Vijendar Singh & Anr. v. Union of India

11. The DRM report, Ex.R-2 admits the incident but records in the conclusion that the incident occurred while the deceased was boarding another coach after getting down from a coach and was hit by pole no. 1535/7B during this process and the incident occurred because of carelessness and negligence of the deceased, who is fully responsible for this incident. The report of Inspector, RPF enclosed with the DRM report also records in the conclusion that the deceased was travelling with his friends in EMU train and while boarding another coach after getting down from a coach was hit by the electric pole. It is Further recorded that the deceased and his friend were standing at the door of the compartment and were leaning out resulting in this incident, which occurred due to his own mistake and the railway administration is not responsible for the same. The learned counsel for the respondent relied upon the judgment in the case of Sukhdev Kamlani & others Vs U.O.I., FAO no.374/2009 decided on 8.8.2011 of Delhi High Court in which the deceased was leaning outside the coach and did not notice the pole against which he struck his head resulting in his instant death and the Hon'ble High Court held that the deceased died because of his own criminal negligence and once a person is guilty of his negligence it would not fall under the expression untoward incident as found under Section 123(c) and 124-A of the Railways Act, 1989. The learned counsel for the applicant, on the other hand, cited the case of Surai Besra Vs. U.O.I.in FAO NO. 474/12 of Delhi High Court pleading that liability to pay compensation remains even if it is found that the death took place on account of negligence of the deceased.

12. Statements of five eye witnesses were recorded by the police immediately after the incident. Ex.A-4 is statement of the on duty Constable RPF, Tilak Bridge railway station who has stated that when Palwal to Shakurbasti EMU train arrived on platform no. 1 some students were getting down from one coach and boarding another coach and were standing at the gate of the compartment and the train started at that time and two boys were hit by pole NO. 1535/7B beyond the platform and one of the boys was dragged with the train for some distance and then came under the train and his right leg was cut by the train. It is stated that he had received injury on his head and the incident occurred as the boy and his bag had hit the pole. Another eye witness Sunita in her statement, Ex.A-6 has stated that when the Palwal-Shakurbasi local train left the platform after stopping, many boys were hanging out while standing on the foot board of the coach and the head and bag of one of the boys was hit by electrical pole no. 1535/9A towards New Delhi and he was dragged with the train for a long distance and it appeared that he was entangled with the train. Shiv Rattan Singh, Shashi Sinha and Suresh Kumar, other eye witnesses in their statements, Ex.A-7, Ex.A-8 and Ex.A-9 respectively have also stated that when the Palwal-Shakurbasti EMU had stopped at Tilak Bridge railway station some students were getting down from one compartment and boarding another compartment and were standing at the gate of compartment and the train left at that time and two boys were hit by pole no. 1535/7B beyond the platform and one of the boys was dragged with the train and came under it and the incident occurred as the boy and his school bag was hit by the electric pole when he was boarding another compartment after getting down from One compartment. All these statements are consistent in regard to the manner of occurrence of the incident. Veracity of these statements cannot be doubted as these were recorded immediately after the incident. DD no. 2A dated 7.8.13, Brief Facts, Ex.A-3 refers to these statement and records that the deceased was standing holding the rod at the door of the compartment and he was hit by the pole resulting in head injury and fell down from the train and died during the course of his treatment. The request for post mortem, Ex. A-16 also records that the deceased sustained injuries due to getting hit by pole during train journey and got entangled with the train and died during the course of treatment.

13. On the other hand, AW-2 in his statement recorded by the police, Ex.A-5 has stated that he and the deceased were travelling from Okhla to Sadar Bazar in an EMU train and were standing at the gate of the compartment due to rush and after the train left Tilak Bridge railway station, the deceased lost his balance due to jerk and fell down from the train and was hit by a pole and he also fell down in trying to save the deceased. He has not mentioned about their detraining and boarding another coach and leaning out from the train. However, in the face of the statements of five other independent eye witnesses, his version regarding the manner of occurrence of the incident cannot be accepted.

14. The deceased is stated to be travelling from Okhla to Sadar Bazar and there was no need for him to change the coach at Tilak Bridge railway station in the manner stated by the witnesses. The eye witnesses have also not mentioned about rush in the train, which appears correct as the incident occurred at around 2.40 p.m. It is evident from the eye witness account of the incident that the deceased imperilled his life by his own reckless act and his death was due to his own negligence. The facts of the present case are similar to that of Sukhdev Kamlani & others Vs. U.O.I, relied upon by the respondent and are different from the case of Surai Besra Vs. U.O.I, cited by applicant and his death was caused due to his own criminal negligence and it does not fall under the expression untoward incident as found under Section 123(c) and 124.A of the Railways Act, 1989.

