Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 24.04.2018
+ FAO 211/2014
SH. PREMPAL SINGH & ANR. ..... Appellants
Through: Ms. Pankaj Kumari for Mr. S. N.
Parashar, Advocate.
Versus
UNION OF INDIA ..... Respondent
Through: Ms. Gurkirat Kaur and Mr. Archita
Jain, Advocates.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J (Oral)
1. This appeal impugns an order dated 26.11.2013 passed by the
Railway Claims Tribunal dismissing the appellants’ claim for compensation
on account of the demise of their son Mr. Lokender Singh in a rail accident.
It is the appellants’ case that the deceased who used to work in Delhi, on
05.09.2011 during his return rail journey to Muradabad he got the space
only near the gate, due to heavy rush in the rail compartment. En-route due
to a sudden jerk and push in the train, he fell from the moving train, came
under its track and his body was cut into two. It is not in dispute that a valid
passenger ticket alongwith a mobile phone was found on his person. The
body was identified by his family members, who were informed by officials
through his phone. The factum of his death in the rail accident has been
FAO No. 211 of 2014 Page 1 of 10
established and there is no doubt about him being a valid passenger.
Nevertheless, the impugned order dismissed the claim on the ground that
since the body was cut into two, there was a likelihood that the deceased
died when he was trying to cross the railway lines, which would be a self-
inflicted injury and thus come under the exception provided in section 124-
A of the Railways Act, 1989. Therefore, the sweep of strict liability on the
Railways, would not be applicable in the present case.
2. This Court, however, finds the said reasoning erroneous because
insofar as a valid ticket has been found on the body of the passenger, his
body was found on the railway tracks and it has been recorded that he died
in the train accident, the presumption is that it was an accident and untoward
incident for which the Railways would be strictly liable.
3. In Union of India vs. Prabhakaran Vijaya Kumar and others 2008
ACJ 1895, the Supreme Court of India held:-
“16. The accident in which Smt. Abja died is clearly not
covered by the proviso to 124A. The accident did not occur
because of any of the reasons mentioned in clauses (a) to (e)
of the proviso to Section 124A. Hence, in our opinion, the
present case is clearly covered by the main body of Section
124A of the Railways Act, and not its proviso.
17. Section 124A lays down strict liability or no fault
liability in case of railway accidents. Hence, if a case comes
within the purview of Section 124A it is wholly irrelevant as
to who was at fault.”
4. This Court too has followed the same in FAO No.64/2017 titled as
Jagveeri & Anr. vs. Union of India dated 10.04.2018 and in FAO No.
FAO No. 211 of 2014 Page 2 of 10
312/2017, titled as M. Rehan & Anr. vs. Union of India, dated 13.04.2018.
The relevant portion of Jagveeri (supra) reads as under:-
1
“8. In Ashutosh Dwivedi , it was held that in an
accident or untoward incident, the presumption shall always
be in favour of the passenger with regard to the bonafides,
unless rebutted by material and cogent evidence.
2
9. In Juhi Parveen this Court held that a train ticket can
get lost and it cannot be held that a deceased is not a
bonafide passenger merely because a train ticket is not
recovered. It went on to hold that the deceased was a
bonafide passenger.
10. This Court is of the view that the impugned order
has erred in its reasoning that since a relatively heavier
object like a cell phone could still be on the body of the
deceased, it was unconceivable that the ticket alone could
have popped out of the pocket or otherwise was lost after
the person fell from the train. Rejection of the claim on this
ground is not sustainable because a lighter object will
always fly-off from the pocket if the unfortunate body is
violently tossed about in a gruesome and fatal train
accident. A heavier object like cell phone being better
ensconced, deeper in the pocket, is likely to stay in the
pocket. Besides, the ticket could have been lost in the efforts
of chance good Samaritans or the Railway or police
officials or hospital authorities trying to ascertain the
identity of the injured person by looking into the contents of
his pockets.
