Full Judgment
Hemant Gupta, J.
1. The appellants are aggrieved against the order passed by the Railway Claims Tribunal, Chandigarh Bench, Chandigarh dated 11.10.2000 whereby the application for compensation on account of untoward incident in terms of Section 124A of the Railways Act, 1989 (hereinafter to be referred as 'the Act') was dismissed.
2. The appellants filed a claim petition, inter alia, alleging that deceased Kanwar Bhan was running a Karyana and Maniari shop at Mukerji Nagar, Sri Ganga Nagar, and was self employed. It is alleged that deceased Kanwar Bhan purchased a ticket from Railway Station, Patiala, for Nabha and when he was entering in train No. IUD from Railway Station Patiala to Nabha and when he was on the foots/stairs of the said train, the driver started the said train immediately without blowing any whistle etc. The deceased fell down under the train and suffered injury and died at the spot.
3. In the written statement filed on behalf of the respondent, it was alleged that the deceased was not a bona fide passenger and no accident within the ambit of Section 124A of the Railway Act has occurred at Railway Station, Patiala and as such the application is not maintainable. It was alleged that the deceased has not purchased any ticket as alleged. It was also denied that the train did not blow the whistle.
4. In evidence, appellant No. 1 furnished her affidavit as well as the affidavit of one Babu Singh who was allegedly present at the Railway Station. Both the witnesses were cross-examined. On the other hand, the respondent produced the affidavit of Ram Krishan, Head Booking Clerk, Northern Railway Patiala, who produced Daily Train Cash Book (DTC) of Railway Station Patiala. According to him, he sold ticket No. 92290 Ex. Patiala to Nabha on 11.7.1997. The copies of Daily Train Cash Book of 10.7.1997 and 11.7.1997 were produced as Exhibit RB and RC. Affidavit of Jasbir Singh, Driver of Train No. 1 UD was also filed. In the affidavit, it has been stated that train No. 1 UD was between Ambala to Dhuri which entered Railway Station Patiala at 2011 Hrs and remained at Railway Station Patiala upto 2128 Hrs. Thereafter, on green signal and exchanging the signal with guard and blowing whistle, he started the train without any jerk. On the application filed by the claimants, Ram Kishan Head Booking Clerk, was cross-examined. A perusal of the interim order passed by the Tribunal shows that Ram Kishan was cross-examined on 24.7.2000.
5. The learned Tribunal dismissed the claim application holding the train ticket No. 92290 allegedly recovered in Jama Talasi on 10.7.1997 was in fact, sold on 11.7.1997. No infirmity could be brought out in the record produced by the respondent. The appellants have neither examined the Investing Officer to prove the Jama Talasi nor summoned the alleged ticket from police records. The entries made in the railway record are admissible in all proceedings by and against the railway administration under Section 191 of the Railway Act, 1989 and thus, the entries made in the DTC Book cannot be disbelieved. Thus, it was found that the deceased was not travelling on a valid train ticket and was not a passenger on 10.7.1997. Consequently, the claim application was dismissed.
6. In this appeal, learned counsel for the appellants vehemently argued that as per Daily Train Collection Book, train ticket No. 92290 is the first ticket sold on 11.7.1997. The last ticket sold on 10.7.1997 was 92289. Since the ticket No. 92290 was recovered by the police on the person of the deceased on 10.7.1997, therefore, the record of the railway administration cannot be believed. This is a case of manipulation by the railway administration as they are the custodian of the record. It is contended that the deceased was on the foot-steps of the train when it started moving without blowing any whistle. It is, thus a case of untoward incident as defined under Section 123(c)(2) of the Act and, thus, the appellants are entitled to compensation in terms of Section 124A of the Act.
7. Sections 123(c)(2) and 124A of the Act read as under;-
'123 (c) 'untoward incident' means -
(1) xx xx xx
(2) the accidental falling of any passenger from a train carrying passengers.
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 injured or the dependent 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 of 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.
8. Learned counsel for the appellants has referred to Rule 8 of the Railway Claims Tribunal Act, 1987 which contemplates that every application for claim of compensation shall be decided on perusal of documents, written representations and affidavits and after hearing such oral arguments as may be advanced. It was thus contended that the document of Jama Talasi filed by the appellants was admissible and was bound to be relied upon by the Tribunal while deciding the claim application filed by the appellants.
