Moola Ram vs Union Of India
2014 Latest Caselaw 1358 Del

7

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                               FAO 282/2012

%                                                           13th March, 2014

MOOLA RAM                                                  ......Appellant
                          Through:       Mr. Raj Kumar Rajput, Mr. Ajit
                                         Rajput, Advocates


                          VERSUS

UNION OF INDIA                                       ...... Respondent
                          Through:

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 passed over on the first call when no one appeared for

the respondent. Even on the second call no one appears for the respondent.

I have hence heard counsel for the appellant and after perusing the record

am proceeding to dispose of this appeal filed under Section 23 of the

Railway Claims Tribunal Act, 1987 against the impugned judgment dated

7.3.2012 passed by the Railway Claims Tribunal, Principal Bench, Delhi by

which the claim of the appellant/applicant has been dismissed.

FAO 282/2012                                                        Page 1 of 13
 2.     The facts of the case are that Kulra Ram @ Sonu, who used to do the

job of boot polishing, son of appellant/applicant, died in an untoward

incident on account of a fall from a train on 17.8.2010. The deceased Sonu

had purchased a valid train ticket No. 70892008 dated 17.8.2010 for

travelling in Delhi from Adarsh Nagar (workplace) to Narela (home). When

the station of Narela was about to be reached, on account of jostling of

passengers in the train, the deceased fell down from the train and succumbed

to his injuries.


3.     Respondent Railways denied the claim and contended that actually the

case is a case of run over by a train and not a fall from the train. Though,

during the Jamatalashi/search of the body of the deceased the valid train

ticket No. 70892008 dated 17.8.2010 (i.e the date of the accident) was

recovered, the Railway Claims Tribunal has held that since deceased died on

account of being run over, and not because of fall from the train, accordingly

the deceased was not a bona fide passenger and hence the compensation

petition was dismissed.


4.     Railway Claims Tribunal has dismissed the claim petition essentially

on two counts. First is by not believing of the witness Jeetu who deposed as

AW-2, and who was traveling with the deceased Sonu, on account of

FAO 282/2012                                                      Page 2 of 13
 contradictions which according to the Tribunal existed in his evidence.

Related with this aspect is a contradiction in the statement/deposition of the

appellant/applicant as to how he first came to know of the incident. The

second count is that since the body was found within the railway track, the

same showed that it could not have been on account of fall from a train, and

that finding of the body within the track is suggestive of the case that the

deceased was run over by a train.


5.    The prima facie appealing observations of the Railway Claims

Tribunal of dismissing the claim petition are contained in paras 3.2 to 3.6 of

the judgment and the same read as under :


      "3.2The evidence of Jeetu, AW-2, and the alleged eyewitness to
      the incident is examined as under:-
      i) There is no averment in the claim application that Jeetu,
      AW-2, the alleged eyewitness to the incident was also
      travelling in the same train i.e. DPM on the day in question.
      Further, no amendment application has been moved by the
      application for including the name of the alleged eyewitness in
      the claim application.
      ii) The name of Jeetu does not appear in any of the police
      documents, AW1/3, AW1/4 and AW1/9.
      iii) The statement of AW-2 given before the police is un-dated,
      while all the other statements i.e. AW1/5, AW1/6 and AW1/8
      are dated 17.8.10. This itself creates a reasonable suspicion that
      his statement has been taken later on for the purpose of this
      case.

