Delhi High Court

Smt. Santoshi & Ors vs Union Of India on 17 November, 2014

$~9
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+     FAO 267/2014

                                          Decided on 17th November, 2014

      SMT. SANTOSHI & ORS                        ..... Appellants
                    Through:         Mr. S.N. Parashar, Adv.
                    versus

      UNION OF INDIA                             ..... Respondent

                    Through:         Mr. V.K. Jain, Adv.

CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK

A.K.PATHAK, J.(ORAL)

1. Appellants are legal heirs of Late Shri Ram Nath. They filed a claim

application before the Railway Claims Tribunal, Principal Bench, Delhi

seeking compensation of `4 lacs in respect of death of Shri Ram Nath in

relation to Firozpur Janta Express train. She alleged that on 8th October,

2012 deceased-Ram Nath was travelling from Tuglakabad Station to New

Delhi Railway Station by Firozpur Janta Express when he accidentally fell

down from the crowded compartment of the running train near Shivaji

Bridge, Delhi due to heavy rush and sudden jerk. Deceased was rushed to

RML Hospital where he died on 10:50 pm on the same day.

2. Respondent alleged that deceased did not die in an „untoward

incident‟ within the meaning of Section 123(c)(2) of the Railways Act, 1989

(for short, hereinafter referred to as the „Act‟). It was alleged that deceased

died on account of his own negligence. They further alleged that appellants

were not entitled to any compensation under Section 124-A of the Act since

deceased did not die in an „untoward incident‟.

3. Following issues were framed by the Tribunal :-

(1) Whether the death of the deceased had occurred as a result of an untoward incident, as defined US 123 (C) (2) of the Railways Act, 1989 and as alleged in the claim application?

(2) Whether the deceased was a bonafide passenger of the train in question on the relevant day?

      (3)      Whether the      application   of   Smt.   Santoshi      is
               maintainable?

      (4)      To what order/relief?

4. Appellant no.1 filed her own affidavit thereby corroborated the

averments made in the claim application, inasmuch as, placed on record

certain documents which she proved as Ex. A-1 to A-16. As against this,

respondent placed on record certain documents which were exhibited as Ex.

R-1 to R-12.

5. On scrutiny of evidence which had come on record, Tribunal has

dismissed the claim application on two counts. Firstly, deceased was not a

„bona fide passenger‟ of Firozpur Janta Express since ticket found from his

possession was a general second class ticket. This ticket did not authorize

him to travel in an express train. Secondly, deceased jumped from the

running train, thus, was guilty of „criminal negligence‟. Tribunal was of the

view that deceased sustained injuries while he was de-boarding the running

train. Injuries sustained by him were self inflicted injuries, thus, appellants

were not entitled to compensation under Section 124 A(b) of the Act.

6. I have heard learned counsel for the parties and perused the material

placed on record. First of all, I am of the view that Tribunal has taken an

erroneous view that deceased was not a „bona fide passenger‟ of the train

from which he fell down at Shivaji Bridge, Delhi. Merely because deceased

was travelling in an express train with a second class general ticket by itself

would not mean that he was not a „bona fide passenger‟ of the said train. No

such rule has been pointed out by the learned counsel for the respondent to

show that a person with a valid train ticket cannot travel in general

compartment of second class of a superfast train. In the similar

circumstances, a Single Judge of this Court in Prabhu Dayal and others vs.

Union of India 2012 ACJ 2825, has held thus: "the Railway Claims Tribunal

has also arrived at an incorrect finding that if there is death of a person by

falling from a train, the incident will not be an untoward incident if the ticket

in question is a general ticket and the travel was in a train which was a super

fast train. No such rule has been relied upon before the Railway Claims

Tribunal and no such rule has been relied before me that a person with a

valid train ticket of travel cannot travel in the general compartment of a

second class of a super fast train. I am fortified in my view by a decision of

a learned single Judge of Andhra Pradesh High Court in the case reported as

Parisa Anjali v. Union of India, 2011 ACJ 693 (AP) and in which judgment

the learned single Judge of Andhra Pradesh High Court has held that merely

because the ticket was not of that particular train in which the deceased was

travelling, would not mean that the deceased was not a bona fide passenger

of the train from which he fell down. I respectfully concur with the views of

Andhra Pradesh High Court in the case of Parisa Anjali (supra).

