Full Text
17th April, 2014 SMT. SUSHMA ....Appellant
Through: None.
Through: Ms. Rashmi Malhotra, Advocate.
To be referred to the Reporter or not? Yes VALMIKI J. MEHTA, J (ORAL)
JUDGMENT
1. This first appeal under Section 23 of the Railway Claims Tribunal Act, 1987 is filed by the widow of the deceased Sh. Surendra Kumar who died in an untoward incident of falling from the Ranikhet Express train while travelling from Delhi to Moradabad on 3.9.2010. The ‘untoward incident’, as per the meaning of the expression in Sections 123(c) and 124-A of the Railways Act, 1989, took place near Kuchesar Road railway station i.e at a point in between the journey from Delhi to Moradabad. 2014:DHC:2049
2. The case as pleaded by the appellant before the Tribunal was that while travelling from Delhi to Moradabad by Ranikhet Express on 3.9.2010 when the train was near Kuchesar Road railway station, the deceased Sh. Surendra Kumar got up for going to the toilet, and then he fell down from the train and died as a result of this untoward incident/accident. The journey ticket was in the cloth bag which was with the deceased Sh. Surendra Kumar when he fell down from the train and therefore the journey ticket was lost and accordingly could not be filed and proved before the Tribunal. However the travel by the deceased in the train was proved by the mother-in-law who was also travelling with the deceased in the train.
3. The Tribunal has essentially given the following reasons to dismiss the claim petition:-
(i) No journey ticket was recovered from the person of the deceased Sh.
Surendra Kumar and therefore the deceased was not a bonafide passenger. Tribunal has buttressed this reasoning by observing that there was no reason for the deceased Sh. Surendra Kumar to have carried his bag when going to the toilet although the deceased very much had a seat in the train.
(ii) The position of the body lying in the tracks was such that, that position could not be so if the deceased had fallen down from the train.
(iii) The mother-in-law Smt. Jagir Kaur who deposed as AW[2] is said to have made contradictions in her deposition because she claimed to have reached the accident site near the Kuchesar Road railway station after coming from destination at Moradabad at 10.30 A.M, but, the police records that she/Smt. Jagir Kaur was present at 9.00 A.M. in the morning for identification of the body of the deceased Sh. Surendra Kumar.
4. In my opinion, the Railway Claims Tribunal has misdirected itself to say the very least. The fact of the matter is that the liability of the Railways is a strict liability in terms of Section 124-A of the Railways Act, 1989 as held by the Supreme Court in the cases of Jameela & Ors. Vs. Union of India (2010) 12 SCC 443 and Union of India Vs. Prabhakaran Vijaya Kumar and Ors. (2008) 9 SCC 527.
5. Firstly, it bears note that the body of the deceased was indeed found on the tracks, and which site is nowhere near the place of residence of the deceased or a place where the deceased could have been because of any purpose. Therefore, the body would be on the tracks only because the deceased Sh. Surendra Kumar would have fallen down from the train. Secondly, the Tribunal has committed an illegality in stating that there was no reason why the deceased Sh. Surendra Kumar could have carried his bag to the toilet inasmuch as the time of accident is about 2 O’ clock at night and surely there can be various reasons for the deceased Sh. Surendra Kumar to have carried his small bag with him including either for the reason that the mother-in-law Smt. Jagir Kaur at 2O’ clock at night would be sleeping or may not be in such complete awareness (drowsy) for the deceased Sh. Surendra Kuamr to have felt confident to leave the small bag of his belongings at the place where he was sitting in the train. After all theft of unguarded luggage in trains is routine. Accordingly, the deceased Sh. Surendra Kumar may have felt it desirable to carry his small bag containing his belonging with him so as not to leave it unattended in a second class bogie which would have many many passengers. Therefore, it cannot be said that it is completely impossible and totally unnatural for the deceased to carry his small bag alongwith him when he went to the toilet in the bogie at about 2 O’ clock at night.
