Sati Dass vs Union Of India & Anr.
2014 Latest Caselaw 2392 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         FAO No.18/2012

%                                                   12th May, 2014

SATI DASS                                           ..... Appellant
                          Through:       Mr. Zeshan Khan, Advocate.

                          Versus

UNION OF INDIA & ANR.                                      ..... Respondents

                   Through:              None.

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

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. This case was passed over twice as no one had appeared for the

respondent. It is 12.20 P.M. I have therefore heard the counsel for the

appellant and after perusing the record I am proceeding to decide this appeal.

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

Tribunal Act, 1987 impugning the judgment of the Tribunal dated 30.9.2011

by which the Tribunal has dismissed the claim petition filed by the

appellant/applicant. The claim petition was filed on account of injuries

caused to the appellant in an 'untoward incident' on 28.1.2010.

3(i) The facts of the case are that the appellant, aged 55 years, a

labourer by profession, was travelling by a passenger train with valid train

ticket bearing no.K-42705631 from Nangloi to Delhi Kishan Ganj Railway

Station on 28.1.2010. It is pleaded that due to heavy rush, appellant was

forced to stand near the door of the compartment. When the train reached

near Jakhira flyover/Daya Basti, it gave a sudden jerk and as a result of

which the appellant received a thrust from passengers inside the train and the

appellant fell down from the running train. As a result of the fall from the

train, appellant received injuries on his both legs. Ultimately the main injury

was caused to appellant's right leg which had to be amputated at the foot

leaving only the heel of the right leg.

(ii) Respondent contested the case of the appellant and claimed that

there was no 'untoward incident' as per the meaning of the expression under

Section 123(c) read with Section 124-A of the Railways Act, 1989. It was

pleaded by the respondent that the accident happened on account of the

negligence and carelessness of the appellant himself.

4. The Tribunal has dismissed the claim petition by making the

following observations:-

"7. Both Issues, being interconnected, are being taken up together.

Ld. Counsel for the applicant argued that on 28.01.2010, after purchasing a journey ticket bearing No.K-42705631 from Nangloi to

Delhi Kishan Ganj for Rs.2/-, the applicant Shri Sati Dass was travelling by a Passenger Train; that due to heavy rush in the train, he had to stand near the door of the compartment; and that when the said train reached near Jakhira Flyover/Daya Basti, he fell down due to sudden jerk and got injured. On the other hand, Ld. Counsel for the respondent argued that the applicant was neither a bona fide passenger nor fell down from the train in question, because as per DD No.13 PP dated 28.01.2010 of PP/Kishan Ganj Railway Station, the incident was reported to the PCR Van at 17.40 hrs., whereas the 4- RD Passenger Train passed from the place of the incident at about 17.42 hrs.; that the applicant sustained injuries due to his own negligence and careless, as he was under the influence of alcohol at the time of the incident and as such, the alleged incident is not covered under the definition of "untoward incident". I have carefully perused the deposition of RW-2 Shri Prem Chand, Guard of 4-RD Passenger, as well as his Guard's Memo Book (Exh.RW-2/1), from which it is clear that there was no detention to the 4-RD Passenger Train after stopping at Home Signal No.38 of Daya Basti Railway Station. The site of the incident falls after Signal No.38 and just short of Daya Basti Railway Station. As per Guard's Memo Book (Exh. RW-2/1), the train reached Daya Basti Railway Station at 17.44 hrs., which indicates that the train could not have passed the site of the incident earlier than 17.42 hrs. as it takes only 1 or 2 minutes at the most to reach Daya Basti Railway Station from the site of the incident. I have also carefully perused the D.D. No.13 PP dated 28.01.2010 of PP Kishan Ganj Railway Station (Exh.AW-1/2), wherein it has been recorded that the alleged incident has been reported to Police by the PCR Van at 17.40 hrs. All these documents clearly suggest that the alleged incident could not have happened with 4-RD Passenger Train as it had crossed the site of the incident later to reporting of the incident. Therefore, the averment of the applicant in his affidavit (Exh.AW-1/1) is contradictory to the official documents. Moreover, in the M.L.C., prepared by the Hindu Rao Hospital/Delhi (Exh.AW-1/3), it is mentioned during the examination by the doctor while admitting the injured as "smell of alcohol present". Another factor creating strong suspicion about the genuineness of the case is that as per applicant's own affidavit dated 15.02.2011 (Exh.AW-1/1), he is a resident of Daya Basti Jhuggi. Many of these Jhuggies are located near Daya Basti Railway tracks.

