Sudha Choudhary & Ors. vs Union Of India
2014 Latest Caselaw 1177 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 FAO No.45/2013

%                                                 5th March, 2014

SUDHA CHOUDHARY & ORS.                          ..... Appellants
                Through:             Mr. D.K. Sharma, Advocate.


                         Versus


UNION OF INDIA                                  ..... Respondent

                         Through:    Mr. Vibhu Shankar, Advocate.


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 is filed under Section 23 of the Railway

Claims Tribunal Act, 1987 impugning the judgment dated 30.10.2012 which

has dismissed the claim petition filed by the applicants/appellants who are

the dependants of the deceased Sh. Parveen Chaudhary who died on account

of an untoward incident of a fall from the train at the Tughlakabad railway

station while travelling from Okhla to Faridabad in an EMU train on a valid

monthly station ticket bearing no.56186820 having validity from 12.4.2010

to 11.5.2010.

2. I may note that earlier the Tribunal had passed a judgment on

15.7.2011 dismissing the claim petition but a learned Single Judge of this

Court had remanded the matter in FAO No.414/2011 vide order dated

13.4.2012 for a fresh look at the evidence on record. The Tribunal through

the same Member has now again passed the judgment dated 30.10.2012

dismissing the claim petition, and which is impugned in this appeal.

3. The following are the admitted facts:-

(i) There was a valid monthly station ticket of the deceased Sh. Parveen

Choudhary and therefore the deceased was a bonafide passenger and if it is

established that Sh. Praveen Choudhary died on account of an 'untoward

incident' as per the meaning of the expression under Section 123(c) of the

Railways Act, 1989, claim petition will have to be allowed.

(ii) The deceased was found dead on the tracks. His body in a cut-up

state was found at the Tughlakabad railway station which is between Okhla

and Faridabad.

(iii) The deceased is not a vagabond or a labourer etc who would be

loitering near the tracks because the place of accident i.e Tughlakabad

railway station is not near either to the residence of the deceased or the

office of the deceased. The deceased was working as an Executive with the

finance company, namely Megna Finkick Finance Company, Okhla, Delhi.

(iv) One Sh. Shams Pervez colleague of the deceased Praveen Chaudhary

had recorded his statement on the same date of the accident and soon after

the accident vide DD entry No.15A that he was travelling with the deceased

and the deceased had fallen down from the train which resulted in his death.

Sh. Shams Pervez was thus an important witness whose statement in the DD

and depositions before the Tribunal cannot be easily ignored.

(v) The Tribunal has totally ignored the statement of a completely neutral

witness, namely Sh. Mahender Singh, who was a Constable in the Railway

Protection Force, and who on the very date of the incident i.e 21.4.2010,

recorded his statement that the deceased as per his enquiries was travelling

in the EMU train and had fallen from the train.

4. A reading of the aforesaid facts leaves no manner of doubt that

the deceased was a bonafide passenger who fell from the train and this was

deposed to by Sh. Mahender Singh as per his statement Ex.AW1/9 and by

Sham Parvez vide document Ex.AW1/7 which is the DD No.15A dated

21.4.2010 and his deposition as AW2.

5. Let me now turn to the conclusions of the Tribunal as per which

it has been held that there is no 'untoward incident' and possibly that the

deceased must have been crossing the tracks when he died.

6. The first conclusion which is arrived at by the Tribunal is on

the basis of the difference being found in the timings of the trains and the

accident, showing a difference of about half an hour as per the statement of

Sh. Shams Pervez and the timings of the train in question. The second

conclusion is that the statement of Sh. Shams Pervez could not be believed

because not only he was a colleague of the deceased, but that he did not

endeavour to pull the chain at the time of accident. The third conclusion is

that once the body is found on the adjoining tracks in a cut up position the

deceased would have died not on account of fall from the train but because

of being run over while crossing the tracks.

7. All the conclusions of the Tribunal with utmost respect are

totally illegal and perverse. Firstly, there is no reason to disbelieve the eye

witness Sh. Shams Pervez merely because he was an office colleague of the

deceased. I fail to understand how merely because Sh. Shams Pervez is in

the same office, he for that reason only would be an interested witness.

There is no reason an office colleague would be an interested witness

because surely he is not to get any share of the compensation. The second

reason for disbelieving the statement of Sh. Shams Pervez is that he did not

pull the chain after the accident. This conclusion of the Tribunal is also

incorrect because Sh. Shams Pervez clearly deposed in his cross-

examination that on account of the huge rush in the bogie he could not reach

the chain to stop the train and he thereafter get down at the next station and

went back to the spot as also informed his office. All I can say with regard

to the observations of the Tribunal to disbelieve Sh. Shams Pervez because

he did not pull the chain is that sometimes it should be remembered that

what are the over-crowded conditions in the EMU trains which ply in

national capital regions and the Tribunal should understand that there is no

vacant space to take even a step towards the chain for stopping the train.

Therefore, I reject the conclusion of the Tribunal that the statement of Sh.

Shams Pervez, and which was recorded as AW2, should be disbelieved.

