Delhi High Court
Menka Devi & Ors. vs Union Of India on 28 February, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No. 131/2011
% 28th February, 2014
MENKA DEVI & ORS. ......Appellants
Through: Mr. Davinder Nath Dewan, Adv.
VERSUS
UNION OF INDIA ...... Respondent
Through: Mr. J.P.Sharma, Adv.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This first appeal is filed under Section 23 of the Railway Claims
Tribunal Act, 1987 impugning the judgment of the Tribunal dated 13.8.2010
by which the Tribunal dismissed the claim petition filed by the
appellants/applicants who are the dependants of the deceased Sh.Lal Dev
Prasad. Appellant no.1 is the widow of late Sh. Lal Dev Prasad.
2. The facts of the case as pleaded by the appellants/applicants were that
Sh. Lal Dev Prasad on 26.2.2009 was travelling from Kodrama to New
Delhi by train 2381 Poorva Express when near the Khurja railway
station(Davar Station), he fell down from the train and died. The case
FAO 131/2011 Page 1 of 6
of the respondent/Railways before the Railway Claims Tribunal, and which
has been accepted by the Tribunal, was that the deceased at Davar Station
after getting down from the train was loitering on the railway tracks and he
got run over by another train no.2301 which was passing the Davar station.
Tribunal for this purpose has placed reliance upon the memo issued by the
Station Master at Davar which states that two passengers have been run over
by 2301 Express.
3. So far as the aspect that the deceased Lal Dev Prasad was a bonafide
passenger, the same has been found in favour of the appellants because the
certified copy of the ticket was filed and proved as Ex.AW1/5. The relevant
portion of the impugned judgment observing that the deceased did not fall
down from the train as per the police report Ex.AW1/3, but he died on
account of loitering in the tracks is contained in the following observations
of the Railway Claims Tribunal:-
"Regarding the nature of the incident, the applicants have
maintained that he fell from a train. In confirmation of this fact, the
applicant's counsel has drawn attention to the police report (AW1/3)
which states that in the opinion of the police, the death of Sh. Lal
Dev Prasad may have occurred due to fall from a train but for
definite confirmation, the body should be sent for postmortem.
However, the respondent has contested this version of the applicant.
The investigation report of the DRM has highlighted the Station
Master, Dawar's Memo (Page 6 of DRM's report) wherein it is
mentioned that that two passengers had been run over by 2301
FAO 131/2011 Page 2 of 6
Express. In point of fact, this memo gives the name of the two
passengers as Shri Kalicharan and Sh. Lal. Dev Prasad S/o Sh.
Chotan Mahto. The investigation conducted by the RPF clearly
concludes that while Shri Lal Dev Prasad was a passenger of 2381
Express, he was loitering on the line at Davar Station and was run
over by 2381 Express. There is no reason to discredit the
investigation done by the railways as it is based on the sole evidence
in the form of the Station Master's Memo which indicates the names
of those run over. This memo, in fact is the Railway's First
Information Report regarding the nature of the incident and factually
describes the incident. It is quite apparent that the police records
have indicated fall from a train either out of a misplaced sense of
trying to assist the claimants to get compensation or else, the
conclusion drawn in the result of shoddy investigation. In any case,
the evidence points to the fact that Sh. Lal Dev Prasad was run over
by 2301 Express while loitering on the railway line at Davar Station.
This issue is accordingly decided in favour of the respondent and
against the applicant."
(underlining added)
4. In my opinion, the Railway Claims Tribunal has clearly committed an
illegality in dismissing the claim petition inasmuch as, when we see the
memo prepared by the Station Master it does not show that Sh.Lal Dev
Prasad was run over while loitering on the tracks. The memo only states that
two passengers were run over by a train. Therefore, it is perfectly possible
and as was the case of the appellants, that the deceased fell down from the
train, and in which process, he could have been run over by a train 2301
Express at Davar Station.
5. It is settled law that the liability of the Railways as per Sections
123(c) and 124-A of the Railways Act, 1989 is a strict liability i.e even if the
FAO 131/2011 Page 3 of 6
passenger is negligent, Railways are liable unless the negligence becomes
criminal negligence or is a case of suicide or self-inflicted injuries. That the
liability is a strict liability is no longer res integra and so held by the
Supreme Court in the cases of Union of India Vs. Prabhakaran Vijaya
Kumar & Ors. (2008) 9 SCC 527 and Jameela and Ors. Vs. Union of India
(2010) 12 SCC 443.
6. In the present case, on the one hand the police report Ex.AW1/3
clearly states that on police enquiry which has shown that the deceased died
on account of fall from the train on the other hand, there was a memo of the
Station Master, Davar that two passengers were run over by the train.
However, as already stated above, the memo of the Station Master does not
show that the passengers were run over on account of their loitering on the
tracks and which case was pleaded by the respondent. I may state that there
is no eye witness whose evidence is led by the Railways that the eye witness
had seen or to whom someone said that the deceased Lal Dev Prasad died
while loitering on the tracks near the Davar station.
7. Learned counsel for the respondent very vehemently sought to argue
that nature of the postmortem report of the head injuries and other injuries
show that the deceased was run over, however, in my opinion, this argument
FAO 131/2011 Page 4 of 6
does not have substance for the reason that if a person after falling from the
train is run over by another train, postmortem report will necessarily show
injuries on account of the passenger being run over. It is not totally
unconceivable that after falling from the train, the person comes under
another train which is immediately passing by the train from which the
deceased is said to have fallen. In certain stations, the distance between the
two tracks is of course a specified distance, but in fact if really one
completely stretches out his hands while standing and holding the handle at
the door of train, it is possible even to brush another train which is passing
by. It is thus not inconceivable that Lal Dev Prasad after falling from train
in which he was travelling got crushed by another train which was passing
by at the Davar station namely 2301 Express.
8. Considering the strict nature of liability of the Railways, and the
intention of the legislature to give statutory compensation to a bonafide
passenger, and the fact that the deceased Lal Dev Prasad was undoubtedly a
bonafide passenger travelling on a valid train ticket, in my opinion, the
police report Ex.AW1/3 is to be believed in preference to the memo of the
Station Master at Davar Station and which in any case does not state that the
deceased died on account of loitering in the tracks.
FAO 131/2011 Page 5 of 6
9. In view of the above, the appeal is allowed. Statutory compensation of
Rs.4 lacs will be payable to the appellants and it will be equally divided
between the seven appellants/applicants. So far as the minor applicants who
are applicant nos. 3 to 5 i.e Master Sikander, Master Rajesh Kumar and
Baby Santoshi Kumari, are concerned, their shares will be deposited in a
fixed deposit in a nationalized bank and only the interest thereof will be
used for upkeep and maintenance of the minors. In case, if there is any
urgent necessity or there is a requirement to withdraw a lumpsum amount
wholly or in part, on such urgent necessity arising, an application can be
moved before the Railway Claims Tribunal which will decide the issue in
accordance with law.
The Manager of the bank will ensure that share of the compensation
monies only come into the hands of the appellants/applicants and more
particularly qua those persons who are minors being the applicants 3 to 5.
Parties are left to bear their own costs.
FEBRUARY 28, 2014 VALMIKI J. MEHTA, J.
ib
