Smt. Sunita And Ors. vs Union Of India
2017 Latest Caselaw 5067 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         FAO No.589/2016

%                                               14th September, 2017

SMT. SUNITA AND ORS.                                   ..... Appellants
                  Through:               Mr. Shyam     Singh Sisodia,
                                         Advocate.
                          versus
UNION OF INDIA                                        ..... Respondent

                          Through:       Ms. Prerna Mehta, Advocate.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not? YES


VALMIKI J. MEHTA, J (ORAL)

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

Claims Tribunal Act, 1987 impugning the judgment of the Railway

Claims Tribunal (RCT) dated 2.8.2016 by which RCT has dismissed

the claim petition by holding that there was no untoward incident of a

fall from the train.

2. The facts of the case are that the deceased Sh. Bharat

Kumar, and who was the husband/father/son of the

appellants/claimants, was stated to be working as a tailor at Shahdara

in Delhi. The deceased Sh. Bharat Kumar was a resident of village

Shahpur Bamheta, District Ghaziabad, (UP). The deceased had a

valid monthly season ticket and identity card bearing no.148154. It

was pleaded by the appellants/claimants that deceased died on account

of fall from the train while travelling from Shahdara, Delhi to

Ghaziabad. The deceased fell from the train in around the railway

station Sahibabad. The deceased on account of the untoward incident

of fall from the train at around the railway station Sahibabad was first

got admitted to Narender Mohan Hospital, Sahibabad (UP) and

thereafter he was referred to G.T.B. Hospital, Shahdara, Delhi where

he succumbed to his injuries on 10.8.2014. The subject claim petition

was therefore filed pleading the death of Sh. Bharat Kumar as an

untoward incident of a bonafide passenger and whereby the

appellants/claimants are entitled to statutory compensation of Rs.8

lacs.

3. Before the RCT, evidence was led of the appellant

no.1/widow and during which evidence the appellant no.1 proved the

following documents:-

        "Ex.A-1    :      Voter I. Card of Sunita
        Ex.A-2     :      Voter I. Card of Savitri





      Ex.A-3         :        DD No.28-B dated 10.8.14
     Ex.A-4         :        MLC
     Ex.A-5         :        Injury report
     Ex.A-6         :        Post mortem report
     Ex.A-7         :        Original MST and I.Card
     Ex.A-8         :        Copy of aadhar card of Nitin
     Ex.A-9         :        Copy of aadhar card of Bhawna

(Originals of Ex.A-8 and A-9, A-2 and A-2 are produced, perused and returned)"

4. Appellant no.1 deposed and supported the claim petition

and proved that her husband Sh. Bharat Kumar was a bonafide

passenger and he died on account of the untoward incident of a fall

from the train on 9.8.2014. The DD No.28-B dated 10.8.2014 with

respect to accident was proved as Ex.A-3. MLC of the G.T.B

Hospital, Shahdara was proved as Ex.A-4 and the postmortem report

was proved as Ex. A-6.

5. The RCT has dismissed the claim petition by holding that

there does not appear to have taken place an untoward incident and for

which purpose reference is made to the report of the DRM of the

Railways that the site of the accident was at a place where a person

would have crossed the tracks. The relevant observations of the RCT

read as under:-

"1. On the issue of whether the deceased was a bona fide passenger of the train in question at the relevant time of the incident, the claimants would file a monthly pass valid on the date of the accident. The respondent has

denied that he was a passenger and would rely on the RPF report, which had made a specific reference to the fact that there was no ticket or pass found on the person of the deceased at the time when he was picked up from the spot. On the other hand, it is stated that the applicants had handed over the pass to the police. If the possession of ticket or pass itself ought not to be taken as a conclusive piece of evidence, it must be seen at least that there was some evidence that he was a bona fide passenger in the Express train and there was an untoward incident of fall from the train. The applicants admitted that they are not personally aware as to how and where the accident took place or the train in which the deceased was travelling. The Station Master has given a report that merely refers to the fact of a person found in injured condition at Ghaziabad end of Sahibabad Yard. The DRM report reveals that the site of the alleged accident was in a place where the persons would cross the tracks. If there is no eyewitness referring to the fall from the train and the deceased did not carry the pass on himself at the time when he was picked from the site of accident, the nature of a report given by the police and the conclusions drawn by the DRM would appear to be correct and we are afraid that we are unable to support the case of the applicant that the deceased was a passenger only by the fact that he held a pass to travel between the two stations where he was found in an injured condition.

The explanation of the applicant that the deceased was a tailor working in Gandhi Nagar and that he got delayed due to heavy load of work and he got late for return from his place of work that does not take us anywhere. There is not even an attempt at the time of trial to secure information about any particular Express train, which he could have boarded when the alleged untoward incident took place. We find under the circumstances on Issue No.1 that he was not a passenger of the train in question. On Issue No.2 would fall as a matter of corollary that the incident that could have killed him could not be reckoned to be on account of any untoward incident in the manner contemplated under a provision. The applicants status is namely as widow and children of the deceased and parents, which is sufficiently available through production of the ration card and the election identity card. Even if the applicants are shown to be legal representatives, the results would not secure to their favour. The application stands dismissed with no order as to costs."

