Afsari Begum And 5 Others vs Union Of India

This Civil Miscellaneous Appeal is filed against the orders in O.A. II (U) No.128 of 2011, dated 25.04.2018 on the file of Railway Claims Tribunal, Secunderabad Bench.

The appellants are the applicants in the O.A. The O.A. was filed under Section 16 of the Railways Act claiming compensation of Rs.8,00,000/- with interest for the death of Md.Abdul Jaleel @ Md. Jaleel (hereinafter be referred to as “the deceased”) in an alleged untoward incident that occurred on 17.11.2010. The first appellant is the wife and appellant Nos.2 to 6 are the children of the deceased.

In nutshell, the case of the appellants is that on 17.11.2010, the deceased after meeting his brother Md. Abdul Hussain on the eve of Bakrid, was returning from Hyderabad to Necklace road by Train HL-17/Hyderabad-Lingampalli MMTS train holding a passenger train journey ticket. While travelling, the deceased accidentally slipped and fell down from the running train at Khairatabad railway station, sustained severe head injury and was immediately shifted to Osmania General Hospital by the railway staff, railway Police and Home Guard but the Doctors declared him as brought dead.

The respondents filed a detailed written statement denying all the allegations made in the claim petition, disputing the claim made by the applicants and also the liability of railways to pay compensation, as the claim does not fall under the ambit of either Section 123(C) or Section 124-A of the Railways Act.

It is the contention of the respondent-railways that the FIR discloses that the complaint was given by Dr.Vasureddy, RMO, Paramedical staff basing on the Memo received by him on 17.11.2010 at 19.00 hours from one P.V.B.Krishna Rao, Deputy Station Superintendent, Hyderabad, as per the message of Home Guards 381 and 355, a person aged about 50 years, in intoxicated condition, got down from HL-17, got injured and was shifted in 108 ambulance to Osmania General hospital. But in the inquest report, it is mentioned that the deceased fell down from the said train at Khairatabad railway station.

Basing on the pleadings, the Tribunal have framed the following issues;

Whether the applicants are the dependants of the deceased ?

Whether the deceased was a bona fide passenger of the train in question and died as a result of an untoward incident ?

Whether the applicants are entitled to compensation as claimed and to what relief ?

Heard learned counsel for the appellants as well as the learned Standing Counsel appearing for the respondent-Railways and perused the record.

It is urged by the learned counsel for appellants that the deceased died due to an untoward incident which happened in the railway station and therefore, the appellants are entitled for compensation. It is further contended that Ex.A-6 is the copy of the Aadhar card of the 1st appellant, which disclose that she is the wife of the deceased, and therefore, they are entitled for compensation.

On the other hand, it is contended by the learned Standing Counsel for respondent-railways that the death of the deceased was not caused due to any untoward incident, thus, the case of the appellants does not fall either under Section 123(C) or Section 124-A of the Railways Act. Therefore, the appellants are not entitled for any compensation.

On perusal of the record, it is evident that the 1st appellant was examined as AW-1, the brother of the deceased was examined as AW-2 and documents in Exs.A-1 to A-6 are filed on behalf of the appellants. No oral evidence was adduced on behalf of the respondent-railways. But Ex.R-1/report of the Divisional Railway Manager is marked.

As already stated supra, it is the case of the appellants that on 17.11.2010, the deceased went to the house of AW-2 on the eve of Bakrid and on return journey, the deceased and his brother came to railway station, purchased passenger train journey ticket to Necklace road and boarded the local train HL-17/Hyderabad-Lingampally and while travelling, the deceased had accidentally fell down from the train at Khairatabad railway station, due to which, he sustained severe head injury and was shifted to the Osmania General hospital by the railway staff, where, the Doctors declared him as brought dead. The passenger journey ticket was not marked before the Tribunal and the plea taken by the appellants is that the ticket might have been lost in the said accident. Admittedly, there were no eyewitnesses to the incident. AW-1’s evidence discloses that she came to know about the death of deceased in an accident through railway Police over phone on 17.11.2010 at 8 p.m. On that, she rushed to the hospital with her relatives and found the dead body of the deceased at mortuary. The Police held inquest panchanama and her statement and the statements of her relatives were recorded by the Police and it was specifically deposed by them during the course of inquest that the deceased was holding journey ticket. The brother of the deceased, who was examined as AW-2, also corroborated the evidence of AW-1 as to his presence along with the deceased till the deceased boarded the train, which includes about the purchase of ticket by the deceased and later on coming to know about the death of the deceased and attending the hospital.

