Shankar Lal son of Banwari Lal vs Union of India

The instant appeal under Section 23 of the Railway Claims

Tribunal Act, 1987 has been preferred by the applicants/appellants

(hereinafter referred as "the applicants") against the judgment

dated 21/07/2015 passed by Railway Claims Tribunal, Jaipur

Bench, Jaipur (hereinafter referred as "the Tribunal") in OA-II-66

of 2009, whereby the claim application filed by the applicants

against the respondent, has been dismissed.

Skeletal material facts necessary for disposal of this appeal

are that a claim application has been filed by the parents of the

deceased under Section 16 of the Railway Claims Tribunal Act,

1987 read with Section 125 of the Railways Act, 1989 seeking

compensation of Rs.6,00,000/- together with interest on account

of death of their son Virendra Kumar in alleged untoward incident.

It has been averred in the claim application that on 05/04/2008,

the deceased Virendra Kumar commenced journey from Ajmer to

Jaipur by train No. 4322 after purchasing a valid second class

railway journey ticket in presence of one of his known person

Suresh son of Bhagwan Sahay. It is also averred that during

journey when the train was running near at Kms. 246/4-5 in

between Kanakpura and Jaipur Railway Station at about 9.30 AM

to 10.00 AM, the deceased Virendra Kumar accidentally fell down

from the train due to heavy rush and jerk. Because of this sudden

accidental fell down, he sustained multiple grievous injuries and

died on the spot due to the injuries. It is further stated that

Railway Station Master, Jaipur informed to the Police Station

Jhotwara. Police Station, Jhotwara registered an FIR No. 17/2009

under Section 174 of Cr.P.C. It is also averred by the applicants

that the relevant ticket, which the deceased possessed at the

material time, might have been lost or misplaced during the

course of the accident. However, the deceased was a bonafide

passenger of the said train at the material time. The applicants

submitted copies of Panchayatnama, post-mortem report, memo

given by Station Master, Jaipur to the police, death certificate of

the deceased and receipt of dead body.

The respondent-railway administration filed it''s written

statements alongwith DRM''s report, denying all the material

averments of the claim application. It has been pleaded therein

that neither the deceased was a bonafide passenger of the said

train nor he died due to an accidental fall from the running train.

It is also pleaded that the appellants are not the dependents of

the deceased and prayed to dismiss the claim application against

the railway administration. On basis of the pleadings of the

parties, learned Tribunal framed as many as four issues.

In support of the claim application, the applicants filed

affidavits of AW-1 Shankar Lal, AW-2 Suresh Kumar and exhibited

certain documents to be Ex-1 to Ex-6. Both the aforesaid

witnesses were cross-examined by learned counsel for the

respondent on 29/03/2012. The respondent, in it''s evidence has

filed affidavits of RW-1 Chandradev Sharma (Guard) and RW-2 Jai

Singh (Driver) and exhibited two documents as ExR-1 to ExR-2.

Both the witnesses were cross-examined by learned counsel for

the applicants on 10/07/2012.

After hearing learned counsel for the parties, the learned

Tribunal decided the issue No. 1 and No. 2 in the manner that the

deceased was neither travelling by the said train nor became a

victim of accidental fall from the running train but died due to a hit

by the engine of the said train while attempting suicide, therefore,

the case clearly falls under exception (a) of proviso to Section

124-A of the Railways Act, 1989 for which the respondent is not

liable to pay any compensation to the applicants and dismissed

the claim application filed by the applicant/appellants.

Mr. Vinay Mathur, learned counsel for the applicant-

appellants has argued that the learned Tribunal has grossly erred

in holding that the deceased Virendra Kumar was not travelling on

a valid railway journey ticket and he was not a bonafide passenger

of the train at the material time. The learned counsel also

submitted that it is proved from the evidence produced by the

applicants that the deceased was holding a valid journey ticket but

the same was lost when he met with the accident. AW-2 Suresh

Kumar has clearly stated that he has purchased the ticket of the

deceased Virendra Kumar from Ajmer on 05/04/2008. He further

stated that the deceased himself boarded the train in his presence

and denied the suggestion that Virendra Kumar committed

suicide. In such circumstances, learned Tribunal has committed

grave error to disbelieve the fact that the deceased was a bonafide

passenger of the train and was holding a valid journey ticket.

