Raj Pal Goel And Anr. vs Union Of India
2014 Latest Caselaw 258 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         FAO No.312/2011

%                                                     15th January, 2014

RAJ PAL GOEL AND ANR.                                     ......Appellants
                  Through:               Mr. D.K. Sharma, Advocate.

                          VERSUS

UNION OF INDIA                                           ...... Respondent
                          Through:       Mr. Sandip Kumar, Advocate.

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

To be referred to the Reporter or not?     Yes


VALMIKI J. MEHTA, J (ORAL)

1.           The challenge under Section 23 of the Railway Claims Tribunal

Act, 1987 is to the impugned judgment dated 29.4.2011 by which the claim

petition was dismissed.


2.           The Railway Claims Tribunal dismissed the claim petition on

the ground that the facts in the present case do not show any untoward

incident as per Section 123(c) and Section 124A of the Railways Act, 1989

because the deceased was travelling on the roof of the train. Travelling on

roof of the train therefore in effect amounts to criminal negligence and self-

inflicted injuries whereby Railways are not liable.

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 3.           The relevant observations made by the Railway Claims

Tribunal in this regard are contained as under:-


     "From the perusal of record and arguments advanced by the parties, I
     observe that onus lies on the applicants to prove the „untoward
     incident‟ and if the respondent takes the plea of exceptional clause to
     the proviso of section 124 A of the Railways Act 1989 in their
     pleadings, then the onus shifts towards the respondent‟s side. In order
     to prove the exceptional clause (b) to the proviso of section 124A of
     the Railways Act, 1989 the respondent relied upon the Police
     Investigation Report R1, total containing 23 pages, and DRM Report
     RW1/A alongwith the evidence of Sh. Rajinder Meena, Inspector
     Police Station Delhi Cantt., who was I.O. of the case. RW1 Sh.
     Rajinder Meena, Inspector Police Station Delhi Cantt. in his
     examination in chief stated that on 23.2.2006, he was chowki incharge
     of Shahdara police post and he conducted the Investigation of the case
     vide DD No.8, dated 23.2.2006, PP Railway Shahdara, Old Delhi
     Railway Station and during the investigation, the statements of Sh.
     Sanjay (brother of the deceased) and one Prem Chand were recorded
     by the police and the same were verified by the I.O. The aforesaid
     statements of the witnesses alongwith their signatures were placed at
     pages 20, 21 & 23 of the Police Investigation Report R1, which was
     submitted before the Tribunal by the I.O. Sh. Rajendra Meena. I also
     observed that the signature of Sh. Sanjay (brother of the deceased) at
     pages 20 & 23 of the Police Investigation Report R1, were compared
     with the signature of Sh. Sanjay (brother of the deceased), who was
     examined as AW1 before the Tribunal on 16.7.2007 and both the
     signatures were tallied/matched with each other. Hence, it is clear that
     statement, which was recorded later on before the Tribunal was not
     found trustworthy, because was an after thought and the earlier
     statements of Sh. Sanjay, recorded during investigation, were not
     tutored one, because there was absolutely no valid reason for the
     concerned police official to record the false statement of the aforesaid
     witness, Sh. Sanjay. Moreover the documents i.e. R1, total containing
     23 pages alongwith the DRM report RW1/A came into existence at an
     undisputed point of time and therefore there was no reason for the
     concerned police official to create a false document. All the
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      documents were prepared in the ordinary course of duties by the Govt.
     officials and the genuineness and veracity of the aforesaid documents
     cannot be doubted. The applicants also could not elicit any material
     thing from the cross examination of RW1. In the instant case, the
     evidence of witness Sh. Sanjay stands falsified from the contents of
     document AW1/4."
4.           A reading of the aforesaid findings and conclusions of the

Railway Claims Tribunal shows that statement of Sh. Sanjay who was

travelling with the deceased Sachin was disbelieved because in the original

statement he had said to the concerned authorities that he and the deceased

were travelling on the roof of the train and Sachin fell down from the roof of

the train as a result of which he died.


5.           In my opinion, there is no illegality in the findings of the

Railway Claims Tribunal because obviously the statement made in the first

instance will have more credibility than a subsequent statement before the

Railway Claims Tribunal and which was actually part of a well thought out

strategy to claim compensation and thus the same can surely be disbelieved.


6.           Learned counsel for the appellant sought to press reliance upon

Section 156 of the Railways Act, 1989 for the benefit of the appellant by

claiming that since Section 156 of the Railways Act prohibits travelling on

the roof of the train, and if a person illegally travels on the roof of the train,

then, Railways have to put such person to notice that it is illegal travelling
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 failing which it has to be held that travelling on the roof is not illegal.

Section 156 is reproduced hereunder:-


     "Section 156. Travelling on roof, step or engine of a train.-If any
     passenger or any other person, after being warned by a railway
     servant to desist, persists in travelling on the roof, step or footboard
     of any carriage or on an engine, or any other part of a train not
     intended for the use of passengers, he shall be punishable with
     imprisonment for a term which may extend to three months, or with
     fine which may extend to five hundred rupees, or with both and may
     be removed from the railway by any railway servant."
7.            In my opinion, the argument urged on behalf of the appellant by

placing reliance upon Section 156 is misconceived because Section 156 in

fact provides for punishment for travelling on the roof of the train and the

same cannot be read to mean that if no notice is given by the authorities then

travelling on the roof of the train becomes legal. Object of the notice is to

entitle commencement only of criminal prosecution and has nothing to do

with the fact that travelling on the roof of a train is illegal as per Section 156.

If I accept such an argument as urged on behalf of the appellant it will be a

convoluted reading of Section 156, the object of which is to prohibit

travelling on roof of the train and not to permit travelling on the roof of the

train unless notice otherwise is given to a person illegally travelling on the

roof of the train.



FAO No.312/2011                                                     Page 4 of 5
 8.           In view of the above, the appeal is dismissed, leaving the

parties to bear their own costs.




JANUARY 15, 2014                          VALMIKI J. MEHTA, J.

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