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2013 DIGILAW 2197 (DEL)

Farhat Jahan v. Union of India

2013-11-13

V.K.SHALI

body2013
JUDGMENT : V.K. Shali, J. 1. This is an appeal u/s 23 of the Railway Claims Tribunal Act, 1987 against the order dated 25.3.2011 by virtue of which the claim petition of the appellants was dismissed by the Railway Claims Tribunal for grant of compensation. Briefly stated the facts of the case are that one Jamil Akhtar S/o Late Naziruddin and husband of appellant No. 1, who was aged around 32 years, working as a private employee, was allegedly travelling by Train No. 5610, Awadh Assam Express on a valid 2nd class journey ticket from Nangloi to Delhi Kishan Ganj on 19.9.2008 at about 7.00 hours. It was alleged that he was standing near the gate of the compartment and due to heavy rush in the train, he accidently fell down from the running train at Nangloi railway station as a consequence of which he sustained grievous multiple injuries on his person, whereupon he was taken to Bhagwan Mahavir Hospital, Pitampura, Delhi. It was alleged that he succumbed to his injuries and was survived by appellant No. 1, Farhat Jahan, his wife, three daughters, namely, Kumari Arfi Firdos, Kumari Arshi Firdos & Kumari Fahdas Zamel and Atiman Khatoon, his mother, who are appellant Nos. 2 to 5 herein. 2. The respondent filed its written statement and contested the claim that the deceased was a bona-fide passenger. It was alleged by the respondent that the deceased died on account of self-inflicted injuries because of his own negligence and, therefore, the case of the deceased was not covered u/s 123(c)(2) of the Railways Act. It was also alleged that the railways are exempted from any liability u/s 124A of the Railways Act. 3. On the pleadings of the parties, following issues were framed:- (1) Whether the deceased Jamil Akhtar S/o Late Shri Zamiruddin, was a bona-fide passenger of (train No..... not given) Awadh Assam Express Train from Nangloi to Delhi Kishan Ganj as on 19.09.2009? (2) Whether the death of Jamil Akhtar was caused due to an untoward incident as defined in Section 123 read with Section 124A of the Railways Act? (3) Whether the applicants prove that they are dependents of the deceased Shri Jamil Akhtar within the meaning of Section 123(b) of the Railways Act and are entitled to get compensation? (4) To what order/relief? 4. (3) Whether the applicants prove that they are dependents of the deceased Shri Jamil Akhtar within the meaning of Section 123(b) of the Railways Act and are entitled to get compensation? (4) To what order/relief? 4. In support of the claim petition, the appellant No. 1 filed her own affidavit exhibit AW 1/1 along with certain documents. The respondent did not adduce any witness; however, it filed only DRM's Report along with certain documents. The learned Railway Claims Tribunal arrived at a conclusion that the deceased was not a bona-fide passenger. The reasons for arriving at this conclusion was the submission made by the respondent that the deceased was found in possession of a passenger journey ticket while the journey was being undertaken by an express train. It was further observed by the Railway Claims Tribunal that there was a DRM's Report wherein it was recorded as under:- As rep. By Dr. of 5610 Dn Exp. one man run over and injured at Km. 17/3 on Main Line NNO Yd. The injured person send to SSB in 5610 Dn and message given to DMO/SSB for first aid. 5. On the basis of this, the Railway Claims Tribunal observed that there was a strong probability that the deceased was crossing the railway track at Nangloi when he was hit by a train in question because of which he had died. This fact was sought to be corroborated by placing reliance on the DRM's Report. 6. I have heard the learned counsel for the appellants as well as the learned counsel for the respondent. The main contention of the learned counsel for the appellants is that the finding returned by the Railway Claims Tribunal is not only erroneous but is also bereft of any appreciation of evidence inasmuch as there is a positive evidence produced by the appellants to show that the deceased was a bona-fide passenger and he had suffered death on account of the accident while undertaking the travel by train. This was sought to be refuted by the learned counsel for the respondent by drawing the attention of the court to the order passed by the Railway Claims Tribunal. 7. I have carefully considered the submissions and have gone through the impugned order as well as the record. This was sought to be refuted by the learned counsel for the respondent by drawing the attention of the court to the order passed by the Railway Claims Tribunal. 