U O I Through G M North West Railway … vs Smt Rishi Bai on 25 October, 2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
JUDGMENT
S.B. Civil Miscellaneous Appeal No. 2908 / 2015
Union of India through General Manager, North Western Railway,
Jaipur (Rajasthan).
—-Non-Claimant/Appellant
Versus
Smt. Rishi Bai W/o Late Shri Dinesh Singh @ Chikna, R/o
Gram/Post Ratiyapura, Tehsil District Karauli (Rajasthan).
—-Claimant/Respondent

__
For Appellant(s) : Mr. S.N. Meena, Adv.

For Respondent(s) : Mr. Ajay Shukla, Adv.

__
HON’BLE MR. JUSTICE DINESH CHANDRA SOMANI
Date of Judgment :: 25/10/2017

The instant appeal under Section 23 of the Railway Claims

Tribunal Act, 1987 has been preferred by the non-

claimant/appellant (hereinafter referred as “the non-claimant”)

against the judgment dated 05/05/2015 passed by Railway Claims

Tribunal, Jaipur Bench, Jaipur (hereinafter referred as “the

Tribunal”) in OA-II/67/2008, whereby the claim application filed by

the claimant-respondent, has been partly allowed and a sum of

Rs.4,00,000/- has been awarded as compensation along with

interest @ 6% per annum from the date of registration of claim

application i.e. 09/05/2008 till the date of award and thereafter @

9% per annum till the date of actual payment.

Skeletal material facts necessary for disposal of this appeal

are that the claim application has been filed by the widow of the

deceased being sole dependent of deceased under Section 16 of
(2 of 10)
[CMA-2908/2015]

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 @ 18% per annum on account of death of

her husband Dinesh Singh @ Chikna in alleged untoward incident.

It has been averred in the claim petition that on 31/03/2008, the

deceased Dinesh Singh @ Chikna purchased a ticket of second

class for journey from Jaipur to Delhi and he boarded in second

class compartment of the Mandore Express from Jaipur Railway

Station. When the said train reached KM 152/4-5 near railway

bridge, Bandikui, due to sudden jerk of train, husband of the

claimant fell down from the running train. Because of this sudden

accidental fell down, he sustained serious injuries and died on the

spot. It is also averred that report of the aforesaid incident was

submitted by the Station Master, Bandikui through memo to SHO,

GRP, Bandikui and on receiving the said information, Marg Report

No.8/2008 under Section 174 of CrPC was registered. The

claimant submitted copies of FIR, post-mortem report and original

wedding invitation card along with the claim application.

The non-claimant/appellant Railway Administration filed its

written statement along with DRM’s report, denying all the

material averments of the claim application. It has been pleaded

therein that the deceased died due to travelling on the roof of the

train and the deceased himself is responsible for his negligent act.

As such, the present case is covered under exception “b” and “c”

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

which the claimant is not entitled for any compensation. On basis

of these averments and other pleas, the non-claimant/appellant
(3 of 10)
[CMA-2908/2015]

prayed for dismissal of the claim application.

On basis of the pleadings of the parties, the learned Tribunal

framed following issues:-

1. Whether the deceased was travelling on a valid railway

journey ticket and was a bonafide passenger of the train

in question at the relevant time?

2. Whether the deceased met with an untoward incident,

sustained injuries and died as a result thereof as alleged

in the claim application and the said incident is covered

under the definition of Section 123(c)(2) of the Railways

Act, 1989?

3. Whether the applicant is the sole dependent of the

deceased and is entitled to compensation as claimed under

Para 16 of the claim application?

4. Relief?

In support of the claim application, the claimant Smt. Rishi

Bai wife of the deceased has filed her own examination in chief on

affidavit and exhibited documents as Ex.-A/1 to Ex.-A/9. She was

cross-examined by learned counsel for the non-

claimant/appellant. The non-claimant/appellant in it’s evidence

has filed examination in chief of Shri Sanjeev Kumar Jain on

affidavit and exhibited DRM’s report as Ex.-R/1. Said witness was

cross-examined by learned counsel for the claimant and during

cross-examination, the learned counsel for the claimant exhibited

Ex.-A/10 to Ex.-A/13.

After hearing learned counsel for both the parties, the
(4 of 10)
[CMA-2908/2015]

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

deceased was bonafide passenger at the time of the incident, who

had a valid train ticket and was travelling in passenger train

No.2426 from Jaipur to Delhi and that the death of the deceased

took place due to untoward incident as a result of accidental fall

from the running train and the said untoward incident fulfills the

requirement of Section 123(c)(2) of the Railways Act, 1989.

Learned Tribunal decided issue No.3 in the manner that the

present claimant is the sole dependent of the deceased as

stipulated under Section 123(b)(i) of the Railways Act, 1989 and

partly allowed the claim application as mentioned hereinabove.