It is the finding of the Tribunal that AW-2 was not present during the course of inquest and it is not known as to on what basis the Police have concluded that the deceased travelled on the train. Therefore, the conclusions of the inquest report are not considered by the Tribunal. The Tribunal relied on Ex.A-1 i.e. the FIR as the earliest document which came into existence immediately after the accident. It was registered on the basis of the message received from one Sri P.V.B.Krishna Rao, Deputy Station Superintendent, Hyderabad on 17.11.2010 at 19.00 hours stating that, “as per Home Guards 381 and 355, a person aged about 50 years in intoxication condition got down from HL-17 and got injured on his head. Called 108 ambulance, shifted to Osmania hospital. Please do needful.” It is also the finding of the Tribunal that the FIR further reveals that another message was received from Dr.Vasureddy, RMO, Osmania General hospital on 17.11.2010 at 21.00 hours that, “patient by name Md. Jaleel, age 40 years, who was brought dead to casualty at 5.30 p.m. on 17.11.2010 by 108 ambulance alleged to have met train accident at about 5.08 p.m. at Khairatabad railway station. Dead body shifted to mortuary room.” Taking into consideration the earliest document which came into existence at 19.00 hours, the Tribunal have come to a conclusion that the death of the deceased was due to fall from HL-17 MMTS train is not at all in dispute and the only dispute is with regard to the bona fides of the deceased as passenger as no journey ticket was recovered from him. Thus, the Tribunal has rejected the claim of the applicants holding that the deceased was not a bona fide passenger.

As discussed above, the oral evidence of AWs.1 and 2 corroborate with each other as to the deceased going to the house of AW-2 on the eve of Bakrid and further as per the evidence of AW-2, the deceased purchased the journey ticket and boarded the train. Admittedly, the FIR is the earliest document, but the Hon’ble Apex Court in a catena of judgments, held that the FIR is not an encyclopedia, it need not contain all the details and it is a weak piece of evidence. Admittedly, it is the finding of the Tribunal that the deceased died due to fall from HL-17 MMTS train. Though it is the contention of the Railways that as per the statements of Home Guards 381 and 355, the deceased was in an intoxicated condition, got down the HL-17 MMTS train and got injury to his head, there is no iota of evidence on record to show that the deceased died due to intoxicated condition. Ex.A-3/ Postmortem report do not disclose that the deceased consumed alcohol prior to his death. The abdomen of the deceased do not contain any pungent smell of liquor or any alcohol. None of the witnesses were examined to prove that due to intoxication the deceased fell from the train and thus, there was negligence on the part of the deceased while getting down the train. In the absence of proper evidence, the tribunal cannot come to the conclusion that either the deceased has not boarded the train or he boarded the train in an intoxicated condition.

The other document relied on by the appellants is Ex.A-4/ death certificate, which discloses that the deceased Abdul Jaleel died on 17.11.2010 and the place of death is mentioned as Khairatabad railway station, Hyderabad, which clearly corroborates the evidence of AWs.1 and 2 and Ex.R-1. Except the Divisional Railway Manager’s report, there is no evidence on behalf of the respondent-railways and the said report is also based on the statements of the railway staff, who were not the eyewitnesses to the incident. Hence, it can be construed that the deceased had died as a result of an untoward incident at Khairatabad railway station.

In this connection, a reference to the judgment of this Court in Shaik Mahboob Basha & others v. Union of India 2016 ACJ 1882, wherein, it is held at para 8.6 as under :

“As rightly contended, it is undisputed that a person will not be permitted even onto the platform without a platform ticket and that a person will not be permitted to travel in a train without a valid ticket with him and that a duty is enjoined upon the officers of the Railways to regulate the entry of passengers to the platform or into the railway station and into the compartments of trains and that the Railways have sufficient mechanism and manpower to regulate the same. Therefore, it can be presumed that every person entering onto the platform holds a valid platform ticket until the contrary is proved.”

