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2017 DIGILAW 2240 (RAJ)

Union of India v. Rishi Bai

2017-10-25

DINESH CHANDRA SOMANI

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JUDGMENT : DINESH CHANDRA SOMANI, J. 1. The instant appeal under section 23 of the Railway Claims Tribunal Act, 1987 has been preferred by the non claimant/appellant (hereinafter referred as "the non-claimant") against the judgment dated 05/05/2015 passed by Railway Claims Tribunal, Jaipur Bench, Jaipur (hereinafter referred as "the Tribunal") in OA-II/67/2008, whereby the claim application filed by the claimant-respondent, has been partly allowed and a sum of Rs. 4,00,000/- has been awarded as compensation along with interest @ 6% per annum from the date of registration of claim application i.e. 09/05/2008 till the date of award and thereafter @ 9% per annum till the date of actual payment. 2. Skeletal material facts necessary for disposal of this appeal are that the claim application has been filed by the widow of the deceased being sole dependent of deceased under section 16 of the Railway Claims Tribunal Act, 1987 read with section 125 of the Railways Act, 1989 seeking compensation of Rs. 6,00,000/- together with interest @ 18% per annum on account of death of her husband Dinesh Singh @ Chikna in alleged untoward incident. It has been averred in the claim petition that on 31/03/2008, the deceased Dinesh Singh @ Chikna purchased a ticket of second class for journey from Jaipur to Delhi and he boarded in second class compartment of the Mandore Express from Jaipur Railway Station. When the said train reached KM 152/4-5 near railway bridge, Bandikui, due to sudden jerk of train, husband of the claimant fell down from the running train. Because of this sudden accidental fell down, he sustained serious injuries and died on the spot. It is also averred that report of the aforesaid incident was submitted by the Station Master, Bandikui through memo to SHO, GRP, Bandikui and on receiving the said information, Marg Report No.8/2008 under section 174 of Cr.P.C., 1973 was registered. The claimant submitted copies of FIR, post-mortem report and original wedding invitation card along with the claim application. 3. The non-claimant/appellant Railway Administration filed its written statement along with DRM's report, denying all the material averments of the claim application. It has been pleaded therein that the deceased died due to travelling on the roof of the train and the deceased himself is responsible for his negligent act. 3. The non-claimant/appellant Railway Administration filed its written statement along with DRM's report, denying all the material averments of the claim application. It has been pleaded therein that the deceased died due to travelling on the roof of the train and the deceased himself is responsible for his negligent act. As such, the present case is covered under exception "b" and "c" of the proviso to Section 124-A of the Railways Act, 1989 for which the claimant is not entitled for any compensation. On basis of these averments and other pleas, the non-claimant/appellant prayed for dismissal of the claim application. On basis of the pleadings of the parties, the learned Tribunal framed following issues:- 1. Whether the deceased was travelling on a valid railway journey ticket and was a bona fide passenger of the train in question at the relevant time? 2. Whether the deceased met with an untoward incident, sustained injuries and died as a result thereof as alleged in the claim application and the said incident is covered under the definition of section 123(c)(2) of the Railways Act, 1989? 3. Whether the applicant is the sole dependent of the deceased and is entitled to compensation as claimed under Para 16 of the claim application? 4. Relief? 4. In support of the claim application, the claimant Smt. Rishi Bai wife of the deceased has filed her own examination in chief on affidavit and exhibited documents as Ex.-A/1 to Ex.-A/9. She was cross-examined by learned counsel for the non claimant/appellant. The non-claimant/appellant in it's evidence has filed examination in chief of Shri Sanjeev Kumar Jain on affidavit and exhibited DRM's report as Ex.-R/1. Said witness was cross-examined by learned counsel for the claimant and during cross-examination, the learned counsel for the claimant exhibited Ex.-A/10 to Ex.-A/13. 5. After hearing learned counsel for both the parties, the learned Tribunal decided issue No.1 & 2 in the manner that the deceased was bona fide passenger at the time of the incident, who had a valid train ticket and was travelling in passenger train No.2426 from Jaipur to Delhi and that the death of the deceased took place due to untoward incident as a result of accidental fall from the running train and the said untoward incident fulfills the requirement of section 123(c)(2) of the Railways Act, 1989. Learned Tribunal decided issue No.3 in the manner that the present claimant is the sole dependent of the deceased as stipulated under section 123(b)(i) of the Railways Act, 1989 and partly allowed the claim application as mentioned herein above. 