Delhi High Court
Alka Jain & Ors. vs Union Of India on 20 May, 2019
Author: Najmi Waziri
Bench: Najmi Waziri
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 20.05.2019
+ FAO 251/2015
ALKA JAIN & ORS ..... Appellants
Through: Mr. Jatin Rajput and Mr. Sandeep Kumar,
Advs.
Versus
UNION OF INDIA ..... Respondent
Through: Dr. Chaudhary Shamsuddin Khan, Adv.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J
1. This petition impugns the order dated 19.12.2014 passed by the
Railway Claims Tribunal, whereby the appellants claim application for
compensation of Rs.10 lacs under section 16 of the Railways Claims Tribunal
Act was dismissed.
2. The appellants are the wife, sons and daughter of the deceased. It is the
appellants' case that on 21.02.2013, the deceased left his house for Shahdara
Railway Station to travel to Agra and met with an accident at Km. Pole no.
5/24-5/26 near Bihari Colony, Shahdara, Delhi; a DD bearing No. 2PP dated
22.05.2013 was registered at Police Station ODRS, Shahdara, Delhi. The
respondent disputed the said claim and denied liability to pay any
compensation.
3. The following issues were framed by the Tribunal:
FAO 251 of 2015 Page 1 of 8
"1) Whether the deceased was a bona fide passenger on board
a train (train name and number not mentioned) on 21.05.2013
from Shahdara to Agra?
2) Whether the death of the deceased was on account of any
untoward incident, as alleged in the claim application?
3) Whether the applicants are the legal heirs and dependants of
the deceased and are entitled to receive compensation? If so, to
what extent?
4) Relief, if any?"
4. The Court notes that both Alka Jain (AW-1) and Deepak Jain (AW-2)
stated in their evidence that the deceased left the residence on 21.05.2013 for
Shahdara Railway Station to travel to Agra and met with a train accident.
Both have admitted in their cross examination, that neither of them were eye
witnesses to the said incident. It is also to be noted that neither the witnesses
nor the appellants stated that the death of the deceased was due to an
accidental fall from the train. The police investigation is also silent on this
aspect.
5. The railway memo mentions that at 00.50 hrs on 22.05.2013, as per
information of an unknown person, one dead body was found lying on the
railway track near point no. 77B of Delhi Shahdara Railway yard; having
injuries on the head; from the circumstances obtained at the site where the
body was found, it appeared that the death of the deceased was due to a train
accident. After inquiry, the DRM report concluded that the death was due to
the deceased being run over by a train. The report also suggests that the body
FAO 251 of 2015 Page 2 of 8
was found in between the tracks, thereby indicating that it was a case of
getting run over, while the person was crossing the tracks.
6. The impugned order has observed, as under:
"9. The site sketch in the death report, Ex.A-2 shows the dead
body lying in between the lines of the track. The post mortem
report, Ex.A-1 records fracture of skull bones and cause of
death as a result of ante mortem injury to head produced by
blunt force impact. If a person falls from the door of the coach
of a train, he would have a trajectory which will throw him a
few feet away from the track and not in between the lines of the
track. The fact that the dead body was lying on the track with
only head injury supports the contention of the respondent that
the deceased was hit on the head by some train while crossing
the track. The post mortem report also records clothes are
blood and grease stained, dried blood and grease stains present
over face. Grease is liberally applied on train locomotive parts
and the grease stains on the cloths and face of the deceased are
likely to be caused by the grease on the train locomotive when
the person comes in its contact and support the respondent's
contention that the deceased was hit by the train while crossing
the track. Based on the evidence available on record the only
reasonable inference that can be drawn is that the deceased
was hit by some train in the night of 21/22.5.13 and therefore, it
was referred to only as railway accident in every document.
