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2019 DIGILAW 1926 (ALL)

Mamata Soni v. Union of India

2019-08-08

RAJNISH KUMAR

body2019
ORDER : Rajnish Kumar, J. 1. Heard, Shri R.K.S. Chauhan, learned counsel for the appellants and Ms. Nandita Bharti, learned counsel for the Railways. 2. The instant First Appeal From Order under Section 23 of the Railway Claims Tribunal Act 1987 has been preferred by the appellants-claimants challenging the judgment and award dated 19.10.2004, passed in Original Application No. OA 0200237: Smt. Mamta Soni and others Versus Union of India by the Railway Claims Tribunal, Lucknow Bench, Lucknow (here-in-after referred as Tribunal). 3. The original application was filed alleging therein that the deceased Sanjay Soni was travelling by train No. 5 LKM on 30.05.2002 as a bonafide passenger from Lucknow to Kanpur Central. He was travelling with his brother-in-law Ramesh Soni. They had purchased second class ticket to perform their journey. The tickets were purchased by the deceased, for which the money was paid by his brother-in-law. During the journey by the said train the deceased Sanjay Soni accidentally fell down from the train at Ganga Ghat Railway Station and sustained grievous injuries and resultantly he died on the spot. The ticket was lost in the accident. The Panchnama of the deceased was done and after postmortem the cremation was done at Kanpur, Ganga Ghat. 4. Written Statement was filed by the respondents denying the averments made in the Original Application. It was additionally pleaded that the respondents/Railway administration is fully protected under the exemption clause of 124-A of the Railways Act, 1989 as the deceased died on account of self inflicted injuries caused by his own criminal act. Therefore, the accident is not covered under the definition of untoward incident and accordingly prayed for dismissal of the Original Application. The bonafide of the deceased was also challenged. 5. On the basis of the pleadings, the following five issues were framed:- 1. Whether the deceased was a bonafide passenger of the train in question? 2. Whether incident of death the deceased falls under the ambit of an untoward incident as defined under Section 123(c) (2) read with Section 124-A of the Railways Act, 1989? 3. Whether the respondent is entitled to get advantage of exception given under Section 124-A of the Railways Act, 1989? 4. Whether applicant is only dependent of the deceased? 5. To what relief? 6. The applicant No. 1 filed photocopy of the inquest report, photocopy of the postmortem report and her own affidavit. 3. Whether the respondent is entitled to get advantage of exception given under Section 124-A of the Railways Act, 1989? 4. Whether applicant is only dependent of the deceased? 5. To what relief? 6. The applicant No. 1 filed photocopy of the inquest report, photocopy of the postmortem report and her own affidavit. The affidavit of the brother-in-law of the deceased, namely Ramesh Soni, as an eye witness, was also filed alongwith the report no. 20 dated 30.05.2002 of the GRP Unnao and death certificate. The respondents had filed an affidavit of Shri A.K. Dwivedi. 7. The Tribunal after considering the pleadings and material on record decided the issue no. 1 in favour of the appellants-claimants and held that the deceased was travelling with Ramesh Soni from Lucknow to Kanpur Central as a bonafide passenger by the train in question and the occurrence has taken place at Ganga Ghat Railway Station. In regard to issue nos. 2 and 3 the learned Tribunal came to the conclusion that the case of the applicants is not covered within the ambit of Section 123(c) (2) read with Section 124-A of the Act and the death of the deceased occurred on account of the injuries which were self inflicted, therefore, the respondents-Railway is entitled to get the benefit of the proviso (b) of Section 124-A of the Act. Thus both the issues were decided against the applicants/claimants and in favour of the respondents. The issue no. 4 has been decided in favour of the applicants holding that all the persons given in the application are the dependents of the deceased. The issue no. 5 has also been decided against the applicants on the ground that the applicants have failed to establish the fact that the deceased had been the victim of untoward incident and held that the applicants are not entitled for any relief. Hence the present appeal has been filed challenging the judgment and order dated 19.10.2004 passed by the Tribunal. 8. Learned counsel for the appellant had submitted that while the deceased Sanjay Soni was travelling in the train on 30.05.2002 as a bonafide passenger from Lucknow to Kanpur Central by train No. 5 LKM, the same stopped at Ganga Ghat Railway Station. 8. Learned counsel for the appellant had submitted that while the deceased Sanjay Soni was travelling in the train on 30.05.2002 as a bonafide passenger from Lucknow to Kanpur Central by train No. 5 LKM, the same stopped at Ganga Ghat Railway Station. The train was in static condition when the deceased was making efforts to board the train which had started with jerks and he fell down, but the learned Tribunal on the basis of inquest report erred in holding that the death of the deceased occurred on account of the injuries which were self inflicted. Therefore, the impugned judgment and order of the learned Tribunal is not sustainable in the eyes of law and liable to be set aside. 