6. Mr. S.N. Meena, learned counsel for the appellant contended that the incident took place due to the carelessness of the deceased, which is proved by the statement of defence witness Sanjeev Kumar Jain (the guard of the said train), who categorically stated that one person was lying on the roof of the train and one sepoy of GRP asked to stop the train, whereupon the train was stopped and dead body of the said person was brought down by the GRP staff. The witness also stated that on written memo to this effect was prepared by the GRP. Even then, the learned Tribunal awarded compensation in favour of the claimant/respondent and thereby committed serious error. 7. Learned counsel for the appellant also contended that the learned Tribunal has committed serious error in relying upon the statement of Devi Sahai (Gang Jamadar), who forwarded information on walkie-talkie set to Shri Ramesh Chand Meena, ASM on duty that at KM 152/4-5 a person is lying dead near the railway track, whereas it is crystal clear from the annexures of DRM's report that the deceased was travelling on roof of the train, therefore impugned judgment is liable to be quashed and set aside. 8. Learned counsel for the appellant also contended that the deceased died due to travelling on roof of the train and he himself is responsible for his negligent act, as such the case is covered under exception "b" and "c" of Section 124-A of the Railways Act, 1989 and the claimant is not entitled for any compensation. Even then, the learned Tribunal wrongly came to the conclusion that the incident is a result of an accidental fall from the running train. 9. Learned counsel for the appellant further contended that the learned Tribunal committed illegality in not considering the fact that the deceased was standing on roof of the train and due to collision with the bridge, he sustained injuries and died. Therefore, the claim is barred under Section 124-A (a) of the Railways Act and prayed to allow the appeal and to dismiss the claim application. 10. Per contra, Mr. Therefore, the claim is barred under Section 124-A (a) of the Railways Act and prayed to allow the appeal and to dismiss the claim application. 10. Per contra, Mr. Ajay Shukla, learned counsel for the claimant/respondent strongly opposed the contentions of learned counsel for the appellant and supported the impugned judgment and submitted that the learned Tribunal has rightly held that the deceased was travelling on valid railway journey ticket and he was a bona fide passenger of the train at the material time. Learned counsel also submitted that from the documentary evidence produced on record, it is crystal clear that death of the deceased took place due to an untoward incident as a result of accidental fall from the running train and prayed to dismiss the appeal being devoid of merits. In alternative, learned counsel also submitted that for the sake of argument, if it is presumed that the deceased died due to travelling on roof of the train, even then the Railway Administration is liable for payment of compensation to the claimant/respondent because the issue has already been considered and decided by the Hon'ble Apex Court against the Railway Administration in the matter of Anil Kumar Gupta v. Union of India & Ors. reported in 2016 Supreme (SC) 514. 11. I have considered the submissions made by learned counsel for the parties and perused the impugned judgment and record of the case. 12. The claimant Smt. Rishi Bai deposed that her husband Dinesh Singh @ Chikna (deceased) purchased a ticket of second class for journey from Jaipur to Delhi and he boarded in second class compartment of the Mandore Express. The claimant also stated that when the said train reached KM 152/4-5 near railway bridge, Bandikui, the deceased fell down from the running train due to sudden jerk in the train. During cross-examination, she maintained the averment that her husband was a bona fide passenger, who purchased the ticket and the same was recovered by GRP vide seizure memo Ex.A-6. The fact that the deceased was travelling in the train with a valid railway ticket at the relevant time stands corroborated by the DRM's report Ex-R/1 also, which specifically states that a ticket bearing No.35387903 was recovered from the pocket of the deceased, while preparing panchayatnama of the deceased (Ex.-A/4). The fact that the deceased was travelling in the train with a valid railway ticket at the relevant time stands corroborated by the DRM's report Ex-R/1 also, which specifically states that a ticket bearing No.35387903 was recovered from the pocket of the deceased, while preparing panchayatnama of the deceased (Ex.-A/4). In view of the above evidence, learned Tribunal concluded that the deceased was bona fide passenger of the train in question at the relevant time. There is nothing on record to disagree with the finding of the Tribunal in this regard. 13. Claimant-Respondent Smt. Rishi Bai also deposed in her affidavit that on 31/03/2008, her husband Dinesh Singh @ Chikna boarded on the Mandore Express and when the said train reached KM 152/4-5 near railway bridge, Bandikui, he fell down from the running train. In cross-examination, the witness admitted that she is not an eye witness of the incident. 