Mohd Mukhtar & Anr v. Union of India

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HIGH COURT OF DELHI AT NEW DELHI + F.A.O. No365/2015 Decided on: IS"* March, 2016 MOHD.MUKHTAR& ANR. Appellants Through: Mr. Anshuman Bal, Advocate. Versus UNION OF INDIA Respondent Throughf^' Singh^^^anding Counsel for 4^^ f 0 Railways witlj?Mr^Pf^een Kumar, Adv. CORAM: f HON'BLE MR. JUSTICE y.K. SHALI ^ V.K. SHALL J. (ORAL) | I

¶1This is In appeal filed by t)ie appellants against the judgment dated V

29.04.2015 passed by the Diyision Bench of the Railway Claims Tribunaf^Principal Beneh, Delhi by yihuetpf^hich Ae application of the appelm^';jfor^,grant of compehsatioh/of 'Rs.lO lacs on account of dekt^jfv^lvL.HI^ee^^ incident of railways on 28.07.2df2 was Jisiniss^^

¶2The case which was set up before the Railway Claims Tribunal was that the deceased as a bona fide passenger and travelling on a valid train ticket bearing No.32128 from Taj Nagar to Delhi Cantonment. It was alleged that the victim fell accidentally from the train due to a sudden jerk between Path railway station and Jasola railway station and died instantaneously. Because of this untoward incident, the appellants had claimed damages to the tune

¶3of Rs.lO lacs. The Railway authority filed its written statement and denied their liability for the death of the deceased caused because of the untoward incident. The bona fide of the deceased as a 'passenger of Railways' was also questioned. On the pleadings of the parties, following issues were ffamed:- "1. Whether this Bench of the Tribunal has territorial jurisdiction to entertain and try the present claim application?

¶2Whether the deceased was travelling by the train in question and was a bona fide passenger?

¶3Whether the^ death, of the deceased has occurred on accountSf an. untoward incident hs defined under Section 123 w) read with Section ,12j-A of4he Rqilways Act, 19S9? ff* %

4.9 -^hether tHe jdp0cdnts are the depeMehts of the deceased and are entitled to receive compensation? 5l To what amputit^qf compensation if anmare the applicant entitled? 'f /J |d i/ I The appellants herein examined Snlt; SabilaJChatoon ns AW-1 and proved doc^%Ei.AW-l/2 to AWr^a^|.A-7 to A-11. The respondents didNiot adduce*^ any^'evidenee ejccept DRM report which was marked^as^feR.tk'-'^^ Tribunal after examining the testimony of AW-1 and the DRM report came to the conclusion that the accident had taken place between Path and Jasola Railway station. However, it was denied that he was a bona fide passenger. It was on the other hand stated that the DRM report as Ex.R-1 which showed that the ticket bearing No.32128 which is purported to have been the ticket under which the deceased was travelling and which according to them was recovered from the Poge 2 of 8 jamatalashi of the deceased was actually issued after the departure of the train on 29.07.2012 and thus, it returned a finding of the ticket being procured one. With regard to issue No.3 also the Tribunal examined the evidence and came to the conclusion that the injuries which were purported to have been received by the deceased as a consequence of which he died, clearly indicates that he himself was negligent and the injuries could be categorized as clearly self inflicted injuries because his body^as "^yin^fSeyered^off*t^^ different tracks at a distance fro^^achf6|:her. Because the Tribunal did not tr|^l it>|6 lbe an untowafdVincident witWn ^ definition of Section read with Section 124-A of the Railways Act, 1989 so as tp warrant the grant of ^aijy compensation. I It will be worthwlile to reproduce fefeihltfle observations of thelTribunal as \ V recorde(|with regard to the afdresaid two relevant issuls:- u j'-*- I ^ "9.\^ccdy^mg, tq jhe^ap th^train was proc&zSifg^efween Path and stations at K.M. tlie^deceased-fuJfered/a0accidental fall resulting '^n^sl^eBf^ Admittedly, the applicants, who dre^theTparents'^of^ the deceased, had no personal knowledge of the incident since none of them was accompanying the deceased. They also did not adduce any other evidence to show that the deceased, in fact, boarded any train at Taj Nagar to go to Delhi Cantonment. Exhibit A-4, the death report merely states that the cause of death was railway accident. The rough sketch of the scene of incident appended to exhibit A-4 shows that the trunk portion of the body was found in between up line and down line tracks, whereas the head was found severed and lying away from the trunk and in between lines of the track. Thus, the head and remaining portion of the body were found totally severed at the neck level and the two parts were found lying separately at some distance in between. The post-mortem report, exhibit A-8 also states that there was a traumatic amputation of head from trunk at cervical level crushing of all neck structures and crush laceration with the traumatic amputation of right forearms lower 1/3 and multiple fracture of all arms and forearms bones. The nature of the injuries and the extent of damage caused to the different organs due to multiple fractures and more particularly the traumatic amputation of head from the trunk at the next level is indicative more of a cause of getting run gye/duejqpU und.er ih^j^in rather than a fall frorryffie;4rciin)'/irt \vhich-iyeht, jiormally the body wouldyie lyirt^by the;side ofthe trdckjyithput any such tota^rppittdtion,q0he headjrom the truck, fhe English index, dfcopy which is placed on retofd hlso states thtt death was due to railway accid&nB^ Under exhibit A-8, the post-mortem^ report also, the ^story is riqted as railway accident. T^e applicants have ^pot filed thf final report of investigation by the police shoeing the conclusion reached by them as to the cause pf death. jVowe of theldocmmehts filed ibyffhl^t appliccmts would sho-^Jhaf it was or could hade been-a fiduke cf accidental fallfroiiftMtyain,aid^^^ q7:|Tf ^