11. Furthermore, the Madras High Court in C. Selvi
vs. Union of India in C.M.A.No.241 of 2016 decided on
11.01.2018 held as under:-
“.....14. In our opinion, if we adopt a restrictive meaning
to the expression 'accidental falling of a passenger from a
1
Ashutosh Dwivedi vs. Union of India in F.A.F.O. No. 82/1999 decided on 12.01.2009
2
Juhi Parveen and Another vs. Union of India 2015(1) TAC 167 (Del.)
FAO No. 211 of 2014 Page 3 of 10
train carrying passengers' in Section 123(c) of the
Railways Act, we will be depriving a large number of
railway passengers from getting compensation in railway
accidents. It is well known that in our country there are
crores of people who travel by railway trains since
everybody cannot afford travelling by air or in a private
car. By giving a restrictive and narrow meaning to the
expression, we will be depriving a large number of
victims of train accidents (particularly poor and middle
class people) from getting compensation under
the Railways Act. Hence, in our opinion, the expression
'accidental falling of a passenger from a train carrying
passengers' includes accidents when a bona fide
passenger i.e., a passenger travelling with a valid ticket
or pass is trying to enter into a railway train and falls
down during the process. In other words, a purposive,
and not literal, interpretation should be given to the
expression.
15. xxxxxx
......16. It is no doubt true that the position of law as
provided in Section 106 of the Evidence Act is that if a
fact is within the special knowledge of a person, the
burden of proving such fact is on that person and as
provided in Illustration (b) of that Section, if a person is
charged with travelling on a railway without a ticket, the
burden or proving that he had a ticket is upon him. But,
such principle is not applicable to a case of a dead
person, who was proved to have died in the course of
railway travel and whose body was taken in custody of
the Railway Police. In such a situation, it is the duty of
the Railway Authority to first give evidence that he was
without a valid ticket and if such evidence is given, the
onus shifts upon the Claimants to prove that he was a
bona fide passenger having a valid ticket. In this case, as
no person on behalf of the Railways has given any such
evidence nor as any person come forward to disclose as
to what articles were found with the victim, I am of the
considered view that the initial burden of proving the said
FAO No. 211 of 2014 Page 4 of 10
fact had not been discharged. In such circumstances, in
the absence of any evidence of the Railway Authorities
asserting absence of valid ticket, I am of the opinion that
there is no just reason to discard the evidence of the
Claimants."
5. The impugned order rejecting the claim has reasoned as under:-
“9. The case of the applicants is that their son, the
deceased Lokender Singh, went to Delhi from Moradabod
on 5.9.2011 on some work and was returning home in the
night. In the application or in the evidence by way of
affidavit of AW-1, it is nowhere stated as to by which train
the deceased was travelling or at what time, he boarded the
train and where. It is pleaded in the application that after
purchasing ticket, the deceased telephonically informed the
family members that he would return home by evening or
night train after finishing the work. It is not disclosed at
what time the deceased talked to which of the family
member. The said averments contained in the application
that the deceased informed the family members by telephone
that he would return home by evening or night train is only
a self-serving and unsubstantiated statement. There is
nothing on record to show that the deceased boarded any
train as passenger to go to Moradabad. What all the
material on record would disclose is that the dead body of
the deceased was found on the track i.e. down loop line near
starter signal of Gajrola R.S. Ex.AW-1/4 is the Memo issued
by the Station Master, Gajrola to the G.R.P. at 07:10 hours
on 6.9.2011 wherein it is stated that a dead body of some
person was found lying near the down- starter. It is
significant to note the position of the dead body at the place
where it was found. As seen from the DRM's Report and its
enclosures, the dead body was found lying near the down
loop line starter signal in such a condition that it was cut
into two pieces and half of the body was inside the track and
the remaining half was outside the track. The DRM's
Report, Ex.R-1, states that it appears to be a case of run
over by some train while the deceased was trying to
FAO No. 211 of 2014 Page 5 of 10
unauthorizedly cross the railway track and, therefore, was
cut into two pieces but certainly not a case of fall from the
train. It is further stated in Ex.R-1 that the question of the