The fourth factor raising doubt is that in this case, there is amputation of left door and all five fingers of the right foot, which situation is improbable if the person falls from a train where there is no platform. In this connection, Ld. High Court of Delhi, in Para 14 in case titled as Dharambir Devi & Ors. Vs. Ministry of Railways & Anr., 149 (2008) Delhi Law Times 435 (FAO No.357 of 2007, decided on 13.03.2008) has observed that if a person falling of a bogie from the exit would have a trajectory, which would drop him, if not a feet or two away from the train, at least 6 to 8 inches from the train and the forward motion would throw the person forward and not laterally.

8. All these facts based on official documentary record raise a strong doubt and suspicion about the genuineness of the claim. As such, it is held that the alleged incident is not covered under the definition of "untoward incident" as defined under Section 123(c) of the Railways Act, 1989. Hence, Issue Nos.1 & 2 are decided in the negative against the applicant."

5(i) A reading of the aforesaid paras shows that the Tribunal has not

disbelieved the case of the appellant that the appellant was a bonafide

passenger because the appellant was in fact travelling on a ticket bearing

no.K-42705631 from Nangloi to Kishan Ganj Railway Station. Therefore,

the appellant has been held to have a ticket with him and therefore in effect

appellant is a bonafide passenger. Tribunal has however, in spite of the fact

that ticket of travel is proved of the appellant, held that deceased cannot be a

bonafide passenger because the DD entry with the police in respect of the

incident was reported at 17.40 hrs and the passenger train 4-RD had passed

from the place of the accident two minutes later at 17.42 hrs. Essentially, the

Tribunal has held that there is a difference of two minutes and which is

sufficient to disbelieve the case of the appellant, and which according to the

Tribunal is to be with the fact that the train reached Daya Basti railway

station at 17.44 hrs. The Tribunal therefore holds that the train could not

have passed the site of the accident earlier than 17.42 hrs and consequently

the accident could not have happened with the 4-RD passenger train because

this train had crossed the site of the incident later to reporting of the incident

at 17.40 hrs.

(ii) In my opinion, the reasoning of the Tribunal is clearly flawed

because when a report is given to a PCR vehicle with respect to an incident,

the making of the entry is not exact to the last minute/second. Merely

because the report is written as of 17.40 hrs would not mean that the report

would have been exactly at 17.40 hrs. The report could well have been

recorded by stating the timing a few minutes up and down, and in this case

the difference is only of two minutes. In my opinion, this difference of two

minutes is not such a grave difference of timing which should have

prevented the Tribunal from awarding the statutory compensation once the

appellant was proved to be a bonafide passenger inasmuch as the appellant

was travelling in the train and found with a valid ticket no.K-42705631 from

Nangloi to Delhi Kishan Ganj Railway Station.

6. I have seen the medical certificate filed by the appellant before

the Tribunal and which has been exhibited before the Tribunal as Ex.AW1/7.

Counsel for the appellant explains the medical language by stating that the

appellant has injured his right foot whereby except the heel of the right foot

the other portion of the foot has been amputated. The types of injuries and

the compensation payable with respect to the injuries are specified in the

Railway Accidents and Untoward Incidents (Compensation) Rules, 1990.

As per entry 24 of Schedule to the rules (read with Rule 3) shows that

compensation to be awarded with respect to an injury which results in the

amputation of one foot resulting in end-bearing is a sum of Rs.1.20 lacs.

The injury of the appellant in the present case therefore will fall in entry 24

and consequently the appellant is entitled to a sum of Rs.1.20 lacs as per

entry 24 in the schedule.

7. In view of the above, this appeal is allowed. Appellant will be

entitled to compensation of Rs.1.20 lacs alongwith interest @ 7 ½% per

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

date of payment. Parties are left to bear their own costs.

MAY 12, 2014                                  VALMIKI J. MEHTA, J.
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