Delhi High Court
Asha Kuwar & Ors vs Union Of India on 27 March, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No. 147/2012
% 27th March, 2013
ASHA KUWAR & ORS ......Appellant
Through: None.
VERSUS
UNION OF INDIA ...... Respondent
Through: Mr. A.S.Dateer, Adv.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? YES
VALMIKI J. MEHTA, J (ORAL)
1. Though no one appears for the appellant, I have gone through
the impugned judgment, as also the record of the Railway Claims Tribunal,
with the assistance of the counsel for the respondent.
2. This first appeal is filed under Section 23 of the Railway
Claims Tribunal Act, 1987 impugning the judgment of the Tribunal dated
20.12.2011 by which the Tribunal has dismissed the claim petition filed by
the appellants/applicants. By the claim petition, the statutory compensation
of Rs.4 lacs was claimed, on account of death of Sh. Shashi Binay Singh,
husband of the appellant no.1 and father of appellant nos. 2 to 4.
FAO 147/2012 Page 1 of 6
3. The facts of the case are that the deceased Sh. Shashi Binay
Singh, aged about 45 years, was travelling from Ex-Gaya to New Delhi on
15.7.2010 by Mahabodhi Express Train No. 2397 on a second class journey
ticket bearing no.E-07162419. When the train stopped at Kailhat Railway
Station, the deceased was trying to get down from the door of the train to
urinate, and at that point of time he got caught up in the whiff of the fast
moving Rajdhani Express train in the adjoining track, and consequently he
was hit by the train which resulted in grevious injuries causing his death.
4. Respondent contested the claim by contending that neither the
deceased was a bonafide passenger and nor did he fall down from a train,
and that in fact the injuries which were sustained by the deceased were self-
inflicted injuries and consequently there is no 'untoward incident' in terms
of that expression found in Sections 123(c) and 124-A of the Railways Act,
1989.
5. So far as deceased being a bonafide passenger is concerned, this
issue in my opinion cannot at all be doubted because the train ticket no. E-
07162419 for travel from Ex-Gaya to New Delhi on 15.7.2010 has been
filed/proved and exhibited as AW1/7. In fact, there is not much dispute so
far as this issue is concerned that the deceased was travelling on a valid train
ticket. Therefore, I hold that the deceased was a bonafide passenger.
FAO 147/2012 Page 2 of 6
6. The only vexed question is that whether it can be held that the
deceased died on account of an 'untoward incident' within the meaning of
the expression as found in Section 123(c) read with Section 124-A of the
Railways Act, 1989. In this regard, it is relevant to note that the liability of
the Railways for an untoward incident in terms of Section 124-A of the
Railways Act, 1989 is a strict liability, and which cannot be avoided even if
it is found that the bonafide passenger was negligent. This issue is no longer
res integra and so held in the judgments of the Supreme Court in the cases
reported as Union of India Vs. Prabhakaran Vijaya Kumar & Ors. (2008)
9 SCC 527 and Jameela and Ors. Vs. Union of India (2010) 12 SCC 443.
In both these judgments Supreme Court has made observations with regard
to conditions of travel in the Indian Railways, where not only trains are
overcrowded, but there are demanding situations on account of
overcrowding of the trains. Keeping this strict liability of Railways in
mind, let us see the facts of the present case.
7. In the present case, contents of the claim petition have been
proved through Sh. Rabindra Bhagat (AW-2) who was travelling in the same
bogie as the deceased Sh. Shashi Binay Singh. This witness has deposed
that the general compartment in which deceased Shashi Binay Singh was
travelling was jam packed even at the entrance of the toilet room and that is
FAO 147/2012 Page 3 of 6
why the deceased was avoiding to discharge his urine from four stations
back. However, when the deceased came to know of stopping of the train at
Kalihat Railway Station he could not prevent himself from discharging his
urine, and therefore he came to the door of the compartment in order to get
down from the train to discharge urine. It is deposed by AW-2 that while
the deceased was in the process of getting down from the train, in the
adjacent track Rajdhani Express was passing at a great speed, and the whiff
created by the fast moving Rajdhani Express resulted in the deceased not
only losing his balance and accidently falling down from the train but also
by getting struck against the train causing injuries which resulted in his
death. A reading of the cross-examination of this witness shows that there is
no dispute with respect to overcrowded condition of the train deposed to by
him, and also that the toilet door not being accessible because of
overcrowding. In such conditions, if the deceased Shashi Binay Singh, in
my opinion, was getting down from the door towards the track where a train
may pass, may make him guilty of negligence but definitely not criminal
negligence, because, Railways is responsible for creating such conditions
whereby the deceased could not go to the toilet in the bogie or cross-over to
the other side for getting down on the platform. Therefore, in my opinion, in
view of the ratios of the judgments of the Supreme Court in the cases of
FAO 147/2012 Page 4 of 6
Prabhakaran (supra) and Jameela (supra) , there is no criminal negligence
of the deceased Shashi Binay Singh, for the Railways not to be held liable
for grant of statutory compensation.
8. In my opinion the findings of the Railway Claims Tribunal that
the deceased died on account of self-inflicted injuries cannot be sustained by
holding that the deceased could have got down on the platform or gone to
urinate in the coach urinal. These findings of the Tribunal in my opinion are
against the facts of the case which show grossly overcrowded conditions in
the bogie and for which reason the deceased was not able to go to the
platform for urinal which was adjacent to the door on the other side or to the
toilet in the coach. Accordingly, the findings of the Railway Claims
Tribunal that there is no untoward incident are accordingly set aside and it is
held that deceased died on account of an untoward incident.
9. I may note that no one appeared for the appellants on 11.3.2014
and even today no one appears for the appellants. I fail to understand such
irresponsibility of advocates.
10. Impugned judgment is set aisde and the claim petition is
allowed by awarding the statutory compensation of Rs.4 lacs alongwith
pendente lite and future interest at 7 ½ % per annum from filing of the
petition till the date of payment. Appellants will be entitled to compensation
FAO 147/2012 Page 5 of 6
in equal proportions. Since the appellant no.4 is a minor, 1/4th share which
is payable to him will be deposited in his name in a fixed deposit in a
nationalized bank and only the interest thereof will be used for up-keep and
maintenance of the minor appellant no.4. On the appellant no.4 becoming
major the FDR alongwith accrued interest will be paid to him. It is directed
that copy of this judgment be sent by registered post AD by the registry of
this Court to each of the appellants at the addresses of the appellants in the
memo of parties. It is also directed that the respondent through one of its
responsible official posted at a station nearest to the residence of the
appellants will inform the appellants about this judgment positively within
four weeks from today.
MARCH 27, 2014 VALMIKI J. MEHTA, J.
ib
