Subhash Chand vs Union Of India
2014 Latest Caselaw 2546 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         FAO 399/2012

%
                                                                19th May, 2014

SUBHASH CHAND                                              ......Appellant
                          Through:       Mr. Yogesh Swroop, Adv.




                          VERSUS

UNION OF INDIA                                             ...... Respondent
                          Through:       Mr. Vijay Tyagi, Adv.

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 6.6.21012

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

appellants, and who are the parents of the deceased Sandeep Kumar who

died in an untoward incident of a fall from train on 1.01.2011.


2.    The facts of the case are that the deceased Sandeep Kumar was

travelling on train No.1-PGM (MEMU) from Badli Railway Station to

FAO 399/2012                                                Page 1 of 4
 Narela Railway Station on 1.01.2011. Sh. Sandeep Kumar accidently fell

down from train when the train was passing through Samaipur Badli Raja

Vihar and as a result of which Sh. Sandeep Kumar succumbed to the injuries

sustained. The subject claim petition was, therefore, filed seeking statutory

compensation of Rs.4 lacs.


3.    The appellants led evidence before the Tribunal of the appellant no.1

as AW-1. The appellant no.1/father deposed that though he was not an eye

witness, however, he had purchased a train ticket for his deceased son

Sandeep Kumar for travelling from Badli to Narela. In fact, the father/AW-

1/appellant no.1 contemporaneous to the incident on 1.01.2011 had also

similarly given a statement to the police, Ex.AW1/6 and which specifically

stated that he had purchased a train ticket for travelling of deceased Sandeep

Kumar. No doubt the train ticket was not recovered from the person of the

deceased, however, it is quite normal that tickets can get lost in such

incident/accident. Therefore, in the facts of the present case, and in view of

the testimony of AW-1 and his statement made before the police

immediately after the incident as Ex. AW1/6, I hold that the deceased was a

bonafide passenger.




FAO 399/2012                                              Page 2 of 4
 4(i)    So far as the aspect that whether the deceased Sandeep Kumar fell or

did not fall from a train is concerned, the relevant document in this regard is

a document being a statement of the eye witness one Shri Rajan, son of Ram

Lal.    Sh. Rajan gave a statement to the police around the time of the

incident, Ex.AW1/5, and which statement specifically records that Sh. Rajan

did see a person falling down from the train.         There is no reason to

disbelieve this statement of Sh. Rajan to the police as Ex. AW1/5 inasmuch

as no reason appears on record as to why Shri Rajan would depose falsely

with respect to the incident/accident.


(ii)    At this stage, it is extremely important to note that whereas the

appellants led evidence and proved that the deceased was a bonafide

passenger and who was travelling in the train, the respondent admittedly has

led no evidence whatsoever before the Tribunal.


(iii)   Once the statement of the eye witness Rajan was filed and proved on

record as Ex. AW1/5, if the respondent doubted the statement, it had to

summon Sh. Rajan and put questions to him challenging the statement made

to the police Ex.AW1/5, but admittedly that was not done by the

respondents/Railways.



FAO 399/2012                                               Page 3 of 4
 5.    Therefore, appellants had clearly proved the factum of the 'untoward

incident' as per Section 123(c) read with Section 124A of the Railways Act,

1989. I may note that now it is well settled that the liability of the Railways

is a strict liability and such liability arises even if there is negligence of the

bonafide passenger. Only if the negligence becomes a criminal negligence

then liability cannot be fastened on to the Railways, and which aspect has to

be especially proved by the Railways/respondent and which the respondent

has not done inasmuch as no evidence has been led by the respondent. The

relevant judgments of the Supreme Court in this regard are in the cases 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.


6.    In view of the above appeal is allowed and impugned judgment is set

aside. Appellants will be entitled to statutory compensation of Rs. 4 lacs

divided in equal parts between these two parents of the deceased Sh.

Sandeep Kumar.      Appellants 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 19, 2014/nk                                VALMIKI J. MEHTA, J.