Rajendra Kumar & Anr. vs Union Of India
2014 Latest Caselaw 5260 Del

$~18
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+    FAO 314/2014

                                              Decided on 27th October, 2014

      RAJENDRA KUMAR & ANR.                ..... Appellant
                  Through: Mr. Yogesh Swaroop, Adv.

                         Versus

      UNION OF INDIA                                      ..... Respondent

                    Through:          None.

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

A.K.PATHAK, J.(ORAL)

1. Railway Claims Tribunal, Principal Bench, Delhi has dismissed the

claim application of appellants under Section 16 of the Railways Claims

Tribunal Act, 1987 (for short, hereinafter referred to as the 'Act'), whereby

appellant has prayed for grant of compensation in respect of death of

Santosh Kumar in an 'untoward incident' allegedly occurred on 11th

December, 2010. Aggrieved by dismissal of their claim application by the

Tribunal appellants have preferred this appeal.

2. As per the Appellants deceased had boarded EMU local train at

Palwal, on 11th December, 2010 for visiting Delhi, after purchasing up and

down return journey tickets. While returning from Delhi to Palwal in the

evening by a passenger train, he fell down at Ballabhgarh Railway Station

due to sudden jerk of the train and died. Due to heavy rush deceased was

standing at the gate of the compartment at that time. Appellants claimed

that deceased had purchased the ticket at Palwal in the presence of his

cousin Shri Pradeep Kumar. However, tickets were lost in the incident.

3. Respondent denied happening of the incident. It was alleged that

respondent was not liable to pay any compensation to appellant since

deceased did not die in an 'untoward incident'. It was also contended that

deceased was not a bona fide passenger of any train. Deceased died on

account of his own negligence.

4. Following issues were framed by the Tribunal :-

1) Whether the deceased Shri Santosh Kumar S/o Shri Rajender was a bona fide passenger on-board the train from Palwal to Delhi Junction railway station on 11.12.2010?

2) Whether the death of the deceased was on account of an untoward incident as defined under Section 123 and 124- A of the Railways Act, 1989?

3) Whether the applicants are the legal heirs and dependents of the deceased Shri Santosh Kumar and are entitled to receive compensation?

4) Relief, if any?

5. Appellant no. 1 stepped in the witness box as AW1. Shri Pradeep

Kumar was examined as AW2. As against this, respondent examined Shri

Arun Dev Garg, Deputy Station Superintendent as RW1. Documents were

proved as Ex. R-1 and Ex. R-2. Upon scrutiny of evidence adduced by the

parties Tribunal has concluded that deceased did not die on account of

accidental fall from any train but was run over by the goods train. Tribunal

has held thus:-

8. The application and the evidence of AW-1 do not disclose the details as to when the deceased boarded which train and where for the alleged journey. Admittedly, the deceased was stated to be travelling alone and was not accompanied by any friend or family member. There is admittedly no eyewitness for the occurrence in the manner alleged by the applicants. AW-1, the father of the deceased has no personal knowledge of the incident, and admittedly, on that day, he was at his home in his village in Allahabad district. AW-2, the cousin of the deceased is said to have accompanied the deceased to Palwal railway station on the morning of December, 11, 2010 and purchased a ticket and gave the same to the deceased and saw him off by an EMU train to Delhi. His testimony is of no avail since the incident is alleged to have occurred while the deceased was returning from Delhi to Palwal on the night and AW-1 does not have any personal knowledge as to the occurrence.

9. Coming to the documentary evidence, exhibit A-1 is the inquest report, wherein, the brief facts are recorded to the effect that on 11.12.10, a memo was received from Deputy Station Supt, Ballabhgarh railway station stating that as reported by the driver, Shri Ravi Shankar, Guard, HQ/GGC of up King Special, one man was run over and killed at K.M. 1501/10 in BVH yard on 3rd line near starter signal. In Ex. A-1, the SHO has recorded the opinion about the cause of death to be due to a railway accident. Exhibit A-3 is the memo issued by the Deputy Station Supt, which is the same as exhibit R-1, wherein, the Deputy Station Supt has stated that as reported by the driver,

Shri Ravi Shankar, Guard, HQ/GGC of Up KLMG Spl, one man was run over and killed at KM 1501/10 in Ballabhgarh yard on third line near the starter signal. RW-1, the Deputy Station Supt testified that he received such information from the driver of the goods train through walkie-talkie and he issued the message, exhibit R-1 and also made an entry in the untoward incident register under exhibit R-2. In exhibit R-2 also, it is stated that driver Shri Ravi Shankar informed the Deputy Station Supdt. that one man was run over and killed at KM 1501/10. Thus, the earliest information received by AW-1, the Deputy Station Supdt. at 22:50 hours on 11.12.10 is from the driver Shri Ravi Shankar of the goods train and it is to the effect that a person was run over and killed by the said train on line number three at Ballabhgarh yard. It is not disputed that the body of the deceased was found on line number three on Ballabhgarh yard. It is not disputed that the body of the deceased was found on line number three on Ballabhgarh railway station, as can be seen from the rough sketch of the Railways appended to exhibit A-4, the death report. In exhibit A-4, the death report also, the cause of death is noted as railway accident. The applicant has filed the statements of several persons recorded by the police during investigation, but none of them supports the case of the applicants that the applicant had an accidental fall from the train, and in fact, there is no eyewitness to prove the manner of occurrence, as alleged by the applicants. On the other hand, Exhibit A-12, the statement of Shri Ravi Shankar, the driver of the goods train, which is filed by the applicant himself, would corroborate the version of the respondents that such information was given by the said Driver to the Deputy Station Superintendent about the person being run over at KM 1501/10 in Ballabhgarh station yard. Exhibit A-15, the report of the SHO and exhibit A-16, the final report of the GRP do not also establish the claim of the applicants that the deceased had an accidental fall from the train. On the other hand, they merely conclude that the deceased met with railway accident and died at Ballabhgarh. It is to be noted that every case of railway accident does not tantamount to accidental falling from the moving train. After due investigation, the

