Allahabad High Court
Shahnaz Begum And Ors. vs Union Of India Throu General Manager ... on 14 February, 2017
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 3 Case :- FIRST APPEAL FROM ORDER No. - 353 of 2015 Appellant :- Shahnaz Begum and others. Respondent :- Union Of India Throu General Manager Northern Railway N.Delh Counsel for Appellant :- Manish Kumar Srivastava Counsel for Respondent :- Pratul Kumar Srivastava Hon'ble Sudhir Agarwal,J.
Hon'ble Ravindra Nath Mishra-II,J.
1. This appeal has been preferred against the judgment and award of Railway Claims Tribunal dated 17.03.2015 rejecting claim petition of the appellants.
2. Brief facts of the case are that on 28.06.2010 deceased Mohammad Rafiq (husband of appellant) was traveling by train LKM Passenger from Kanpur Central to Lucknow, after purchasing a valid Second Class traveling ticket. He accidentally fell down from the train near Kanpur Central and Kanpur Bridge (LB) Railway stations and sustained serous injuries resulting in his death on the spot. The heirs of deceased-Mohd. Safeeq filed claim petition before the Railway Claims Tribunal, Lucknow Bench, Lucknow, which was contested by respondent-Union of India by filing written statement pleading inter-alia that the deceased did not fall down from the train in question accidentally on the alleged date of occurrence. He was not a bonafide passenger of the train. It was also pleaded that case of claimants did not come under the purview of Section 123(c) (2) of the Railways Act, 1989.
3. On the basis of pleadings of parties, following issues were framed:
"1. Wheter the deceased was a bonafide passenger of the train in question?
2. Whether incident of death of 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 applicant is only dependent of the deceased?
4. To what relief ?"
4. In order to substantiate their claim appellant-claimants examined AW-1 Shahnaz Begum, widow of deceased and AW-2 Sri M.S.Khan to prove that deceased was bonafide passenger of the train. On behalf of respondent RW-1 Sri Sanjai Gupta, investigator of the case was also examined.
5. After considering the evidence adduced by the parties, learned Claims Tribunal held that the deceased was neither a bonafide passenger of the alleged train nor case of the claimants come within the purview of untoward incident as defined under Section 123 (c) (2) read with Section 124-A of the Railways Act, 1989. Therefore, the claim of the appellants was dismissed vide order dated 17.03.2015.
6. Feeling aggrieved by the judgment and order passed by Railway Claims Tribunal the claimants have preferred this appeal.
7. We have heard Sri Manish Kumar Srivastava, learned counsel for appellant and Sri Pratul Kumar Srivastava, learned counsel for respondent.
8. Before we proceed to decide this appeal, it is appropriate and convenient to extract provisions of Section 124A of Railways Act:
"Compensation on account of untoward incident. - When in the course of working in 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 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 treatement unless such treatment becomes necessary due to injury caused by the said untoward incident.
Explanation- For the purposes 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".
9. Thus Section 124A of Railways Act Provides that 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, the injures or the dependents of a passenger who has been killed shall be entitled for damages in respect thereof. The word "accident" and untoward incident" have been defined in Section 123 of the Act. "Accident" means an accident of the nature described in Section 124. Section 124 of the Act, may be extracted as below:
10. The word "untoward incident" is defined in Section 123 of the Act means:
"1 (i) The commission of a terrorist act within the meaning of sub-section (1) of Section 3 of the terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 1987); or
(ii) the making of a violent attack or the commission of robbery or dacoity; or
(iii) the indulging in rioting, shoot-out or arson) by any person in or on any train carrying passengers, or in a waiting hall, cloak room or reservation or booking office or on any platform or in any other places within the precincts of a railway station; or (2) The accident falling of any passenger from a trian carrying passenger".
11. Thus accidentally falling of a passenger from train carrying passenger comes within the definition of "untoward incident".
12. In the present case, the deceased is said to be a bonafide passenger of the train passenger bound LKM from Kanpur Central to Lucknow, but accidentally fell down from the train near Kanpur Central and Kanpur Bridge (LB).
13. Learned Tribunal has concluded that the deceased was not a bonafide passenger for want of railway ticket. Claimant had examined AW-2 Sri M.S.Khan to prove that deceased had purchased a ticket and thereafter had boarded the train LKM passenger. Thus in his presence deceased had purchased the ticket. Simply because the ticket was not found from the spot it cannot be said that the passenger was not the bonafide passenger. In such type of accidents cloth of the deceased were torn and non-recovery of the ticket from the dead body of the victim are natural consequences. Hence, adverse inference cannot be drawn to the effect that the deceased was not having ticket while traveling in the train. It is true that there cannot be presumption in every case, as held by Tribunal that ticket of deceased is taken out from some criminal and unscrupulous persons or it is lost or moulted, but where there is evidence to show that he boarded train after purchasing of ticket, it would be unfair to say that he was not a bonafide passenger, especially where the respondents had adduced no evidence to show that the deceased died while crossing the railway line. The respondents could have produced documentary evidence of the hospital where the deceased was hospitalized or treated and for eating fish he came out of the Hospital and while crossing railway line he died.
14. A Division Bench of this Court in Smt. Akhtari Versus Union of India 2009(4) ALJ 131 has held that "the provisions contained in Chapter VIII and Chapter XV of the Act give ample power to the Railway to check the unauthorised travelers. Unless and until the passenger is caught hold by the railway authorities or is charged of traveling without ticket, it shall be presumed that person traveling in the train was having valid ticket. However, such presumption is rebuttable.
15. The respondents had made no attempt to rebutt this presumption. Though RW-1 Sri Sajai Gupta had been examined on behalf of respondents to prove the D.R.M. report that while crossing railway line, the deceased died. It has been mentioned in the report that deceased was T.B. patient, who had gone for purchasing the fish and died on account of being cut down by the train crossing the Railway lines, but the respondents had made no attempt to produce hospital document, which could have belied the case of claimants. Merely a statement recorded in inquest report of a person, who was not present at the time of accident cannot rebut the above presumption.
16. In above circumstances, we have no hesitation to hold that the deceased was a bonafide passenger at the time of accident, who died on account of falling down from the train and, therefore, the claimants are entitled for compensation.
17. The deceased is said to be of 47 years old at the time of accident. He is said to be a Shoes Mechanic, but no income is given in the claim petition. Therefore, even if income of a labour is held to be income of deceased then at the rate of Rs. 100/- per day, it comes to Rs. 3,000/- per annum and Rs. 36,000/- annual and after 1/3 deduction as dependency of claimants comes to Rs. 24,000/- a year. Applying the multiplier of 13 as given in the case of Sarla Verma and others Versus Delhi Transport Corporation and another 2009 (6) SCC 121 at the age of 47, the compensation for the loss of dependency comes to Rs. 3,12,000/- and after giving other compensation like compensation for mental and agony, consortium and expenses for last rights, we assess the entitlement of damages to the tune of Rs. 4 lacs to which claimants are entitled.
18. Appeal is, accordingly, allowed. The judgment and award of Railway Claims Tribunal dated 17.03.2015 is set aside. The claim petition is also allowed. The appellant-claimants shall be entitled to the compensation of Rs. 4 lacs along with interest of 7 % per annum from the date of filing of claim petition in the Tribunal.
19. No order as to costs.
Order Date :- 14.2.2017 Arvind