10. There is no averment from the applicants that the deceased
had purchased any journey ticket. AW-1 and AW-2 in their
evidence have only stated that the deceased had left home for
Shahdara railway station to go to Agra. They are not aware
whether the deceased purchased any journey ticket. It is not in
the averment of the applicants also that the deceased was
having any journey ticket. DD no. 4 PP dated 22.5.13, copy
enclosed with the DRM report shows that no journey ticket was
FAO 251 of 2015 Page 3 of 8
recovered from the person of the deceased. The entry in the
RPF diary at 02.10 hours on 22.5.13 by Hd. Constable
Yogendra Sharma also mentions that no railway journey ticket
or pass was found from the person of the deceased in the
Jamatalashi taken by GRP. There is no evidence on record that
the deceased was having any journey ticket or was travelling by
any train. In these circumstances, he cannot be considered to
be a bona fide passenger onboard any train on 21.05.2013.
11. Under Section 124-A of the Railways Act the dependants of
the deceased would be entitled to claim compensation only in
the event of death of a passenger occurring due to an untoward
incident, which expression includes a case of accidental fall
from a train carrying passengers in terms of Section 123 (c) of
the Act. Every railway accident or railway track accident does
not tantamount to untoward incident as defined under Section
123(c) of the Act. In the absence of any evidence duly
establishing that the deceased was in fact a bona fide passenger
and that injuries sustained by the deceased and his subsequent
death was due to untoward incident, the claim of the applicants
cannot be upheld. In these circumstances, it is held that the
applicants have failed to establish that the deceased was a bona
fide passenger onboard any train or that the death of deceased
was due to accidental fall from the train amounting to
untoward incident. The issues are answered accordingly."
7. The learned counsel for the appellants' argues that: i) mere non
discovery of train ticket cannot lead to the conclusion that the deceased was
not a bonafide passenger; ii) during recording of evidence the
appellants/claimants had specifically deposed that the deceased proceeded to
Shahdara Railway Station to board the train to Agra; iii) that the body was
not found at the railway station but at a considerable distance from the
FAO 251 of 2015 Page 4 of 8
station, on railways track going towards Agra; iv) that there was no
suggestion by the Railways that the deceased committed suicide due to some
mental ailment or family distress; v) after the incident, the deceased's bag as
well as wrist watch went missing from the site, this raises a doubt that some
person had stolen the deceased's personal belongings, due to which even the
train ticket was not recovered; vi) the Tribunal failed to consider the settled
legal position that once a body is found, lying on the railway tracks, far away
from his/her residence, such incident will have to be considered as having
occurred due to a fall of the deceased from a train; vii) merely because a body
is found in a particular position or location it would not negate the attendant
indications of an untoward incident i.e. of the deceased passenger falling off
the train. The appellants' rely upon the decisions in Smt. Sushma Vs. UOI in
FAO 295/2012 dated 17.04.2014, Delhi High Court, Prahlad Singh Vs. UOI
in FAO No. 535/2011 dated 23.05.2014, Delhi High Court and Anupam
Sharma Vs. UOI in FAO No. 354/2012 dated 345/2012, dated 15.11.2014,
Delhi High Court.
8. The learned counsel for the respondent contends that: i) the appellants
have no documentary evidence to substantiate their contention that the
deceased was a bonafide passenger; ii) that the claim had been filed without
any affidavit/ police statement/ proof of an eye witness; iii) that in the said
railway yard where the body was found, operations are carried out in a
restricted area, where only authorised entry is permitted, except at the level
crossing gate; and iv) no ex-gratia amount was ever paid by the Railways nor
was any amount claimed by the appellants.