7. I have carefully considered the submissions and have gone through the impugned order as well as the record. It must be stated at the outset that the Railway Claims Tribunal has completely arrived at an erroneous finding that the deceased was not a bona-fide passenger. The case of the appellants was that the deceased was travelling by Awadh Assam Express on 19.9.2008 from Nangloi to Kishan Ganj. It has also come in evidence that the deceased had admittedly suffered injuries while undertaking the said journey. This is evident from the fact that even in the report (a copy of which is placed on the record), it is stated that the matter was enquired into by Railway Protection Force and their investigations showed that "Jamil Akhtar was a bona-fide passenger of railways but he was trying to get down from the running train and during this process, he fell down and died." This factum of the report prepared by the railways contemporaneously gets corroborated by the fact that affidavit AW-1 wherein it is stated by the appellant that on the date of accident, the deceased was undertaking travel from Nangloi to Kishan Ganj. Admittedly, while taking the personal search of the deceased, a railway ticket has been found from the person of the deceased which has also been accepted. These facts clearly impel the court to draw an irresistible conclusion that the deceased was a bona-fide passenger of a train. The contention of the learned counsel for the respondent that the deceased was having a ticket of only Rs. 4/- which showed that this was a ticket for a passenger train while as the train in question in which he was undertaking the journey was an express train is not supported by any evidence. This is only a conjecture urged by the learned counsel for the respondent. 4/- which showed that this was a ticket for a passenger train while as the train in question in which he was undertaking the journey was an express train is not supported by any evidence. This is only a conjecture urged by the learned counsel for the respondent. Even if it is assumed that the deceased was in possession of a ticket of a passenger train but he was undertaking the travel by an express train, still he does not cease to be a bona-fide passenger inasmuch as the factum of unauthorized travel by the deceased in a train in which he was not legally authorized to undertake the journey must be clearly established by a positive evidence to refute the prima facie evidence which has been produced by the appellants, the legal heirs of the deceased. This onus has not been discharged by the railways in the instant case and simply by making an oral submission, the court cannot be compelled to rely on the same and I feel that the Railway Claims Tribunal in accepting this contention of the Union of India has erroneously fallen into an error which deserves to be rectified. 8. Therefore, in the light of the aforesaid facts, it is clearly established that the issue Nos. 1 and 2 with regard to the deceased being a bona-fide passenger in the train, namely, Awadh Assam Express as well as the Jamil Akhtar having suffered the death on account of the untoward incident having been decided negatively is not borne out from the record rather it is established in one of the few cases by way of a positive evidence that the deceased was a bona-fide passenger because he had a valid ticket. I, accordingly, feel that the judgment returned by the Railway Claims Tribunal is erroneous and the same deserves to be set aside. 9. So far as the payment of compensation to the appellants is concerned, the appellants have claimed a compensation of Rs. 5 lacs on account of the death of their relations, namely, the husband of the appellant No. 1, father of appellant Nos. 2 to 4 and the son of the appellant No. 5. The deceased is claimed to be of 32 years of age and was employed in some private concern. 5 lacs on account of the death of their relations, namely, the husband of the appellant No. 1, father of appellant Nos. 2 to 4 and the son of the appellant No. 5. The deceased is claimed to be of 32 years of age and was employed in some private concern. No evidence has been brought on record by the appellants to show his income; however, keeping in view the age and the factum of his being survived by three daughters, I feel he deserves to be given the limited compensation fixed by the statute, that is, Rs. 4 lacs. Accordingly, I allow the appeal of the appellants and direct the respondent to pay a compensation of Rs. 4 lacs to the appellants along with interest @ 6 per cent per annum from the date when it became due according to the statute.