6. Secondly, an important aspect to be noted is that the deceased was just a labour class person travelling with his mother-in-law Smt. Jagir Kaur AW[2]. When Smt. Jagir Kaur reached the destination at Moradabad, as per the deposition which has come on record, she could not find her son-inlaw i.e the deceased Sh. Surendra Kumar. She thus made enquiries with the Station Master who as a noble soul and helped the mother-in-law Smt. Jagir Kaur by making certain telephone calls and it transpired that there was a body lying near the tracks at Kuchesar Road railway station. Smt. Jagir Kaur, AW[2] thereafter went all the way back from Moradabad to the accident site where she identified the body of her son-in-law before the police. Surely, in such circumstances there can be minor discrepancies with respect to timing of giving of statement to the police of identifying the dead body of Sh. Surendra Kumar, and therefore not too much unnecessary inference should be made out from the alleged contradiction that the police stated that the body was identified by Smt. Jagir Kaur at 9.00 A.M. in the morning whereas Smt. Jagir Kaur stated that she had reached the site at about 10.30 A.M in the morning. Really, the crux of the matter is that the identification took place in the early part of the morning and hence not too much stress should be laid in these type of cases to a difference in timing of 9.00 A.M or
10.30 A.M. and as has been done by the Tribunal.
7. It is relevant to note that if the death did not take place on account of an untoward incident of falling from the train there was no reason why the mother-in-law Smt. Jagir Kaur could be at Moradabad in the middle of the night and the Station Master helping her by making phone calls and thereafter of her/Smt. Jagir Kaur travelling in the night/early part of the day back from Moradabad to Kuchesar Road railway station. There cannot be hence any falsity about the case as put up on behalf of the applicant/appellant in a case such as the present because the mother-in-law Smt. Jagir Kaur cannot be said to have imagined the accident happening for her first to be at the Moradabad railway station at night and then to reach near the Kuchesar Road railway station in the night/early hours of the morning.
8. In view of the above, I am of the opinion in the facts of the case as stated above that once the body of the deceased was found lying on the tracks, and the train travel was deposed to by Smt. Jagir Kaur taken with her subsequent actions, it can be safely held that the deceased did in fact fall down from the train and hence there was an ‘untoward incident’ in terms of expression as found under Sections 123(c) and 124-A of the Railways Act,
1989.
9. So far as the aspect that train ticket was not found on the search of the person/body of the deceased, all that is required to be noted and stated is that it is not unknown that in many of these cases of untoward incidents of falling from the train the ticket which is said to be lying in a small bag of the deceased can get lost. Once bonafide travel in a train is otherwise established, as in the facts of this case, this Court would be doing gross injustice if it holds that the deceased was not a bonafide passenger travelling on a train ticket simply because the train ticket is not recovered from the person of the deceased or the belongings of the deceased.
10. That takes us to the final aspect of the conclusion of the Tribunal that the positioning of the body on the tracks shows that the deceased would not have fallen from the train. In this regard, I would like to observe that I have in many cases held that there is no divine camera which records the exact sequence of events and which can be replayed before the Tribunal to give an exact judgment. After a person falls from a train, what sequence of facts exactly take place, no one can recreate with certainty, and it is nothing unusual if in certain cases after falling from the train the passenger would have some amount of life left and have strength to get up and thereafter again fall down on the adjacent tracks. Therefore, merely because the body is found lying on the adjacent tracks in a particular position does not necessarily negate the incident being an untoward incident of falling from the train and each case have to be examined as per its own peculiar facts.
11. In view of the above, appeal is allowed. Impugned judgment of the Tribunal dated 16.4.2012 is set aside. Appellant alongwith her children whose details are given in the claim petition will be entitled to the statutory compensation of Rs.[4] lacs in equal proportion. So far as those children of the appellant who are minors are concerned; their portion of compensation awarded to them; will be deposited in a fixed deposit in a nationalized bank and only interest thereof will be used for the maintenance and upkeep of the minors. In case, there is any requirement to withdraw lumpsum amount, whole or in part, from the compensation being awarded to the minors, then on such contingency/urgency existing it would be open to the appellant to file an appropriate application before the Tribunal for withdrawing of whole or part of the amount of the fixed deposit. On the minors achieving majority, the fixed deposit alongwith interest be paid to them. Appellant and the children of the deceased Sh. Surendra Kumar will also be entitled to interest @ 7½% per annum simple from the date of filing of the petition before the Tribunal and till the date of payment. I note that appellant has not been represented during the hearing of this appeal and therefore I direct the Registry of this Court to send a copy of this judgment to the appellant both by registered post AD and through the concerned process serving agency of the District Court nearest to the place of residence of the appellant. Respondent is also directed to send a copy of the present judgment to the appellant through its official who is posted at the railway station nearest to the place of residence of the appellant/widow of the deceased Sh. Surendra Kumar. Respondent will do the needful within six weeks from today. Parties are left to bear their own costs.
APRIL 17, 2014 VALMIKI J. MEHTA, J. Ne