Mr. S.N. Meena, learned counsel for the appellant contended

that the incident took place due to the carelessness of the

deceased, which is proved by the statement of defence witness

Sanjeev Kumar Jain (the guard of the said train), who

categorically stated that one person was lying on the roof of the

train and one sepoy of GRP asked to stop the train, whereupon the

train was stopped and dead body of the said person was brought

down by the GRP staff. The witness also stated that on written

memo to this effect was prepared by the GRP. Even then, the

learned Tribunal awarded compensation in favour of the

claimant/respondent and thereby committed serious error.

Learned counsel for the appellant also contended that the

learned Tribunal has committed serious error in relying upon the

statement of Devi Sahai (Gang Jamadar), who forwarded

information on walkie-talkie set to Shri Ramesh Chand Meena,

ASM on duty that at KM 152/4-5 a person is lying dead near the
(5 of 10)
[CMA-2908/2015]

railway track, whereas it is crystal clear from the annexures of

DRM’s report that the deceased was travelling on roof of the train,

therefore impugned judgment is liable to be quashed and set

aside.

Learned counsel for the appellant also contended that the

deceased died due to travelling on roof of the train and he himself

is responsible for his negligent act, as such the case is covered

under exception “b” and “c” of Section 124-A of the Railways Act,

1989 and the claimant is not entitled for any compensation. Even

then, the learned Tribunal wrongly came to the conclusion that the

incident is a result of an accidental fall from the running train.

Learned counsel for the appellant further contended that the

learned Tribunal committed illegality in not considering the fact

that the deceased was standing on roof of the train and due to

collision with the bridge, he sustained injuries and died. Therefore,

the claim is barred under Section 124-A (a) of the Railways Act

and prayed to allow the appeal and to dismiss the claim

application.

Per contra, Mr. Ajay Shukla, learned counsel for the

claimant/respondent strongly opposed the contentions of learned

counsel for the appellant and supported the impugned judgment

and submitted that the learned Tribunal has rightly held that the

deceased was travelling on valid railway journey ticket and he was

a bonafide passenger of the train at the material time. Learned

counsel also submitted that from the documentary evidence

produced on record, it is crystal clear that death of the deceased

took place due to an untoward incident as a result of accidental
(6 of 10)
[CMA-2908/2015]

fall from the running train and prayed to dismiss the appeal being

devoid of merits. In alternative, learned counsel also submitted

that for the sake of argument, if it is presumed that the deceased

died due to travelling on roof of the train, even then the Railway

Administration is liable for payment of compensation to the

claimant/respondent because the issue has already been

considered and decided by the Hon’ble Apex Court against the

Railway Administration in the matter of Anil Kumar Gupta

versus Union of India Ors. reported in 2016 Supreme (SC)

514.

I have considered the submissions made by learned counsel

for the parties and perused the impugned judgment and record of

the case.

The claimant Smt. Rishi Bai deposed that her husband

Dinesh Singh @ Chikna (deceased) purchased a ticket of second

class for journey from Jaipur to Delhi and he boarded in second

class compartment of the Mandore Express. The claimant also

stated that when the said train reached KM 152/4-5 near railway

bridge, Bandikui, the deceased fell down from the running train

due to sudden jerk in the train. During cross-examination, she

maintained the averment that her husband was a bonafide

passenger, who purchased the ticket and the same was recovered

by GRP vide seizure memo Ex.A-6. The fact that the deceased was

travelling in the train with a valid railway ticket at the relevant

time stands corroborated by the DRM’s report Ex-R/1 also, which

specifically states that a ticket bearing No.35387903 was

recovered from the pocket of the deceased, while preparing
(7 of 10)
[CMA-2908/2015]

panchayatnama of the deceased (Ex.-A/4). In view of the above

evidence, learned Tribunal concluded that the deceased was

bonafide passenger of the train in question at the relevant time.

There is nothing on record to disagree with the finding of the

Tribunal in this regard.

Claimant-Respondent Smt. Rishi Bai also deposed in her

affidavit that on 31/03/2008, her husband Dinesh Singh @ Chikna

boarded on the Mandore Express and when the said train reached

KM 152/4-5 near railway bridge, Bandikui, he fell down from the

running train. In cross-examination, the witness admitted that she

is not an eye witness of the incident.

In rebuttal, witness of the respondent Sanjeev Kumar Jain

(Guard of the said train) deposed in his affidavit that on

31/03/2008, he was on duty in passenger train No.2462 from

Jaipur to Delhi. After the train departed from Bandikui Station, one

sepoy of GRP informed that one person is lying on roof of the train

and asked to stop the train, whereupon the train was stopped and

dead body of the said person was brought down by the GRP staff

and a written memo was prepared in this regard by GRP and

further proceedings were carried on by the GRP. The witness

further stated that he has no knowledge as to how the person

become injured and unconscious, In cross-examination, the

witness stated that he has not seen the incident. The claimant got

exhibited documents Ex.A/10 to Ex.A/13 from the witness during

his cross-examination.

