Sh. Surendra Prasad Verma & Anr. vs Union Of India
2014 Latest Caselaw 2300 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         FAO No.167/2012

%                                                    7th May, 2014

SH. SURENDRA PRASAD VERMA & ANR.                           ..... Appellants
                  Through: None.

                          Versus

UNION OF INDIA                                            ..... Respondent

                          Through:       Mr. Sandip Kumar, 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 18.10.2011 which has dismissed the claim petition filed by the

parents of the deceased Sh. Rajesh Kumar Nidhi who died in an

untoward incident on 1.6.2009.

2. The facts of the case are that the deceased Sh. Rajesh Kumar

Nidhi, a student aged 19 years, resident of Village Ajwan, Police Station

Naubatpur, District Patna (Bihar) had purchased a Super Fast Journey

Ticket from Patna Jn. to New Delhi on 1.6.2009 and had boarded the train

no.2391 UP Sharamjeevi Express. The train, after commencement of

journey, halted at the Buxar Railway Station and after the train started from

Buxar Railway Station, the deceased Sh. Rajesh Kumar Nidhi who had got

down at the station to purchase some eatables and drinking water, on

account of the rush in the train was forced to stand near the door of the train

from where he fell down due to jerk in the train and push of the co-

passengers. The subject claim petition was accordingly filed.

3. The case of the respondent before the Tribunal and before this

Court was that the deceased was not a bonafide passenger. It is contended

that no train ticket was recovered and therefore the deceased was not a

bonafide passenger. It is also argued that there is a difference of about two

hours between the time of the departure of the train at Buxar Railway Station

and the finding of body and thus there is no untoward incident of a fall from

the train. It is accordingly argued that claim petition was misconceived and

has been rightly dismissed by the Tribunal.

4. Tribunal has given the following observations for dismissing

the claim petition:-

"7. All these Issues, being inter-connected, are being taken up together. Applicant's case is that Sheri Rajesh Kumar Nidhi (deceased) was travelling by Train No. 2391-Sharamjeevi Express with a valid Super Fast Journey Ticket from Patna Jn. To New Delhi on 01.06.2009; that when the said train halted Buxar Railway

Station, he got down from the train and after purchasing some eatables and drinking water, he boarded the said train, but due to heavy rush in the compartment, he was unable to go to his seat and was compelled to stand near the door of the compartment; that due to sudden jerk of the train and pressure of the co-passengers, he fell down from the running train and succumbed to his injuries. On the other hand, relying on the extract of Station Diary annexed with the Inquiry Report, Ld. Counsel for the respondent argued that Train No. 2391-Sharamjeevi Express was running late and reached and departed from Buxar Railway Station at 23.26 and 23.28 hrs. Respectively on 01.06.2009, while as per the Memo dated 02.06.2009, annexed with the Inquiry Report (Exh.R-2), the Dy. Station Manager informed the GRP Police officials of Buxar Railway Station at 01.25 hrs. About a body of a person having been found lying cut on Up Loop Line No. 4 of Buxar Railway Station i.e. about 2 hours after departure of Sharamjeevi Express Train. This, the respondent argued, does not happen in actual practice that a person falling down from a train keeps lying on track for almost 2 hours unnoticed at a busy station like Buxar. Moreover, in such cases, the fellow passengers invariably stop the train. In this case, a passenger has informed the Dy. Station Supdt./Buxar based on which Dy. S.S./Buxar issued a Memo (Exh.R-2) as under:-

8. No journey ticket has been found with the deceased while mobile phone, telephone numbers etc., were recovered from his possession (Exh. AW-1/9). There is no evidence whatsoever that the deceased was travelling by Sharamjeevi Express and fell down from this train. On the other hand, as pointed out by the respondent, the timings of the train at Buxar and receipt of first information by the railway staff contradict the facts submitted by the applicants. I have carefully

perused all the documents filed by the respondent and the applicants, which fully support the contention of the respondent. The applicants have failed to prove their case. This Bench is, therefore, constrained to conclude that the deceased Sheri Rajesh Kumar Nidhi was neither a bona fide passenger nor fell down from the alleged train. Based on the above, Issue Nos. 2 & 3 are decided in the negative against the applicants and in favour of the respondent and Issue No.4 is decided in the affirmative in respondent's favour. Issue No.1, about jurisdiction, does not need any further elaboration after the main Issues have been decided."