9. No evidence has been produced by the appellants to prove that the
deceased was a bonafide passenger on a train to Agra or elsewhere, and/or
FAO 251 of 2015 Page 5 of 8
that he was carrying a valid train pass in his name. The post mortem report
records fracture of the skull and cause of death being the result of ante-
mortem injury to head produced by blunt force impact. The Court agrees with
the reasoning in the impugned order, that ordinarily it is not possible for a
person who falls from a passenger compartment of a running train to come in
between the railway tracks, because when a person falls from a moving train,
the momentum of the moving vehicle would create a trajectory which would
throw the falling person a few feet away from the tracks. The order notes that
the body was found on the tracks with only head injuries, which supports the
contention of the Railways that the deceased was hit on the head by a train
while he was crossing the tracks. The post mortem report records that the
clothes of the deceased were stained with blood and grease, and that there
were dried blood and grease stains over his face. It further noted, that it is a
known fact that grease is liberally applied on a train's locomotive parts and
the grease stains on the clothes as well as the face indicates that the deceased
came in contact with the underbody/chassis locomotive parts of the train,
which supports the contention that the deceased was hit by the train while
crossing the tracks, with the impact from the train he fell between the railway
lines and was run over. Except for stating that the deceased had left home to
travel to Agra, the appellants have not claimed that a ticket was purchased by
the deceased. The entry in the RPF diary at 02.10 hrs on 22.05.2013 also
mentions that no ticket was found on the person of the deceased. There is no
evidence on record to show that the deceased was travelling with a valid
ticket, or was travelling in a train at all.
10. The Court would refer with benefit to the dicta of the Supreme Court
in Union of India vs. Rina Devi (2019) 3 SCC 572, which held, inter alia:
FAO 251 of 2015 Page 6 of 8
28. In Kamrunnissa v. Union of India, (2019) 12 SCC 391,
from the circumstances appearing in that case it was held that
there was no evidence that the deceased had purchased the
ticket. In the given fact situation of that case, this Court inferred
that it was not a case of "untoward incident" but a case of run
over. It was observed:
"7. The aforestated report also reveals, that the body of
the deceased had been cut into two pieces, and was lying
next to the railway track. The report further indicates, that
the intestine of the deceased had come out of the body.
The above factual position reveals that the body was cut
into two pieces from the stomach. This can be inferred
from the facts expressed in the inquest report, that the
intestines of the deceased had come out of the body. It is
not possible for us to accept that such an accident could
have taken place while boarding a train.
8. In addition to the factual position emerging out of a
perusal of Paras VII and VIII extracted hereinabove, the
report also reveals that besides a pocket diary having been
found from the person of the deceased a few telephone
members were also found, but importantly, the deceased
was not in possession of any other articles, that the
deceased Gafoor Sab, was not in possession of a ticket, for
boarding the train at the Devangere Railway Station."
29. We thus hold that mere presence of a body on the railway
premises will not be conclusive to hold that injured or deceased
was a bona fide passenger for which claim for compensation
could be maintained. However, mere absence of ticket with such
injured or deceased will not negative the claim that he was a
bona fide passenger. Initial burden will be on the claimant
which can be discharged by filing an affidavit of the relevant
facts and burden will then shift on the Railways and the issue
can be decided on the facts shown or the attending
FAO 251 of 2015 Page 7 of 8
circumstances. This will have to be dealt with from case to case
on the basis of facts found. The legal position in this regard will
stand explained accordingly."
11. Section 124-A of the Railways Act stipulates that the dependents of the
deceased would be entitled to claim compensation only in the event of death
of a passenger occurring due to an untoward incident, which includes a case
of accidental fall from a train carrying passengers in terms of section 123(c)
of the Act. Every railway accident or railway track incident does not
tantamount to untoward incident, as specified in section 123(c). The claim of
the applicants cannot be granted as there is no evidence on record to show
that the deceased was a bonafide passenger and that his death was due to an
untoward incident.
12. In the first instance, a claimant has to show that the death was due to
an untoward incident i.e. a fall from a train and also show that the deceased
was a bonafide passenger. Even if it is assumed that the passenger had a
valid ticket, the circumstances of each accident would themselves, indicate to
some degree the nature and cause of death. The circumstances of the present
case show that it is a case of run-over and not a case of death due to an
accidental fall from a moving train.
13. The impugned order calls for no interference. The appeal is without
merits, and is accordingly dismissed.
NAJMI WAZIRI, J.
MAY 20, 2019 acm FAO 251 of 2015 Page 8 of 8