Delhi High Court
Smt. Vidya Dhek & Ors. vs Union Of India on 17 November, 2014
$~32
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO 360/2014
Decided on 17th November, 2014
SMT. VIDYA DHEK & ORS. ..... Appellants
Through: Ms. Aruna Mehta, Adv.
Versus
UNION OF INDIA ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK
A.K.PATHAK, J.(ORAL)
CM No. 18893/2014
For the reasons explained in the application delay in filing the appeal
is condoned.
Application is disposed of.
CM No. 18892/2014
Allowed, subject to all just exceptions.
Application is disposed of.
FAO 360/2014
1. Appellant no.1 is widow; whereas appellant nos. 2 and 3 are children
of Late Shri Kailash Singh Dhek. They filed a claim petition before the
Railway Claim Tribunal, Principal Bench, Delhi seeking compensation of `4
lacs in respect of death of Shri Kailash Singh Dhek, in an alleged „untoward
incident‟ dated 20th January, 2008, relating to a train. In the claim petition,
it was stated that deceased was working in a firm in Gurgaon. The said firm
was having an office at Okhla Industrial Area as well. On 20th January,
2008 deceased was to come to Delhi from Gurgaon in connection with his
office work. He boarded train no. 4312 Alla Hazrat passenger at Gurgaon
after purchasing a journey ticket. The compartment in which the deceased
was travelling was heavily crowded. Deceased was standing at the gate of
the compartment. In between Gurgaon and Bijwasan, deceased fell down
from the train due to sudden and violent jerk of the train and sustained
multiple grievous injuries and died. Bag containing ticket was lost.
2. Respondent denied the incident. It was alleged that deceased was not
a „bona fide passenger‟ of any train, inasmuch as, did not die on account of
any accidental fall from the train amounting to „untoward incident‟, within
the meaning of Section 123 (c) of the Railways Act, 1989 (for short,
hereinafter referred to as the „Act‟), thus, appellants were not entitled to
compensation under Section 124-A of the Act.
3. Following issues were framed by the Tribunal on 18th December,
2008:-
1. Whether deceased Sh. Kailash Singh s/o Sh. Dan Singh
Dhek was a bonafide passenger of Train no. 4312 from
Gurgaon to Delhi as on 20.01.2008?
2. Whether the death of Sh. Kailash Singh was caused due
to an untoward incident as defined in Section 123 read
with Section 124-A of the Railways Act?
3. Whether the applicants are the sole dependants of the
deceased Sh. Kailash Singh and are entitled to get
compensation as claimed?
4. Relief?
4. Case was listed for appellants‟ evidence. At that stage, an application
was filed on 16th July, 2009 for amendment of claim petition. In the
amended claim application it was alleged that deceased boarded train no. 1
RDE at Sarai Rohilla Railway Station for going to Gurgaon. Appellants
claimed that this fact came to their knowledge after circulation of pamphlets
by them on 20th April, 2009 thereby seeking information from the public
regarding circumstances that led to the death of Shri Kailash Singh Dhek.
Pursuant to the said circulation of pamphlets one Shri Manoj Kumar came
forward and informed that he met the deceased at Sarai Rohilla Railway
Station on 20th January, 2008 and had purchased the ticket for him;
thereafter both of them boarded train no. 1 RDE but in different
compartments. He claimed that he was running a chaat stall outside the
office of the firm of appellant and deceased used to eat chaat whenever he
used to visit Delhi office. Amendment application was dismissed by the
Tribunal on 14th October, 2009. However, amendment was later allowed by
the High Court vide order dated 4th May, 2011 passed in CM (Main)
20/2010, subject to the condition that correctness of the facts would be
decided by the Tribunal, after trial. Accordingly, one additional issue no. 1-
A was framed on 6th September, 2011 to the effect: "Whether deceased Shri
Kailash Singh S/o of Shri Dan Singh Dhek was a bona fide passenger of
train no. 1 RDE from Delhi Sarai Rohilla to Gurgaon as on 20.1.2008?"