6. A reading of the aforesaid discussion given by the RCT

shows that there is a very sketchy reasoning to arrive at a conclusion

that there is no fall from the train. RCT for some reason ignores

reference to the DD of the police Ex.A-3 showing that the death is on

account of the train accident and also that MLC Ex.A-4 does not

contain any contents that the deceased was cut by a train, and which

cutting of the body would have been taken place if the deceased was

allegedly trying to cross the tracks as said by the DRM in his report

dated 5.5.2015. In fact, it may be noted that the report of the DRM

dated 5.5.2015 also does not refer to any eye witness nor has the

respondent led any evidence of any eye witness or any other evidence

that the deceased died on account of meeting with an accident while

trying to cross the tracks. Most importantly, if the deceased had

expired while being hit by a train during crossing the tracks, then, the

driver or guard of the train with which the deceased met with the

accident, would have reported the factum of the train crushing a

person who was crossing the tracks, but admittedly there is no such

report.

7. In my opinion, as per the evidence led in the present case

and the record of the RCT, it clearly emerges that the deceased was a

bonafide passenger having a valid monthly season ticket which was

proved and exhibited as Ex.A-7 along with related identity card. The

factum with respect to the untoward incident is also proved on account

of the DD No.28-B dated 10.8.2014 as also the MLC and the

postmortem report as Ex.A-4 and Ex.A-6. Once no evidence is led by

the respondent/Railways of the deceased having died on account of

being cut by a train while trying to cross the tracks, the necessary

conclusion which has to be reached is that the deceased died on

account of an untoward incident of a fall from the train.

8.(i) One issue which arises in this case is as to whether the

appellants should be held entitled to compensation only of Rs.4 lacs or

that the appellants should be entitled to compensation of Rs.8 lacs as

became payable w.e.f 1.1.2017 on account of the amendment w.e.f

1.1.2017 of the relevant entry of the Schedule of the Railway

Accidents and Untoward Incidents (Compensation) Rules, 1990.

When the accident occurred in this case 9.8.2014 the statutory

compensation which was payable was Rs.4 lacs and it is only during

the pendency of these judicial proceedings that the compensation was

enhanced to Rs.8 lacs w.e.f 1.1.2017. The present appeal was filed on

14.12.2016.

(ii) I do not have to labour hard on this issue inasmuch as counsel

for the appellants rightly relies upon the judgment of the Supreme

Court in the case of N. Parameswaran Pillai and Another Vs. Union

of India and Another (2002) 4 SCC 306 wherein the Supreme Court

in identical circumstances held that the compensation which is to be

awarded is the statutory compensation payable on the date of passing

of the order and not on the date of the accident. Appellants therefore

will be entitled to the statutory compensation of Rs.8 lacs and which

has become payable w.e.f 1.1.2017. Appellants will also be entitled

to interest at 6% per annum from the date of filing of the claim

petition before the RCT on 13.10.2014 and till the date of passing of

today's judgment and further till compensation is paid to the

appellants.

9.(i) The present appeal as also the claim petition are allowed.

There are four appellants/claimants and who would be entitled to a

sum of Rs.8 lacs in the following ratio:

(a) Smt. Sunita (widow) - a sum of Rs.2 lacs along with interest at

6% per annum for the period as stated above.

(b) Smt. Savitri (mother) - a sum of Rs.2 lacs along with interest at

6% per annum for the period as stated above.

(c) Minor children of the deceased Sh. Bharat Kumar, who are

appellant nos.2 and 3, namely Bhawna and Nikhil, and who were aged

about 12 years and 10 years when the claim petition was filed, will be

each entitled to a sum of Rs.2 lacs with interest at 6% per annum

simple for the period as stated above.

(ii) Whereas the amount payable of Rs.2 lacs each to Smt. Sunita

and Smt. Savitri be straightaway paid by drawing up the

cheques/banking instruments, however, the amounts which would be

payable to minor Bhawna and Nikhil be put in their name in a fixed

deposit of Rs.2 lacs each so as to earn maximum rate of interest. Smt.

Sunita, appellant no.1 will be entitled to withdraw the interest accrued

on the FDR of appellant nos.2 and 3 at the end of every year for the

purpose of upkeep of the minor children. Fixed deposits of Rs.2 lacs

each in the name of minor Bhawana and Nikhil be handed over to

them on their attaining majority. If however there is a grave urgency

or any other grave requirement for the minors for the FDRs to be

encashed earlier than on their reaching majority age, then in such

circumstances the mother Smt. Sunita or alternatively if the mother

Smt. Sunita is not available, then the grandmother Smt. Savitri, or any

legal guardian, will be entitled to approach the RCT for an order for

immediate encashment of the amounts of the FDRs in the name of

Bhawana and/or Nikhil. The amounts be paid to the appellants within

a period of six weeks from today.

10. Appeal is accordingly allowed and disposed of in terms

of aforesaid observations.

SEPTEMBER 14, 2017                         VALMIKI J. MEHTA, J
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