Delhi High Court
Anupam Sharma vs Union Of India Thr. Gm Northern ... on 15 January, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No. 345/2012
% 15th January, 2014
ANUPAM SHARMA ......Appellant
Through: Mr. Anshuman Bal, Advocate.
VERSUS
UNION OF INDIA THR. GM NORTHERN RAILWAY ...... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? Yes
VALMIKI J. MEHTA, J (ORAL)
1. This matter was called out in the pre-lunch session but no one
appeared for the respondent though counsel for the appellant was present.
Even on the second call after lunch although it is 2.50 PM, no one appears
for the respondent. I have therefore heard the counsel for the appellant and
after perusing the record am proceeding to dispose of the appeal.
2. This first appeal has been filed under Section 23 of the Railway
Claims Tribunal Act, 1987 impugning the judgment dated 27.2.2012 by
which the claim petition filed by the applicant /appellant was dismissed.
The Railway Claims Tribunal by the impugned judgment has held that
FAO 345/2012 Page 1 of 11
compensation cannot be awarded inasmuch as the deceased has been run
over by a train and it is not that he fell down from a train.
3. The facts of the case as pleaded by the appellant/applicant are
that the applicant is the son of the deceased Sh. Bishan Sharma who died in
an untoward incident on 12.6.2009. It is pleaded in the claim petition that
the deceased father of the applicant was going from Kishanganj Railway
station to Shakurbasti in an EMU Train when he fell down from the moving
train due to heavy rush and sudden jerk of the train near Pole No. 8/2-8/5
Rampuriya Railway Colony. The deceased was said to have a valid ticket
No. 75134948. The respondent-Railways contested the case by pleading that
deceased was neither a bonafide passenger and nor the deceased expired on
account of fall from the train.
4. The Railway Claims Tribunal by the impugned judgment has given
the following reasons for dismissing the claim petition.
"4.3 The documents, placed on record by the applicant, as indicated
in Para 1 above are examined as under:-
4.3.1 DD Entry dated 12.6.09 (AW1/3) reveals that ASM,
Shakurbasti Railway Station Anil Kumar informed that at 11.50 a.m.
at K.M 8/5, Up Line between Daya Basti Railway Station and
Shakurbasti Railway Station, one person is run over by HS-1 train.
4.3.2 Brief facts (AW1/4):- It discloses that the I.O, on reaching the
spot, found the dead body of a male cut into multiple pieces. During
search of the dead body, one mobile Tata phone of S/Grey color, one
FAO 345/2012 Page 2 of 11
DVB I. Card and one railway ticket ex-Delhi Kishanganj Railway
Station-Shakurbasti Railway Station was recovered. It further reveals
that while he was travelling from Kishanganj Railway Station to
Shakurbasti Railway Station by HS-1 EMU Train, suddenly fell down
and came under the wheels of the said EMU Train.
4.3.3 Railway ticket (AW1/5):- It is computerized IInd class
ordinary rail journey ticket dated 12.9.09 bearing No.75134948 ex-
Kishanganj Railway Station to Shakurbasti Railway Station. The
ticket was issued from Kishanganj Railway Station, Window No.2 at
6.08 hours.
4.3.4 Statement of Naresh Kumar (AW1/6):- He is an alleged
eyewitness to the incident and gave his statement to the police that at
about 11.30 a.m., he was standing outside the Railway Colony towards
the railway line. At that time, one EMU passed, in which, one person
fell down from the moving train and came under the wheels. The
alleged eyewitness Naresh Kumar was, however, not produced before
this Tribunal for examination.
4.3.5 Exht.AW1/7 and AW1/8:- These are the statements of
Rajinder Kumar, brother-in-law of the deceased and Anupam, son of
the deceased, who identified the dead body to be of Bishan Sharma.
4.3.6 DD 14-PP dt 12.6.09 Exht. AW1/9:- Averments in this police
document are the same as in Brief Facts
, AW1/4.