8. So far as the aspect of difference in train timings by reference to

the specific trains which passed at Tughlakabad railway station, I would like

to note that it is not possible in a case to be perfect either with respect to the

exact sequence of events or with respect to exact train timings which causes

the death. Exactitude cannot be demanded with respect to timings of the

accident and timings of the trains. The fact of the matter is that there is a

death. The fact of the matter further is that death is on the railway premises

i.e on tracks. The further fact of the matter is that there was no reason for

the deceased to be at the Tughlakad railway station unless he was travelling

by the train inasmuch as the place of the death is neither near the residence

nor the office of the deceased Sh. Parveen Choudhary. Still further, fact of

the matter is that the deceased was an employed person working as an

Executive with the company and not a loiterer much less at the Tughlakabad

railway station. Therefore depositions showing the timings of the accident

have to be read in a contextual manner and not with exactitude of a golden

scale. Timings depending would be only relevant in certain facts to show

that death is on account of trespassing the tracks, however, the facts of the

present case show that there was no crossing of the tracks but the deceased

died on account of a fall from the train. I therefore set aside the conclusions

of the Tribunal which holds that difference of about half an hour in train

timings establishes that the deceased was not travelling in the train. At the

first blush, a very analytical discussion of the Tribunal may have some

appeal however we are dealing with the real situations and real human

beings and not computer perfected software programmes which would be

perfect in all respects. Therefore, mere inconsistency of timings with respect

to the accident of about half an hour cannot take away the conclusion as per

the other facts of the case that there was an untoward incident of the

deceased Sh. Parveen Choudhary falling from the train.

9. I also cannot agree with the conclusion of the Tribunal reached

suo moto without any evidence that the train in question would only be

travelling at 15 KM or so per hour and more so because the track would join

the main line after some distance, inasmuch as, jerking of trains even at a

normal run on a normal track and that too of an EMU train/local train which

suddenly takes up speed is a very normal and a regular feature. All I can say

is that any traveler in a train knows the huge jerks which are suddenly

caused in the EMU trains even on normal tracks. Therefore, I also set aside

the conclusion of the Tribunal that there was no reason why train would not

have given the jerk resulting in falling from the train.

10. The final conclusion of the Tribunal is that since the cut up

body of the deceased Sh. Parveen Choudhary was lying on the adjoining

track it would not be possible for the deceased to have fallen from a train

and in such a case his body would not be discovered in cut up position in the

adjoining tracks. Once again this conclusion, in my opinion, is totally

misconceived because the issue of a cut up body lying on tracks, whether the

same is on account of fall from the train, or a person being run over by a

train depends upon the facts of each case. In the present case, as already

discussed above, deceased was travelling on the train and this has been

adequately proved through the statements of his colleague Sh. Shams Pervez

and the RPF Constable Mahender Singh. No doubt a question arises is that

how is the body of the deceased found lying in a cut up position in the

adjoining railway tracks. To this, I would like to state that adjoining to the

tracks there are many equipments and poles of the railways. If a passenger

falls from the train in which he is travelling, it is always possible that his

legs get entangled at the steps at the door from which he falls, and on

account of the accident including his coming partly under the same train as

also thereafter hit by other equipments/poles adjoining the tracks, the body

can surely in some cases be found in a cut up position in the adjoining

tracks. No one can exactly prepare a trajectory of a body falling from a

train, getting entangled on the steps, hitting other railway equipment and the

final place where the body is found. All this is dependent on the facts of

each case. Therefore, I am of the opinion that the Tribunal has erred in

holding that merely because the body in a cut up position was lying in the

adjoining tracks, the deceased was not a bonafide passenger and that he did

not fall down from the train.

11. The facts of the case show that the deceased was a bonafide

passenger, was travelling on the train and fell from the train i.e an untoward

incident happened as per Section 123 (c) & Section 124A of the Railways

Act, 1989.

12. At this stage, one is reminded of the ratios of the two judgments

of the Supreme Court which laid down the law so far as Sections 123(c) and

124A of the Railways Act, 1989 are concerned. These are the judgments of

Jameela & Ors. Vs. Union of India (2010) 12 SCC 443 and Union of India

Vs. Prabhakaran Vijaya Kumar and Ors. (2008) 9 SCC 527. The Supreme

Court in these judgments has laid down the ratio that even if a person is

guilty of negligence, yet, compensation has to be awarded inasmuch as

unless there is a criminal negligence or self inflicting injuries, the Railways

would be liable to pay compensation. Supreme Court in these judgments has

taken note of the conditions of travelling in the Indian Railways and the

crowd of passengers in the same. Supreme Court has accordingly held that

standing at the door of a train is negligence but such negligence does not

prevent liability from being imposed upon the Railways in terms of Sections

123(c) and 124A of the Act. The facts of the present case clearly have

established that the deceased died on account of a fall from the train when he

was standing at the door of a crowded train and he died on account of the

untoward incident and hence the respondent/Railways would be liable to pay

the statutory compensation.

13. In view of the above, appeal is allowed. Impugned judgment of

the Tribunal dated 30.10.2012 is set aside. The appellants/applicants will be

entitled to statutory compensation of Rs.4 lacs in equal proportion.

Appellants/applicants will also be entitled to pendente lite and future interest

@ 7½% per annum simple till payment. Parties are left to bear their own

costs.

MARCH 05, 2014                                VALMIKI J. MEHTA, J.
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