Uoi vs Mukul Gaur
2014 Latest Caselaw 5774 Del

$~17


*      IN THE HIGH COURT OF DELHI AT NEW DELHI


+      FAO 162/2013 and CM Appl. No. 5498/2013


                                        Decided on 13th November, 2014
       UOI                                                ..... Appellant

                          Through       :Ms. Rashmi Malhotra and Ms.
                                        Priyanka Bharihoke, Advs.

                          versus

       MUKUL GAUR                                           ..... Respondent

                          Through       : Ms. Rupika Singh, Adv.

CORAM:

HON'BLE MR. JUSTICE A.K. PATHAK

A.K.PATHAK, J.(ORAL)

1. Respondent, through his father, filed an application under Section 16

of the Railway Claims Tribunal Act, 1987 ("the Act", for short) before the

Railway Claims Tribunal, Delhi seeking compensation of `4,00,000/- from

the appellant in respect of the injuries suffered by him in an accident relating

to 2DPM passenger train on 15th November, 2009 at about 7:30 pm at

Azadpur railway station. At the time of filing of petition appellant was a

minor. During pendency of the petition, respondent attained the age of

majority and continued to pursue the matter. After the trial, Tribunal has

awarded compensation of `2,40,000/- to respondent together with interest @

9% per annum from the date of order till payment is made.

2. Appellant is aggrieved by the impugned judgment. It is contended

that judgment is erroneous and not in conformity with the evidence adduced

by the parties. Adverse inference was drawn against the appellant for not

producing the DRM report. Statement of RW-1, Shri Sohan Lal, Guard of

the train, was totally overlooked. RW1 had deposed that no „untoward

incident‟ took place at Azadpur railway station relating to 2DPM passenger

train which falsified the story as propounded by the respondent. It is further

contended that Tribunal has wrongly accepted the deposition of respondent

that his right leg below knee and one finger of right hand were amputated in

the accident even in absence of „permanent disability certificate‟. It is

further contended that respondent was not a bonafide passenger, since no

journey ticket was recovered from him. Per contra, learned counsel for the

respondent has vehemently contended that respondent had categorically

deposed that on 15th November, 2009 at about 7 pm he boarded 2DPM

passenger train at Adarsh Nagar railway station after purchasing a `2/-

ticket. There was huge rush in the compartment, therefore, he was standing

near the gate and when train reached near Azadpur railway station, he fell

down from the compartment of running train and came in between the

platform and train, resulting in amputation of his right leg and one finger of

his right hand. He fell down due to sudden jerk from the train. It is

contended that testimony of respondent had remained unshattered in his

cross-examination, inasmuch was supported by the police investigation

reports and the MLC of Babu Jagjivan Ram Memorial Hospital, Delhi.

Tribunal has rightly preferred the statement of respondent duly corroborated

by the documentary evidence, that is, police reports and the MLC. Learned

counsel for the respondent has next contended that ticket was lost in the

incident and said plea has rightly been accepted by the Tribunal, inasmuch

as appellant had failed to lead any evidence to show that appellant was not a

bonafide passenger of 2DPM passenger train.

3. On scrutiny of ocular as well as documentary evidence adduced by

the parties Tribunal has held thus:-

"5.2. The burden of proving this fact that the injured applicant was not a bonafide passenger and he suffered injuries as a result of some incident other than an untoward incident heavily lies on the respondent/railways. In this case, inspite of the

fact that Respondent/Railway has examined three witnesses (out of which one was declared hostile) to prove its case but mandatory DRM‟s Report has not been filed. In absence of mandatory DRM‟s Report, any amount of evidence on behalf of Respondent/Railway cannot be considered to be sufficient. Rather adverse inference has to be drawn against the Respondent/Railway for not following the mandate of law as prescribed in Rules.

5.4. As compare to the evidence adduced on behalf of the respondent in this case, the evidence adduced on behalf of the applicant is more cogent and reliable, as he is the eyewitness to the incident and he himself has suffered the injuries on his body due to the accident. The testimony of the injured applicant was also supported by the D.D.entries filed by the injured applicant in support of its case. Respondent Railway also summoned the I.O.Sh.Vikram Singh, P.P.Sabzi Mandi Railway Station and he has clearly stated in his statement that he is the officer who investigated the case and D.D. entries are in his handwriting and he also brought the Journal (Rojnamcha). The oral and documentary evidence adduced on behalf