4.3.7 Postmortem Report (AW1/10):- The M.O. has opined therein
that the cause of death of deceased is shock due to ante-mortem crush
injury to whole body produced by blunt force impact.
4.4 The oral evidence of Court Witness, RW-1 and the
documentary evidence, filed by hi, are examined as under:-
4.4.1 RW-1 deposed during oral evidence that HS-1 arrived
Shakurbasti Railway Station via Patel Nagar at 11.50 hrs on 12.6.09.
On 12.6.09 Anil Kumar was Y.M in the Yard from 08.00 hrs to 16.00
hrs shift. He further deposed that there is no mention of the incident
in the Diary brought by him.
On being questioned by the Court, he deposed that HS-1 train comes
from Nizamuddin to Shakurbasti Railway Station and goes back to
Nizamuddin Railway Station. It is a circular train and that HS-1 goes
via Up Line K.M Pole No.8/5, which is between Daya Basti Railway
Station and Shakurbasti Railway Station. He further deposed that if
there is any incident, the same is reported to GRP and RPF by outdoor
ASM and if ASM due to any work have gone outside, the information
is given by the Yard Master. RW-1 filed documents, RW1/1, RW1/2
and RW1/3 in support of his evidence.
4.5 The applicant has stated in the claim application that the
deceased Bishan Sharma, while going from Kishanganj Railway
Station to Shakurbasti Railway Station in EMU Train, fell down when
the train crossed Pole No.8/2-8/5 between Daya Basti Railway Station
and Shakurbasti Railway Station.
As per the police documents, AW1/3 and AW1/4,placed on record by
the applicant, the incident in question happened by EMU Train HS-1.
RW-1 deposed during oral evidence that HS-1 on 12.6.09 arrived
Shakurbasti Railway Station at 11.50 hrs via Patel Nagar. On being
questioned by the Court, he deposed that HS-1 goes from Nizamuddin
Railway Station to Shakurbasti Railway Station and it passes through
K.M. No.8/5 via Up Line between Daya Basti Railway Station and
Shakurbasti Railway Station.
The evidence of RW-1 is supported by the Northern Zone Public
Time Table (for the period 1.7.08 to 30.7.09), which reveals in Table
No.21, page B-15 that HS-1 runs from Nizamuddin Railway Station to
Shakurbasti Railway Station via Kirti Nagar and Patel Nagar railway
stations and it does not run between Kishanganj Railway Station and
Shakurbasti Railway Station.
In view of the above, the pleading of the applicant and also the
averments in the police documents, AW1/3 and AW1/4 that the
deceased fell down while he was going in an EMU Train from
Kishanganj Railway Station to Shakurbasti Railway Station, appears
to be false.
4.6 The applicant has filed the statement of Naresh Kumar, the
alleged eyewitness to the incident (AW1/6). However, there is no
mention of the alleged eyewitness in the police documents of AW1/4
and AW1/9. The said Naresh Kumar was also not produced before
this Tribunal for cross-examination. Thus, his statement cannot be
read in evidence.
4.7 Exht. AW1/4 mentions that the dead body was cut into
multiple pieces.
In this regard, Learned counsel for the respondent, during arguments,
cited the case of Dharambiri Devi & others v/s Ministry of Railways,
reported in 149 (2008) DLT 435 (Delhi High Court), wherein, the
Hon‟ble Delhi High Court in their judgment has held in Para 14 that
"the body of the deceased being cut into two halves is not possible if
the deceased fell out of the bogie through the exit if the train received
a sudden jerk."
This Tribunal has been deciding the cases of persons falling down
from running train almost on daily basis. It has been a common
observation that when a person falls down from a running train, he
falls outside the track and suffers multiple injuries all over the body,
but does not come under the wheels of the train. The cutting of the
body into multiple pieces is possible only when a person either
commits suicide or is run over while crossing the railway line.
