. In case, there is any requirement to withdraw lumpsum amount,

whole or in part, from the compensation being awarded to the minors, then

on such contingency/urgency existing it would be open to the appellant to

file an appropriate application before the Tribunal for withdrawing of whole

or part of the amount of the fixed deposit. On the minors achieving

majority, the fixed deposit alongwith interest be paid to them. Appellant and

the children of the deceased Sh. Surendra Kumar will also be entitled to

interest @ 7½% per annum simple from the date of filing of the petition

before the Tribunal and till the date of payment.

I note that appellant has not been represented during the hearing

of this appeal and therefore I direct the Registry of this Court to send a copy

of this judgment to the appellant both by registered post AD and through the

concerned process serving agency of the District Court nearest to the place

of residence of the appellant. Respondent is also directed to send a copy of

the present judgment to the appellant through its official who is posted at the

railway station nearest to the place of residence of the appellant/widow of

the deceased Sh. Surendra Kumar. Respondent will do the needful within

six weeks from today. Parties are left to bear their own costs.

APRIL 17, 2014                                VALMIKI J. MEHTA, J.
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