of the injured applicant clearly shows that he was travelling in 2 DPM train on the fateful day after purchasing valid ticket, which was lost during the accident along with his other articles and he fell down from the running train due to sudden jerk of the train. Losing the journey ticket/MST at the time of fall cannot be ruled out in view of the injuries on the body of the deceased & further keeping this fact in view that the deceased was handled by different agencies from the site of incident to the hospital. The burden to prove that the deceased was not a bonafide passenger in view of legal position emerging from the Judgements of several high Courts; more specifically, in 2008 (1) TCJ 108 (Union of India v. G.Loganayaki & others), the Hon‟ble High Court of Madras, while dealing with a case on similar issue held that the burden of proof that he deceased held a valid ticket is impossible to be discharged by the dependants of the deceased, who can have no means of knowledge about the ticket purchased by the deceased on the ground that it is likely that such a deceased passenger held a valid ticket, pass or permission but the same is lost in the accident with the death of person and loss of his belongings if any. Further, it is also to be kept in view that in

this case, the applicant suffered crush injuries on his body and it is almost impossible in that state of body to search for the ticket. I am, therefore, of the considered view that respondent/railway has utterly failed to discharge its burden that injured applicant was not a bonafide passenger hence it has to be presumed keeping the injuries in view besides the principles laid-down by Hon‟ble High Court that the petitioner is to be treated a bonafide passenger. Besides the oral and documentary evidence, led by the injured applicant, following principles laid down by the rulings of the Hon‟ble Apex Courts are also to be kept in view:-

1. The Apex Court in "Union of India vs. Prabha karan Vijaya Kumar and others" reported in (2008) 4 MLJ 323 (SC) have held that Section 124-A lays down strict liability or no fault liability in case of railway accidents and if a case comes within the purview of Section 124-A, it is wholly irrelevant as to who was at fault. It was also held therein that the expression accidental falling of a passenger from a train carrying passengers includes accidents when a bona fide passenger travelling with a valid ticket is trying to enter into a railway train and falls down during the process.

2. The Apex Court in the case of Jameela & others v. Union of India reported in AIR 2010 SC 3705 held that passenger falling down from running train while travelling on valid ticket and the fact that he was standing at open doors of compartment of running train may be negligent act or even rash act, but it is certainly not criminal act and negligence of passenger does not have effect on liability of railways.

5.5. In view of the evidence available on the file, going/guided by the Judgement cited supra and on the basis of discussion made above, I am of the confirmed view that the injured applicant has been able to prove this fact that he was a bonafide passenger of train no.2DPM and he suffered injuries due to falling from the train, as alleged in the claim petition. The applicant has mentioned in column no.10 of the claim application 100% disability. The injured applicant could not file his Disability Certificate despite availing two dates and the reason given was that the Disability Certificate was not prepared by that time and he requested for a longer date for producing the same. The applicant appeared before the Tribunal for his

evidence and his right leg below the knee and right hand finger were amputated in the accident. Issues no.1, 2 are accordingly decided in favour of the applicant and against the respondent and Issue no.3 also in favour of the applicant with the finding that applicant suffered from unscheduled as well as scheduled injuries."

4. I have heard learned counsel for the parties and have perused the

Tribunal‟s record carefully and do not find any illegality or perversity in the

impugned judgment for the reasons to follow.

5. Respondent (AW1) has categorically deposed that on 15th November,

2009 at about 7 pm he came to Adarsh Nagar railway station and purchased

a valid `2/- ticket and at about 7:15 pm he boarded 2 DPM passenger train.

There was huge rush inside the compartment but he got standing space near

the gate. When the train reached near Azadpur railway station, due to a

sudden jerk and thrust from inside the compartment, he fell down from the

running train and came in between the railway platform and running train,

and sustained serious injuries all over his body. He was removed to Babu

Jagjivan Ram Memorial Hospital in a precarious condition, where his MLC

was prepared. Subsequently, he was shifted to Lok Nayak Hospital, New

Delhi, where he remained admitted from 16th November, 2009 to 10th

December, 2009. His right leg and one finger of right hand were amputated,

as a result of the accident. DD no. 17 dated 15 th November, 2009, DD No.

21 dated 16th November, 2009 and DD No. 19 dated 17th November, 2009

were registered at Police Post Sabzi Mandi regarding the incident. He lost

railway ticket and some other articles in the accident. His this version has

remained unshattered in his cross-examination, inasmuch as has been duly

supported by DD No. 17 (Ex. AW1/3) dated 15th November, 2009 which

clearly indicates that an information was received in the police post at 7:40

pm by phone that one person had fallen at platform no. 1 of Azadpur railway

station from the train and was cut but was alive. A perusal of DD no.21 (Ex.