police had filed reports, exhibit A-15 and A-16 to the effect that the death of the deceased was due to a railway accident. In the absence of any evidence establishing that the said railway accident was in the nature of accidental fall from the train, the claim of the applicants as to the cause of death remains unsubstantiated. On the other hand, the conclusion reached by the police after investigation that the death was due to a railway accident, is in conformity with the contention of the respondents that it was a case of run-over by the train, which fact is borne out by the documents filed by the applicants themselves.

10. The post-mortem report, exhibit A-17 shows that there was a huge crush injury on the skull and all bones were in pieces and beyond recognition and some parts of the skull bones were missing and most of the brain part was missing up to the right side of the neck. Exhibit A-17 that greasy material was present on exposed parts of the body and clothes and the possibility of the injuries due to a railway accident cannot be ruled out. The nature and extent of the injuries suffered by the deceased, as revealed in exhibit A-17, would indicate that he must have run-over by train and it was not a simple case of accidental fall from the train. The fact that grease marks were found on the exposed parts of the body and clothes is indicative of the fact that the deceased was dragged by the engine to some distance. It is in the evidence of RW-1, the Deputy Station Supt. That the place of incident is about 300 meters from the platform. In exhibit R-1 memo also, it is noted that as per the information received from the driver of the goods train, the man was run over at the starter signal. The rough sketch of the location appended to the death report, exhibit A-4 would show that parts of body were found scattered on the track on line NO.3 abutting platform No.2 and the chappals of the deceased were found away from the body on the same track in between the lines.

11. From the above circumstance, it is evident that the deceased was hit by the train near the starter signal at K.M. 1501/10 and was dragged to some distance till the spot where the body was found abutting platform No.2. It is also to be

noted that the dead body of the deceased was found in between the lines on the track, which also supports the version of the respondents that it was a case of run-over by train. If really, the deceased had an accidental fall from the train, he would have fallen on the platform o in between the platform and the train if any gap is there. In the application and also in the evidence affidavit, the applicants have stated that the deceased had fallen on the platform. It is nowhere stated by the applicants that the deceased had fallen between the platform and the train. According to the applicants, the deceased was travelling by a local passenger train, which was admittedly having a halt at Ballabhgarh railway station. When the train was approaching the platform for the scheduled half, it must have been moving at a low speed. It is improbable that any person falling from the train moving at a slow speed and on the platform would be sustaining such major injuries of the nature and extent noted in exhibit A-17, the post-mortem report including total crushing and smashing of the skull and missing of the parts of the brain mater. It is reasonable to infer that such injuries are possible when a person is hit by the train and run over. The fact that the body of the deceased was found in between the lines of the track belies the contention of the applicants that the deceased had an accidental fall from the passenger train on platform No.2.

6. Tribunal has concluded that appellants were not entitled to

compensation under Section 124-A of the Act since deceased did not die on

account of accidental fall amounting to 'untoward incident'.

7. I have heard the learned counsel for the appellant and perused the

Tribunal's record and do not find any illegality or perversity in the

impugned order. In this case, overwhelming evidence was led by the

respondent to prove that deceased did not die on account of accidental fall

from any train but was run over by a goods train near Ballabhgarh Railway

Station. Shri Ravi Shankar, Driver of the goods train, immediately after the

incident of running over, informed the Deputy Station Superintendent Shri

Anil Dev Garg about the incident of running over. RW-1 has supported this

version. RW-1 issued a memo Ex. R-1 to GRP and also made entry to this

effect in the register Ex. R-2. Body of the deceased was found on the line

no. three at Ballabhgarh Railway Station which fact is duly established from

the rough sketch of the location of incident, appended to the death report Ex.

A-4. Ex. A-12 is the statement of Shri Ravi Shankar, driver of the goods

train which supports the version of the respondents that such an information

was given by the said driver to the Deputy Station Superintendent. From

the evidence adduced by the parties Tribunal has rightly held that it was a

case of run over and not the case of accidental fall from a passenger train

amounting to 'untoward incident' within the meaning of Section 123 (c) of

the Act.

8. Section 123 (c) of the Act defines 'untoward incident'. Section 123

(c) (2) provides that accidental falling of any passenger from a train carrying

passengers amounts to 'untoward incident'. In this case, compensation was

claimed in respect of 'accidental fall' of deceased from a train carrying

passenger amounting to 'untoward incident'. However, appellant has failed

to prove that deceased died on account of 'accidental fall' from a train

carrying passenger. On the contrary, it is established that deceased was run

over by a train while crossing the tracks, thus, in my view is not entitled to

any compensation under Section 124-A of the Act, which envisages

compensation to a passenger who has sustained injuries or dependents of a

passenger who has been killed in an 'untoward incident' in the course of

working of a railway. Incident of running over of a person by the train does

not fall within the ambit and scope of 'untoward incident' within the

meaning of Section 123 (c) of the Act.

9. In view of above discussions, appeal is dismissed being devoid of

merits.

A.K. PATHAK, J.

OCTOBER 27, 2014 ga