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2014 DIGILAW 1300 (DEL)

Neksi Devi v. Union of India

2014-04-23

VALMIKI J.MEHTA

body2014
Judgment Valmiki J. Mehta, J. 1. These are three connected appeals. Three connected claim petitions were dismissed by the Tribunal. Three claim petitions were filed because with respect to the three persons there was a common accident. Out of the three persons two persons died, namely Sanjay and Rohit and whose legal heirs have filed appeals being FAO No. 130/2012 and FAO No. 131/2012. Third person, namely, Ravi did not die in the accident unlike Sanjay and Rohit but he suffered grievous injuries including fracture of his leg and he has filed the appeal being FAO No.132/2012. 2. There is strong evidence on both sides in these cases and which really makes the fate of these cases hang in balance. On the one hand statement was made by Ravi immediately after the accident of his having fallen from the concerned train, with the fact that the monthly season ticket of Sanjay was recovered from the search of his person showing possibility of a train travel, on the other hand, the respondent/Railways had also led credible evidence in the form of the statement of the Gateman at the Phatak where the accident took place stating that the accident took place not on account of a fall from the train but these three persons were pushing a goods carrier being a Tempo/Vikram auto and though they were successful in pushing away the Vikram auto from the tracks, the three persons were hit by the train and which resulted in the accident. The statement of the gateman Sh. Tek Chand is corroborated by an independent witness Sh. Naresh Kumar, whose wooden kiosk was located immediately adjacent to the railway phatak. 3. Learned counsel for the appellants argues that the statement of Sh. Tek Chand and Sh. Naresh Kumar were recorded by the Tribunal suo moto after the evidence of the respondent/Railways was complete but in spite of the fact that the appellants moved an application to summon additional witness being the Investigating Officer in the case, Tribunal declined the request. It is argued that appellants in the facts of the present case where the Tribunal suo moto acted to record the statement of Sh. Tek Chand and Sh. Naresh Kumar, the Tribunal ought to have given opportunity to the appellants to lead the evidence of the Investigating Officer in the case. I agree. 4. It is argued that appellants in the facts of the present case where the Tribunal suo moto acted to record the statement of Sh. Tek Chand and Sh. Naresh Kumar, the Tribunal ought to have given opportunity to the appellants to lead the evidence of the Investigating Officer in the case. I agree. 4. In my opinion, crucial evidence in this case, and which may in fact would have a very definitive effect for deciding the cases will be the statement of the auto driver of the goods carrier/Vikram auto. This auto driver ran away from the spot after the Vikram auto over turned due to the accident. Unfortunately, none of the parties summoned this auto driver and who would have given the best evidence as to whether the accident took place on account of the falling of the three persons from the train or that these three persons were in fact pushing the auto. Fortunately, the registration number of the auto is on the record of the Tribunal and which is DL 1LL 7522. 5. The facts of this case accordingly persuade me to exercise my powers contained in Order 41Rule 27 CPC for the court to do complete justice and to remove any doubt which exists in the evidence with respect to happening or not happening of an untoward incident. I also exercise my powers under Section 165 of the Evidence Act, 1872 which permits every court to allow evidence to be brought in at any stage so that justice is not a casualty. 6. In view of the above, the appeals are disposed of with the direction that appellants will be permitted to lead evidence of the Investigating Officer in the case and the Tribunal will summon the driver of the goods carrier/Vikram auto as a court witness and after recording of whose statement the claim petitions would be decided afresh unaffected by the impugned judgments dated 25.11.2011 which are set aside. Of course, by setting aside of the judgments nothing is expressed one way or the other on merits, for and against any of the parties to the appeals or to the main claim petition, and the claim petition will be decided in accordance with law after the fresh evidence as aforesaid has been led. 7. Of course, by setting aside of the judgments nothing is expressed one way or the other on merits, for and against any of the parties to the appeals or to the main claim petition, and the claim petition will be decided in accordance with law after the fresh evidence as aforesaid has been led. 7. It may be stated that either of the parties or preferably both the parties will make necessary investigations from the concerned road transport authority with respect to address and particulars of the driver of the goods carrier/auto driver and such details will be filed before the Tribunal to issue summons for the appearance of the driver of the Vikram auto. The Tribunal will be entitled to take assistance of the police to ensure presence of the driver of the Vikaram auto so that his evidence comes before the Tribunal for deciding the claim petitions. 8. In view of the above, appeals are allowed by setting aside of the impugned judgments dated 25.11.2011 and remanding the claim petitions for decision afresh by the Tribunal after recording evidence of the I.O. in the case as a witness of the appellants and the driver of the Vikram auto as a witness of the Railways. Both the parties also agree that this witness would be the best witness to depose with regard to the accident in question as to whether the accident is or is not an ‘untoward incident’ as per the meaning of the expression as found in Sections 123(c) and 124-A of the Railways Act, 1989. 9. Appeals are accordingly disposed of and remanded with the aforesaid observations, leaving the parties to bear their own costs. 10. Parties to appear before the Railway Claims Tribunal on 29.5.2014 for further proceedings. Records of the Railway Claims Tribunal be sent back so that the same are available to the Tribunal on the date fixed.