Delhi High Court
Raj Kumari Devi & Ors. vs Union Of India on 16 January, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No. 332/2013
% 16th January, 2014
RAJ KUMARI DEVI & ORS. ...... Appellants
Through: Mr. Rajnish K. Jha, Advocate.
VERSUS
UNION OF INDIA ...... Respondent
Through: Mr. Baldev Malik and Mr. Arjun
Malik, Advocates.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? Yes
VALMIKI J. MEHTA, J (ORAL)
1. This first appeal has been filed under Section 23 of the Railway
Claims Tribunal Act, 1987 impugning the judgment of the Railway Claims
Tribunal dated 5.11.2012 by which the claim petition has been dismissed.
2. Before I refer to the observations of the Railway Claims Tribunal I am
pained to note as to how Railway Claims Tribunal in certain cases takes an
unnecessary and irrelevant hyper technical approach so as to find out some
or the other fault in a claim petition for dismissing of the same. This I am
constrained to observe inasmuch as the whole purpose of the Railway
FAO 332/2013 Page 1 of 8
Claims Tribunal is defeated by the judgments such as the impugned
judgment, when, the object of law is to award compensation to a bonafide
passenger on account of an untoward incident happening as per Sections
123(c) and 124-A of the Railways Act, 1989 and the liability of
the Railways is a strict liability as consistently held by the Supreme
Court.
3. In the present case, admittedly, from the deceased Sh. Davender Sahni
a second class ticket of travel from Muzaffarpur to Delhi was recovered, and
that too in a state when the deceased was in the position that his legs were
crushed by a train at Gaziabad. Surely, a person in such a state could not
have been thereafter gone and purchased a ticket, that too from a different
station at Muzaffarpur for travel to Delhi. It is also an undisputed fact that
the deceased was travelling alone when his legs were crushed at the
Ghaziabad Station in U.P. Not only the fact that the deceased was a bona
fide passenger, but the fact of the matter is that the Railways have not
produced evidence of even a single witness, much less an eye-witness, and
for it to be held that the deceased was trying to get up or get down from a
moving train. Assumption with respect to fall from a moving train is arrived
at by the Railway Claims Tribunal only on account of the dependants of the
FAO 332/2013 Page 2 of 8
deceased giving a wrong train number. In my opinion, it is too much to
expect the dependants of the deceased to exactly re-create not only the
sequence of events but also the number of the train in which the deceased
was travelling once a fact beyond doubt stands admitted/established that a
genuine railway ticket was found with the deceased and that ticket was a
general second class train ticket for travel from Muzaffarpur to Delhi and
not of a particular train only.
4. In view of the aforesaid observations let us now refer to the relevant
observations of the Railway Claims Tribunal for dismissing the petition and
which reads as under:-
"As per the affidavit filed by the applicant (AW-1), the deceased
was allegedly travelling by UP Saptkranti Express train, which he
boarded on 30.10.2011 from Muzaffarpur. Respondent stated that
this train starts from Muzaffarpur at 9.10 a.m while the journey
ticket placed on record shows time of purchase as 13.21 hrs. on
30.10.2011, which is a clear contradiction of facts. Another
contradiction pointed out was that this train passed run through
Ghaziabad at 3.40 a.m on 31.10.2011 (as it does not stop at
Ghaziabad) while the incident has been first reported to Station
Master, Ghaziabad at 13.55 hrs. on 31.10.2011, which is not possible
as injured person will not keep lying at the spot for more than 10
hours from 3.40 a.m to 1.55 p.m without having been noticed by
anybody at a busy station like Ghaziabad. Applicant side could not
controvert this in any manner except to say during arguments
that there may be some other train by which the deceased would
have been travelling. This guess of the applicant side was further
got analyzed by the Tribunal in which it came out that the only
stopping train which received on Platform No.3 (where body was
first found) near about 1.55 p.m on 31.10.2011 from Darbhanga side
FAO 332/2013 Page 3 of 8
was 15279 Up Poorabia Express, which arrived Ghaziabad at 13.10
and left at 13.12 hrs, but this train was found to be running via
Hazipur route and does not even touch Muzaffarpur, from where the
deceased allegedly boarded. The fallacy of the case as put forth by
the applicant is thus clearly established, respondent asserted.
ii) As per statement of Shri Mahesh Sahni, nephew of the
deceased (annexed to DRM Report, page 11), it has been stated that
in Jamatalshi, done by GRP/Ghaziabad, one Nokia mobile, Rs.346/-
cash and one cloth bag containing food items were recovered and
handed over to him, which in turn, he handed over to the wife of the
deceased. Respondent pointed out that as per the evidence of Shri
Krishna Chandra , RPF Constable (RW-2), another set of articles has
been shown to have been recovered i.e. Rs.300/- cash, one Cheque
of Rs.5057/- and one ticket No. 19049903. This is also a
contradiction as in the Jamatalashi by GRP, there is no recovery of
the journey ticket and other articles are also different. Respondent
concluded that based on the above contradictions, it is established
that the facts of the case has been distorted by the applicant side so
as to bring this incident under the definition of an Untoward
Incident, as defined under Section 123(c) (2) of the Railway Act,
1989. Applicant side also cited judgment of the Hon'ble Supreme
Court (2010) 12 SCC 443 and two judgments of the Hon'ble High
Court of Andhra Pradesh i.e 2005 ACJ 535, and AIR 2005 Andhra
Pradesh 106. These judgments have been gone through in detail.
