Smt. Santoshi and Ors Vs. Union of India - Court Judgment

$~9 * + IN THE HIGH COURT OF DELHI AT NEW DELHI FAO2672014 Decided on 17th November, 2014 SMT. SANTOSHI & ORS Through: versus ..... Appellants Mr. S.N. Parashar, Adv. UNION OF INDIA Through: ..... Respondent Mr. V.K. Jain, Adv. CORAM: HON'BLE MR. JUSTICE A.K. PATHAK A.K.PATHAK, J.(ORAL) 1. Appellants are legal heirs of Late Shri Ram Nath. They filed a claim application before the Railway Claims Tribunal, Principal Bench, Delhi seeking compensation of `4 lacs in respect of death of Shri Ram Nath in relation to Firozpur Janta Express train. She alleged that on 8th October, 2012 deceased-Ram Nath was travelling from Tuglakabad Station to New Delhi Railway Station by Firozpur Janta Express when he accidentally fell down from the crowded compartment of the running train near Shivaji Bridge, Delhi due to heavy rush and sudden jerk. Deceased was rushed to RML Hospital where he died on 10:50 pm on the same day.

2. Respondent alleged that deceased did not die in an „untoward incident‟ within the meaning of Section 123(c)(2) of the Railways Act, 1989 (for short, hereinafter referred to as the „Act‟). It was alleged that deceased died on account of his own negligence. They further alleged that appellants were not entitled to any compensation under Section 124-A of the Act since deceased did not die in an „untoward incident‟.

3. 4. Following issues were framed by the Tribunal :(1) Whether the death of the deceased had occurred as a result of an untoward incident, as defined US123(C) (2) of the Railways Act, 1989 and as alleged in the claim application?. (2) Whether the deceased was a bonafide passenger of the train in question on the relevant day?. (3) Whether the maintainable?. (4) To what order/relief?. application of Smt. Santoshi is Appellant no.1 filed her own affidavit thereby corroborated the averments made in the claim application, inasmuch as, placed on record certain documents which she proved as Ex. A-1 to A-16. As against this, respondent placed on record certain documents which were exhibited as Ex. R-1 to R-12.

5. On scrutiny of evidence which had come on record, Tribunal has dismissed the claim application on two counts. Firstly, deceased was not a „bona fide passenger‟ of Firozpur Janta Express since ticket found from his possession was a general second class ticket. This ticket did not authorize him to travel in an express train. Secondly, deceased jumped from the running train, thus, was guilty of „criminal negligence‟. Tribunal was of the view that deceased sustained injuries while he was de-boarding the running train. Injuries sustained by him were self inflicted injuries, thus, appellants were not entitled to compensation under Section 124 A(b) of the Act.

6. I have heard learned counsel for the parties and perused the material placed on record. First of all, I am of the view that Tribunal has taken an erroneous view that deceased was not a „bona fide passenger‟ of the train from which he fell down at Shivaji Bridge, Delhi. Merely because deceased was travelling in an express train with a second class general ticket by itself would not mean that he was not a „bona fide passenger‟ of the said train. No such rule has been pointed out by the learned counsel for the respondent to show that a person with a valid train ticket cannot travel in general compartment of second class of a superfast train. In the similar circumstances, a Single Judge of this Court in Prabhu Dayal and others vs. Union of India 2012 ACJ2825 has held thus:

“the Railway Claims Tribunal has also arrived at an incorrect finding that if there is death of a person by falling from a train, the incident will not be an untoward incident if the ticket in question is a general ticket and the travel was in a train which was a super fast train. No such rule has been relied upon before the Railway Claims Tribunal and no such rule has been relied before me that a person with a valid train ticket of travel cannot travel in the general compartment of a second class of a super fast train. I am fortified in my view by a decision of a learned single Judge of Andhra Pradesh High Court in the case reported as Parisa Anjali v. Union of India, 2011 ACJ693(AP) and in which judgment the learned single Judge of Andhra Pradesh High Court has held that merely because the ticket was not of that particular train in which the deceased was travelling, would not mean that the deceased was not a bona fide passenger of the train from which he fell down. I respectfully concur with the views of Andhra Pradesh High Court in the case of Parisa Anjali (supra). Accordingly, I am of the view that deceased was a bona fide passenger in the train”.

7. Now, coming to the second point, I am of the view that no evidence was led by the respondent before the Tribunal that deceased was de- boarding a running express train at Shivaji Bridge, Delhi. No witness in this regard was produced. Tribunal has placed reliance on Ex. R-2 to draw inference that deceased was de-boarding a running train. I have perused Ex. R-2 and find that nowhere in the said report it has been stated that deceased was de-boarding the running train. It has been concluded in this report that deceased fell down from Firozpur Janta Express train due to his own negligence. This conclusion does not mean that deceased was de-boarding the running train. On the contrary, from the documentary evidence adduced before the Tribunal it appears that deceased fell down from the running train. In the final report, it has been mentioned that on inquiry it was revealed that one boy about 25-26 years had fallen down from the running Firozpur Janta Express train and sustained injuries on his head, inasmuch as, his one hand was cut. He was removed to RML Hospital by the PCR. Statement of Constable Nepal Singh also indicates that passengers travelling in the said train informed him that one boy had fallen from the train at the Nizamuddin end of the Shivaji Bridge Station. Constable Nepal Singh has not mentioned in his statement that passengers informed him from the running train that one boy sustained injuries while he was de-boarding the train. Above all in the documents placed on record of the Tribunal, it is mentioned that one boy had fallen from the running train. The findings of the Tribunal that deceased sustained injuries while he was de-boarding a running train are not supported by the documentary evidence produced before the Tribunal and are based on surmises and conjectures.

8. There is no reason not to accept the version of appellants that deceased fell down from the compartment of the running train due to heavy rush and sudden jerk, which otherwise is supported by the inquest report and Ex. R-2.

9. Section 123 (c) of the Act reads as under :

“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; (2) the accidental falling of any passenger from a train carrying passengers.

10. Section 124A of the Act reads as under :

“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 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.”

11. A conjoint reading of aforesaid provisions shows that if a person falls down from a running train, such a incident would amount to an „untoward incident‟ within the meaning of Section 123(c)(2) of the Act. A perusal of Section 124-A shows that liability of the Railways in such type of cases is strict liability. Railways cannot avoid making payment of compensation even if a passenger is found to be negligent. Claim can be declined only if a passenger is found guilty of criminal negligence. A passenger in respect of the injuries sustained by him or his legal heirs, if he dies, would not be entitled to compensation only if injuries are sustained or death is occurred on account of the acts of such passenger as envisaged in proviso to Section 124A of the Act; meaning thereby if a passenger sustains injuries or dies on account of (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‟. In this case, it has remained unproved that deceased died due to any of the aforesaid acts.

12. For the foregoing reasons impugned order is set aside. A compensation of `4 lacs (Four Lacs Only) is awarded to the appellants together with interest @ 9 per cent per annum from the date of claim application. Out of the compensation awarded `1 lac each shall be kept in the fixed deposit receipts with any nationalized bank in the name of appellant nos. 2 and 3 till they attain age of majority. However, appellant no.1 would be entitled to withdraw the interest accrued on the fixed deposits. Remaining awarded amount, that is, `2 lacs will be for the use and benefit of appellant no.1.

13. Appeal is disposed of in the above terms. A.K. PATHAK, J.

NOVEMBER17 2014 ga