Smt. Urmila And Ors. vs Union Of India And Anr.
2017 Latest Caselaw 2119 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         FAO No.434/2016

%                                                     1st May, 2017

SMT. URMILA AND ORS.                                 ..... Appellants
                  Through:               Mr. Rajiv Mangla, Advocate.
                          versus

UNION OF INDIA AND ANR.           ..... Respondents

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This first appeal is filed under Section 23 of the Railway

Claims Tribunal Act, 1987. The appellants impugns the judgment of

the Railway Claims Tribunal (RCT) dated 7.3.2016 by which the RCT

has dismissed the claim petition filed by the appellants seeking

compensation on account of death in an „untoward incident‟ of Mr.

Bablu on 8.8.2013.

2. The facts of the case are that the appellants/claimants

claim that the deceased Mr. Bablu on 8.8.2013 was travelling by EMU

train from Rundhi to Faridabad after purchasing a valid ticket at

Rundhi Railway Station. When the deceased Mr. Bablu wanted to

board the train from platform no.4 at Rundhi where he was waiting for

the train to come, and when the EMU train came there was a heavy

pushing and pulling, resulting in the deceased Mr. Bablu falling down

on the railway tracks and getting crushed on the spot resulting in his

death.

3. The respondent Railways contested the claim and it was

pleaded that the deceased died out of his own criminal negligence as he

did not die while falling from the platform but the deceased‟s body was

cut into two pieces on account of his trying to cross the railway tracks

when the subject train came. The RCT held the deceased to be a

bonafide passenger because the deceased was having a train ticket

which was proved as Ex.A-10 but the issue before the RCT was that

whether the deceased died out of his own criminal negligence or there

was an untoward incident.

4. Untoward incident is defined in Section 123(c) of the

Railways Act, 1989 and the entitlement of the compensation on

account of death in an untoward incident, with exceptions to the claim,

is as provided in Section 124-A of the Railways Act. These Sections

read as under:-

"Section 123 (c) "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; or (2) the accidental falling of any passenger from a train carrying passengers.

Section 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 of 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 purpose 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."

5. (i) These aforesaid Sections 123(c) and 124-A of the

Railways Act have been interpreted by the Supreme Court in the cases

of Jameela & Others vs. Union of India, (2010) 12 SCC 443 and

Union of India vs. Prabhakaran Vijaya Kumar and Others, (2008) 9

SCC 527 and the Supreme Court has held that an ordinary negligence

of a passenger will not disentitle the allowing of the claim petition, and

only when it is shown by the Railways that the deceased died on

account of his own criminal negligence then the claim petition can be

dismissed. It therefore has to be seen that whether the deceased Mr.

Bablu died on account of his own criminal negligence.

(ii) It is seen in the facts of the case that on the one hand appellants

were not accompanying the deceased on the fateful day being 8.8.2013,

and therefore, there is no primary evidence or direct evidence on behalf

of the appellants of any eyewitness that the deceased Mr. Bablu died

while trying to board the EMU train from platform no.4, on the other

hand the respondent has filed the DRM report Ex. R-1, and which

DRM report records the statements of the Guard and the Loco Pilot of

the train in question, as also the statement of the Gangman concerned,

and all of whom have spoken in one voice that the deceased was run

over while trying to cross the railway tracks. The train driver has also

made a statement that he had given a hoot but in spite of that one boy

suddenly came running and he did not stop and consequently he got

run over by the train and the train was immediately thereafter stopped.

6. No doubt the DRM report has been prepared about nine

months after the happening of the incident, however, the said report is

based on the primary evidence of the three government employees who

are the Loco Pilot, the Guard and the Gangman who have stated that

the deceased died out of his own criminal negligence while crossing

the tracks.

7. In my opinion, the case of the respondent has to be

believed also for the reason that if the deceased was trying to board the

train from the platform and he had fallen from the platform on to the

tracks, then, the body would have been mutilated and not cut into two

pieces as was the position. The body as per the report has been cut into

two pieces with head being flung on the one side and the cut-up body

being on the other side. Whatever be the position with respect to how

unfortunately the body was cut up, the fact remains that the body was

not mutilated, but was cut into two pieces, and which would not have

been in case the deceased had fallen from the platform to the tracks and

died on account of movement of the train, and in such a case the

accident would have resulted in crushing of the body and not body

being cut up into two pieces.

8. Learned counsel for the appellants argued that the ticket

window from where the ticket was purchased was on the other side and

the body showed that the deceased was coming from the other side of

the tracks and which would not be possible, however, it is perfectly

possible that the deceased for some reason had crossed the tracks and

was again trying to re-cross the tracks for coming to the platform, and

this Court cannot disbelieve the direct statements of the three official

witnesses who have said that the accident took place on account of

criminal negligence of the deceased while trying to cross the tracks.

This direct evidence of the employees of the respondent has to be

believed more so because there is no direct evidence of any eye

witness led on behalf of the appellants because as already stated above

no eye witness has deposed in favour of the appellants of the deceased

dying in an untoward incident while trying to board the train from

platform no.4.

9. Dismissed.

MAY 01, 2017                               VALMIKI J. MEHTA, J
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