FAO 282/2012                                                      Page 3 of 13
       iv) In Para 1 of his affidavit, AW-2 stated that he was an
      eyewitness to the incident and was well-conversant with the
      facts and circumstances of the case. He, however, contradicted
      himself, during his cross-examination that he dad not seen the
      incident.\
      v) During cross-examination, AW-2 deposed that he alone and
      nobody else had given the information about the incident to the
      applicant. The same is, however, contradicted by the applicant,
      AW-1 in his statement, AW1/6, given to the police at the spot
      that he was informed about the incident by the women staying
      in neighborhood, who collect garbage.
      In view of the above, AW-2 appears to be a chance or interested
      witness, and adducing of his evidence appears to be an after
      thought and the same is thus devoid of credence.
      3.3 The documents, placed on record and as indicated in Para
      1.2 above are examined as under:-
      3.3.1 Exht. AW1/2: - It reveals that ASM, Narela, Suresh
      Chand informed at 2.15 p.m. that one dead body is lying at K.M
      Pole 25/1 up Line between Narela and Holambi Kalan.
      3.3.2 Exht. AW1/3: - It discloses that the I.O on reaching the
      spot of accident found a person lying dead of injuries sustained
      inside the up Line track at K.M Pole 25/1, due to hit by train.
      3.3.3 Exht. AW1/4: - It discloses that the deceased had injuries
      on his head and his left leg below knee was crushed. During
      Jamatalashi of the deceased, one railway ticket bearing No.
      70892008 dated 17.8.10 ex Adarsh Nagar Railway Station to
      Narela of fare Rs 3/- was recovered. From the circumstances
      and statements at the spot, the death is stated to be due to
      falling down from the train and hit by the train.
      3.3.4 Exht. AW1/5 & AW1/6: - These are statements of Sunder
      Lal, Uncle and Mool Chand, father of the deceased given to the
      police. They identified the dead body to be of Kulra Ram @
      Sonu. They are not eyewitnesses to the incident. Hence, their
      evidence regarding the version of events is based on hearsay.

FAO 282/2012                                                     Page 4 of 13
       3.3.5 Exht. AW1/7: - It is a statement of Jeetu given to the
      police, which is undated. As discussed in Para 3.2 above, Jeetu,
      the alleged eyewitness to the incident appears to be a chance or
      interested witness, and his evidence has been held to be an
      after-thought for the purpose of this case.
      3.3.6 Exht. AW1/8: - It discloses that at 2.30 p.m. on-duty
      ASM called him in his office and informed that one person was
      run over at Km. 25/1 up line and he was sent to the site. On
      reaching at K.m 25/1, up Line, he found one person lying dead
      due to train accident inside the track.
      3.3.7 Exht. AW1/9: - It reveals that the apparent cause of death
      of the deceased is due to the injuries sustained on being hit by
      train. The map of the site of accident shows that the dead body
      was found inside the up Lint track.
      3.4 The respondent's evidence is examined as under:-
      3.4.1 Suresh Kumar Bunkar, RW-1, ASM/Narela deposed that
      he was informed by the Driver of 4673 that one dead body was
      lying at K.M 25/1. During cross-examination, he deposed that
      he was informed by the Driver of 4673 at 14.40 hrs. Prior to
      this 3-DPM Train had passed. 3-DPM arrived Narela at 13.55
      hrs and left at 13.56 hrs. He had not gone to the spot. On getting
      the information from the Driver, he had informed the GRP. On
      being questioned by the court, he deposed that the incident spot
      is about 1 K.M from Narela platform towards Delhi. He placed
      on record the TSR Record, Rw1/1, Copy of Control Book
      Register, RW1/2 and Copy of Untoward Incident, RW1/3,
      which support the evidence of Rw-1.
      3.4.2 RW-2, the then Guard of 4-DPM deposed that there was
      no incident by his train on 17.8.10 between Delhi and Panipat
      Railway Stations. His train arrived Narela at 13.55 hrs and left
      at 13.56 hrs. During cross-examination, he deposed that he did
      not have any information nor anybody gave him such
      information about any incident. On being questioned by the
      Court, he deposed that there is a glass window in the rear of the
      Guard's Coach. If there is any incident, they come to know of it
      as the track would be seen up to a considerable distance. He
FAO 282/2012                                                      Page 5 of 13
       also placed on record a copy of Guard Memo Book. There is
      also no mention of any Untoward Incident in the same on the
      day in question. It is pertinent to mention here that the DPM
      Train passed between Holambi Kalan and Narela stations in the
      afternoon and the Guard could easily see the track from the
      glass window in the rear of the Guard's coach. Thus, there is
      reason to doubt on dispute the evidence of RW-2.
      3.5 There are contradictory averments about the version of
      events in the police documents on record. In the Brief Facts

, it is mentioned that the deceased stated to have died due to falling down from the train and hit by the train. However, in the document, AW1/3, it is mentioned that one person was found lying dead of injuries sustained due to hit by train. In the Death Report, AW1/9 also, the apparent cause of death of the deceased has been mentioned as due to hit by train, and there is no averment that he fell down from the moving train.