The Tribunal, however, finds that the facts of these cases as cited
above are different from the present one and therefore, unable to
support the case. I have gone through the entire material placed on
record, evidence, both documentary and oral as well as heard
arguments on both sides and find that the respondent, through the
official record, brought out credible evidence and logical arguments
to controvert the facts as given by the applicant side. Not only the
applicant failed to prove their case in any satisfactory manner, a
doubt has arisen that facts have been distorted as brought out above
by the respondent. The Tribunal is therefore, constrained to decide
issue nos. 2 & 4 against the applicant and issue no.3 in favour of
respondent.
ORDER
The claim application is dismissed. There is however, no
order as to costs."
5. A reading of the aforesaid findings and conclusions of the Railway
Claims Tribunal shows that the entire emphasis which is placed by the
Railway Claims Tribunal is on the fact that the appellants/applicants gave
travel of the deceased by U.P. Saptkranti Express Train which had a
different train timing then the timing of the accident in which the deceased
late Sh Davender Sahni expired in an untoward incident. At best, in my
opinion, mentioning by the applicants of a wrong train number will mean
that they did not have proper knowledge and same cannot mean that the
deceased did not die on account of an untoward incident. I say so because
the entire case which is made out on behalf of the Railways of the deceased
trying to get down from a running train is not supported by even a whisper
of evidence, much less of an eye witness. In my opinion, if the impugned
judgment of the Railway Claims Tribunal is sustained it will be destructive
of the legislative intention and the ratios laid down by the Supreme Court in
the judgments 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 which state that the liability of the Railways is a strict
liability and even if there is negligence of the bonafide passenger, yet,
compensation claim has to be awarded unless it is found that the deceased
died not only on account of negligence but also his own criminal negligence
or such self-inflicted injuries, such as an attempted suicide etc; which would
have caused his death. In the present case, the record existing before the
Railway Claims Tribunal, and more particularly the fact that the entire case
set up by the Railway Claims Tribunal is not based on any evidence but on
assumptions and presumptions, it was unacceptable for the Railway Claims
Tribunal simply to bring about certain inconsistencies in the name of the
train and the ticket purchased and some discrepancies as to amount of
money with the deceased, so as to dismiss the claim petition. The most
important aspect to be noted, and which the Railway Claims Tribunal seems
to have missed out on account of trying to create technicalities, is that, the
ticket was purchased on 30.10.2011 at around 13.21 hrs. in the afternoon and
the accident had taken place around the same time on the next date i.e on
31.10.2011 viz after a gap of about 24 hours. Therefore, Railway Claims
Tribunal has in my opinion laid unnecessary emphasis with respect to
issuing of the ticket, timings and the name of train as put forth by the
appellants/applicants. I must also at this stage state that the original train
ticket was found from the deceased on the very first contact with the
deceased after the accident when he was lying with crushed legs on the
station platform and the fact that the original ticket of travel of the deceased
from Muzaffarpur to Delhi is also admitted to have been purchased by the
deceased at Muzaffarpur as mentioned in the DRM report of the respondent.
6. In view of the above, the appeal is accepted. The impugned judgment
of the Railway Claims Tribunal dated 5.11.2012 is set aside. The appellants
no.1 to 5 will be entitled to a total compensation of 4 lacs and which will be
distributed by 1/6th between each of the appellants. Appellants will also be
entitled to interest at 7 ½ % per annum simple from the date of filing of the
claim petition on 16.2.2012 till the amount is paid/deposited in terms of the
present judgment. Cheques/Pay orders will be drawn only in the name of
each of the appellants and deposited in their bank accounts and with
direction to the bank manager to ensure that the awarded amounts are
received/encashed and paid only in the direct hands of the
appellants/applicants. So far as those applicants who are minors are
concerned, the compensation amount which will fall to their share will be
deposited by the respondent/Railways in a fixed deposit and the FDR given
to appellant no.1/mother, and the mother/Smt. Raj Kumari Devi/appellant
no.1 will be entitled to use the interest only which accrues on the fixed
deposit for the welfare and benefit of the minors. On the minors attaining
majority, the fixed deposit receipts alongwith accrued interest if any thereon
will be encashed and paid to that appellants/applicants on his/her attaining
majority. It is further clarified that if for any exigency or emergency FDR
has to be encashed during the minority of any of the minor
appellants/applicants, then, necessary application will be filed before the
Railway Claims Tribunal, who on being satisfied of the facts and
circumstances requiring an early encashment of the FDR will pass the
appropriate orders in accordance with law. The total compensation of 4 lacs,
to be equally divided between the appellant nos. 1 to 5, be paid to the
appellants by depositing with the nationalized bank, and fixed deposit
receipts as regards minors be handed over to the appellant no.1, all within a
period of six weeks from today. Parties are left to bear their own costs.
JANUARY 16, 2014 VALMIKI J. MEHTA, J.
ib