dead body being cut into two pieces does not arise due to
fall from any train going on the loop line. The particulars of
the timings of the train that pass through Gajrola on the
intervening night of 5/6.9.2011, which is enclosed to the
DRM's Report, Ex.R-1 would show that train no.54076
Down arrived at 03:24 hours and left at 03:34 hours and
train no.54308 Down arrived at 05:25 hours and left at
05:27 hours both on the down loop line. The said
particulars would show that the other trains which pass
through Gajrola without any halt ore all taken on down
main line. The DRM's Report shows that even if a person
had a fall from a non-stop train passing through Gojrola on
the down main line, the question of the body lying on the
down loop line does not arise. Further it is to be noted that
the body was horizontally cut into two pieces, half of which
was lying inside the track i.e. in between the two rails and
half of it outside the track. The Postmortem Report, Ex.AW-
1/7 also shows that the body was cut into two pieces at the
level of abdomen. If really the deceased had an accidental
fall from any train passing either on the down main line or
down loop line, it is highly improbable and hard to believe
that he would be cut into two pieces and that too the two
pieces lying scattered, one inside the track and the other off
the track. The location of the dead body, the position and
condition in which it was found lying would negate the
claim of the applicant that it was a case of accidental fall
from the train and on the other hand supports the
contentions of the respondent that it can be a case of being
run over by some speeding train while the deceased was
trying to cross the track. The inference is further fortified by
the fact that there is absolutely no evidence adduced by the
applicants to show that the deceased boarded any train and
was travelling by any train on that night. The applicants
have not filed any Report of investigation by the police to
show that on inquiry, it was found to be a case of accidental
fall from the train. From the mere fact and circumstances
FAO No. 211 of 2014 Page 6 of 10
that the dead body of the deceased was found at the railway
track, no inference can be drawn that the deceased was a
passenger and that he had an accidental fall from some
train.
10. No doubt the applicants have produced a journey
ticket, Ex.AW-1/8, which is said to have been recovered
from the person of the deceased. Ex.AW-1/8, ticket bearing
no.43785382, shows that it was issued on 5.9.2011 at 15:17
hours for travel from Delhi to Moradabad. The DRM's
Report, Ex.R-1, contains a certificate from the Chief
Booking Supervisor of Delhi to the effect that the said ticket
was issued on 5.9.2011 from the booking office of Delhi R.S.
Ex.AW-l/6 is the Panchayatnama showing that the said
ticket was recovered from the person of the deceased
besides other items. Assuming for a moment that the
deceased purchased the said journey ticket, Ex.AW-1/8,
from the mere circumstance of the alleged recovery of the
said ticket from the person of the deceased, no inference can
be drawn that he was a bonafide passenger on board any
train at the relevant time. A mere holder of a ticket does not
necessarily be a bonafide passenger. When the material on
record does not support the claim of the applicants that the
deceased had an accidental fall from a train, and, on the
other hand supports the contention of the respondent that it
was a case of being run over by the train, the finding of a
journey ticket on the person of the deceased, even if true, is
of no consequence.
11. Even otherwise, the liability of the respondent to
pay compensation arises only when it is established by the
applicants that the deceased had in fact an accidental fall
from a train. Even in a case where a person is found to be
bonafide passenger, still the respondent railway would not
be liable to pay the compensation when once it is
established that the death or injury was not on account of
any untoward incident within the meaning of Section 123(c)
of the Railways Act. Based on the vague averments and
scanty evidence produced by the applicants, no finding can
be recorded to the effect that the death of the deceased was
FAO No. 211 of 2014 Page 7 of 10
due to accidental fall from the train amounting to untoward
incident. In these circumstances, it is held that the material
on record does not establish that the deceased was a
bonafide passenger on board any train and does not also
establish that the deceased had any accidental fall from any
train and on the other hand supports the contention of the
respondent that it was a case of being run over by some
train while unauthorizedly crossing the railway track. Issues
are answered accordingly.”
