Delhi High Court

Uoi Through General Manager ... vs Triveni W/O Late Shri Ram on 18 February, 2014

Author: Valmiki J. Mehta

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+                                  FAO 379/2013
%                                                             18.02.2014

      UOI THROUGH GENERAL MANAGER NORTHERN RAILWAY
                                               ..... Appellant
                   Through: Mr. Amit Dubey, Adv.

                          versus

      TRIVENI W/O LATE SHRI RAM                  ..... Respondent
                    Through: Mr. D.K.Sharma with
                              Ms. Nidhi Vashistha, Advs.

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

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1.             Strange are the ways in which Government Departments work.

In this case the concerned Government Department is the Railways. All I

can state is that for no reason frivolous and irresponsible appeals are filed,

and the Court fails to understand on the basis of what and whose legal

opinion. I am forced to make these observations because there are cases in

which on even a cursory assessment of the impugned judgment, a reasonable

view could have been taken for not filing of this appeal, however, I note that

routinely appeals are being filed.       This appeal as the discussion below


FAO 379/2013                                                 Page 1 of 9
 demonstrates, a total lack of application of mind on the part of the

appellant/Railways causing unnecessary costs to the appellant.

2.             The judgment of the Tribunal in this case is very well written

and a very thorough judgment, and relevant portions of which I will

reproduce below, however suffice to state that the admitted position on

record is that the deceased Sh. Ram on 24.5.2010 was trampled by the rush

of the passengers in the railway bogie. There is no dispute that the deceased

was a bonafide passenger and the ticket was filed and exhibited as Ex.A1/13

for travel from Agra Cantt. to New Delhi. Relevant reports are prepared by

the Railway Authorities themselves, including the Railway Police, of the

deceased suffering serious head injuries and breakage of ribs on account of

being trampled inside the bogie. Also, there are sufficient findings on record

that the Railway Police itself sent the deceased to the hospital for treatment.

The deceased was found in an unconscious state by a PCR van near Sarai

Kale Khan on 24.5.2010, and which aspect cannot take away the factum

with respect to the undisputed position emerging out of the serious injuries

to the deceased on being trampled upon in the bogie of the train during his

travel. The relevant portions of the impugned judgment, and with which I

completely and wholly agree and therefore am not giving               my own

FAO 379/2013                                                  Page 2 of 9
 reasoning, read as under:-

      "Issue No.2:-
              According to the applicants, the deceased was travelling on
      Mangala Express from Agra to New Delhi on 24.5.2010 in a general
      compartment after purchasing a valid train ticket bearing
      No.60859606. The applicant has produced the said ticket, Ex.
      AW1/13, which shows that it was issued for journey on 24.5.2010
      from Agra Cantt. to New Delhi at a cost of Rs.46/-. It is significant
      to note that the said ticket finds mention in Ex. AW1/8. Brief Facts

of the case, recorded by the Railway police on 9.6.10 on the death of the deceased. In the DRM Report also, produced by the respondent, a reference is made to the said ticket number while mentioning that the deceased was travelling by the said train. That the deceased was, in fact, found lying in the general compartment of Mangala Express at Nizamuddin Railway Station when the train reached at about 1.30 p.m. on 24.5.10, is borne out by the various DDs entered by the police and also the DRM Report. In view of the fact that the ticket was found recovered from the person of the deceased, and the same is referred to in the police records with reference to its number, coupled with the fact that the deceased was in fact found inside the compartment itself when the incident occurred, would go to show that he was a bonafide passenger travelling with a valid ticket. Though the respondent has alleged in the written statement that the deceased was not a bonafide passenger, it is not shown by them as to how the ticket is invalidated. The evidence adduced by them also indicates that the deceased was a bonafide passenger in view of the testimony of RW-2, ASI, who deposed that the injured was found with injuries and in an unconscious state inside the compartment and then he sent him to the hospital. In cross-examination, RW-2 categorically admitted that the ticket from Agra to new Delhi was found on the person of the deceased and a cash of about Rs. 2,500/- besides some other household items like rice and dal were also found. In the circumstance, it is held that the deceased was bonafide passenger at the relevant time of the incident. This issue is answered accordingly in favour of the appellant.

