Lalita & Ors. vs Union Of India
2019 Latest Caselaw 761 Del

$~34
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      FAO 46/2019 & CM APPL. 5756/2019, CM APPL.
       5757/2019 & CM APPL. 5755/2019

       LALITA & ORS.                             ..... Appellants
                Through:        Mr.Noor Alam & Mr.Gaurav
                                Malhotra, Advocates.
                          Versus

       UNION OF INDIA                              ..... Respondent
                Through:        Mr. Jagjit Singh, Adv., Sr. Standing
                                Counsel for Respondent with Vipin
                                Chaudhary and Preet Singh, Adv.


       CORAM:
       HON'BLE MR. JUSTICE VINOD GOEL

                             JUDGMENT

06.02.2019

VINOD GOEL, J. (Oral)

CM APPL. 5756/2019 (for exemption)

Allowed, subject to just exceptions.

CM APPL. 5757/2019 (Delay in re-filing) There is delay of 13 days in re-filing the appeal. The delay is condoned for the justifiable reasons mentioned in the application.

Application is disposed of.

CM APPL. 5755/2019 (Delay in filing the appeal) There is delay of 320 days in filing the appeal. The delay is condoned for the justifiable reasons mentioned in the application.

Application is disposed of.

FAO 46/2019

1. This appeal impugns the order of Railway Claims Tribunal, Delhi (RCT) dated 01.11.2017 rejecting the claim of the appellant for compensation by the Appellant under Section 16(1) read with Section 13(1A) & Section 124-A of the Railway Claims Tribunal Act, 1987.

2. The facts leading up to the filing of the present Appeal are that one Ishwar Singh (deceased), aged 45 years, who is the husband of appellant No.1, had suffered injuries in an accident on 04.04.2015 at Narela Railway Station which proved fatal. He died on the spot.

3. The Tribunal dismissed the application observing that the deceased was neither a bona fide passenger nor did he fell down from the train and that the incident was not covered under Section 123(c)(2) of the Railways Act, 1989.

4. Learned counsel for the Appellants contends that the impugned order was not based on the correct appreciation of facts and law and was hence liable to be set aside.

5. The only contention of the Counsel for the Appellant was that the DD no.9PP dated 04.04.2015 records that the deceased met with an accident with the Sharamjivi Express bearing train number 24462 whereas the DRM's report records that Shakti Express bearing train

number 22462 was involved. However, he admits that the appellants never claimed that the deceased was a bona fide passenger in the train.

6. Per Contra, the counsel for the respondent contends that the impugned order suffers from no illegality or perversity and does not merit any interference.

7. I have heard the counsel for the parties. The only issue that is to be decided by this Court is whether the deceased was a bona fide passenger in the train on 04.04.2016 when the incident took place.

8. Before adverting to the facts of the present case, it would be prudent to reproduce Section 124-A of the Railways Act, 1989:

"124-A. Compensation on account of untoward incidents.--

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;

(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 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 a victim of an untoward incident."

9. A bare perusal of the provision shows that only a passenger for his injuries and the dependants of a passenger, who has died are entitled for compensation as prescribed from the Railways, in an untoward incident, during the course of working of Railway, whether or not there has been any wrongful act, neglect or default on the part of the Railway Administration. The Proviso to this Section provides three exceptions to the general principle provided under this Section. The proviso clearly states that compensation shall not be payable if the passenger has committed suicide; or attempted to commit suicide; or has inflicted injuries to himself; or has committed any criminal act; or any act committed by him in a state of intoxication or insanity; or any act due to a natural cause or disaster. As per the explanation to the Section, passenger includes a railway servant on duty and a person

who has purchased a valid ticket for travelling in a passenger train or a valid platform ticket.

10. The onus of proving that the person who had suffered injuries or had died due to the untoward incident was a passenger is upon the person who is claiming compensation or his claimants.

11. Appellant no.1 had tendered her affidavit in evidence before the Tribunal in which she had relied upon some documents. She deposed that she was not an eye witness to the incident. The documents submitted by the appellant do not aide her in proving that the deceased was a passenger. Neither a ticket was produced nor any eye witness has been examined before the RCT to show that the deceased was a passenger and travelling in the train when the incident occurred.

12. DRM report filed by the Railways is annexed with the statement of Lakhuram Meena who was the driver of the Shakti Express train no.22462. He stated that the deceased was standing on the railway track and in spite of his blowing of horn again and again, the deceased failed to get off the track and was hit by the engine of the train. He stopped the train and informed the incident to the Guard of the train and Duty Station Supdt. of Narela Railway Station. This report records "as reported by driver of DN 22462 Sri Shakti Express that one person hitted with train. Dead body is in track." DD No.9PP recorded at PS Subzi Mandi Railway Station dated 04.04.2015, records "samay 10:30 baje din S.M Subhash Sharma ne narela railway station se bajphone itla dee hai ki KM.Pole No.27/6 DN Line par Track ke andar 22462 shramjivi Exp. Train se Accident se ek dad body ho gayi use uthwaya

jaye". As per the Death Report, the body was found between the railway lines at Pole no.27/6 DN Line. The place where the dead body was recovered was shown in the middle of the railway track suggesting that the deceased might have committed suicide.

13. The DRM report further records that on getting the information, the site of the accident was visited and on inspection of the dead body, a purse containing Rs.105/- was recovered and no railway ticket or Pass was recovered from the body which was found to be lying on the railway track.

14. A look at the Indian Railway website shows the details of both the trains. The Shakti express bears no.22462 and departs from Katra at 11:05 PM and arrives in Delhi at 10:35 AM while the Shramjivi express bearing train no.12392 departs from Delhi at 13:10 hrs and arrives in Rajgir, Bihar at 10:30 AM. It is not disputed by the Appellant that the dead body of the deceased was found at about 10:35 AM as per the DD No.9 PP recorded at PS Sabzi Mandi and the final Death Report. Therefore, since the time of discovery of the dead body and the arrival of the Shakti express are in close proximity with each other and the Shramjivi Express would not have been in Delhi at the time of incident, the statement of Sh Lakhuram Meena, the driver of Shakti Express inspires confidence with the court and the argument of the Appellant on approximation that the deceased might have met with an accident with the Shramjivi express bearing no.22462 at 10:35 AM on 04.04.2015 has no leg to stand.

15. Therefore, in the facts and circumstances of the case, this Court finds no reason to interfere with the order of the RCT dated 01.11.2017 and the Appeal is dismissed accordingly.

(VINOD GOEL) JUDGE FEBRUARY 06, 2019