6. The Court is of the view that the aforesaid reasoning is flawed
because it cannot be expected for a passenger in a railway journey, who is
travelling alone, to keep evidence of when, where, how and in whose
presence, he/she undertook the journey. But the impugned order expects
this kind of evidence; the unreasonableness of the expectation and the
impossibility of the assumption is evident. It is untenable. Therefore, the
impugned order has to be set aside. The evidence in favour of the claimants
is that the deceased had a valid passenger ticket; the claimants state that he
was working in Delhi and was on his return journey to his hometown in
Muradabad; his body was found on the railway tracks, one station prior to
Muradabad, therefore, the clear inference is that the deceased was in a train
going towards Muradabad. Furthermore, the factum of his body lying on
the railway tracks is admitted by the Railways.
7. The reasoning in the impugned order that because the deceased was
cut into halves: one part found inside the railway tracks and the other
outside, the death could not have been caused due to accidental falling from
a moving train, is flawed. The impossibility of a passenger being so crushed
after a fall from a moving train has not been conclusively established in law,
so as to obviate all such claims for compensation. It is possible that the
FAO No. 211 of 2014 Page 8 of 10
deceased while standing near the overcrowded passenger compartment door,
slipped down while holding on to the door- railing, and frantically tried to
recover and re-board the train – with his legs flailing violently, and in the
valiant and violent melee his legs or his body could have unfortunately come
under the wheels of the train leading to his being consumed in the fatal
accident. As long as such possibility exists, the claim cannot be ousted or
denied on technical assumptions. There is not a divine camera which could
replay the actual manner of the fatality, but all factors lead to the inexorable
conclusion that a bonafide passenger died in an untoward train accident.
There is also no reason why the deceased would be walking the railway
tracks in an odd place en-route his destination – his home. It is not that he
lived near the site of the accident or that he had any regular business
anywhere near the place of the accident. Thus the inference that he died
while crossing the tracks, is unwarranted and untenable.
8. In view of the aforesaid, the impugned order cannot be sustained. The
claim has to be and is allowed. In terms of the Notification dated
27.12.2016 amending the Railways Accidents and Untoward Incidents
(Compensation) Rules, 1990 the compensation for human fatality is Rs. 8
lacs. Accordingly, Rs. 8 lacs shall be paid to the appellants by the
Respondent/Railways with interest @ 9% from 30 days after the date of the
fatal accident which happened on 05.09.2011, till payment. The said amount
shall be deposited within six weeks, from the date of receipt of this order, in
the UCO Bank, Delhi High Court Branch and shall be kept by the Bank in
“Account Lokender Singh”. Upon deposit, Rs. 2 lac shall be released to the
claimants/appellants – the parents of the deceased, to be shared by them
equally, in their respective bank accounts maintained in a Bank near their
FAO No. 211 of 2014 Page 9 of 10
place of residence. The remaining amount shall be kept in interest bearing
FDRs of Rs. 50,000/- each, to mature every successive year. The details of
the appellants’ accounts shall be furnished to the Manager-UCO Bank, Delhi
High Court Branch. Copies of the same shall be filed in the Court supported
by an affidavit. Upon maturity, the FDR amount alongwith interest accrued
thereon, shall be directly transferred into the respective bank accounts of the
appellants in equal parts. The Manager, UCO Bank shall retain the original
FDRs till their maturity. In case of exigency, the appellants may move the
Court for directions.
9. The appeal is allowed in the above terms.
NAJMI WAZIRI, J.
APRIL 24, 2018
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FAO No. 211 of 2014 Page 10 of 10