Delhi High Court

Smt. Munchun Devi & Ors vs Union Of India on 15 October, 2014

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+     FAO 242/2014

                                             Decided on 15th October, 2014

      SMT. MUNCHUN DEVI & ORS                           ..... Appellants
                         Through     : Mr. S.N. Parashar, Adv.

                         versus

      UNION OF INDIA                                      ..... Respondent

                         Through     :Mr. Rajeshwar Singh and Mr. Dipak
                                     Sagar, Advs.

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

A.K.PATHAK, J.(ORAL)

1. Arguments heard. Entire material placed on record has been perused.

2. By the judgment impugned in this appeal Railway Claims Tribunal,

Principal Bench, Delhi has dismissed the claim petition under Section 16 of

the Railways Claims Tribunal Act, 1989 of the appellant. Appellants

claimed compensation of `8 lacs in respect of death of Shri Suchit Kumar

Jha (deceased) in an „untoward incident‟ occurred on 4th February, 2010 at

Ajaibpur railway station in U.P.

3. The case set out by the appellant before the Tribunal, was that

deceased boarded Jan Sadharan Express train at about 7.25 pm at Sarai

Rohilla railway station for going to Patna after purchasing a ticket. While

the train was crossing Ajaibpur railway station, deceased fell down from the

train due to sudden jerk and was crushed under the wheels of moving train at

platform no. 2, opposite to ASM‟s office. Luggage of the deceased was

taken away by someone and could not be recovered. Only identity card of

deceased was recovered by the police officials on the basis whereof brother

of deceased, namely Shri Ajeet Kumar was informed about the recovery of

dead body. Family members reached Aligarh mortuary on 6 th February,

2010. Post-mortem was conducted and dead body was cremated. Appellant

no. 1 claimed that deceased was working as a „Security Guard‟ at Vasant

Kunj. He had taken leave from the Residents‟ Welfare Association and a

certificate issued by the said Association was placed on record.

4. Respondent did not dispute that dead body of deceased was found at

Ajaibpur railway station. However, it was alleged that he was run over by

some train. According to respondent, incident did not fall within the ambit

and scope of an „untoward incident‟ within the meaning of Section 123(c) of

the Railways Act, 1989 ("the Act", for short), thus, no compensation was

payable under Section 124-A of the Act. It was denied that deceased was

working in Delhi and was going to his native village in Bihar by Jan

Sadharan Express after purchasing a ticket from Sarai Rohilla railway

station. It was denied that incident was witnessed by the public persons and

the Station Master. It was denied that deceased fell down at platform no. 2

of Ajaibpur railway station opposite to ASM‟s office due to sudden jerk of

the train and died. As per the respondent, deceased was not a bonafide

passenger of Jan Sadharan express train, since no ticket was recovered from

his possession.

5. Tribunal has held that appellants had failed to prove that deceased had

boarded Jan Sadharan Express train after purchasing a ticket. Tribunal

observed that appellants had failed to prove that deceased fell down from the

Jan Sadharan Express train at Ajaibpur railway station. Tribunal has

concluded that a perusal of memo Ex. AW1/4 of Station Master, Ajaibpur

railway station indicated that deceased was run over by some train in front

of ASM‟s office. Police investigation report Ex.AW1/6 also indicated that

deceased was run over by some train. Panchnama Ex. AW1/7 also indicated

that death of the deceased was due to run over by some train. Since no one

had seen the deceased falling from train, it can not be concluded that

deceased fell down from the Jan Sadharan Express train and died. Thus,

incident did not come within the ambit and scope of an „untoward incident‟.

It has been further held that AW2 Shri Ajeet Kumar did not accompany the

deceased to Sarai Rohilla railway station, thus, was not competent to prove

that deceased had purchased the ticket and boarded Jan Sadharan Express

train. It remained unproved that deceased was travelling as a „bonafide

passenger‟ in Jan Sadharan Express train, inasmuch as Shri Ajeet Kumar

had failed to give the name of the train, which deceased had boarded at Sarai

Rohilla Station. Tribunal has found the deposition of AW2 to be unreliable,

since he had failed to even give mobile number of the deceased.

6. I am of the view that findings returned by the Tribunal are not in

consonance with the evidence adduced by the parties and are perverse. I am

of the view that appellants have succeeded in proving that deceased was

working in Delhi. AW2 has categorically deposed that deceased was

working as a „Security Guard‟ with Residents‟ Welfare Association, Vasant

Kunj, Delhi where he was also working as „Security Guard‟. His this oral

testimony is supported by the documentary evidence in the shape of Ex.