AW1/2) dated 16th November, 2009 shows that Head Constable Vikram

Singh reached railway station and came to know that PCR had removed the

injured to Babu Jagjivan Ram Memorial Hospital. Head Constable Vikram

Singh reached Babu Jagjivan Ram Memorial Hospital and met Duty

Constable there, who informed that one boy was admitted in the hospital by

ASI Rajender Singh of PCR and the said boy had sustained injuries in the

train accident. It is further recorded in this DD entry that respondent was

„unfit for making a statement‟. It has been further recorded that injured was

referred to LNJP Hospital. A perusal of DD no. 17 (Ex. AW1/6) dated 17 th

November, 2009 prepared by Head Constable Vikram Singh shows that

statement of respondent was recorded by him on the said date. Statement of

respondent recorded by Head Constable Vikram Singh has been exhibited as

Ex. RW3/3 and a perusal thereof shows that respondent had described the

incident in the manner, which has been stated by him in his affidavit. Prior

thereto statement of father of respondent was also recorded by Head

Constable Vikram Singh, which has been proved and exhibited as Ex.

RW3/4, which also supports the version of respondent.

6. MLC prepared by Babu Jagjivan Ram Memorial Hospital has also

been placed on record, which clearly shows that respondent was got

admitted in the hospital by ASI Rajendra Singh on 15 th November, 2009 at

7:40 pm. Alleged history of injuries sustained by the respondent has been

shown as "Rail Traffic Accident" From the documents placed and proved on

record it stands proved that respondent was found lying at the platform at

Azadpur Railway Station with critical injuries and was removed to Babu

Jagjivan Ram Memorial Hospital by the officials of Police Control Room.

7. First of all, testimony of respondent has remained unblemished and

unshattered and there was no reason for the Tribunal not to accept the same.

Secondly, his statement is duly corroborated from the documentary evidence

in the shape of police reports making his testimony trustworthy and reliable.

Head Constable Vikram Singh was produced before the Tribunal by the

appellant itself as RW3. He has proved the documents as referred to

hereinabove. He denied the suggestion given by the appellant‟s counsel that

he had prepared reports in order to benefit the respondent. All the

documents have been prepared immediately after the incident in normal

course of investigation and there is no reason to doubt the same.

Accordingly, Tribunal has rightly accepted the statement of respondent.

Merely because, Shri Sohan Lal, Guard of the train has stated that no

incident took place at Azadpur railway station relating to 2DPM passenger

train, would mean that version of respondent, which otherwise is trustworthy

and duly corroborated from the documents, can be disbelieved.

8. It is trite law that statement of a witness, if found trustworthy and

reliable, can be accepted even without any corroboration. Be that as it may,

in this case, statement of respondent is duly corroborated from the

documentary evidence and other advertent circumstances.

9. So far as argument of counsel for the appellant that respondent was

not a bonafide passenger since ticket was not recovered from him also has

no force. In my view non-recovery of ticket is not always fatal. It is not

unknown that in many of such cases of „untoward incidents‟ there is

probability and/or possibility of the ticket getting lost. No straightjacket

formula can be adopted that a person cannot be taken as bonafide passenger

if ticket is not recovered from him after the accident. Keeping in mind

nature of incident, in this case non recovery of ticket from the respondent is

not sufficient to conclude that respondent was not a bonafide passenger

more so when no other article was recovered from the respondent.

10. Section 123 (c) of the Railways Act, 1989 defines „untoward

incident‟. Section 123 (c) (2) of the said Act provides that accidental falling

of any passenger from a train carrying passengers amounts to „untoward

incident‟. Section 124-A of the said Act provides compensation to the

victims of „untoward incidents‟. Proviso to Section 124-A further envisages

that no compensation shall be payable under this section by the railway

administration if the passenger dies or suffers injury due to (a) suicide or

attempted suicide by him; (b) self-inflicted injury; (c) his own criminal act;

(d) any act committed by him in a state of intoxication or insanity; (e) any

natural cause or disease or medical or surgical treatment unless such

treatment becomes necessary due to injury caused by the said „untoward

incident‟. In this case, no evidence has been led by the appellant that

respondent sustained injuries on account of any of the exceptions as

stipulated in the proviso to Section 124-A of the said Act.

11. As regards contention of appellant that no medical evidence was

produced to prove disability of the respondent is neither here nor there. As

per the Rule 3(i) of Railway Accidents and Untoward Incidents

(Compensation) Rules, 1990 ("the Rules", for short), statutory compensation

is payable in respect of injuries or death, as per the Schedule. Quantum of

compensation has been specified in respect of death in Part-I of the

schedule; whereas in respect of different nature of injuries in the Part II and

Part III of Schedule. Respondent had appeared before the Tribunal in

person. In the order Tribunal has recorded that amputation below the knee

and one finger was seen. Tribunal has awarded compensation in respect of

abovenoted injuries in terms of Rule 3 read with the Schedule.

Accordingly, non production of permanent disability certificate in this case,

is immaterial, more so when such injuries were also shown in the MLC.

12. For the foregoing reasons, appeal is dismissed. Miscellaneous

application is disposed of as infructuous.

A.K. PATHAK, J.

NOVEMBER 13, 2014 rb