Delhi High Court
Parmeshwar Ram & Anr. vs Union Of India on 8 May, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No. 308/2011
%
8th May, 2014
PARMESHWAR RAM & ANR. ......Appellants
Through: Mr. S.N. Parashar, Advocate.
VERSUS
UNION OF INDIA ...... Respondent
Through: Mr. A. S. Dateer, 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
24.11.2010 by which, the Tribunal has dismissed the claim petition filed by
the appellants/claimants seeking compensation for the death of their son
Mithilesh Kumar.
2. The facts of the case are that on 19.5.2009, the deceased Mithilesh
Kumar along with his nephew Neeraj Kumar was said to be travelling from
Shakurbasti to Dayabasti Railway Station by a train on a valid train ticket,
FAO 308/2011 Page 1 of 6
when the train reached at Rampura Gate No.5-B,due to a sudden jerk from
inside the compartment Mithilesh Kumar fell down from the running train
and died as a result of the accident. The respondent contested the case of
the appellants and pleaded that the deceased was not a bonafide passenger.
It is also pleaded that the deceased was living near the phatak/gate and he
would have been hit while crossing the phatak/gate at Rampura.
3. The case of the respondent has been believed by the Tribunal for
dismissing the claim petition and reasoning of the Tribunal are given as
under:-
" These three issues are taken up for consideration
simultaneously for the sake of convenience, and also as they are
inter-related. According to the applicants, the ticket of Shri
Mithlesh Kumar was lost in the aftermath of the accident.
However, the applicants have produced as witness Shri Neeraj
Kumar, AW-2, who they claim purchased the ticket for the
decreased Shri Mithlesh Kumar. While in the statement given
to the police, Shri Neeraj Kumar has stated that he had
purchased the ticket for Shri Mithilesh Kumar, in his affidavit,
he has nowhere mentioned the fact that he had purchased a
journey ticket for the deceased. Being a nephew of the
deceased, it is quite likely that he has given evidence in order to
help the family get compensation in the case. However, in view
of the contradictions in his affidavit and his statement given to
the police, his testimony cannot be believed. There are,
therefore, legitimate doubts regarding the bonafides of Shri
Mithilesh Kumar as a passenger at the relevant time of the
incident. Regarding the nature of incident, the respondent has
pointed out that in the Death Report, Ex.AW1/10, it has been
clearly mentioned that Shri Mithilesh Kumar's death was due to
FAO 308/2011 Page 2 of 6
run over by a train. Similarly the Postmortem Report,
Ex.AW1/13, it has been clearly mentioned that he died due to
being hit by a train while crossing the Phatak at Rampura. The
applicants, on the other hand, have drawn attention of the Court
to the report, ex.AW1/6, in which, it has been mentioned that he
had a fall from a train. As stated by the respondent's counsel, it
is relevant to mention that Shri Mithilesh Kumar was doing the
work of 'kabadiwala' and lived by the side of the rail track near
Rampura Phatak, as mentioned by the father of the deceased. It
is, therefore, quite apparent that the endorsement made in the
Postmortem Report alleging that he died while crossing the
Phatak at Rampura, is in fact, what had happened in this
particular case. Some police documents, however, mention fall
from a train, but this version is based on what has been stated
by the nephew of the deceased to the police. However, in view
of the other evidence available on record, which specifically
points to the contrary, it is apparent that he was the victim of a
run over accident and not the victim of an untoward incident, as
defined under the Act. These issues are decided accordingly in
favour of the respondent and against the applicants."
4. The impugned judgment of the Tribunal is clearly illegal and bound to
be set aside for the reason that the Tribunal has ignored the document
Ex.A1/9 and which is the statement of the brother of the deceased namely
one Shri Upender and which statement is made contemporaneous to the
incident on 19.5.2009. Sh. Upender states that deceased Mithilesh Kumar
along with his nephew Neeraj had gone to Trinagar for purchasing of clothes
and while returning to home from Shakurbasti to Dayabasti, after purchasing
a train ticket, the deceased Mithilesh Kumar fell down from the train near
Rampura phatak.
FAO 308/2011 Page 3 of 6
5. Admittedly the deceased was a person who used to sell scrap/junk.
The financial position and status of such persons is not that they or their
family members would in the fact of the case make a false statement about
the train travel of the deceased and falling of the deceased because persons
are definitely not aware of the Railway Claims Tribunal and the statutory
compensation of Rs. 4 lakhs for them to make a false statement of a fall
from the train to the police immediately after the incident. The statement
which is made by Mr. Upender in the natural course of events immediately
after the incident to the police, and which shows the travel of the deceased
by train, shows on preponderance of probability that the deceased Mithilesh
Kumar fell down from the train while travelling from Shakurbasti to
Dayabasti and which travel was undertaken along with his nephew when
they had gone to Trinagar for purchasing of clothes. This Court can take
note of common course of natural events by virtue of Section 114 of the
Evidence Act, 1872.
6. Merely because there is some contradiction in the statement of the
nephew Neeraj Kumar cannot mean that the claim petition should be thrown
out only on the ground that Neeraj Kumar is an uneducated young man of
about 21 years, and definitely not sharp to the judicial process to understand
FAO 308/2011 Page 4 of 6
nuances and distinctions with respect to making of statement of purchase of
a ticket.
7. The liability of the Railways is a strict liability in terms of Section 123
(c) read with Section 124(A) of the Railways Act, 1989, and as so held by
the judgments of the Supreme Court in the case 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. This strict liability is enough
to fasten liability upon the respondent/Railways in this case because of the
body being recovered on the tracks and the statement of the brother of the
deceased namely Upender. I may also note that though there is no eye
witness of the incident in support of the case of the appellant, similarly there
is even no eye witness of the respondent who has deposed that the deceased
was trying to cross the railway tracks. In fact, if the deceased was trying to
cross the railway phatak, then surely the gateman of the phatak should have
been called in the witness box by the Railways for stating/deposing that the
deceased was crossing the railway tracks, but, no gateman of the phatak/gate
has been brought into the witness box by the respondent in support of the
alleged defence of the deceased being run over while trying to cross the
tracks at Rampura phatak.
FAO 308/2011 Page 5 of 6
8. In view of the above appeal is allowed, appellants will be entitled to
statutory compensation of Rs. 4 lacs in equal parts. Appellant will also be
entitled to interest at 7 ½ % 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.
May 08, 2014 VALMIKI J. MEHTA, J.
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