AW2/4, which is a certificate issued by the Residents‟ Welfare Association

stating therein that deceased was working as a „Security Guard‟ and on 3 rd

February, 2010 he went on leave. Admittedly, deceased was not resident of

village Ajaibpur. He was native of Bihar. This fact duly is proved from the

statements of AW1 and AW2 Railway Police Form No. 44 shows that one

identity card was recovered from the possession of deceased which

indicates that deceased was working as „Security Guard‟ with the Residents

Welfare Association, Sector - 9, Pocket 2, Vasant Kunj, New Delhi. Police

officials contacted the said association and came to know that brother of

deceased Shri Ajeet Kumar was also working there as a Guard. Accordingly,

information was given to him. Thereafter family reached Aligarh mortuary

and identified the dead body recovered at Ajaibpur railway station as that of

deceased Shri Suchit Kumar Jha.

7. In this context statement of AW2 assumes importance that deceased

took leave from the Association and boarded Jan Sadharan Express at Sarai

Rohilla Station on 4th February, 2010 for going to Patna in Bihar and in my

view is trustworthy and reliable. From the documents placed on record

including report of Station Master, it is clear that dead body was recovered

at the platform in front of ASM‟s office. Shri Ajeet Kumar made a

statement before the police that deceased was going to his native place in

Bihar from Delhi by the Jan Sadharan Express train. Report of Sectional

Commercial Inspector placed on record also indicates that the deceased

sustained injuries by Jan Sadharan Express train. Place of incident has been

shown as platform no. 2 of Ajaibpur railway station. Date of incident has

been mentioned as 4th February, 2010. Train number has been given that of

Jan Sadharan Express. It is also reflected that train was going from Sarai

Rohilla railway station to Patna. Name of the deceased has also been

mentioned in the report. It has also been mentioned therein that on 5 th

February, 2010, `700/- was paid to GRP for cremation of the dead body of

deceased. In view of the statement of AW2, supported by the documents on

record, it is clear that deceased was working in Delhi and was going from

Delhi to Patna on 4th February, 2010, by Jan Sadharan Express. It is not in

dispute that Ajaibpur railway station falls on route of Jan Sadharan Express.

Had deceased not been travelling in the said train, his presence at Ajaibpur

railway station was not possible. This factual circumstance corroborates the

statement of AW2 that deceased had boarded Jan Sadharan Express on 4 th

February, 2010, at about 7.25 pm at Sarai Rohilla railway station for going

to Patna and fell down at Ajaibpur railway station. Accordingly, non-

recovery of ticket from the deceased, by itself, would not be sufficient to

hold that he was not a bonafide passenger of Jan Sadharan Express train. It

is not uncommon that tickets are lost in such major incidents where a person

loses his life in as much as his belongings. Luggage of deceased was not

recovered. Except identity card, nothing was recovered. It is highly

improbable that deceased would have been travelling from Delhi to his

native place, that is, Patna, which was around 1000 kms away from Delhi,

without any money and luggage. Meaning thereby that somebody had taken

away the belongings of deceased and in such a scenario there is every

possibility of ticket being lost. In such an eventuality, non-recovery of

ticket would not mean that deceased was not a bona fide passenger of said

Train.

8. No evidence has been led by the respondent to indicate that deceased

had committed suicide or died due to self - inflicted injuries or was under

intoxication, thus, was not entitled to compensation in view of proviso to

Section 124A of the Act. In the facts of this case death of deceased is to be

thus taken as having resulted on account of „untoward incident‟. It is trite

law that liability is a strict liability and compensation can be avoided by the

Railways only if death is on account of criminal negligence of the victim or

is self inflicted injuries or the case falls under the proviso to Section 124A of

the Act. 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;

(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 and victim of an untoward incident."

9. In this case respondent has failed to prove that deceased died due to

his own criminal negligence or that injuries resulting in death were self

inflicted injuries or the death had occurred on account of events as

mentioned in the proviso to Section 124A of the Act, thus, Railways

Administration cannot avoid payment of compensation.

10. For the foregoing reasons, impugned order is set aside. Appellants

are entitled to compensation of `4 lacs with interest @ 9% per annum from

the date of filing of the petition. Appellant no. 1 is wife; whereas appellant

nos. 2 and 3 are children of deceased. Out of the compensation of `4 lacs,

appellant no. 1 shall deposit `1 lac each in FDRs in the names of appellant

nos. 2 and 3 till they attain the age of majority. However, appellant no. 1

would be entitled to withdraw interest accrued on the FDRs for upkeep and