¶10On thectddX/hand-,4he'pfiJSAWeport, wherein, it is stated that the deceased wfiile trying to board a moving train near the railway gate unauthorisedly came underneath the train and died. A copy of the Control Register enclosed to the DRM report would show that the Gateman by name Cm Prakash manning the Gate number 39/C informed the Station Master at 15:50 hours that one man run over by train number 54411 Dn passenger at KM 52/4-3 at Taj Nagar halt between Jasola and Patli and the head was lyting in the down track and body lying near down line between up and down tracks. The statement of the Gateman, Shri Cm Prakash is also enclosed to the DRM report, wherein, he stated that train number 54411 passed through Gate number 39/C at 15:50 hours and three unknown persons came and informed him that one person trying to board a train going towards Delhi fell down and came underneath the train and that he informed the Station Supt. about the same. The statement of Shri Mahabir Prasad, the Station Supt of Path railway station is also enclosed to the DRM report, wherein, he confirmed about receiving the information from the Gateman Om Prakash regarding the incident of run-over by train. The statements of Shri Mewa: Ram, ^Gangman and Shri Surya f Singh, anotfer Gangmgjy to, the same effect are also enclosed fib .exhibit-^P-^.^ Bai^' orfihf investigation condudfed.,jby them, the "lnspector,(.RPF Hn his report Stated that the deceased while trying to board a moving trafn number 54411 near the railway gate fell [down and ccpie4ifiderneath the train and died. Based on iije report q|" investigation by the RPF the DRM also concluded in Ryl that it was a case of unauthorized entry Ijnto the rdUway premises and getting run over while pying to b&ard a running train nedF^railway gate. ^That the railway g^ds situated near^th^stene of^cident is bork^OJ^iiy fhe fdu^ slMch^c^pehddd t^ the death repor^exhihit AWJ/4 also. Jt'^ is do be note that the deceased wpspttemptipgdo^vpprd thepinning tram at an unscheduled ktop^here<.ithe''trg^nf^as not supposed to halt. In fact, the trcim d' id'not halt and it was in running condition when the deceased made an abortive attempt to board the train unauthorisedly. Such a case does not fall within the ambit of fall from train. The case of a person falling from the train while boarding the same at a railway station having scheduled halt is clearly distinct and different from a case like the present one, where the deceased approached the track unauthorisedly and made an unsuccessful attempt to board a running train and suffered the fall. The present case, therefore, cannot be construed to be a case of accidental fall from the train A} amounting to an untoward incident within the meaning of Section 123 (c). It is clearly a case of unauthorized act besides being one of supine negligence and rashness with full knowledge of its dangerous consequences. The injuries sustained and the death resulting therefrom is clearly self-inflicted in the circumstances of the present case. Clause (b) of the proviso to Section 124-A of the Railways Act, 1989, therefore, gets attracted duly exonerating the respondent Railways from liability to pay compensation. The principle of strict liability underlying the respondents' liability to pay compensation notwithstanding t^^,j^mgUgQU£g on the part of the passenger does the^fdcts^of the present case since th^decpased web hot cr^pbfsen^ei%fmd the attempt made Sy%}iiih to board the runiiing'Strain at an unscheduled place is clearly unauthorized and the iry^rie^leading' to his death Ore clearly feff-inflicted. Unde^hese circumstances, ft is held that the dei^th of the deceased was not due to ari accidental fall from ^he train afnounting to an untoward incident within the meaning of ^tion 123 (c) reak witli Section 124-A of the Railways Act. The issue is answered accordingly. "