9. Per contra learned counsel for the respondents submitted that the action of the deceased at the Ganga Ghat Railway Station was a deliberate attempt on account of which he suffered serious injuries and died. Therefore, the appellants are not entitled for any compensation as the deceased had died on account of self inflicted injuries, which is covered by proviso (b) of Section 124-A of the Railways Act, 1989. The learned Tribunal has rightly considered the pleadings and the evidence on record and dismissed the Original Application of the appellants in accordance with law, which does not suffer from any error or illegality. Therefore, the appeal is liable to be dismissed with costs. 10. I have considered the submissions of the parties and perused the record of the First Appeal From Order as well as the Lower Court Record. 11. The deceased Sanjay Soni was travelling by train No. 5 LKM on 30.05.2002 with his brother-in-law Ramesh Soni. He suffered serious injuries in an untoward accident happened at the Ganga Ghat Railway Station while trying to board the train and resultantly he died on the spot. The Panchnama of the deceased was done and after postmortem he was cremated at Kanpur Ganga Ghat. Therefore, the Original Application was filed claiming compensation. 12. He suffered serious injuries in an untoward accident happened at the Ganga Ghat Railway Station while trying to board the train and resultantly he died on the spot. The Panchnama of the deceased was done and after postmortem he was cremated at Kanpur Ganga Ghat. Therefore, the Original Application was filed claiming compensation. 12. The brother-in-law of the deceased Ramesh Soni had filed his affidavit in his evidence stating therein that while the train was stopped at Ganga Ghat Railway Station he saw his brother-in-law had stepped down to purchase the cucumber (kheera) and thereafter when he again tried to board the train his slippers fell down and as soon as after taking his slippers he tried to board the train the train started with jerks and he fell down. The passengers tried to pull the chain, but the train did not stop. Therefore, after reaching the Kanpur Central he came back and found that the brother-in-law Sanjay Soni had died. The cross examination of Ramesh Soni was also recorded before the Tribunal on 25.02.2004, but the affidavit and statement of Ramesh Soni has not been accepted by the learned Tribunal on the ground that it is fully proved from the inquest report that the deceased did not fell down as stated by the witness Ramesh Soni in his affidavit and it is established from the evidence on record that the deceased was got down from the train in the process of lifting of his chappal from the track. Panchnama/inquest report was prepared and he was one of the signatories on whose statement this fact has been mentioned in the inquest report. 13. From perusal of the affidavit of Ramesh Soni as well as the cross examination this court finds that no question was asked from the witness in regard to the averments recorded in the inquest report except that his admission in cross examination that he was present at the time of Panchnama. The statement of Ramesh Soni recorded during Panchnama/inquest cannot be used as an evidence unless the same is questioned in the cross examination. The Hon'ble Apex Court in the case of Malkiat Singh v. State of Punjab; 1991 (4) SCC 341 has held that the statement of witness recorded during inquest cannot be used as an evidence. The relevant paragraph 12 is reproduced as under:- "12. The Hon'ble Apex Court in the case of Malkiat Singh v. State of Punjab; 1991 (4) SCC 341 has held that the statement of witness recorded during inquest cannot be used as an evidence. The relevant paragraph 12 is reproduced as under:- "12. As regards the omission of the names of the appellants in the memos sent to the Medical Officer PW. 2 under Exs. D-13 and 15 it is also not evidence except as record of investigation. It is not a rule of law that the memo should bear names with cause title of accused. It is enough if the name of the injured is mentioned in the memo. Therefore, the omission to refer their names after the word Banam in the memos sent to the doctor would not create any doubt that the appellants were later implicated. Equally the prosecution cannot rely on the statement of PW. 3 enclosed with the inquest reports as substantive evidence, as is done and argued with vehemence by Sri Dass Bahl. Section 174 of the Code empowers a police officer to investigate in the presence of two or more respectable witnesses and report only the cause of death and the person, if known, that has committed the offence. Section 175 empowers him to summon any person who appears to be acquainted with the facts of the case and every person so summoned shall be bound to attend the inquest and answer truly all the questions other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. The statement made by such person is a "previous statement" within the meaning of Section 162 and it shall not be signed. So the statement made by such a person to police officer is in the course of the investigation, and when reduced to writing, it shall be used only by the accused to contradict such witness in the manner provided by Section 145 of the Evidence Act or with the permission of the court the prosecution could use it for re-examination only to explain the matter referred to in his cross-examination. It is settled law that Section 162 was conceived to protect an accused creating an absolute bar against the previous statement made before the police officer being used for any purpose whatsoever. It is settled law that Section 162 was conceived to protect an accused creating an absolute