Union Of India vs Ameena Bano & Anr
2018 Latest Caselaw 73 Del

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Date of Decision: 4th January, 2018


+     FAO 135/2014 & C.M. Appl. 8046/2014

      UNION OF INDIA                                    ..... Appellant
                    Through:           Mr. Rajan Sabharwal, Advocate

                          versus

      AMEENA BANO & ANR                                 ..... Respondents
                  Through:             Mr. Navneet Goyal, Advocate


      CORAM:
      HON'BLE MR. JUSTICE J.R. MIDHA

                             JUDGMENT

1. The appellant has challenged the order dated 07 th January, 2014, whereby the Railway Claims Tribunal awarded compensation of Rs.4 lakh along with interest thereon to the respondents.

2. The respondents, who are the widow and son of late Mohd. Isarail, filed an application for compensation before the Railway Claims Tribunal claiming that Mohd. Isarail along with his brother, Lal Mohammad were returning from Allahabad to Delhi on 01st November, 2010 by Mahabodhi Express and due to heavy rush and sudden jerk, Mohd. Isarail fell down from the running train.

3. Learned counsel for the appellant urged at the time of hearing that the respondents have not proved that the deceased was travelling by Mahabodhi

Express on the date of the accident. It is further submitted that the Claims Tribunal has wrongly relied on the oral testimony of AW-2, Lal Mohammad. It is submitted that there is contradiction in the statement of AW-2 to the police and the statement made before the Claims Tribunal. It is submitted that no documentary proof has been placed on record to prove that the deceased was a bona fide passenger of Mahabodhi Express. It is further submitted that the statement of AW-2 is not trustworthy. If AW-2 had seen the deceased falling from the train, he would have pulled the chain to stop the train and immediately reported the matter which was not done. AW-2 did not make any complaint with respect to the loss of the ticket as alleged by him.

4. The record of the Claims Tribunal has been perused. The widow of the deceased appeared in the witness box as AW-1 and reiterated the averments made in the claim application. However, AW-1 had no personal knowledge of the accident and she admitted in her cross-examination that she does not know the train by which the deceased was travelling and whether he was having any ticket or not. AW-2, friend of the deceased, deposed that he was travelling with the deceased on Mahabodhi Express, which left Allahabad Railway Station on 31st October, 2010. On 01st November, 2010 when the train reached Tilak Bridge Railway Station, he along with the deceased came near the gate of the compartment to de-board at New Delhi Railway Station when the deceased Mohd. Isarail fell down due to the sudden jerk and received fatal injuries. In cross-examination, he deposed that he did not make any attempt to pull the chain to stop the train. AW-2 went to Dargah after the incident but did not report the matter to the

police. AW-2 was not examined by the police. He deposed that he purchased the ticket but could not produce the same.

5. The guard of Mahabodhi Express appeared in the witness box as RW- 1 and deposed that the train halted at Tilak Bridge Railway Station for want of clearance from the signal at 05:45 a.m. and left at 05:50 a.m. No incident of fall of any passenger from the train at Tilak Bridge was reported, no passenger pulled the chain and no passenger reported the incident. The train left Tilak Bridge Railway Station after getting clearance from the signal and reached New Delhi Railway Station at 06:00 a.m. The original Guard's Rough Journal was produced as Ex.R-1.

6. The report of the DRM-Railways records that AW-2, Lal Mohammad stated that he was travelling with the deceased in the General Coach of Mahabodhi Express and the deceased, Mohd. Isarail hit a signal and fell down. As per the report, there is no proof that the deceased was travelling by Mahabodhi Express and he was not a bona fide passenger. The report doubts the statement of Lal Mohammad on the ground that he would have pulled the chain to stop the train and reported the matter to the police, if he was travelling by the train. As per the DRM Report, the deceased may have been run over by any train while crossing the railway line.

7. This Court is of the view that the initial onus always lies with appellants/claimants to show that there is a death due to untoward incident of a bonafide passenger as held in Gurcharan Singh v. Union of India, 2015 ACJ 171. The relevant portion of the judgment is reproduced herein under:

"The initial onus in my opinion always lies with the appellants/claimants to show that there is a death due to untoward

incident of a bona fide passenger. Of course, by filing of the affidavit and depending on the facts of a particular case that initial onus can be a light onus which can shift on the Railways, however, it is not the law that even the initial onus of proof which has to be discharged is always on the railways and not on the claimants. I cannot agree to this proposition of law that the Railways have the onus to prove that a deceased was not a bonafide passenger because no such negative onus is placed upon the Railways either under the Railways Act or the Railway Claims Tribunal Act & Rules or as per any judgment of the Supreme Court. No doubt, in the facts of the particular case, onus can be easily discharged such as in a case where deceased may have died at a place where he could not have otherwise been unless he was travelling in the train and in such circumstances depending on the facts of a particular case it may not be necessary to prove the factum of the deceased having a ticket because ticket as per the type of incident of death can easily be lost in an accident."

(Emphasis supplied)

8. The respondents have failed to prove that the deceased was travelling by Mahabodhi Express on 01st November, 2010 and was a bona fide passenger of the said train at the time of the accident. The respondents have utterly failed in discharging the said onus. The statement of AW-2 is not believable, inasmuch, as he neither pulled the chain nor reported the matter to the police after getting down at New Delhi Railway Station. AW-2 would have certainly pulled the chain and also reported the matter if he had been travelling with the deceased on the train. The statement of AW-2 is, therefore, not trustworthy. No witness other than AW-2 has appeared to prove that the deceased was a bona fide passenger of Mahabodhi Express.

The onus to prove that the deceased was a bona fide passenger of Mahabodhi Express was on the respondents who utterly failed to discharge the same. The deceased was not a bona fide passenger of Mahabodhi Express and, therefore, the respondents are not entitled to any compensation.

9. The appeal is allowed; the impugned judgment dated 07th January, 2014 is set aside and the respondents' application for compensation is hereby dismissed.

                                                  J.R. MIDHA
JANUARY 4, 2018                                     (JUDGE)
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