Anita Devi v. Union of India

1. By the order impugned in this appeal, Tribunal has dismissed the application under Section 16 of the Railway Claims Tribunal Act, 1987 filed by the appellant, seeking compensation of `8,00,000/- in respect of death of Late Shri Dharam Singh (deceased). Appellant is widow of deceased.

2. Appellant alleged that on 4th November, 2010 deceased was going from Shahdara railway station at Delhi to Baraut in Bagpat District, UP after purchasing a ticket. He boarded Delhi Saharanpur passenger. Due to heavy rush, he was standing at the door of compartment and when the train reached Saboli Fatak, deceased fell down from the moving train due to sudden jerk and jolt coupled with push of the passengers standing near the gate. 2014:DHC:5478 Deceased sustained multiple injuries and died at the spot. Journey ticket was lost in the incident.

3. Respondent denied the incident. Respondent alleged that it was not liable to pay any compensation. Deceased was not a bonafide passenger. Deceased did not die on account of „accidental fall‟ from the train amounting to an „untoward incident‟, within the meaning of Section 123(c) read with Section 124-A of the Railways Act, 1989 (“the Act”, for short).

4. Tribunal framed following issues: i) Whether the deceased Shri Dharam Singh was a bonafide passenger on board the train no. 51911 Delhi Saharanpur passenger on 4.11.2010? ii) Whether the death of the deceased was on account of any accidental fall amounting to an untoward incident, as alleged in the claim application? iii) Whether the applicants are the legal heirs and dependants of the deceased and are entitled to receive compensation? If so to what extent? iv) Relief, if any?

5. Appellant stepped in the witness box as AW[1]. She also examined Sh. Sunil Kumar and Sh. Anil Kumar as AW[2] and AW[3], respectively. Certain documents were proved by the appellant as Ex.AW-1 to Ex.AW-13. Respondent placed on record DRM‟s report Ex. R-1 and relied upon the same. Tribunal considered the entire evidence, which had come on record, meticulously and has returned a finding that deceased was not a „bonafide passenger‟ of the said train. This view was taken on the basis of circumstantial evidence available on record; more particularly the fact that deceased was living in the vicinity of „Saboli Fatak‟. Tribunal has also noted that as per the appellant, deceased had left the house between 10.30 and 11.00 a.m. for going to Baraut. Copy of DRM‟s report Ex. R-1 indicated that train 3 SSD passenger left Delhi at 13:20 hours and reached Delhi Shahdara railway station at 13:37 hours. „Saboli Fatak‟ was situated at 4/9 kms, between Shahdara and Noli. As per the TSR record, train reached Noli at 13:52 hours and left at 13:58 hours. Ex. A-1 was the first DD entry recorded on 4th November, 2010 at Shahdara railway station on the basis of a message received from PCR at 2 pm that a person was cut by a train near „Saboli Fatak‟. It was difficult to have received information in the police station within two minutes of the incident. Tribunal has further noted that deceased was found lying between the railway track, which was not possible, had deceased fallen from the compartment. No eye witness was produced. AW[2] and AW[3] were not accompanying the deceased. Their testimony was, otherwise, not trustworthy, since they surfaced before the Tribunal for the first time. Their statements were not recorded by the police.

6. Arguments heard and material placed on record perused. Admittedly, no eye witness was produced. No ticket was recovered from the deceased. It is not the case that deceased remained lying on the tracks for a long time therefore there were chances of ticket being lost. Indubitably, non-recovery of ticket is not always fatal. However, no such straightjacket formula can be adopted. Each case has to be viewed in its own fact as regards to recovery of ticket so as to establish that victim was a bonafide passenger of the train. Learned counsel contends that burden lies on the Railways that victim was not a bonafide passenger. I do not agree with this contention of the learned counsel. In my view initial onus always lies on the claimant to show that death had taken place due to untoward incident of a bonafide passenger. Of course, by filing the affidavit in a given facts of a case such an initial onus can be be discharged so as to shift onus on the Railways, however, there is no law that even initial onus of proof which has to be discharged will always be on Railways. Indubitably, in the facts of a particular case, onus can be light one 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 probability of loosing ticket in such type of cases is there. Similar view has been expressed by a learned Single Judge of this Court in the judgment dated 8th January, 2014 passed in FAO NO.507/2011 titled Gurcharan Singh & Ors. Vs. Union of India.

7. In this case, circumstantial evidence, which has come on record, makes appellant‟s story doubtful and non-recovery of ticket assumes importance; more particularly when deceased was living in the vicinity of „Saboli Fatak‟. Body of the deceased was found lying between the tracks of „Saboli Fatak‟ crossing. Since deceased was living in the vicinity of „Saboli Fatak‟, possibility of his being run over by some train, while crossing the track, is there in view of the fact that no journey ticket was found from his possession. In the facts of this case, I am of the view that appellant has failed to establish that deceased was travelling by Delhi-Saharanpur passenger and fell down from the train on account of sudden jerk.

8. An injured person or deceased, as the case may be, is not always entitled to compensation on account of accident relating to a train. Injured or deceased will be entitled to compensation only if the accident or „untoward incident‟ falls within the ambit and scope of Sections 123, 124 and 124-A of the Act. In this case, appellant has claimed compensation on account of accidental fall from the train. Section 123(c)(2) of the Act defines an „untoward incident‟, which means accidental falling of any passenger from a train carrying passengers. In this case appellant has failed to prove that deceased died on account of „untoward incident‟ within the meaning of Section 123(c)(2) of the Act, thus appellant is not entitled to compensation under Section 124-A of the Act. In this case, deceased appears to have been run over by some train while crossing the railway track, thus, appellant is not entitled to compensation in view of proviso to Section 124-A of the Act.

9. I do not find any illegality or perversity in the impugned judgment. Appeal is dismissed. A.K. PATHAK, J. OCTOBER 27, 2014 rb