I have perused the judgments of the Hon‟ble Apex Court and High
Courts, filed by the learned counsel for the applicant. Since the facts
and context of the judgments referred to are different, they have no
relevance in this case.
In view of the aforesaid reasons and taking all the oral and
documentary evidence into account, I am of the considered opinion
that the applicant has miserably failed to prove that the deceased fell
down from the train in question, as alleged in the claim application.
Rather the case appears to be of the deceased having been run over by
a train. Thus, the deceased has not died due to an untoward incident,
as defined under Section 123(c) of the Railways Act.
The pleading of the applicant and also the averments in the police
documents, AW1/3 and AW1/4 that the deceased fell down while he
was going in EMU Train from Kishangang Railway Station to
Shakurbasti Railway Station has been held to be false, as discussed
above. Hence, the question of the deceased being a bonafide
passenger at the relevant time of the incident loses significance, and
the ticket, placed on record, is held to be a invalid and a procured one
for the purpose of this case.
These issues are decided accordingly against the applicant."
(underlining added)
5. A reading of the aforesaid paragraphs shows that the train in question
HS-I is a circular train between Nizamuddin to Shakurbasti Railway Station.
The train does in fact pass the site where the deceased was found lying. The
basic reason given for dismissing of the claim petition is the reasoning given
in para 4.5 of the judgment of Railway Claims Tribunal doubting the train
not running between Kishanganj Railway Station to Shakurbasti Railway
Station. Accordingly, the Tribunal has held that the applicant/appellant
failed to prove that the deceased fell down from the EMU train from
Kishanganj Railway Station to Shakurbasti Railway Station. Tribunal has
also observed that once a body is cut into multiple pieces, the normal
conclusion is that the person in question has died either because he has
committed suicide or is run over while crossing railway line. The Railway
Claims Tribunal has also held that the ticket is a procured one and the
deceased could not be said to be a bonafide passenger.
6. In my opinion, the impugned judgment is quite clearly
unsustainable in the facts of the present case and law as laid down 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 that liability of the Railways is a strict liability.
7. In my opinion, the Railway Claims Tribunal has committed an
error in trying to be too specific and going in unnecessary fine details about
the liability of the applicant/appellant so as to exactly re-create the entire
sequence of events which results in the death. Recreation of sequence of
events need not be exact for being put in a golden scale. The fact of the
matter is that a ticket was placed on record and thus applicant/appellant has
discharged the onus that the deceased was a bonafide passenger. It is
therefore not understood as to how the Tribunal without any evidence came
to a finding that ticket placed on record is an invalid and a procured one. I
therefore hold that the deceased was a bonafide passenger of the train and
which is sufficiently proved as required in law from the train ticket in
question which has been proved and exhibited as Ex.AW1/5. I may note that
it is not as if the deceased was a passing by labourer or vagabond loitering
near the railway line or was otherwise residing or had his place of work
nearby the spot of death, and, the deceased was in fact in service and earning
handsomely an amount of about Rs.17,000/- pm. There is therefore no
reason for the deceased either to have committed suicide or to have been run
over while crossing the line as is sought to be implied by the Railway
Claims Tribunal in para 4.7 of the impugned judgment. Without any
evidence to this effect such a finding could not have been arrived at by the
Tribunal in the facts of the present case. In fact, even a suggestion of the
deceased having committed suicide is most unacceptable to say the least
because there is no factual basis in this evidence for arriving at such an
important conclusion by the Tribunal. Para 7 of the judgment in the case of
Jameela (supra) in this regard is relevant and the same reads as under:-
"7. We are of the considered view that the High Court gravely erred
in holding that the applicants were not entitled to any compensation
under Section 124A of the Act, because the deceased had died by
falling down from the train because of his own negligence. First, the
case of the Railway that the deceased M. Hafeez was standing at the
open door of the train compartment in a negligent manner from where
he fell down is entirely based on speculation. There is admittedly no
eyewitness of the fall of the deceased from the train and, therefore,
there is absolutely no evidence to support the case of the Railway that
the accident took place in the manner suggested by it. Secondly, even
if it were to be assumed that the deceased fell from the train to his
death due to his own negligence it will not have any effect on the
compensation payable under Section 124A of the Act."
