Smt. Savita vs Union Of India
2014 Latest Caselaw 736 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         FAO No.278/2012

%                                                    7th February, 2014

SMT. SAVITA                                                 ..... Appellant
                          Through:       None.


                          Versus
UNION OF INDIA                                              ..... Respondent
                          Through:       None.


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 Railway Claims

Tribunal dated 10.2.2012 which has dismissed the claim petition filed by the

applicant/appellant who is the mother of the deceased Brijesh.

2.           The facts as pleaded before the Tribunal were that the deceased

Sh. Brijesh on 19.4.2010 early in the morning was returning from Palwal to

Faridabad by EMU train when the said Sh. Brijesh fell down from the train,

resulting in his death, and therefore the claim petition was filed.


FAO No.278/2012                                                       Page 1 of 6
 3.           A reference to the impugned judgment shows that the Tribunal

has gone into great details with respect to variations in train timings ignoring

the statement recorded of eye witness Mr. Salim Khan as Ex.AW1/6. As per

the DD entry Ex.AW1/4 the death is recorded at 6.15 hours and the Tribunal

holds that this timing is suspicious because the trains up and down from this

area were earlier at 5.55 hours and 5.20 hours. This is so stated in para 4.1

of the impugned judgment and which reads as under:-

     "4.1 Daroga Rai, RW-1, Deputy Station Supdt., Tughlakabad:-
     He deposed during oral evidence that on 19.4.10, at 6.15 hours in
     the morning, RPF Constable Rajinder Kumar informed that one
     dead body was lying at K.M 1518/27. He gave this information to
     GRP and Section Controller, New Delhi. The first DN train prior
     to receipt of this information was Train No.2779, which passed
     through Tughlakabad railway station at 5.55 hours. In the Up
     direction, 8238 had passed through at 5.20 hours. There was no
     information from Drivers and Guards of these trains about
     anybody falling from this train. During cross-examination, he
     deposed that I.O of this case never met him. He did not give his
     statement to the police, as nobody had come to take his statement.
       RW-1 filed a copy of TSR Record, RW1/1, copy of Untoward
     Incident, RW1/2 and Station Diary Book, AW1/3, which support
     the evidence of RW-1."

4.           The Tribunal also holds in para 4.4 that if the deceased was

travelling between Palwal and Faridabad, his body could not have been

found at Tughlakabad railway station and which is not in between Palwal

and Faridabad railway stations. This is so stated in para 4.4 of the impugned

judgment and which reads as under:-
FAO No.278/2012                                                   Page 2 of 6
      "4.4    The applicant has pleaded in the claim application that his
     son was returning from Palwal to Faridabad by EMU Train.
     However, as per Exht. RW1/2, RW1/3 and AW1/4, a dead body
     was found lying at K.M 1518/27 between Junction Cabin-
     Tughlakabad. Thus, the incident happened between Junction Cabin
     and Tughlakabad railway station and not between Palwal and
     Faridabad Railway Stations, as alleged in the claim application."

5.           I have held in a number of cases that it is not possible for the

dependents of the deceased to recreate the entire chain of events perfectly

and methodologically, including the train numbers on which the deceased

had travelled, inasmuch as, the deceased obviously is no longer alive and

there is/was no person who was travelling with the deceased. The claim

petition is therefore filed on the basis of best available information which is

received and therefore the Tribunal cannot weigh facts in a golden scale with

strictness as to timings of train once especially there is an eye witness, more

so an independent eye witness to the incident.           That there was an

independent eye witness Mr. Salim Khan to the incident, and who gave a

statement which is recorded in DD No.5A (Ex.AW1/5) on the same date of

the incident and around the same time, is clear from paras 3.4.2 to 3.4.3 of

the impugned judgment which read as under:-

     "3.4.2          DD No.5-A dated 19.4.10 (Brief Facts, AW1/5):- It
     discloses that the deceased could not be indentified at spot. His
     photographs were taken. No item was recovered from the person of
     the deceased during Jamatalashi. One person, whose name was
     Salim Khan, told at the spot that the deceased, who was travelling by
FAO No.278/2012                                                  Page 3 of 6
      EMU Local, fell down from the train, which was going from
     Faridabad to Tughlakabad.         Subsequently, the deceased was
     identified as Brijesh @ Bunty by his brother Mukesh and maternal
     uncle Subhash in the Police Station.

     3.4.3          Statement of Salim Khan, the alleged eyewitness to
     the incident (AW1/6):- He stated that on 19.4.10 in the morning, he
     was going to Pul Prahladpur for his work. At that time, one EMU
     Train, which was crowded, was coming from Faridabad side and one
     boy suddenly fell down from the train, sustained grievous injuries
     and died on the spot."

6.           Clearly therefore there was an independent witness who gave a

statement that the deceased fell down from the train. If this statement had to

be disbelieved, it was upon the respondent to have summoned this witness

and the Tribunal wrongly holds that it was the applicant/appellant who had

to summon this witness. Address of the witness was also mentioned in the

DD entry and therefore the DD entry being a public document can always be

read in evidence especially because none of the dependents of the deceased

was travelling with the deceased and the statement of Sh. Salim Khan who

was a third person independent eye witness of the incident, and the same

should not have been disbelieved. It is settled law that Tribunal is not bound

by the strict rules of the CPC with respect to proof of documents and also of

the strict procedure under the Evidence Act, 1872 because Tribunal can

regulate its own procedures. This is specifically mentioned in Section 18 of

the Railway Claims Tribunal Act, 1987.
FAO No.278/2012                                                 Page 4 of 6
 7.           Accordingly, the claimant had proved her case of the untoward

incident on account of falling from the train of her deceased son Sh. Brijesh.

In the facts of the present case, therefore besides the fact that the deceased

died in an untoward incident as per the meaning of the expression in Section

123(c) read with Section 124-A of the Railways Act, 1989, there is sufficient

reason also that the train ticket could not have been recovered because it is

not unknown that in such circumstances train ticket can be lost.            The

deceased Sh. Brijesh was thus a bonafide passenger and it is so held.

8.           In view of the above, the impugned judgment of the Tribunal is

set aside by allowing the appeal. Appellant will be entitled to the statutory

compensation of Rs.4 lacs alongwith interest at 6% per annum simple from

the date of filing of the petition and till the time the compensation is paid or

the amount is deposited before the Railway Claims Tribunal. The payment

should be made to the appellant by means of account payee cheque or pay

order and the bank which makes the payment to the appellant will ensure the

identity of the appellant/applicant before disbursing the amount under the

claim.   Also, not more than 25% of the awarded amount should be

withdrawn in six months in a year and if there is otherwise an urgent

requirement to exceed this withdrawal, the appellant can move an

appropriate application before the Railway Claims Tribunal which will
FAO No.278/2012                                                   Page 5 of 6
 examine the urgency of withdrawal of compensation of more than 25%

amount in six months period of the year.

9.           Appeal is allowed and disposed of in terms of aforesaid

observations, leaving the parties to bear their own costs.




FEBRUARY 07, 2014                             VALMIKI J. MEHTA, J.

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