Accordingly, I am of the view that deceased was a bona fide passenger in

the train".

7. Now, coming to the second point, I am of the view that no evidence

was led by the respondent before the Tribunal that deceased was de-

boarding a running express train at Shivaji Bridge, Delhi. No witness in this

regard was produced. Tribunal has placed reliance on Ex. R-2 to draw

inference that deceased was de-boarding a running train. I have perused Ex.

R-2 and find that nowhere in the said report it has been stated that deceased

was de-boarding the running train. It has been concluded in this report that

deceased fell down from Firozpur Janta Express train due to his own

negligence. This conclusion does not mean that deceased was de-boarding

the running train. On the contrary, from the documentary evidence adduced

before the Tribunal it appears that deceased fell down from the running

train. In the final report, it has been mentioned that on inquiry it was

revealed that one boy about 25-26 years had fallen down from the running

Firozpur Janta Express train and sustained injuries on his head, inasmuch as,

his one hand was cut. He was removed to RML Hospital by the PCR.

Statement of Constable Nepal Singh also indicates that passengers travelling

in the said train informed him that one boy had fallen from the train at the

Nizamuddin end of the Shivaji Bridge Station. Constable Nepal Singh has

not mentioned in his statement that passengers informed him from the

running train that one boy sustained injuries while he was de-boarding the

train. Above all in the documents placed on record of the Tribunal, it is

mentioned that one boy had fallen from the running train. The findings of

the Tribunal that deceased sustained injuries while he was de-boarding a

running train are not supported by the documentary evidence produced

before the Tribunal and are based on surmises and conjectures.

8. There is no reason not to accept the version of appellants that

deceased fell down from the compartment of the running train due to heavy

rush and sudden jerk, which otherwise is supported by the inquest report and

Ex. R-2.

9. Section 123 (c) of the Act reads as under :-

"untoward incident" means-- (1) (i) the commission of a terrorist act within the meaning of sub-section (1) of section 3 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 1987); or

(ii) the making of a violent attack or the commission of robbery or dacoity; or

(iii) the indulging in rioting, shoot-out or arson," by any person in or on any train carrying passengers, or in a waiting hall, cloak room or reservation or booking office or on any platform or in any other place within the precincts of a railway station; (2) the accidental falling of any passenger from a train carrying passengers.

10. Section 124A of the Act reads as under :-

"Compensation on account of untoward incident --When in the course of working a railway an untoward incident occurs, then whether or not there has been any wrongful act, neglect or default on the part of the railway administration such as would

entitle a passenger who has been injured or the dependant of a passenger who has been killed to maintain an action and recover damages in respect thereof, the railway administration shall, notwithstanding anything contained in any other law, be liable to pay compensation to such extent as may be prescribed and to that extent only for loss occasioned by the death of, or injury to, a passenger as a result of such untoward incident: Provided 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.

Explanation.--For the purposes of this section, "passenger" includes--

(i) a railway servant on duty; and

(ii) a person who has purchased a valid ticket for travelling by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident."

11. A conjoint reading of aforesaid provisions shows that if a person falls

down from a running train, such a incident would amount to an „untoward

incident‟ within the meaning of Section 123(c)(2) of the Act. A perusal of

Section 124-A shows that liability of the Railways in such type of cases is

strict liability. Railways cannot avoid making payment of compensation

even if a passenger is found to be negligent. Claim can be declined only if a

passenger is found guilty of criminal negligence. A passenger in respect of

the injuries sustained by him or his legal heirs, if he dies, would not be

entitled to compensation only if injuries are sustained or death is occurred

on account of the acts of such passenger as envisaged in proviso to Section

124A of the Act; meaning thereby if a passenger sustains injuries or dies on

account of (a) suicide or attempted suicide by him; (b) self-inflicted injury;