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
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For Appellant(s) : Mr. S.N. Meena, Adv.
For Respondent(s) : Mr. Ajay Shukla, Adv.
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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/