Union Of India vs Gautam Anand
2014 Latest Caselaw 2268 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         FAO No.467/2013

%                                                    5th May, 2014

UNION OF INDIA                                             ..... Appellant
                          Through:       Mr. Jayesh Gaurav, Advocate.


                          Versus

GAUTAM ANAND                                               ..... Respondent
                          Through:       Mr. Sanjay Gupta, Advocate with Mr.
                                         M.K. Anand, Advocate.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.           This first appeal is filed under Section 23 of the Railway

Claims Tribunal Act, 1987 impugning the judgment of the Tribunal dated

5.9.2013 which has allowed the claim petition filed by the respondent and

granted to them compensation of Rs.3 lacs alongwith interest @ 6% per

annum pendente lite and till 60 days after the disposal of the case and 9%

per annum simple after expiry of 60 days from passing of the judgment.


2.           The facts of the case are that the respondent, and who is a

management graduate, was travelling by train no.12618, Mangla
FAO 467/2013                                                   Page 1 of 4
 Lakshadweep Express in 2AC coach no.A1 berth no.4 from Nizamuddin to

Madgaon on a proper ticket with PNR no.2312919919. Respondent had

gone for washing his hands near the wash basin when he accidently fell

down near Itarsi railway station due to sudden jerk in the train.


3.           Before the Tribunal, the respondent filed 59 documents which

documents were exhibited as AW-01 to AW-59. These documents showed

the injuries suffered by the respondent on account of fall from the train, the

hospital records as also the identification of the respondent. The appellant

though denied in the written statement that the respondent was not a

bonafide passenger, however did not state that, the PNR number of the

travelling in second AC coach as stated by the respondent herein did not

belong to the respondent herein but belonged to someone else. Therefore in

my opinion it has to be held that the respondent was indubitably a bonafide

passenger.


4.           The only issue which was really argued before the Tribunal on

behalf of the appellant was that it was the appellant who was guilty of

criminal negligence and he fell down on account of his own negligence from

the train while trying to wash hands near the open door of the coach. The

appellant/Railways before the Tribunal relied upon as evidence, only the

FAO 467/2013                                                   Page 2 of 4
 DRM report and which concludes that the respondent is guilty of negligence

because he was near the open door of the wash basin and therefore washing

hands in the wash basin near the open door led to his fall from the train.

5.           The law under Sections 123(c) and 124-A of the Railways Act,

1989 pertaining to an 'untoward incident' is now well-settled by the

judgments of the Supreme Court in the cases 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. As per these judgments and Section

124-A of the Railways Act, 1989 liability is fastened on the Railways even if

the bonafide passenger is guilty of negligence. Railways cannot be fastened

with liability only if the negligence is criminal negligence or the case is a

case of suicide/self-inflicted injuries. Before the Tribunal, respondent herein

led his evidence by filing his affidavit by way of evidence and in which in

detail he described the happening of the accident and the fact of his falling

from the train as a result of the 'untoward incident'. There is no evidence

which is led on behalf of the appellant herein in rebuttal of any person (and

which was the respondent before the Tribunal) that it is the respondent

herein who had opened the door of the AC coach. The DRM's report relied

upon by the appellant, only mentions about there being an attendant in an

FAO 467/2013                                                   Page 3 of 4
 AC coach, but neither the attendant of the AC coach was produced by the

appellant and nor any other evidence was led to show that the door of coach

was opened by the respondent and that it was not otherwise lying open.

Once no evidence is led by the appellant, and there is no eye witness that it

is the respondent who opened the door of the AC coach, accordingly, it has

to be held that the door of AC coach was already lying open and from where

the respondent fell down while washing his hands in the wash basin which is

near the door. Standing near an open door at best is negligence but cannot

be a criminal negligence for liability of the Railways being denied and as

specifically held by the Supreme Court in the judgments in the cases of

Jameela & Ors.(supra) and Prabhakaran Vijaya Kumar and Ors. (supra)

and which observe that standing near an open door by the passenger is at

best negligence but not criminal negligence so that compensation can be

denied when otherwise there is an 'untoward incident'.


6.           In view of the above, I do not find any merit in the appeal, and

the same is therefore dismissed, leaving the parties to bear their own costs.




MAY 05, 2014                                  VALMIKI J. MEHTA, J.

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