8(i) Once the deceased is said to have a valid train ticket of travel,
and the deceased was otherwise not a vagabond or labourer loitering near the
tracks, the deceased was in fact in service and that the deceased died at a
place which is not found to be near the residence or the place of work of the
deceased, then, the appellant/applicant in my opinion has discharged the
onus of proof that deceased was a bonafide passenger who died on account
of fall from the train.
(ii) In my opinion, the Railway Claims Tribunal has in fact
committed a gross illegality in ignoring the statement of eye witness Sh.
Naresh Kumar whose statement has been exhibited as Ex.AW1/6 and in
which statement it is clearly noted that the deceased died on account of fall
from the EMU Train and got crushed under the same train. Sh. Naresh
Kumar had absolutely no relation or connection with the deceased or the
applicant and he was clearly an independent witness whose statement should
have been believed because Sh. Naresh Kumar is a person who gave a
statement to the Railway Police independently of his own. In my opinion,
the statement of this independent witness is itself sufficient to set aside the
findings of the impugned judgment and it is thus to be held that the deceased
in fact died on account of fall from the train. It may be noted at this stage
vide sub-Sections (1) and (2) of Section 18 of the Railway Claims Tribunal
Act, 1987 that the strict rules of CPC and Evidence Act do not apply to
proceedings before the Tribunal and therefore the appellant need
not have summoned Naresh Kumar. If at all it was the Railways who should
have summoned Naresh Kumar whose statement to the authorities was made
in the course of an independent enquiry by the authorities. It is further noted
that even in the document Ex.AW1/4 which was the report prepared by the
railway authorities on 12.6.2009; which is the date of the incident; the said
report Ex.AW1/4 also states that the deceased suddenly fell down from an
EMU Train and came under wheels of the same. Therefore, in view of the
documents Ex.AW1/4 and Ex.AW1/6 clearly the appellant had discharged
the onus of proof of showing that there was an „untoward incident‟ within
the meaning of the expression as found in Sections 123(c) and 124-A of the
Railways Act, 1989. I must also further note that in the present case,
respondent led no evidence before the Railway Claims Tribunal and did not
examine any witness to contradict the statement of the witness Sh. Naresh
Kumar whose statement as a document has been exhibited as Ex.AW1/6 and
the report of the Railways itself which has been proved and exhibited as
Ex.AW1/4.
(iii) The Railway Claims Tribunal was also not justified in arriving
at a conclusion that if a person has been cut by a train then it is to be held
that actually he could not have been travelling on the train on which he is
said to have fallen down from. In the facts of this case it is not impossible
that the deceased could have got entangled in the steps of the train which
resulted in his coming under the very train in which he was travelling.
9. In view of the above, I hold that the deceased Bishan Sharma
was a bonafide passenger of the EMU Train and he fell down from the train
near Pole no. 8/2-8/5 Rampuriya Railway Colony between Kishanganj
Railway Station to Shakurbasti Railway Station. I further hold that there
was an untoward incident within the meaning of the expression as found in
Section 123(c) and Section 124-A of the Railways Act, 1989 and the
respondent-Railways having a strict liability is accordingly liable to pay
compensation to the appellant/applicant in terms of the Railways Act, 1989.
10. The appeal is therefore allowed. Appellant/applicant will be
granted compensation of Rs.4 lacs alongwith interest at 7 ½ % per annum
simple from the date of filing of the claim petition on 8.7.2009 till payment.
The compensation amount in terms of present judgment be paid by the
respondent within a period of six weeks from today. Parties are left to bear
their own costs.
JANUARY 15, 2014 VALMIKI J. MEHTA, J.
ib
