Delhi High Court
Neksi Devi & Ors. vs Union Of India on 23 April, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO Nos. 130/2012 &conn.
% 23rd April, 2014
+ FAO 130/2012
+ FAO 131/2012
+ FAO 132/2012
NEKSI DEVI & ORS. .... Appellants
RADHEY SHYAM .... Appellant
RAVI .... Appellant
Through Mr. Anshuman Bal, Advocate
versus
UNION OF INDIA ..... Respondent
Through Ms. Rashmi Malhotra,
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. These are three connected appeals. Three connected claim petitions
were dismissed by the Tribunal. Three claim petitions were filed because
with respect to the three persons there was a common accident. Out of the
three persons two persons died, namely Sanjay and Rohit and whose legal
heirs have filed appeals being FAO No. 130/2012 and FAO No. 131/2012.
FAO 130/12 &conn. Page 1 of 6
Third person, namely, Ravi did not die in the accident unlike Sanjay and
Rohit but he suffered grievous injuries including fracture of his leg and he
has filed the appeal being FAO No.132/2012.
2. There is strong evidence on both sides in these cases and which really
makes the fate of these cases hang in balance. On the one hand statement
was made by Ravi immediately after the accident of his having fallen from
the concerned train, with the fact that the monthly season ticket of Sanjay
was recovered from the search of his person showing possibility of a train
travel, on the other hand, the respondent/Railways had also led credible
evidence in the form of the statement of the Gateman at the Phatak where
the accident took place stating that the accident took place not on account of
a fall from the train but these three persons were pushing a goods carrier
being a Tempo/Vikram auto and though they were successful in pushing
away the Vikram auto from the tracks, the three persons were hit by the train
and which resulted in the accident. The statement of the gateman Sh. Tek
Chand is corroborated by an independent witness Sh. Naresh Kumar, whose
wooden kiosk was located immediately adjacent to the railway phatak.
3. Learned counsel for the appellants argues that the statement of Sh.
Tek Chand and Sh. Naresh Kumar were recorded by the Tribunal suo moto
FAO 130/12 &conn. Page 2 of 6
after the evidence of the respondent/Railways was complete but in spite of
the fact that the appellants moved an application to summon additional
witness being the Investigating Officer in the case, Tribunal declined the
request. It is argued that appellants in the facts of the present case where the
Tribunal suo moto acted to record the statement of Sh. Tek Chand and Sh.
Naresh Kumar, the Tribunal ought to have given opportunity to the
appellants to lead the evidence of the Investigating Officer in the case. I
agree.
4. In my opinion, crucial evidence in this case, and which may in fact
would have a very definitive effect for deciding the cases will be the
statement of the auto driver of the goods carrier/Vikram auto. This auto
driver ran away from the spot after the Vikram auto over turned due to the
accident. Unfortunately, none of the parties summoned this auto driver and
who would have given the best evidence as to whether the accident took
place on account of the falling of the three persons from the train or that
these three persons were in fact pushing the auto. Fortunately, the
registration number of the auto is on the record of the Tribunal and which is
DL 1LL 7522.
FAO 130/12 &conn. Page 3 of 6
5. The facts of this case accordingly persuade me to exercise my powers
contained in Order 41Rule 27 CPC for the court to do complete justice and
to remove any doubt which exists in the evidence with respect to happening
or not happening of an untoward incident. I also exercise my powers under
Section 165 of the Evidence Act,1872 which permits every court to allow
evidence to be brought in at any stage so that justice is not a casualty.
6. In view of the above, the appeals are disposed of with the direction
that appellants will be permitted to lead evidence of the Investigating Officer
in the case and the Tribunal will summon the driver of the goods
carrier/Vikram auto as a court witness and after recording of whose
statement the claim petitions would be decided afresh unaffected by the
impugned judgments dated 25.11.2011 which are set aside. Of course, by
setting aside of the judgments nothing is expressed one way or the other on
merits, for and against any of the parties to the appeals or to the main claim
petition, and the claim petition will be decided in accordance with law after
the fresh evidence as aforesaid has been led.
7. It may be stated that either of the parties or preferably both the parties
will make necessary investigations from the concerned road transport
authority with respect to address and particulars of the driver of the goods
FAO 130/12 &conn. Page 4 of 6
carrier/auto driver and such details will be filed before the Tribunal to issue
summons for the appearance of the driver of the Vikram auto. The Tribunal
will be entitled to take assistance of the police to ensure presence of the
driver of the Vikaram auto so that his evidence comes before the Tribunal
for deciding the claim petitions.
8. In view of the above, appeals are allowed by setting aside of the
impugned judgments dated 25.11.2011 and remanding the claim petitions for
decision afresh by the Tribunal after recording evidence of the I.O. in the
case as a witness of the appellants and the driver of the Vikram auto as a
witness of the Railways. Both the parties also agree that this witness would
be the best witness to depose with regard to the accident in question as to
whether the accident is or is not an 'untoward incident' as per the meaning
of the expression as found in Sections 123(c) and 124-A of the Railways
Act, 1989.
9. Appeals are accordingly disposed of and remanded with the aforesaid
observations, leaving the parties to bear their own costs.
10. Parties to appear before the Railway Claims Tribunal on
29.5.2014 for further proceedings. Records of the Railway Claims Tribunal
FAO 130/12 &conn. Page 5 of 6
be sent back so that the same are available to the Tribunal on the date fixed.
APRIL 23, 2014 VALMIKI J. MEHTA, J.
godara
