Delhi High Court
Mamchand & Anr vs Union Of India on 21 November, 2014
$~26
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO 373/2014
Decided on 21st November, 2014
MAMCHAND & ANR ..... Appellants
Through :Mr. Yogesh Saroop and Mr. B.K.
Roy, Advs.
versus
UNION OF INDIA ..... Respondent
Through : None
CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK
A.K.PATHAK, J.(ORAL)
CM Appl. No. 19191/2014 (for condonation of delay)
28 days delay in re-filing is condoned. Application is disposed of.
CM Appl. No. 19190/2014 (for condonation of delay)
182 days delay in filing is condoned. Application is disposed of.
FAO No. 373/2014
1. Appellants filed a claim application under Section 16 of the Railway
Claims Tribunal Act, 1987 before the Railway Claims Tribunal, Principal
Bench, Delhi (Tribunal) seeking compensation of `8,00,000/- on account of
FAO 373/2014 Page 1 of 6
death of late Shri Kaushal in an "untoward incident", which allegedly took
place on 8th January, 2012 near Container Depot of Tugalakabad, relating to
a train. After trial, Tribunal has dismissed the claim application.
2. That is how appellants are before this Court by this appeal.
3. Appellants have alleged that on 8th January, 2012 deceased along with
his friend Shri Amit Kumar had come to Hazarat Nizamuddin railway
station, Delhi for receiving some contract labourers, who were expected to
arrive from Jhansi, U.P. Unfortunately, contract labourers did not arrive on
that day. Accordingly, he decided to return to his native village in Gurgaon,
(Haryana) He boarded Mahakaushal Express train from Hazarat
Nizamuddin railway station to go to Ballabhgarh, after purchasing a journey
ticket, in presence of Shri Amit Kumar. There was a heavy rush in the
compartment, thus, deceased was standing near the gate of compartment.
When train reached at Km. Pole no. 1520/19 near Container Depot
Tugalakabad, deceased fell down from the running train due to sudden jerk
and thrust from the fellow passengers and died on the spot. It was alleged
that journey ticket was lost in the incident.
4. Respondent disputed the above claim in its reply. It was alleged that
respondent was not liable to pay compensation to appellants under Section
FAO 373/2014 Page 2 of 6
124-A of the Railways Act, 1989 (the Act, for short) since deceased was
neither a bonafide passenger of the said train nor had died on account of
injuries sustained in an accidental fall from the train amounting to
"untoward incident", within the meaning of Section 123(C).
5. Appellant no. 1 stepped in the witness box as AW1. Shri Amit
Kumar was produced as AW2. Certain documents were exhibited as Ex.
AW1/2 to Ex. AW1/13 and Ex. AW2/2. Respondent did not lead any oral
evidence, however, placed reliance on DRM's report Ex. R-1 and CMI's
report Ex. R-2. Tribunal has concluded that appellants had failed to prove
allegations as contained in the claim petition. They had failed to prove that
deceased was a bonafide passenger of Mahakaushal Express train and died
due to accidental fall from the said train. Testimony of AW2 was not found
trustworthy and reliable. AW-1 and AW-2 were not eye witness to the
incident. Statement of AW1 that deceased was standing near the gate of
compartment and fell down was not based on his personal knowledge.
6. Tribunl also held that appellants had failed to prove that deceased fell
down from the compartment of Mahakaushal Express train near Container
Depot of Tuglakabad railway station, due to sudden jerk of the train.
FAO 373/2014 Page 3 of 6
7. I have heard learned counsel for the appellants and perused the
material placed on record. I do not find the conclusion arrived at by the
Tribunal to be perverse or suffering from any illegality. Admittedly AW-1
and AW-2 had not witnessed the incident. AW2 was produced to show that
deceased boarded the train after purchasing a ticket, in his presence.
However, his testimony on this point is not trustworthy and reliable. His
presence at the station with the deceased, as claimed by him is doubtful and
suspicious. He claims that deceased had boarded Mahakaushal Express train
at Hazarat Nizamuddin railway station in his presence at 3 PM. He has
deposed that deceased met him at the station at about 2:30 PM and had
boarded the train at about 3 PM. However, his this testimony stands
impeached since Mahakaushal Express train bearing no. 12190 left Hazarat
Nizamuddin railway station at about 16:10 hours and not at 3 PM, that is,
15:00 hours. Train reached Tuglakabad railway station at about 16:23
hours.
8. It is trite law that non-recovery of ticket by itself is not sufficient to
conclude that deceased and/or injured is not a bonafide passenger as there
are chances of ticket getting lost in serious accidents. However, no
straightjacket formula can be adopted. Each case has to be viewed in its
FAO 373/2014 Page 4 of 6
own facts. However, in this case non-recovery of ticket from the person of
deceased assumes importance in view of the doubtful testimony of AW-2.
Above all, in view of the fact that mobile phone, purse, ATM card, journey
tickets from Varanasi to Lucknow and some bus tickets were recovered from
the deceased. It is not the case that nothing was recovered from the
deceased. It is highly improbable that only the ticket in question would have
been misplaced while all other articles including valuable article, like mobile
phone remained intact. Recovery of old tickets also makes the version of
AW2 that deceased had kept the journey ticket in his bag, highly suspicious.
When deceased had retained old bus and railway tickets in his pocket, there
is no reason as to why he would have kept the journey ticket in his bag.
Non-recovery of journey ticket makes the story as propounded by the
appellants that deceased had boarded Mahakaushal Express train from
Hazarat Nizamuddin railway station for going to Balabgarh, highly
suspicious.
9. Section 123(1)(c) of the Act defines "untoward incident". This
provision envisages that falling of a passenger from a running train amounts
to "untoward incident". Section124-A of the Act envisages the grant of
compensation to a passenger, who sustains injuries and to the dependents of
FAO 373/2014 Page 5 of 6
the deceased in case passenger dies, in an "untoward incident". In this case,
appellants have failed to prove that deceased died in an "untoward incident".
10. It appears that deceased was run over by some train while crossing the
railway tracks. Ex. R-1 shows that dead body was found lying between the
rails on the up main line and was cut into pieces. Ex. R-2 CMI's report
indicates that driver of train no. 64902 had informed the concerned Station
Master that a dead body was lying on the track. This information was given
by him at about 5:20 PM. This suggests that deceased died while crossing
the railway tracks unauthorizedly. Thus, appellants have rightly been held
by the Tribunal not be entitled to any compensation.
11. For the foregoing reasons, appeal is dismissed.
A.K. PATHAK, J.
NOVEMBER 21, 2014
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