15. No journey ticket has been produced and is stated to have been lost during the incident. AW-2 has stated in his statement recorded by the police, Ex.A-5 that he and the deceased had purchased separate journey tickets for Sadar Bazar from Okhla railway station having fare of Rs.5/- each and due to fall from train their clothes were torn and the money and the ticket had fallen from their pocket. The learned counsel for the applicants relied upon the ease of Smt. Ram Pyari Vs.

U.OT. in FAO no. 143/12 (Delhi High Court) and pleaded that the journey ticket was lost during the incident. Admittedly the deceased was travelling by Palwal- Shakurbasti EMU train at the time of incident and the possibility of the journey ticket getting lost during the incident cannot be ruled out. In the circumstances, it is held that the deceased has been shown to be a bona fide passenger on board the train in question but his death was caused due to his own criminal negligence and it does not fall under the expression untoward incident as found under Section 123(c) and 124-A of the Railways Act, 1989. The issues are answered accordingly. Issue no. 3

16. In view of the findings on the above issues, this issue does not arise for consideration. Issue no. 4

17. In view of the findings on above issues, the applicants are held not entitled to any compensation.

18. In the result, the claim application is dismissed on merit. There shall, however, be no order as to costs.”

GROUNDS OF APPEAL:

6. The appellants herein have assailed the impugned order primarily on the ground that the learned RCT has dismissed the claim application of the appellants herein solely on the basis of the statement recorded by the Investigating Officer and without calling them to the witness box. It has been claimed that the learned RCT failed to appreciate that the deceased could not have possibly been hit by pole no. 1535/7B while changing compartments because the said pole is situated on the opposite side of the platform and the EMU trains don’t have footsteps at entry doors. It is further claimed that even if it is assumed that the deceased changed compartments from the opposite side of the platform, in that case the witnesses would not have been able to see the activities of the deceased on the other side of the train, since the train itself would have come between their line of vision. In support of their contentions, the appellants have placed on record the photographs of the placement of the pole no. 1535/7B with which the deceased was alleged to have been hit.

ANALYSIS AND DECISION:

7. Having heard the learned counsel for the parties and upon a careful perusal of the record, this Court finds itself unable to uphold the findings recorded by the learned RCT.

8. First things first, it is surprising to take note that the claim petition under Section 16 of the RCT Act was instituted on 06.11.2013 and the Railways in its written statement filed thereafter took a categorical stand that the accident and death of the victim boy was not a case of ‘untoward incident’ but a case of being runover from a train. It appears that without amending the pleadings, the respondent/ Railways later on relied upon the statement of five witnesses recorded by the IO on or about 12.05.2014. A perusal of the digitized record of the learned RCT would show that IO recorded the statement of L/Ct. Reeta from RPF/TKG, who stated that when the train No. 64013 arrived from Palwal to Shakurbasti at about 02:00 p.m., some school children were getting down from one Coach and boarding another one and in the process, two of the boys struck with pole No. 1535/7B and one of the boys was dragged along with the train to some distance and came beneath the train whose right leg was also amputated besides causing severe head injuries, who was removed in a CAT Ambulance to LNJP Hospital and the second boy was removed in a PCR to Dr. R.M.L. Hospital.

9. Likewise, statement of Shiv Ratan Singh S/o Sh. Ram Swaroop was recorded to the same effect that some school children were deboarding one Coach and jumping on to another Coach and in the process two boys got struck with a pole and one of the boys was dragged along with train to some distance. He also stated that while boarding a different coach, the school bag of the boy struck with the pole and no one was responsible for the accident.

10. The third witness Shashi Sinha made a statement that he was running a Tea Shop on platform No.1 and he saw school children attempting to board the running train and as some of the school boys were able to latch on to the Coach, two boys got struck with pole NO. 1535/7B and one school boy was dragged along with the train to some distance whose leg was amputated and who received severe head injuries. Likewise, the fourth witness, namely Suresh Kumar S/o Ram Lal made a statement that some school children were getting down and then attempting to board coaches of the train and as they were leaning out of the door of the Coach, two boys got struck with pole NO. 1535/7B and one boy was dragged along who came beneath the running train and other also got injured and both were removed to the hospital. The fifth was Govind S/o Amar Singh who also made the statement to the same effect.

11. However, on a meticulous perusal of the record, what also emerges is what comes out is that the statement of such witnesses were not recorded soon after the date of occurrence i.e. 06.08.2013 but after almost nine months thereafter. None of the said witnesses were produced during the course of evidence/ inquiry before the learned RCT. The report of the DRM dated 26.05.2014 rather concluded that “मौत दरवाजे से बहार खडा होने के कारण पोल से टकराने के कारण ह�ई”. It is also pertinent to mention here that as per the death summary report, the deceased boy died due to severe traumatic head injury resulting in cardio pulmonary arrest.