Ex.-A/1 is the information given by Gang Jamadar Devi Sahai

on walkie-talkie set to ASM, Shri Ramesh Chand Meena, Bandikui
(8 of 10)
[CMA-2908/2015]

that at KM 152/4-5, a person is lying dead on the railway track.

This information has been sent by SM(P), Bandikui to SHO-GRP,

Bandikui on 31/03/2008 at 6.50 hours. Ex.-A/2 is Marg Report

No.8/2008 under Section 174 of CrPC registered at Police Station

GRP, Bandikui on 31/03/2008 for the said incident. Ex.-A/3 is the

identification memo of dead body of the deceased Dinesh Singh @

Chikna.

During inquiry, GRP prepared panchnama of dead body,

which is Ex.-A/4. According to Ex.-A/4, the deceased died due to

train accident. It is not mentioned in Ex.-A/4 that the deceased

died as he was travelling on roof of the train. According to site

plan (Ex.-A/5) prepared by GRP, the dead body was lying near the

railway track. Ex.-A/7 is post-mortem report of the deceased

Dinesh Singh @ Chikna. It is mentioned in PMR (Ex-A/7) that the

death caused due to falling from a train near railway bridge.

Ex.A/10 is the statement of Ramesh Chand, ASM, Railway Station,

Bandikui recorded by GRP during inquiry under Section 174 of

CrPC, which corroborates the information forwarded vide Ex.A-1.

It is pertinent to mention that the documents Ex.-A/1 to Ex.-

A/5 bring forwarded the initial version of the Railway, which

establishes the fact that the dead body of deceased Dinesh Singh

@ Chikna was found near the railway track. Statement of non-

claimant’s witness Mr. Sanjeev Kumar Jain (Guard of the train),

more particularly with regard to the fact that GRP staff brought

down the body of the deceased from the roof of the coach No.S-8

does not find place in any document prepared by the GRP i.e. Ex.-

A/1 to Ex.-A/5.

(9 of 10)
[CMA-2908/2015]

From perusal of DRM’s report Ex.-R/1, it reveals that RPF

recorded some statements after filing of the claim petition by the

claimant/respondent,which have been annexed with the DRM’s

report to prove that the deceased was travelling on the roof of the

train. The statements annexed with the DRM’s report were

recorded at belated stage, therefore, cannot be relied upon. It is

pertinent to note that the appellant Railway Administration did not

produce any evidence to the effect that some passengers were

travelling on the roof of the train when the train departed from

Bandikui Railway Station or any announcement was made to warn

the passengers travelling on roof of the train, which is an

important ingredient of Section 156 of the Railways Act. The

evidence produced by the non-claimant Railway does not reveal

that any warning was given to the passengers travelling on roof of

the train to get the roof riders come down from the roof.

From the discussions made above, the evidence produced by

the claimant/respondents appears to be more close to the reality

and the defence taken by the non-claimant/appellant that the

body of the deceased was brought down from roof of the coach

No.S-8 appears to be afterthought. In catena of judgments,

Hon’ble Apex Court has held that the liability of Railway is strict

liability even if there is negligence of a passenger, unless and until

the negligence is a criminal negligence or a case of suicide or self

inflicted injuries. Emphasis of Section 123(c) and 124-A of the

Railways Act is to give relief to a bonafide passenger on account of

an untoward incident. It is well settled proposition of law that once

a person is found to be a bonafide passenger travelling on valid
(10 of 10)
[CMA-2908/2015]

train ticket, the railway should be fastened with the liability to pay

compensation to the dependents of the deceased victim.

In view of the discussions made above, it can safely be

concluded that death of Dinesh Singh @ Chikna took place due to

an untoward incident as a result of accidental fall from the running

train.

In the matter of Anil Kumar Gupta versus Union of India

Ors. (supra), few passengers were travelling and

sitting/standing on the roof of the coaches of Himgiri Express, got

struck against the Public Foot Over Bridge. In the incident, 14

persons were crushed and 20 others were seriously injured having

been hit by the Over Bridge and fallen from the roof top. Hon’ble

Apex Court has held that though the people who travelled on roof

also contributed to the mishap, the Railway Administration was

not free from blame and directed that the next of kin of those who

died in the incident and those who sustained injuries must be duly

compensated by the Railway Administration.

In view of the discussions made above, there is no substance

in the appeal preferred by the non-claimant/appellant.

Consequently, the appeal is dismissed. No costs.

(DINESH CHANDRA SOMANI)J.

Manish/

Leave a Comment

Your email address will not be published. Required fields are marked *