Sh. Prempal Singh & Anr. v. Union of India

1. This appeal impugns an order dated 26.11.2013 passed by the Railway Claims Tribunal dismissing the appellants’ claim for compensation on account of the demise of their son Mr. Lokender Singh in a rail accident. It is the appellants’ case that the deceased who used to work in Delhi, on 05.09.2011 during his return rail journey to Muradabad he got the space only near the gate, due to heavy rush in the rail compartment. En-route due to a sudden jerk and push in the train, he fell from the moving train, came under its track and his body was cut into two. It is not in dispute that a valid passenger ticket alongwith a mobile phone was found on his person. The body was identified by his family members, who were informed by officials through his phone. The factum of his death in the rail accident has been 2018:DHC:2713 established and there is no doubt about him being a valid passenger. Nevertheless, the impugned order dismissed the claim on the ground that since the body was cut into two, there was a likelihood that the deceased died when he was trying to cross the railway lines, which would be a selfinflicted injury and thus come under the exception provided in section 124- A of the Railways Act, 1989. Therefore, the sweep of strict liability on the Railways, would not be applicable in the present case.

2. This Court, however, finds the said reasoning erroneous because insofar as a valid ticket has been found on the body of the passenger, his body was found on the railway tracks and it has been recorded that he died in the train accident, the presumption is that it was an accident and untoward incident for which the Railways would be strictly liable.

3. In Union of India vs. Prabhakaran Vijaya Kumar and others 2008 ACJ 1895, the Supreme Court of India held:- “16. The accident in which Smt. Abja died is clearly not covered by the proviso to 124A. The accident did not occur because of any of the reasons mentioned in clauses (a) to (e) of the proviso to Section 124A. Hence, in our opinion, the present case is clearly covered by the main body of Section 124A of the Railways Act, and not its proviso.

17. Section 124A lays down strict liability or no fault liability in case of railway accidents. Hence, if a case comes within the purview of Section 124A it is wholly irrelevant as to who was at fault.”

4. This Court too has followed the same in FAO No.64/2017 titled as Jagveeri & Anr. vs. Union of India dated 10.04.2018 and in FAO NO. 312/2017, titled as M. Rehan & Anr. vs. Union of India, dated 13.04.2018. The relevant portion of Jagveeri (supra) reads as under:- “8. In Ashutosh Dwivedi[1], it was held that in an accident or untoward incident, the presumption shall always be in favour of the passenger with regard to the bonafides, unless rebutted by material and cogent evidence.

9. In Juhi Parveen[2] this Court held that a train ticket can get lost and it cannot be held that a deceased is not a bonafide passenger merely because a train ticket is not recovered. It went on to hold that the deceased was a bonafide passenger.

10. This Court is of the view that the impugned order has erred in its reasoning that since a relatively heavier object like a cell phone could still be on the body of the deceased, it was unconceivable that the ticket alone could have popped out of the pocket or otherwise was lost after the person fell from the train. Rejection of the claim on this ground is not sustainable because a lighter object will always fly-off from the pocket if the unfortunate body is violently tossed about in a gruesome and fatal train accident. A heavier object like cell phone being better ensconced, deeper in the pocket, is likely to stay in the pocket. Besides, the ticket could have been lost in the efforts of chance good Samaritans or the Railway or police officials or hospital authorities trying to ascertain the identity of the injured person by looking into the contents of his pockets.

11. Furthermore, the Madras High Court in C. Selvi vs. Union of India in C.M.A.No.241 of 2016 decided on 11.01.2018 held as under:- “.....14. In our opinion, if we adopt a restrictive meaning to the expression 'accidental falling of a passenger from a Ashutosh Dwivedi vs. Union of India in F.A.F.O. No. 82/1999 decided on 12.01.2009 Juhi Parveen and Another vs. Union of India 2015(1) TAC 167 (Del.) train carrying passengers' in Section 123(c) of the Railways Act, we will be depriving a large number of railway passengers from getting compensation in railway accidents. It is well known that in our country there are crores of people who travel by railway trains since everybody cannot afford travelling by air or in a private car. By giving a restrictive and narrow meaning to the expression, we will be depriving a large number of victims of train accidents (particularly poor and middle class people) from getting compensation under the Railways Act. Hence, in our opinion, the expression 'accidental falling of a passenger from a train carrying passengers' includes accidents when a bona fide passenger i.e., a passenger travelling with a valid ticket or pass is trying to enter into a railway train and falls down during the process. In other words, a purposive, and not literal, interpretation should be given to the expression.

15. xxxxxx......16. It is no doubt true that the position of law as provided in Section 106 of the Evidence Act is that if a fact is within the special knowledge of a person, the burden of proving such fact is on that person and as provided in Illustration (b) of that Section, if a person is charged with travelling on a railway without a ticket, the burden or proving that he had a ticket is upon him. But, such principle is not applicable to a case of a dead person, who was proved to have died in the course of railway travel and whose body was taken in custody of the Railway Police. In such a situation, it is the duty of the Railway Authority to first give evidence that he was without a valid ticket and if such evidence is given, the onus shifts upon the Claimants to prove that he was a bona fide passenger having a valid ticket. In this case, as no person on behalf of the Railways has given any such evidence nor as any person come forward to disclose as to what articles were found with the victim, I am of the considered view that the initial burden of proving the said fact had not been discharged. In such circumstances, in the absence of any evidence of the Railway Authorities asserting absence of valid ticket, I am of the opinion that there is no just reason to discard the evidence of the Claimants."

5. The impugned order rejecting the claim has reasoned as under:-

6. The Court is of the view that the aforesaid reasoning is flawed because it cannot be expected for a passenger in a railway journey, who is travelling alone, to keep evidence of when, where, how and in whose presence, he/she undertook the journey. But the impugned order expects this kind of evidence; the unreasonableness of the expectation and the impossibility of the assumption is evident. It is untenable. Therefore, the impugned order has to be set aside. The evidence in favour of the claimants is that the deceased had a valid passenger ticket; the claimants state that he was working in Delhi and was on his return journey to his hometown in Muradabad; his body was found on the railway tracks, one station prior to Muradabad, therefore, the clear inference is that the deceased was in a train going towards Muradabad. Furthermore, the factum of his body lying on the railway tracks is admitted by the Railways.