3.6 As per the sketch plan of the spot of accident, drawn by the I.O. concerned in the Death Report and also the averment sin Para 1 of the Death Report, the dead body of the deceased was found inside the up line track. Further, as per evidence of RW-1, the incident spot was 1 k.m. from Narela platform. This Tribunal has been deciding the cases of falling down from trains on almost daly basis. It is common observations if a person falls from a running train, he is thrown outside the track and there is no probability of his body being found inside the track. The same appears possible only when a person is either walking on the track or is crossing the railway line or is knocked down by a train in any other manner."

6. Firstly, with regard to the aforesaid findings it bears mention that

there is no dispute that a valid train ticket of the same date of travel from

Adarsh Nagar to Narela station was found from the person/body of the

deceased and this is clear from document Ex. AW-1/4 which has been

referred to by the Tribunal. In my opinion, once a valid train ticket is found

from the person of the deceased it has to be held that the deceased was a

bona fide passenger on the date in question i.e 17.8.2010 - the train ticket

being a valid train ticket of the same date as the untoward incident of the

death of Sonu. I, therefore, hold that the deceased Sonu was a bona fide

passenger and set aside the findings of the Tribunal that the deceased was

not a bona fide passenger.

7(i) Let me now turn to the issue as to whether there are any

contradictions in the evidence of the witness Jeetu AW-2 and which alleged

contradictions have been very heavily relied upon by the Tribunal to reject

the deposition of AW-2.

(ii) In my opinion, the alleged contradictions which are found by the

Railway Claims Tribunal to exist for discarding the testimony of the witness

Jeetu are clearly misconceived because no doubt in his deposition (filed by

way of an affidavit) the witness Jeetu states that he was an eye witness,

however, in the same statement it is also clearly stated that he was travelling

in the same train with the deceased Sonu and that he after getting down at

the station at Narela came to know that someone had fallen from the train

and when he went on the spot he found that the person who had fallen from

the train was his friend Sonu and who had travelled with him in the same

train from Adarsh Nagar to Narela. Merely, because the witness Jeetu in the

first line of his deposition states that he was an eye witness, really what he

was stating was that he was travelling on the same date of the incident along

with the deceased Sonu and he found as an eye witness that body of the

deceased Sonu was near the Narela station after he got down from the same

train in which the deceased so was travelling. Therefore, Railway Claims

Tribunal has taken an unnecessary hyper-technical interpretation of the

expression "eye witness" as stated in the examination-in-chief/affidavit by

way of evidence and really not too much turns upon by the use of expression

"eye witness" because this has been further dilated upon in the deposition of

the witness Jeetu by stating that he was in fact traveling on the same train in

which the deceased Sonu died and when he went back to the spot he found

the body of the deceased Sonu.

(iii) I also reject the conclusion of the Tribunal by rejecting the testimony

of Jeetu on the ground that the name of the deceased Sonu is not mentioned

in the documents Exs. AW-1/3, AW-1/4 and AW-1/9, and which according

to the Tribunal showed that Jeetu was not a genuine eye witness, however, I

note that the Tribunal has most surprisingly ignored the document Ex.AW-

1/7 and which is the statement under Section 174 Cr.P.C. of Jeetu of the

same date of the incident, and which obviously is contemporaneous with the

incident, and therefore, Tribunal has committed a gross injustice to the

appellant/applicant by ignoring this document Ex. AW-1/7.

(iv) I therefore hold that it cannot be said that the witness Jeetu AW-2 is

not a genuine witness of the incident in question.

8. So far as the contradiction in the statement of the father that he was

first informed by rag picker ladies about the incident as stated in Ex. AW-

1/6, but his contrarily stating in his deposition that it was the witness Jeetu

who first told of the incident, will only show some contradictions, but in my

opinion the same are not enough to otherwise disbelieve the case of the

appellant/applicant in its entirety. Assuming some inconsistencies exist in

the statement of the father AW-1, yet, one cannot forget that the

appellant/applicant and the deceased Sonu were of very deprived sections of

the society being engaged in the job of boot polishing, and that such persons

who would not have been exposed to legal process. Thus some

contradictions, not major, is not sufficient to deny statutory compensation

although a valid train ticket of travel of the same date of the incident was

found during Jamatalashi/search of the person of the deceased Sonu. In such

a case of death of a bona fide passenger would be to do grave injustice, and

which I refused to do, and more so when as per Sections 123 (c)and 124-A

of the Railways Act, 1989 the liability of Railways is a strict liability.