Learned counsel for the appellants further contended that

the accident is well proved, the stoppage of the train due to the

accident is also proved. Therefore, it can safely be inferred that

the deceased was a bonafide passenger and had met with an

untoward incident but the learned Tribunal had dismissed the

claim application on the basis of mere assumptions only, as such

the impugned judgment is illegal and deserves to be set aside. In

support of his arguments, learned counsel for the appellants relied

on the judgment passed by Coordinate Bench of this Court in

Anokhi Devi (Smt.) & Ors. Vs. Union of India reported in

2011 (2) CCR 1290 (Raj.).

Per contra, Mr. S. N. Meena, learned counsel for the

respondent opposed the contentions of learned counsel for the

appellants and supported the impugned judgment passed by the

learned Tribunal. Learned counsel contended that it is proved

from the evidence produced by the respondent that deceased was

neither travelling by the train nor was a victim of accidental fall

from the running train and he died due to hit by the engine of the

said train while attempting suicide and therefore, the respondent

is not liable to pay any compensation to the applicants.

Learned counsel for the respondent also contended that the

deceased was not a bonafide passenger of train in question. The

deceased was not having any travelling ticket as no ticket was

found from the body of the deceased at the time of search of the

dead body. The respondent has proved the fact that the deceased

did not die as a result of an untoward incident but he committed

suicide, hence the judgment passed by the learned Tribunal is just

and proper and is in accordance with provisions of the Railways

Act .

Learned counsel for the respondent further contended that

RW-2 Jai Singh (Mail Driver) is eye witness of the said incident

and whatever has been deposed by him, stands corroborated by

RW-1 Chandradev Sharma (Mail Guard) and entries made by both

the witnesses of the respondent in Driver''s Notebook and Guard''s

Rough Journal, which compels not to doubt on testimony of the

witnesses. It is further argued that the witnesses of the

respondent had no personal grudge and enmity with the deceased

or his dependents and the witnesses of the applicants are

interested witnesses, therefore, testimony of witnesses of the

respondent cannot be overlooked and ignored.

Learned counsel for the respondent further contended that

the present case clearly falls under exception (a) of proviso to

Section 124-A of the Railways Act, 1989, therefore, the impugned

judgment passed by the learned Tribunal is just and proper and it

does not call for interference by this Court and prayed to dismiss

the appeal being devoid of any substance.

I have given my anxious consideration to rival contentions of

learned counsel for the parties and perused the material available

on record.

AW-1 Shankar Lal, applicant himself has deposed that on

05/04/2008, his son Virendra Kumar was travelling from Ajmer to

Jaipur by train No. 4322 holding a valid second class journey

ticket, which was purchased by him in presence of Suresh son of

Bhagwan Sahay, who went to see him off at railway station. The

witness also deposed that Suresh (AW-2) left the station after

accommodating the deceased in the train. During journey, when

the said train was running at Kms. 246/4-5 in between Kanakpura

and Jaipur railway station at about 9.30-10.00 AM, son of the

witness accidentally fell down from the running train due to heavy

rush of passengers and resultant push thereof. The witness also

deposed that his son was cut down and died after he fell down

from the running train. The witness further stated that the

Station Master, Jaipur informed the Police Station, Jhotwara about

the said incident. The witness also deposed that the deceased

possessed relevant ticket at the material time, which was lost

during the course of incident. In cross-examination, the witness

stated that the ticket for journey of his son, was purchased by

brother-in-law of the witness, Suresh.

AW-2 Suresh Kumar has deposed that he got the deceased

accommoded in Ajmer-Bareilly Express on 05/04/2008 and the

ticket was purchased by the deceased for his journey, in presence

of the witness. Thereafter, the witness after accommodating the

deceased in the train, has left the station. The witness also

deposed that later he came to know that due to heavy rush of

passengers in the train, Virendra Kumar accidentally fell down

from the running train at Kms. 246/4-5 in between Kanakpura and

Jaipur Railway Station. During cross-examination, the witness

stated that the journey ticket was purchased by him for Virendra.

RW-1 Chandradev Sharma, Guard of the alleged train

deposed that on 05/04/2008, he was on duty in train No. 4322

Ajmer-Bareilly Express from Ajmer to Bandikui. On that day, the

said train while running through at Kms. 246/4-5 in between

Kanakpura and Jaipur Railway Station, the driver suddenly

stopped the train and informed him on walkie-talky that a boy has

come before the engine of the train, resulted run over by the

engine and died. On this, he rushed to the place of incident and

picked up the dead body and handed over the same to Dy. Station

Superintendent, Jaipur for necessary action. The witness also

deposed that he made a search on the dead body and no

travelling ticket was found. The train was detained about 18

minutes on the place of incident. The witness proved the copy of

the extract of Guard''s Rough Journal and marked as ExR-1.