¶5A pemsal of the:aror0^il!^ffialysi^ evmene^ndine DRM report clearly shows thatlhe ;Yi^#^which has beep/^^ by the Tribunal is legal, iustifiable"ahd pbrhap&»th©^hly^^ which could be taken by the Tribunal. This has been noted in almost all cases of Railway accidents that although the deceased may not be a bona fide passenger or the accident may have taken place because of his own negligence yet the family of the victim who are invariably from the lower strata of the society try to file the claim petition in the vain hope that they might be able to get some compensation which will get them financial respite. But the Tribunal and the F.A. a. No. 365/2015 Courts examining are not to be swayed by humanitarian consideration alone. It is the responsibility to see that the claim is legally sustainable.

¶6The learned counsel that the respondent in the instant case has not been able to establish that the deceased was a bona fide passenger. The contention of the learned counsel for the appellant that the ticket on the basis of which the deceased was purportedly travelling was a genuine ticket and the said ticket was recovered by the officials in the presehfe^of |i|g^gpa^b^^e railways from the person of th^d('ec^sed4ri3 therefore,^ .p^r^n could doubt the intention of Ihe'fllaimant^Uif lodging the import % unacceptable because jbefieket was i^iuedjaftef-.the'departure oFtralji.

¶7I have lonsidered the sii^riiissipps made by the learned counsel. The question which arises for consideration is as to Ivhether the I , testimoi^ of the gangm^Tmwhose presence the recovery of ticket is purport^ or not. My answer to tlu^qljestibn^is obviqusly i^pegative because the gangman's oral tdstirhon? cannot bliQoteipefed to be good enough to dislodge the documentai^^idence produced by the railway authorities, namely, the respondents which clearly shows that the ticket on the basis of which the travel is purported to have been undertaken by the deceased was issued by the railways after the departure of the train. There is no reason to doubt this evidence produced by the respondents. This evidence could be dislodged by the appellant only by requisitioning the record of the booking station from where the ticket is purported to have been issued. 7 o/«

¶8This was not done and therefore, an adverse inference can be conveniently drawn against the appellants. It is very unfortunate that the deceased lost his life in an accident but merely because the accident had taken place within the line of railway authorities does not ipso facto become a ground for grant of compensation. I have gone through the reasoning for disallowing the application of the appellants given by the Railway Claims Tribunal. I find that no reasonable person could find fault with the discussion recorded by the Railway^sClaiins, fTrij)un|f^ denymg the benefit oi compensation^tbth^^pell^tsiclainiahtsim^^^ Petition. For the a^^a]p^reasons, I feel that the applaj^ of the appellants is without ^y*n|ferit and accordingly, the same is dismissed. MARCH 28, 2016 vk lt % V.K. SHALI,J.