In para 9 of the aforesaid judgment, it is further held as under :

“9. POINT No.2 :

Dealing with the aspect as to whether the deceased had died in an untoward incident, viz., and accidental fall from the running train, it is necessary to first refer to the relevant provision of law.

Section 124-A of the Railways Act, 1989 reads 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 dependant of a passenger who has been injured or the dependant 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, 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 purpose 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.”

From a reading of the above provision, it is obvious that the liability to pay compensation is regardless of any wrongful act, neglect or default on the part of the railway administration. If any bona fide passenger having a ticket, as defined under clause (29) of Section 2 of the Act dies in an untoward accident, it is incumbent upon the Railways to pay the compensation to the victims without putting up any dispute, provided the death of the deceased does not fall within any of the five exceptions (a) to (e), as indicated above. Since a season pass, which authorised him to travel between Gudur and Nellore railway stations and that the accident had occurred at Tettu railway station beyond the Nellore Railway station at which railway station, there is no schedule stop for the train and simply because the deceased was standing near the door of the compartment at the time when he had fallen down from the running train, it is being sought to be stated that his said act is a negligent and criminal act and that the injuries sustained by him are self-inflicted injuries. This Court, on point no.1, had already held that the deceased is holding a valid ticket and that therefore, he is a bona fide passenger. Hence, the assumption that he might have jumped from the running train cannot be countenanced. Simply because the deceased was standing near the door of the compartment at the time when he had fallen down from the running train, it is being sought to be stated that that his said act is a negligent and criminal act. Be it noted that a criminal act envisaged under clause (c) must have an element of malicious intent or mens rea. Standing at the open doors of the compartment of a running train may be a negligent act, even a rash act but, without anything else, it is certainly not a criminal act. As rightly contended by the learned counsel for the applicants, when once the Railways issues tickets to passengers to board trains, it is for the Railways to take steps and appropriate measures to provide accommodation in the compartments of trains to all the passengers holding valid tickets and take security measures to close the doors before the trains move from the platforms and open on arrival of the train on the platforms. The Railways having issued tickets to passengers to board trains, which are overcrowded, cannot put the lives of the citizens to risk and shirk its responsibility with regard to safety and security of the passengers and then contend that it is not liable to pay compensation. Therefore, in the facts and circumstances of the case, it cannot be said that the death of the deceased is on account of self-inflicted injury or his own criminal act. As a result, it must be held that the falling down from the train was, thus, clearly accidental. Point No.2 is, accordingly, answered in favour of the appellants/ applicants.”

A further reference can be made to the judgment of the Hon’ble Supreme Court in Union of India v. Rina Devi [Civil Appeal No.4945 of 2018, dt.09.05.2018], wherein, in para 17.4, it is held as under :

“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 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.”

In view of the law laid down in the aforesaid judgments, it can be construed that the deceased, being a bona fide passenger of HL-17/Hyderabad-Lingampally MMTS Train, died in an untoward incident that took-place on 17.11.2010 at Khairatabad Railway Station.

As per the Schedule given by the Ministry of Railways vide Notification dated 22nd December, 2016, the Railways are liable to pay compensation of Rs.8,00,000/- for the death of its passengers. Therefore, the appellants are entitled to compensation of Rs.8,00,000/- for the death of deceased Md. Abdul Jaleel.

Accordingly, the appeal is allowed and the order dated 25.04.2018, passed by the Railway Claims Tribunal, Secunderabad Bench in O.A.II (U) No.128 of 2011, is hereby set aside. The respondent-Railways shall pay compensation of Rs.8,00,000/- to the appellants within a period of three months from the date of receipt of a copy of this judgment.

Out of the aforesaid compensation amount of Rs.8,00,000/-, the first appellant being the wife of the deceased, is entitled for Rs.3,00,000/-, appellant Nos.2 to 6 being the children of the deceased, are entitled to Rs.1,00,000/- each. All the appellants are permitted to withdraw their respective shares of compensation.

Pending miscellaneous applications, if any, shall stand closed.