bar against the previous statement made before the police officer being used for any purpose whatsoever. The obvious reason is that the previous statement under the circumstances was not made inspiring confidence. It enables the accused to rely thereon only to contradict the witnesses in the manner provided by Section 145 drawing attention of the witness to that part of the statement intended to be used for contradiction. It cannot be used for corroboration of a prosecution or defence witness or even a court witness, nor can it be used for contradicting a defence or a court witness. The investigating officer is enjoined to forward the inquest report to the Magistrate along with the statement recorded at the inquest, so that the court would see the record, at the earliest of the circumstances leading to the cause of the death of the deceased and the witness examined during the inquest. Therefore, the statement of PW. 3 recorded during inquest is not evidence. It is a previous statement reduced to writing under Section 162 of the Code and enclosed with the inquest report and cannot be used by the prosecution for any purpose including to show the names of the accused except to contradict the maker thereof, or to explain the same by prosecution." 14. The Hon'ble Apex Court in the case of Murli v. State of Rajasthan; (2009) 9 SCC 417 has held that the contents of Panchnama are not substantive evidence. The relevant paragraphs 33 to 35 are reproduced as under:- "33. The learned Senior Counsel for the appellants then invited our attention to the following sentence in PW. 1, Lokendra Singh's cross-examination: "In Exhibit P-28, whatever I have stated before the Magistrate at X to Y, was stated correctly." From this, the learned Senior Counsel urged that the witness was given sufficient opportunity to explain his earlier statement made to the Magistrate and that is how we will be able to read the contents of the panchnama and accept the same as substantive evidence. We do not agree. 34. [Ed.: Para 34 corrected vide Official Corrigendum No. F.3/Ed.B.J./141/2009 dated 14-9-2009.] The contents of the panchnama are not the substantive evidence. The law is settled on that issue. We do not agree. 34. [Ed.: Para 34 corrected vide Official Corrigendum No. F.3/Ed.B.J./141/2009 dated 14-9-2009.] The contents of the panchnama are not the substantive evidence. The law is settled on that issue. What is substantive evidence is what has been stated by the panchas or the person concerned in the witness box. Again, even if we accept the extreme proposition, anything and everything stated in the panchnama can be read as the substantive evidence, still the fact remains that in this case, the witness who was supposed to have made the statement to the Magistrate, is not given an opportunity to explain the same. The portion marked from X to Y is in Column 7 of the panchnama, where PW. 1 had made the statement as above. However, there is no cross-examination or no question put to him about the contents of Column 9, where he has taken the name of Heera. The statement in Column 7 amounts to his previous statement and unless he was confronted with the statements specifically and asked to explain, such statement cannot be used. 35. It is trite law that a previous statement of the witness, even if admissible in evidence, cannot be used against the witness unless the witness is confronted with the same and his attention is invited. In his substantive evidence, the witness, PW. 1 has never made a statement that he had identified Bheru as Heera. So much so that there is nothing in the evidence, which suggests that Heera and Murli were ever identified by him. His admitted case was that he knew Heera and Murli even before the incident took place." 15. In view of above this court is of the considered opinion that the evidence of Ramesh Soni, an eye witness, could not have been discarded on the basis of the contents of Panchnama particularly when no question was asked in regard to the statement recorded in the Panchnama during the course of cross-examination. 16. The definition of untoward incident has been given under Section 123(c)(2) of the Railways Act. Section 123(c) (2) provides that the untoward incident means the accidental falling of any passenger from a train carrying passengers. The relevant Section 123 (c)(2) of the Railways Act is reproduced as under:- "123.(c) "untoward incident" means- (1) ......................... (2) the accidental falling of any passenger from a train carrying passengers." 16. Section 123(c) (2) provides that the untoward incident means the accidental falling of any passenger from a train carrying passengers. The relevant Section 123 (c)(2) of the Railways Act is reproduced as under:- "123.(c) "untoward incident" means- (1) ......................... (2) the accidental falling of any passenger from a train carrying passengers." 16. Section 124-A of the Act provides compensation on account of untoward incident, which is reproduced as under:- "124-A. Compensation on account of untoward incident. -When in the course of working a railway an untoward incident occurs, then whether or not there has been any wrongful act, neglect or default on the part of the Railway Administration such as would entitle a passenger who has been injured or the dependent of a passenger who has been killed to maintain an action and recover damages in respect thereof, the Railway Administration shall, notwithstanding anything contained in any other law, be liable to pay compensation to such extent as may be prescribed and to that extent only for loss occasioned by the death of, or injury to, a passenger as a result of such untoward incident: Provided that no compensation shall be payable under this section by the Railway Administration if the passenger dies or suffers injury due to- (a) suicide or attempted suicide by him; (b) self-inflicted injury; (c) his own criminal act; (d) any act committed by him in a state of intoxication or insanity; (e) any natural cause or disease or medical or surgical treatment unless such treatment becomes necessary due to injury caused by the said untoward incident. Explanation.