Delhi High Court

Parveen Sharma & Anr vs Union Of India on 14 October, 2014

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      FAO 304/2014
                                               Decided on 14th October, 2014
       PARVEEN SHARMA & ANR                               ..... Appellants
                          Through      : Mr. Anshuman Bal, Adv.
                  versus
    UNION OF INDIA                                       ..... Respondent

Through CORAM:

HON'BLE MR. JUSTICE A.K. PATHAK

A.K.PATHAK, J.(ORAL)

CM Appl. No.16960/2014 (for condonation of delay)

Delay in re-filing the appeal is condoned. Application is disposed of.

CM Appl. No.16959/2014 (for condonation of delay)

Delay in filing the appeal is condoned. Application is disposed of.

FAO No. 304/2014

1. Appellant no. 1 is widow and appellant no. 2 is mother of Late Shri

Anil Sharma (hereinafter referred to as ‗deceased'). They filed a claim

petition under Section 16 of the Railway Claims Tribunal Act, 1989 before

the Railway Claims Tribunal, Principal Bench, Delhi alleging therein that

deceased died in an ‗untoward incident' involving a train on 1st September,

2011, thus, appellants were entitled to compensation under Section 124A of

the Railways Act, 1989 (―the Act‖, for short). It was alleged that deceased

along with appellant no. 1 was coming from Amritsar to New Delhi by the

train with valid tickets bearing nos. 29339990 and 29339991. On 1 st

September, 2011 at about 5 am deceased, while boarding Kalka Mail at

Sonepat railway station, fell down, sustained fatal injuries and died, due to

sudden jerk in the train. Respondent denied the happening of incident. It

was alleged that deceased was not a bonafide passenger of Kalka Mail. He

did not die on account of any ‗untoward incident'. Deceased died due to his

own faults, thus, appellants were not entitled to any compensation.

2. Following issues were framed by the Tribunal:-

i) Whether the applicant proves that the death of the deceased had occurred as a result of an untoward incident, as alleged in the claim application?

ii) Whether the respondent proves that the claim is not covered under the ambit of Sections 123, 124 and 124 - A of the Railways Act, 1989?

iii) Whether the applicant proves that the deceased was a bonafide passenger on the train in question on the relevant day?

iv) Whether the applicant proves that she is the dependent of the deceased in the meaning of Section 123(b) of the Railways Act?

v) To what order/relief?

3. Appellant no. 1 examined herself as AW-1. She also proved certain

documents as Ex. AW1/2 to Ex. AW1/21. As against this, respondent

examined Shri Ram Singh as RW-1 and driver of the train Shri Bhola as

RW-2. Documents were proved as Ex. R-1 to Ex. R-4. Tribunal heard

counsels for the parties and perused the record and has concluded that

deceased was not a bonafide passenger of Kalka Mail train. Tribunal

observed that in the application, it was alleged that deceased along with

appellant no. 1 was travelling from Amritsar to New Delhi. Tickets were

issued at Amritsar on 31st August, 2011 at 19.05 hours. Distance between

Amritsar to New Delhi is about 449 kms. Deceased had not boarded Kalka

mail at Amritsar. There was no occasion for the deceased to break the

journey at Sonepat which was hardly 45 kms from Delhi. No satisfactory

explanation was given as to why deceased was boarding Kalka Mail train at

Sonepat. Though AW - 1 claimed that she along with deceased got down at

Sonepat due to heavy rush but the fact remains that deceased could not have

broken the journey, in order to change the train at Sonepat, which is hardly

50 kms away. Even otherwise, facility of breaking the journey at Sonepat

was not available to a passenger since as per the rules, journey can be

broken only after 500 kms. Tribunal has further noted that AW-1 had

admitted in her cross-examination that they had travelled in the train from

Amritsar till Sonepat by sitting in a compartment. If that is so, there was no

occasion for breaking the journey at Sonepat. RW-1 and RW-2 testified that

deceased jumped before the Kalka mail when the train arrived at the

platform. He jumped before the engine and died. As per the DRM's report

Ex. R-1, deceased had suddenly jumped in front of the engine. Driver of the

train informed this fact to Station Master as also to Guard on walky-talky.

RW-1 had deposed that driver of the train informed him through walky-talky

about this fact. On the basis of this information, memo Ex. R-2 was issued

to Inspector, GRP. RW-2 Shri Bhola Manjhi, Driver of the train also

deposed that when train arrived at Sonepat at 5.20 hours at platform he

noticed one man jumping before the engine in front of ASM's office. RW-2

made an entry in this regard in driver's note book Ex. R-4. As per the report

of Inspector, GRP, Ex. R-1 also deceased had jumped on the tracks in front

of the engine of Kalka mail, in order to commit suicide.

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

material placed on record in the context of findings of fact returned by the

Tribunal and do not find any perversity or illegality therein, inasmuch as the

view taken by the Tribunal is in conformity with the evidence adduced on

record. AW-1 does not appear to be trustworthy and reliable witness.

According to her, she along with deceased was coming from Amritsar to

New Delhi but she did not mention as to which train they had boarded at

Amritsar on 31st August, 2011. She stated in cross - examination that they

were sitting in the compartment. It is, thus, highly improbable that they

would have de-boarded the train at Sonepat to change the train, more so,

when New Delhi railway station was hardly 50 kms away. It is not the case

that they were coming in a standing position all throughout from Amritsar to

Sonepat. Thus, there was no occasion for them to change the train at

Sonepat. They had already covered about 400 kms and were occupying a

seat. In such a scenario, it is highly improbable for any prudent person to

change the train for covering hardly 50 kms. Story as propounded by the

AW-1 is highly suspicious and doubtful.

5. As against this, cogent evidence has been led by the respondent to

prove that deceased had jumped before the engine of Kalka Mail when train

reached in front of ASM's office at Sonepat. Immediately after the incident,

driver reported this fact to Station Master on walky - talky, inasmuch as the

same is reflected in the driver's note book. RW-1 and RW-2 have

corroborated this fact. Their statements on this point have remained

unshattered in their cross-examinations. There is no reason to disbelieve

their version, which is supported by the documentary evidence.

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

―124A. 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.‖

7. A perusal of aforesaid provision makes it clear that liability of the

Railways is ‗strict liability' and irrespective of negligence of the passenger.

Railway Administration is liable to compensate a passenger who has

sustained injuries and to the dependents of the passenger who has died

relating to a train in an ‗untoward incident'. Under Section 124-A the

liability to pay compensation is regardless of any wrongful act, neglect or

default on the part of the railway administration. However, proviso to

Section 124-A indicates that no compensation shall be payable by the

railway administration if a passenger dies or suffers injury due to suicide or

attempted suicide by him. In this case, deceased did not die by accidental

fall while boarding the train nor had he sustained any injury in the course of

working of railway. He himself jumped in front of the train when it arrived