9(i) The second main reason given by the Tribunal to hold that the case is

a case of run over and not of a fall from a train is on account of finding of

the body of the deceased Sonu within the tracks. The Tribunal concluded

that finding of the body within the tracks is an indication of a person being

run over and not because of a fall from a train and which would have been

running on a different track. Prima facie, again this conclusion of the

Tribunal was appealing, but when the same is examined in a dispassionate

manner, it will be found that Tribunal has again unnecessarily acted by

adopting a hypertechnical approach. The conclusion of the Tribunal that the

case is a case of run over is incorrect because if the deceased Sonu was run

over on account of being within a track, then the body would have in fact

been found in various pieces or in a badly crushed position. This is

admittedly not so. The body of the deceased has been found intact and the

death of the deceased is on account of injuries to the head, legs and crushing

of his left leg below the knee. These injuries are consistent with fall from a

train. Possibility of the deceased after his fall being hit by another train,

which could have been at that time passing on the adjacent track, also cannot

be ruled out. Further, in the alternative, it is very much possible and this

actually would have happened, that the injuries would not be on account of

being hit by a train in an adjacent track, but by the deceased being hit against

by different equipments of the railways which are found adjacent to the track

such as the electronic signals, electronic boxes, poles etc etc. After being

hit by the equipment it is perfectly possible that at the time of falling the

deceased would have fallen finally in the adjacent track. It cannot be ruled

out that after falling from the train in which he was travelling, and thereafter

being hit by railway equipments that much life/energy existed within

deceased's body that he could have taken a few steps for falling within the

adjoining track, and consequently the body, therefore, being discovered

within the track and which explains the fact that the body of the deceased

has been found within the track. There cannot be only one conclusion when

a body is found within a track that it is a case of run over. My conviction

and belief is confirmed by the fact that if the deceased was run over by

another train surely the driver/guard of the other train which would have run

over the deceased Sonu would have made a report of the accident and

admittedly there is no such report of any guard or driver of any other train

that a person had come under that train, and which would be the deceased

Sonu in this case. Therefore, there being not any report of any other train

driver or a guard of a person being run over by a train, shows that it cannot

be held that merely because the deceased's body was found within the tracks

it would be a case only of run over and not because of a fall from a train.

(ii) At this stage, one is reminded of the observations of the Supreme

Court in its two land mark judgments which deal with cases of untoward

incidents as found in Section 123(c) read Section 124-A of the Railways

Act, 1989. These are the judgments of Supreme Court in the cases of Union

of India Vs. Prabhakaran Vijaya Kumar and Ors. (2008) 9 SCC 527 and

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

judgments refer to the very testing conditions of travel by Indian Railways.

Passengers who travel in trains undoubtedly travel in extremely

overcrowded conditions. These judgments reiterate the law that liability of

the Railways is a strict liability and compensation cannot be denied even if

the bona fide passenger is negligent. Compensation can only be denied if

the bona fide passenger is found to be criminally negligent and that the death

is because of self-inflicted injuries and suicide.

(iii) In my opinion, on the preponderance of probabilities in the facts of

the present case, and simultaneously applying the law of strict liability

taken with the fact that the deceased undoubtedly had a bona fide ticket of

travel and hence was not a trespasser, it is held that the death of Sonu is on

account of an 'untoward incident' within the meaning of the expression

under Section 123(c) and Section 124-A of the Railways Act, 1989.

10. In view of the above, the appeal is allowed and impugned judgment

dated 7.3.2012 of the Tribunal is set aside. Appellant will be entitled to the

statutory compensation of Rs. 4 lakhs along with interest @ 7.5% per annum

from the date of the filing of the petition till the date of the payment.

Payment should be credited to the bank account of the appellant and the

Bank Manager will ensure that the moneys are not taken out in huge lump

sum and whatever moneys are taken are directly paid in the hands of the

appellant/applicant only after proper identification. Parties are left to bear

their own costs.

MARCH 13, 2014                                    VALMIKI J. MEHTA, J
godara