Another witness of the respondent RW-2 Jai Singh, Driver of

the alleged train, has deposed that on 05/04/2008 he was on duty

in train No. 4322 Ajmer-Bareilly Express from Jaipur to Bandikui.

On that day, the said train while running through at Kms. 246/4-5

in between Kanakpura and Jaipur Railway Station, suddenly a boy

came before the train, resulted run over by train and died. The

witness also deposed that he tried to stop the train but the train

was stopped 200 metres away from the place of incident. He

informed the Guard on walkie-talky and the train was detained

there for about 18 minutes on account of this incident. The

witness proved copy of the Driver''s Note Book as ExR-2. During

cross-examination, the witness stated that he mentioned the

incident in his diary that a boy was cut down from his train and he

informed the Guard about the incident.

For disposal of this appeal, relevant provisions in the

Railways Act, 1989 are as under :-

2(29) "passenger" means a person travelling with a valid pass or ticket;

123 [(c) "untoward incident" 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 place within the precincts of a railway station; or

(2) the accidental falling of any passenger from a train carrying passengers.]

[124A. 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 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.] 191. Proof of entries in records and documents.--Entries made in the records or other documents of a railway administration shall be admitted in evidence in all proceedings by or against the railway administration, and all such entries may be proved either by the production of the records or other documents of the railway administration containing such entries or by the production of a copy of the entries certified by the officer having custody of the records or other documents under his signature and stating that it is a true copy of the original entries and that such original entries are contained in the records or other documents of the railway administration in his possession.

On minute examination of the deposition made by the

witnesses, examined by both the parties and the documentary

evidence produced by the parties, it reveals that RW-2 Jai Singh,

Mail Driver is eye witness of the said incident and whatever has

been deposed by him, stands corroborated with the evidence

given by RW-1 Chandradev Sharma, Guard. Statements of both

the witnesses, reveal that RW-2 Jai Singh made entries of the

incident in Driver''s Note Book (ExR-2) and the witness

Chandradev Sharma made entry of the incident in Guard''s Rough

Journal (Ex R-1) soon after the incident. Thus, the deposition of

the witnesses of the respondent is also corroborated by the

documentary evidence produced by the respondent.

We are of the considered view that RW-2 Jai Singh, Mail

Driver is eye witness of the said incident and his testimony

remained unrebutted and unchallenged throughout. Therefore,

there is no reason to disbelieve on the deposition made by him.

It is pertinent to mention here that there is no evidence on

record to suggest that RW-2 Jai Singh had any personal grudge

or enmity with the deceased or the applicants, therefore, his

deposition cannot be overlooked or ignored. The deposition of Jai

Singh (RW-2), driver of the train is also corroborated by the

statement of Chandradev Sharma (RW-1), Driver''s Note Book

(Ex R-2) and Guard''s Rough Journal (Ex R-1) also. The entries

made in the records of the railway administration are admissible

in evidence in all proceedings by or against the railway

administration by virtue of Section 191 of the Railways Act,

1989.

In Anokhi Devi (Smt. ) & Ors. versus Union of India

(supra), the claimants filed the claim application for award of compensation on account of accidental death of Kanhaiya Lal as

he fell down from the train named Delhi-Ahmedabad Mail. The

police in investigation, has stated that the cause of death of

Kanhaiyalal is on account of fall from any unknown train. It was

argued by he railway administration that the death of deceased

occurred due to accident by an unknown train, while he was

going to his village and not by accidental falling, hence, he was

not a bonafide passenger. Coordinate Bench of this Court found it

proved that deceased boarded on the train from Jaipur and it is

evident that the deceased was travelling in train and died in an

untoward accident. Due to change in facts and circumstances of

the case, the case cited by learned counsel for the appellant is

not of much help to the appellants.

In view of above discussions , it is amply clear that the

deceased Virendra Kumar was neither travelling in the said train

No. 4322 nor he became a victim of an accidental fall from the

running train as defined under Section 123 (c) (2) of the

Railways Act, 1989. Rather it is proved that Virendra Kumar died

due to hit by the engine of the said train while attempting

suicide. Therefore, the present case falls under exception (a) of

proviso to Section 124-A of the Railways Act, 1989, as such the

railway administration is not liable to pay any compensation to

the dependents of the deceased.

On consideration of submissions made by learned counsel for

the parties and having regard to the material made available on

record and more particularly looking to the reasons recorded by

the learned Railway Claims Tribunal in support of the impugned

judgment and the pleadings taken by the parties, I do not find

any impropriety or illegality in the impugned judgment requiring

interference by this Court.

Consequently, the appeal is dismissed. No costs.