5. After trial, Tribunal dismissed the claim petition vide judgment dated
26th February, 2014, but without noticing the facts as contained in the
amended application. Accordingly, Review Petition was filed by the
appellants which has been disposed of vide order dated 13th February, 2014
and findings on additional issue no. 1A has also been returned. However,
claim application was dismissed. Tribunal has held that appellants had
failed to prove that deceased was a „bona fide passenger‟ in the train.
Contradictory stand taken by the appellants has been considered to
disbelieve the story as propounded by the claimants. Tribunal held that
AW2-Shri Manoj Kumar was not a trustworthy and reliable witness,
inasmuch as, he was not even an eye witness to the incident. Tribunal has
further noted that dead body was lying between the railway lines which
indicated that he did not fall from the train. Had he fallen from the train,
body would have been at least few feet away from railway line and not
between the railway lines.
6. I have carefully perused the judgment as well as the order passed on
review application and other material placed on record and do not find any
perversity in the impugned judgment, for the reasons to follow. In the
original application appellants have taken a categorical stand that deceased
was travelling from Gurgaon to Delhi in Ala-Hazrat passenger train as he
was to come to Delhi office. However, in the amended claim application
totally different story has been propounded. It is stated that deceased
boarded train no. 1 RDE from Sarai Rohilla Railway Station to go to
Gurgaon office. Both these pleas are contradictory and falsify the theory of
deceased falling down from any train between Bijwasan and Gurgaon.
Deceased died within the jurisdiction of Police Station Gurgaon, inasmuch
as his post martem was conducted in District Hospital Gurgaon. Office of
the deceased was also situated in Gurgaon. It may further be noted that
Sarai Rohilla is miles away from Okhla Industrial Area. Even if it is
accepted that deceased had come to Delhi office for some work and was
returning to Gurgaon office there was no occasion for him to go to Sarai
Rohilla. Okhla Industrial Area is in South Delhi District; whereas Sarai
Rohilla is in North District at about 19 KM away. Not only the destination
has been changed in the amended petition but even train numbers have been
changed. All this makes appellants‟ case highly suspicious.
7. AW2-Shri Manoj Kumar appears to be a planted witness. He has
surfaced for the first time after more than one year of the incident. His
statement was not recorded by the police. He claims that he was travelling
in the same train in which deceased was travelling. He claims that he had
purchased the tickets for himself and also for the deceased. It is very
unusual that he would not have come to know about the incident for such a
long time. In his cross-examination he stated that he made enquiry from
other staff of the company as deceased was not seen for a long time but was
told that deceased might have gone to his village. It is improbable that even
staff members of the deceased would have been unaware about the death of
deceased. In his examination-in-chief AW2 deposed that he was going to
Gurgaon to meet his relative but in his cross-examination he admitted that
none of his relative was living at Gurgaon. It is thus, clear that he is a
planted witness and has been rightly disbelieved by the Tribunal.
8. No witness from the office of deceased was produced to prove that
deceased was deputed by his office to visit Delhi for some work and was
returning from Delhi to Gurgaon. Incident did not take place in the morning
or evening hours. Incident took place during the day time, that is, during the
office hours of deceased that too in Gurgaon District, thus, the story
propounded by the appellant is highly suspicious and rightly has not been
accepted by the Tribunal.
9. In the facts and circumstances narrated above, non-recovery of ticket
assumes importance. The plea of appellants that ticket was lost cannot be
accepted in view of the fact that clothes of deceased were not found in torn
condition, inasmuch as, identity card and diary were recovered from him. It
is not the case that nothing was recovered from the deceased. Thus, it is
highly improbable that only ticket would have been misplaced in the
incident. Non-recovery of the ticket, thus, creates a doubt about the version
of the appellants more particularly, when contradictory and shifting stand
has been taken in the original and amended applications. Except the bald
statement of appellant no.1 no other evidence could be led to show that
deceased had boarded train no.1 RDE at Sarain Rohilla Station for going to
Gurgaon and fell down from the said train on the fateful day resulting in his
death.
10. For the foregoing reasons, I do not find any perversity or the illegality
in the impugned order and judgment. Appeal is dismissed.
A.K. PATHAK, J.
NOVEMBER 17, 2014
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