9. Learned counsel for the appellants has contended that the present is not the case covered by any of the exceptions under Section 124A of the Act and, thus, the mere fact that the passenger had fallen while boarding the train, the appellants are entitled to compensation in terms of the provisions of the Act.
10. On the other hand, learned counsel for the respondent submitted that the investigating officer who has conducted the search on the person of the deceased has not been examined from whom it could be elucidated whether ticket 92290 was actually recovered from the deceased at the time when the same was recovered. Since the time of accident is close to mid night, it appears that the ticket has been purchased subsequently to show that the deceased was a bona fide purchaser.
11. After hearing learned counsel for the parties and going through the statutory provisions, I do not find that the view taken by the Railway Claims Tribunal suffers from any illegality so as to take a different view in the present appeal.
12. The deceased was running a Kariyana and Maniari shop at Sri Ganganagar. No reason has come on the record to show that the deceased was to visit Nabha in connection with any business activity or for any specified purpose Train IUD was at Railway Station Patiala upto 2128 Hrs. i.e. 09.28 p.m. whereas the inquest report prepared by the police shows that the time of occurrence is 2255 Hrs. Babu Singh, the alleged eye-witness of the incident, has stated in his affidavit that he has seen deceased Kanwar Bhan entering the train immediately. However, in cross-examination, he has stated that he has not seen the deceased prior to the incident and he identified the person only when he was taken in the trolley used by the coolie for carriage of goods. He has admitted that his brother-in-law sat in the train in a proper manner and comfortably.
13. RW1 Ram Kishan, Head Booking Clerk, Northern Railway was cross-examined by the appellants who has denied the suggestion given by the appellants that the entry in the Daily Train Collection Register regarding ticket No. 92290 on 11.7.1997 has been wrongly made by him.
14. According to the case set up by the appellants, the deceased was on the foot steps of the train. Whether the deceased was boarding the running train or the train started immediately is the controversy in the present appeal. The cross-examination of Babu Singh, in fact, shows that he has not seen the manner of the incident. He could not even disclose whether the train has steam engine or diesel engine. He is not one of the eye-witnesses whose statement was recorded by the police. He has not purchased the platform ticket although, according to him, he has purchased the same. He has stated that the train stopped at the platform only for five minutes. However, such statement is falsified by virtue of the affidavit of Jasbir Singh, driver of the train. The appellants have relied upon Ticket No. 92290 as the one purchased by deceased but the documentary evidence Exhibits RB and RC falsifies the said stand of the appellants. Ticket No. 92290 was purchased on 11.7.1997.
15. From the consideration of the entire case, I am unable to agree with the story put up by the appellants that the deceased was planning to travel from Patiala to Nabha. It appears to be a made up story. The ticket has been purchased soon after the incident to lodge a claim of compensation. Even in the unfortunate death, the appellants have not hesitated to lodge a claim on the basis of falsehood. The entire case seems to be bundle of lies wherein the appellants have sought to take the benefit of unfortunate death of Kanwar Bhan.
16. Reliance on the provisions of Sections 123(c)(2) of the Act is not available to the appellants as it is not a case where the passenger had fallen from a train carrying passengers. Therefore, it is not a case of untoward incident within the meaning of Section 123(c)(2) of the Act.
17. The argument of learned counsel for the appellants that Jama Talasi having been produced in evidence, the investigating officer was not required to be examined, cannot be accepted. If these is no dispute about a document, the same can be relied upon by the Tribunal but if a particular fact is required to be proved then the appellants were required to produce best evidence. Thus, mere reliance upon the report of the Jama Talasi is not sufficient proof to rebut the presumption under Section 191 of the Railway Act. The facts of the case and the surrounding circumstances does not show that the deceased has died on account of untoward incident. The appellants have not approached the Tribunal with clean hands. They have tried to take the advantage of an unfortunate death in the family.
18. The view taken by the Tribunal cannot be said to be not possible in law warranting interference in any manner. Consequently, the appeal is dismissed.