14. In rebuttal, witness of the respondent Sanjeev Kumar Jain (Guard of the said train) deposed in his affidavit that on 31/03/2008, he was on duty in passenger train No.2462 from Jaipur to Delhi. After the train departed from Bandikui Station, one sepoy of GRP informed that one person is lying on roof of the train and asked to stop the train, whereupon the train was stopped and dead body of the said person was brought down by the GRP staff and a written memo was prepared in this regard by GRP and further proceedings were carried on by the GRP. The witness further stated that he has no knowledge as to how the person become injured and unconscious, In cross-examination, the witness stated that he has not seen the incident. The claimant got exhibited documents Ex.A/10 to Ex.A/13 from the witness during his cross-examination. 15. Ex.-A/1 is the information given by Gang Jamadar Devi Sahai on walkie-talkie set to ASM, Shri Ramesh Chand Meena, Bandikui that at KM 152/4-5, a person is lying dead on the railway track. This information has been sent by SM(P), Bandikui to SHO-GRP, Bandikui on 31/03/2008 at 6.50 hours. Ex.-A/2 is Marg Report No.8/2008 under section 174 of Cr.P.C., 1973 registered at Police Station GRP, Bandikui on 31/03/2008 for the said incident. Ex.-A/3 is the identification memo of dead body of the deceased Dinesh Singh @ Chikna. 16. During inquiry, GRP prepared panchnama of dead body, which is Ex.-A/4. Ex.-A/2 is Marg Report No.8/2008 under section 174 of Cr.P.C., 1973 registered at Police Station GRP, Bandikui on 31/03/2008 for the said incident. Ex.-A/3 is the identification memo of dead body of the deceased Dinesh Singh @ Chikna. 16. During inquiry, GRP prepared panchnama of dead body, which is Ex.-A/4. According to Ex.-A/4, the deceased died due to train accident. It is not mentioned in Ex.-A/4 that the deceased died as he was travelling on roof of the train. According to site plan (Ex.-A/5) prepared by GRP, the dead body was lying near the railway track. Ex.-A/7 is post-mortem report of the deceased Dinesh Singh @ Chikna. It is mentioned in PMR (Ex-A/7) that the death caused due to falling from a train near railway bridge. Ex.A/10 is the statement of Ramesh Chand, ASM, Railway Station, Bandikui recorded by GRP during inquiry under section 174 of CrPC, 1973 which corroborates the information forwarded vide Ex.A-1. 17. It is pertinent to mention that the documents Ex.-A/1 to Ex.- A/5 bring forwarded the initial version of the Railway, which establishes the fact that the dead body of deceased Dinesh Singh @ Chikna was found near the railway track. Statement of non claimant's witness Mr. Sanjeev Kumar Jain (Guard of the train), more particularly with regard to the fact that GRP staff brought down the body of the deceased from the roof of the coach No.S-8 does not find place in any document prepared by the GRP i.e. Ex.- A/1 to Ex.-A/5. 18. From perusal of DRM's report Ex.-R/1, it reveals that RPF recorded some statements after filing of the claim petition by the claimant/respondent, which have been annexed with the DRM's report to prove that the deceased was travelling on the roof of the train. The statements annexed with the DRM's report were recorded at belated stage, therefore, cannot be relied upon. It is pertinent to note that the appellant Railway Administration did not produce any evidence to the effect that some passengers were travelling on the roof of the train when the train departed from Bandikui Railway Station or any announcement was made to warn the passengers travelling on roof of the train, which is an important ingredient of section 156 of the Railways Act. The evidence produced by the non-claimant Railway does not reveal that any warning was given to the passengers travelling on roof of the train to get the roof riders come down from the roof. 19. From the discussions made above, the evidence produced by the claimant/respondents appears to be more close to the reality and the defence taken by the non-claimant/appellant that the body of the deceased was brought down from roof of the coach No.S-8 appears to be afterthought. In catena of judgments, Hon'ble Apex Court has held that the liability of Railway is strict liability even if there is negligence of a passenger, unless and until the negligence is a criminal negligence or a case of suicide or self inflicted injuries. Emphasis of Section 123(c) and 124-A of the Railways Act is to give relief to a bona fide passenger on account of an untoward incident. It is well settled proposition of law that once a person is found to be a bona fide passenger travelling on valid train ticket, the railway should be fastened with the liability to pay compensation to the dependents of the deceased victim. 20. In view of the discussions made above, it can safely be concluded that death of Dinesh Singh @ Chikna took place due to an untoward incident as a result of accidental fall from the running train. 21. In the matter of Anil Kumar Gupta v. Union of India & Ors. (supra), few passengers were travelling and sitting/standing on the roof of the coaches of Himgiri Express, got struck against the Public Foot Over Bridge. In the incident, 14 persons were crushed and 20 others were seriously injured having been hit by the Over Bridge and fallen from the roof top. Hon'ble Apex Court has held that though the people who travelled on roof also contributed to the mishap, the Railway Administration was not free from blame and directed that the next of kin of those who died in the incident and those who sustained injuries must be duly compensated by the Railway Administration. 22. In view of the discussions made above, there is no substance in the appeal preferred by the non-claimant/appellant. 23. Consequently, the appeal is dismissed. No costs.