5. In my opinion, the impugned judgment of the Tribunal is

clearly illegal and is bound to be set aside. Firstly, the Tribunal ought to

have taken note of the fact that no doubt the train ticket is in these cases

required to be proved for showing that the deceased was a bonafide

passenger and no ticket was found on the person of the deceased Sh. Rajesh

Kumar Nidhi in this case, however, it has also been held by the Courts in

innumerable judgments that facts of each case have to be seen to determine

as to whether not finding of the ticket on the person of the deceased is

enough for holding that the deceased was not a bonafide passenger inasmuch

as it is very much possible that in a train accident in which a passenger falls

from a train, the ticket is and can be lost. Therefore, merely because no train

ticket has been filed or proved will not be determinative of the fact that

deceased should be held not to be a bonafide passenger.

6. The most important aspect in this case is that the deceased was

a resident of Patna and his body was found near the Buxar Railway Station

on the railway tracks. It is not the case of the respondent that the deceased

had some reason to have been found at the tracks near Buxar Railway

Station inasmuch as the deceased neither had a place of residence nor any

reason to be at the tracks near the Buxar Railway Station where the body

has been found. Merely because there is said to be about a two hour

difference in finding of body by GRP police officials is not determinative of

the fact that there is no fall from the train inasmuch as bodies can lie on the

tracks sometime for hours without the same being reported, and more so in

this case when the falling from the train is roughly at about 11.30 at night

and the body being found about 1.30 A.M. Therefore, the finding of the

Tribunal is erroneous that as a result of timings of the train and the finding

of the body, it should be held that the deceased was not a bonafide

passenger.

7. I may note that the Tribunal for some reason has chosen to

ignore two important and vital documents which were filed by the appellant

in this case. First document is the document Ex.AW1/4 and which shows

that the body was lying on the tracks. As per this report Ex.AW1/4, once the

body is found to lie on the tracks, then as per the facts of the present case a

presumption does arise of the fall of the deceased from the train. Whatever

doubt remains of the fall of the deceased from the train is removed from the

FIR filed as Ex.AW1/9 and which records the statement of maternal uncle of

the deceased one Sh. Vasgit Verma who has stated that he had accompanied

the deceased Sh. Rajesh Kumar Nidhi, a student, to the railway station at

Patna where the deceased Sh. Rajesh Kumar Nidhi had purchased the train

ticket for travelling to Delhi because he was going to take tuitions at Delhi.

There is a red marking by pen in this portion of the document Ex.AW1/9,

and which must surely be by the Tribunal, but the Tribunal has, for some

strange reason, not mentioned this relevant part of the document, Ex.AW1/9

in the impugned judgment. There is no reason to disbelieve the natural

statement of Sh. Vasgit Verma made to the police.

7. A conjoint reading of the documents Ex.AW1/4 and Ex.AW1/9

leads to the conclusion on preponderance of probabilities that the deceased

Sh. Rajesh Kumar Nidhi was a resident of Patna in Delhi and for the purpose

of taking tuitions was travelling to Delhi by the UP Sharamjeevi Express

after purchasing a ticket on 1.6.2009, when he fell from the train near Buxar

Railway Station, where his body on the tracks could only have been found if

he was travelling in the train. I may note that 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 has held

that liability of the Railways is a strict liability and which is supported by the

wording of Section 124-A of the Railways Act, 1989. Supreme Court has

held that even if the bonafide passenger is guilty of negligence, yet, liability

will be of the Railways unless the negligence is criminal negligence or a

case of self-inflicted injuries/suicide. In the present case, circumstances

show that the strict liability of the Railways must be held to exist and it is

held that the deceased Sh. Rajesh Kumar Nidhi fell from the train while

undertaking a train journey from Patna to Delhi.

9. Accordingly, the appeal is allowed. Claim petition of the

appellants/claimants will be allowed by granting them statutory

compensation of Rs.4 lacs alongwith interest @ 7½% per annum simple

from the date of filing of the petition before the Tribunal till the date of

payment. Parties are left to bear their own costs.

Since no one appears for the appellant, the Registry of this

Court will send to the appellants a copy of this judgment by registered post

AD and also through the process server of the concerned district of the

residence of the appellants so that they have knowledge of the present

judgment. Respondent is also directed that it should within a period of six

weeks from today send to the appellants a copy of the present judgment

through its official posted at the railway station nearest to the residence of

the appellants/claimants.

MAY 07, 2014                                 VALMIKI J. MEHTA, J.
Ne