--For the purposes of this section, "passenger" includes- (i) a railway servant on duty; and (ii) a person who has purchased a valid ticket for travelling, by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident." 17. The remedy of Section 124-A for claiming compensation is in the nature of a no fault liability because it provides that in the course of working a railway an untoward incident occurs, then whether or not there has been any wrongful act, neglect or default on the part of the railway administration such as would entitle a passenger who has been injured or the dependent of a passenger who has been killed to maintain an action and recover damages in respect thereof. The exceptions have been provided in the proviso. The exceptions have been provided in the proviso. Proviso (b) provides that no compensation shall be payable if the passenger dies or suffers injury due to self-inflicted injury and under (c) his own criminal act. Therefore, the liability to pay the compensation under Section 124-A is regardless of any wrongful act, neglect or default on the part of the railway administration. 18. The Hon'ble Apex Court in the case of Jameela and others Versus Union of India; (2010) 12 SCC 443 has held that even if it were to be assumed that the deceased fell from the train to his death due to his own negligence it will not have any effect on the compensation payable under Section 124-A of the Act. 19. The Hon'ble Apex Court in the case of Union of India versus Prabhakaran Vijaya Kumar and others; (2008) 9 SCC 527 in paragraph 17 has held that Section 124-A lays down strict liability or no fault liability in case of railway accidents. Hence, if a case comes within the purview of Section 124-A it is wholly irrelevant as to who was at fault. Therefore, even if the deceased was on some fault in boarding the train the appellants cannot be denied the compensation. 20. The Hon'ble Apex Court in the case of Union of India Versus Rina Devi; (2019) 3 SCC 572 has held that the concept of self inflicted injury would require intention to inflict such injury and not mere negligence of any particular degree. The Hon'ble Apex Court has held that the death or injury in the course of boarding or de-boarding a train will be an untoward incident entitling a victim to compensation and will not fall under the proviso to Section 124-A merely on plea of negligence of victim as a contributing factor. The relevant paragraph 25 is reproduced as under:- "25. We are unable to uphold the above view as the concept of "self-inflicted injury" would require intention to inflict such injury and not mere negligence of any particular degree. Doing so would amount to invoking the principle of contributory negligence which cannot be done in the case of liability based on "no fault theory". We may in this connection refer to the judgment of this Court in United India Insurance Co. Ltd. v. Sunil Kumar[United India Insurance Co. Doing so would amount to invoking the principle of contributory negligence which cannot be done in the case of liability based on "no fault theory". We may in this connection refer to the judgment of this Court in United India Insurance Co. Ltd. v. Sunil Kumar[United India Insurance Co. Ltd. v. Sunil Kumar, (2019) 12 SCC 398 : (2017) 13 Scale 652 ] laying down that plea of negligence of the victim cannot be allowed in claim based on "no fault theory" under Section 163-A of the Motor Vehicles Act, 1988. Accordingly, we hold that death or injury in the course of boarding or de-boarding a train will be an "untoward incident" entitling a victim to the compensation and will not fall under the proviso to Section 124-A merely on the plea of negligence of the victim as a contributing factor." 21. The statement recorded in the Panchnama is to the effect that the deceased was got down in his desire to lift slipper which had fell down, which cannot be construed in any manner without proving by any cogent evidence that the deceased died on account of self inflicted injury caused by his own criminal act. 22. In view of above this court is of the considered opinion that the findings recorded by the learned Tribunal in this regard are not based on the correct appreciation of the evidence and material available on record in accordance with law. Therefore, the same is not sustainable and is liable to be set aside. 23. In the result the appeal is allowed. The judgment and order dated 19.10.2004, passed in Original Application No. OA 0200237; Smt. Mamta Soni Versus Union of India by the Railway Claims Tribunal, Lucknow Bench, Lucknow is hereby set aside and the Original Application of appellants is allowed. The appellants are held entitled for a compensation of Rs. 4,00,000/- alongwith interest @ 9% per annum from the date of accident upto the date of payment, which shall be paid by the respondents within a period of two months from the date of this order. 24. No order as to costs. 25. Lower Court record be sent back to the Railway Claims Tribunal, Lucknow Bench, Lucknow forthwith.