12. In view of the aforesaid material on the record and the evidence produced before the learned RCT, at the first blush it appears that the deceased himself was rash and negligent but then it is also evident that that the train was overcrowded and the school boys were hanging on to the door of the train when they got struck with the pole. To my mind, the said act on the part of the deceased cannot be said to be “criminal negligence” so as to deny compensation to his parents under Section 123(c) read with Section 124-A of the Railways Act, 1989. The DRM report Ex.R-2 that suggests that the deceased as well as his friend AW-2 Govind were leaning out of the door is not supported even by the five witnesses who were examined by the IO after nine months of the incident. At the cost of repetition, the said aspect is completely amiss in the written statement of the respondent/UOI.

13. In all probabilities, what comes out is that the deceased along with AW-2 was standing near the gate and perhaps their bodies were not completely inside the train and somewhere due to oversight and by sheer bad luck, the bag of the victim got entangled with the pole and he struck against the pole, consequent to which he was dragged and he fell down. The said version was corroborated by AW-2 also in his statement who denied that they were leaning out of the door dangerously. What is baffling is that if the school boys were indulging in some kind of adventure every day, what was the railway administration doing about it and why did the RPF not make any attempt to check such mischiefs on the part of the teenage passengers. Reference regard can be invited to the decision of this Court in the case of Sukhdev Kamlani v. Union of India[4], wherein it was held as follows:

2011 SCC OnLine Del 3307 A reference to para 5 of Jameela's case shows that in the said case there was no eye witness of the fall of the deceased from the train and therefore there was no evidence to support the case of the Railways that the accident took place on account of negligence of the deceased. Further, in para 8, the Supreme Court has clarified that in that case, it was not the case of the Railways that the death of the deceased was as a result of self-inflicted injury. It was further noted that it was not the case of the Railways that the deceased died due to his own criminal act. Whatever doubt is there is clarified in para 9 which lays down that once there is a criminal negligence as differentiated from a rash act, the Railways will not be responsible.

5. It is trite that there is a quite clearer differentiation between negligence and criminal negligence. A simple act of negligence or a rash act would not take the case out of the expression “untoward incident”. However, it is not the law, and cannot be the law, that a person deliberately out of criminal negligence leans out of a train and when he is hit by a pole, then, the Railways can be held to be responsible.

6. The reliance on the case of Smt. Vidyawati (Supra) is misplaced because in Para 9 of the said judgment it is clearly recorded that no evidence was led by the Railways in the case that anybody had seen the passenger travelling in the train negligently so as to bring his conduct in the exceptions provided for under Section 124A of the Act. Since the stand of the Railways in Smt. Vidyawati's case that the deceased was travelling by hanging to the door of the train and was struck or hit by the pole and then fell down from the train was not believed, therefore, the ratio of Jameela's (supra) case was applied in Smt. Vidyawati's (supra) case to hold that a mere act of negligence cannot deny compensation.

7. Accordingly, the Railway Claims Tribunal has rightly denied compensation because the death took place on account of criminal negligence of the deceased. The provisions of law cannot be stretched to such an extent that even for a deliberate criminal negligence, and which has been found to exist as a matter of fact in this case, can result in entitlement of compensation on the ground that the incident can be said to be an untoward accident.” (bold emphasis supplied)

14. In summary there was no case of criminal negligence on the part of the victim. This Court, therefore, has no hesitation in holding that the victim died in an ‘untoward incident’. Insofar as the issue of the railway ticket is concerned, it is the categorical testimony of AW-2 that each one of them had purchased a railway ticket of Rs. 5/- for the journey. Considering the manner in which the victim was dragged along with the train and then came beneath it resulting in amputation and severe head injury, it is possible that the railway ticket might have been lost in the accident. Hence, this Court has no hesitation in holding that the deceased was a bonafide passenger. The case put forth by the respondent is not only beyond pleadings but also contradictory and the reliance by the learned RCT on the mere ipse dixit of certain witnesses whose statements were recorded much after the accident cannot be conclusive so as to exonerate the respondent/railways from its liability to pay compensation to the appellants.

15. Accordingly, the present appeal is allowed and the appellants are made entitled to statutory compensation of Rs. 8,00,000/- (Rupees Eight Lacs Only) payable with interest of 9% per annum from the date of accident i.e. 06.08.2013 till realization. The amount of compensation be apportioned in the ratio of 1:3 in favour of the appellants i.e. 1/4th to the father and 3/4th to the mother.

16. The present appeal stands disposed of.

DHARMESH SHARMA, J. APRIL 16, 2025