Issue Nos. 3 and 4:-

These two issues are inter-linked, and hence, are being considered together. The case of the applicant is that the general

compartment of the train was over-crowded with passengers and the deceased could get only a standing space near the gate of the compartment, and when the train reached Nizamuddin Railway Station, in the mad rush to get down, there was a thrust, as a result of which, the deceased fell inside the compartment and sustained head injury and he was trampled upon by other passengers causing other injuries including fracture of ribs and he because unconscious and was shifted to AIIMS, New Delhi, where he died on 9.6.10 while undergoing treatment in the hospital. The respondent contended that the death of the deceased was not on account of an untoward incident. In the DRM Report, the respondent went to the extent of saying that the deceased might have died because of his old age or some disease. The deceased was stated to be aged around 60 years, which cannot, going by the present day norms of longevity, be considered as a ripe old age. The Postmortem Report, AW1/12 and MLC of AIIMA, New Delhi would show that the cause of death was shock due to septicemia consequent upon the ante mortem injuries noted in the report. It is to be noted that the ante mortem injuries, which are recorded, developed septicaemia, which ultimately led to the death of the deceased as per the above medical report. Therefore, the real cause for the death is the injuries sustained by the deceased, to which he succumbed during the course of treatment, as they got infected with septicaemia. The Postmortem Report and the M.L.C. would show that the deceased suffered a lacerated wound on the left side of the forehead and first five ribs were found fractured anteriorily on the left side associated with a haematona and first four ribs anteriorily on the right side associated with haemotona.

Ex.AW1/12 also states that an unknown patient was found by PCR Van near Sarai Kale Khan in unconscious state on 24.5.10 and admitted to AIIMS Casualty, New Delhi on 24.5.10 and the patient died on 9.6.10 at 10.35 p.m. From the above recital in the hospital record, the learned counsel for the respondent would contend that the patient was found near Sarai Kale Khan, but not in the railway compartment at Nizamuddin Railway Station, as claimed by the applicant. It is to be noted that in the same medical record, it is also mentioned that "H/o falling from train is present." Firstly, by the time the deceased was brought to the hospital on 24.5.10, his identity was not established and he was in unconscious state to disclose his identity. Ex. AW1/12 shows that the deceased was unfit to make

statement continuously for days. Secondly, he is said to have been brought to the hospital in an ambulance of Alpha CAT. RW-2 (A.S.I) stated in his evidence that on seeing the deceased in a injured condition in the railway compartment, he had sent him to the hospital by a van. Ex. AW1/2, the earliest DD Entry 11-A, made at 1.25 p.m immediately after the deceased was found in hte compartment, also makes reference to RW-2, being the A.S..I. and Ex.AW1/3 (DD Entry 34-B) entered at 8.20 p.m. shows that the A.S.I. has arranged to send the injured, who was in unconscious state, in ambulance to AIIMS, New Delhi. Further, Ex. AW1/12 (MLC) would show that the injured was brought to the hospital by Alpha 6 CAT. From the evidence on record, particularly the testimony of RW-2 (ASI) himself, it is clear that the injured was found inside the railway compartment and he was sent by the Railway police to the hospital by an ambulance. The fact that in Ex. AW1/12, it is noted that he was found at Sarai Kale Khan, which entry is obviously made on the information furnished by someone who brought the injured to the hospital, is of no consequence and it does not overweigh the other evidence especially the records of the railway Police themselves, which show that the deceased was found with injuries, in unconscious state, inside the compartment. Further, it is not disputed that Nizamuddin Railway Station and Sarai Kale Khan are close-by t each other, and it is quite possible that the informant might have stated at the time of admission of the injured in the hospital that he was brought from Sarai Kale Khan instead of Nizamuddin Railway Station. Be that as it may, the various entries contained in the police records coupled with the testimony of RW-2 would clearly establish that the deceased was found lying unconscious inside the railway compartment on the afternoon of 24.5.10, when the train arrived at Nizamuddin Railway Station.

The respondent examined Shri K. K. Chakraborty, Deputy Station Supdt. Hazrat Nizamuddin railway station as Rw-1, who testified that no untoward incident came to his knowledge during his duty hours on that afternoon nor did he issue any Memo to any authority regarding any untoward incident. Ex. AW1/2 (DD Entry 11-A dated 24.5.10) was read over to RW-1. In the said document, it is stated that a telephone message was received from Dy. Station Supdt., regarding the incident, wherein, a passenger was found with injuries in the general compartment of Mangala Express behind the

engine on Platform No. 6. RW-1 has stated that as per the record and as far as he remembers, no such information was given by him to GRP/RPF or any other authority. He could not say why this information has been recorded in the DD Entry 11-A dt 24.5.2010. RW-1 was examined on 18.5.11 almost one year after the incident in question. He cannot, therefore, be expected to speak from his memory as to whether any such information was given by him to the railway police on telephone, as noted in DD Entry 11-A. What all the evidence of RW-1 would show is that he has not made any entry in the station records pertaining to the incident. Though, normally wherever such unusual incident comes to his knowledge, he has to admittedly inform the GRP.RPF and also issue Memo to the concerned authorities, it is quite possible that RW-1 simply informed the police by phone without issuing any written Memo. There is absolutely no reasons as to why the police should take the name of Dy. Station Supdt. In the DD Entry 11-A, if really such information was not received. The failure, if any, on the part of RW-1 to keep a record of the incident cannot come in the way of the applicant when the other evidence on record clearly shows that the deceased was in fact found with injuries and in unconscious state inside the compartment. The contention of the respondent that the deceased might have dies elsewhere due to some other cause, but not on account of any untoward incident cannot, therefore, be appreciated in the light of the evidence on record.

The material available on record clearly establishes that the deceased was a bonafide passenger with a valid ticket. He was found lying with a head injury and multiple fractures on the ribs in the compartment, to which he succumbed later. Admittedly, he was travelling alone and not accompanied by any family member. Obviously, when he boarded the train at Agra Cantt on that morning, he must have been hale and hearty without any such injuries. It is only during the travel and before he could get down from the compartment at the destination station that he sustained the above injuries. RW-2 has stated that on receiving the information, he reached the compartment and found the deceased lying with injuries, and outside the compartment, there were co-passengers, who stated to him that the deceased fell inside the compartment and there was heavy rush inside the train compartment. When the passenger has sustained injuries on account of a fall due to over-crowding in the

compartment, it certainly amounts to an untoward incident and cannot be terms as self-inflicted injuries. The applicant cannot be expected to adduce any direct evidence of an eyewitness to the incident given the summary nature of the proceedings especially when the deceased was travelling alone and not accompanied by any family members or friend. The fact that the deceased suffered a head injury and multiple fractures of ribs would probabalize the version of the applicant that the deceased fell and he was trampled upon by the passengers in the mad rush to get down from the compartment. In view of the beneficial purpose and benevolent objective behind the salutary provisions contained in Section 123 and 124-A of the Railways Act, 1989, the expression untoward incident needs to be given a wider connotation. The expression untoward incident is defined in Section 123 (c) as meaning among other things the accidental falling of any passenger from a train carrying passengers. The expression accidental falling is not defined. In Union of India vs. Prabhakaran Vijaya Kumar, 2008 ACJ 1895 (SC), the Hon'ble Supreme Court held as follows:-

"In our opinion, if we adopt a restrictive meaning to the expression accidental falling of a passenger from a train carrying passengers' in Section 123(c) of the Railways Act, we will be depriving a large number of railway passengers from getting compensation in railway accidents. It is well known that in our country there are crores of people who travel by railway trains since everybody cannot afford travelling by air or in a private car. By giving a restrictive and narrow meaning to the expression we will be depriving a large number of victims of train accidents (particularly poor and middle class people) from getting compensation under the Railways Act. Hence, in our opinion, the expression 'accidental falling of a passenger from a train carrying passengers' includes accidents when a bona fide passenger i.e. a passenger travelling with a valid ticket or pass is trying to enter into a railway train and falls down during the process. In other words, a purposive, and not literal interpretation should be given to the expression."

In view of the above decision of the Hon'ble Apex Court holding that a purposive but not literal interpretation should be given to the expression accidental falling, the fall of the deceased inside the compartment on account of a thrust received due to over-

crowding and getting trampled upon by other passengers, who were in a hurry to get down would certainly amount to an untoward incident within the meaning of Section 123 (c) of the Railway Act.

In 2011 ACJ 799 (Sahadeo Singhu Sanas & Ors Vs. Union of India), the Hon'ble High Court of Bombay relied upon the above decision of the Hon'ble Apex Court and held that the wording of Section 123 (c) (2) does not require that he should necessarily fall outside the train. The emphasis of the said definition untoward incident is on the accident and once the accident has occurred, not much importance can be given as to whether the body of the passenger falls inside or outside the train. Thus, though the provision contained under Section 123(c) (2) mentions the words "from a train", the same have been interpreted in various judicial pronouncements as including an accidental fall inside the compartment also by resorting to the doctrine of purposive interpretation. In these circumstances, it is held that as the deceased sustained injuries, to which he succumbed later, on account of accidental fall, it is held that the same would amount t an untoward incident within the meaning of Section of Section 123(c) and 124-A of the Railways Act, 1989. The evidence on record does not establish that any of the exceptions contained in Section 124-A of the Railways Act, 1989 is attracted so as to exonerate the respondent from their liability to pay compensation. This issue is answered in favour of the applicant."

(underlining added)

3. I would only like to state one fact that it is not even disputed on

behalf of the appellant before me that the expression "untoward incident"

does not mean that it does not include an incident in which a person dies on

account of falling inside the train. The meaning of the expression "untoward

incident" under Section 123 (c) read with Section 124-A of the Railways

Act, 1989 makes it more than abundantly clear that falling of a passenger

from a train is an untoward incident and there is no requirement of Section

123(c) (2) that the falling of the passenger from the train must be outside the

train. The Tribunal has also rightly held that being trampled upon within the

train falls within the meaning of untoward incident.

4. In view of the above, there is no merit in the appeal, and same