Anil Kumar & Ors. v. Union of India through GM, Northern Railways

Mr. K.L. Dhingra, Advocate for the respondent. ..... Mohinder Pal, J. The appellants are aggrieved against the judgment dated

25.2.2010 passed by the Railway Claims Tribunal, Chandigarh Bench, Chandigarh (hereinafter referred to as `the Tribunal') whereby claim petition originally filed by Savitri Devi mother of the appellants (died during the pendency of the petition) seeking compensation on account of the death of Ashok Kumar in a railway untoward incident on 13.10.2004 has been dismissed by holding that the deceased was not travelling by train No.1DRB, therefore, he was not a bona fide passenger at the time of F.A.O. No.4786 of 2010 (O&M) [2] incident, which prohibits payment of any compensation to the claimants as per the provisions of Section 124-A of the Railway Claims Tribunal Act (`hereinafter referred to as `the Act’). Ashok Kumar was travelling from Nangloi to Rohtak on

13.10.2004 by train No.1DRB with ticket bearing No.75348 which was recovered from his person in the `Jamatalashi’. He purchased railway ticket from Nangloi to Rohtak and boarded the train. He accidentally fell down at KM No.66/1-2 between Rohtak and Asthal Bohar railway stations and died at the spot. Immediately, Sukhbir Singh, Gangman gave intimation to Station Master, Rohtak. The GRP, Rohtak reached at the spot and prepared the whole report and recovered one railway ticket from Nangloi to Rohtak in personal search of the deceased. The GRP gave intimation to Anil Kumar brother of deceased Ashok Kumar over telephone. I have heard Mr. Somesh Gupta, Advocate, appearing for the appellants and Mr. K.L. Dhingra, Advocate, appearing for the respondent-Union of India and have gone through the records of the case. Learned counsel for the appellants has argued before me that deceased had boarded train No.1DRB from Nangloi to Rohtak and during the journey he fell accidentally and died on the spot, therefore, this is an untoward incident which comes within the ambit of Section 123(c)(2) of the Railways Act and the appellants are entitled to receive compensation from the Railway Administration. On the other hand, Mr. K.L. Dhingra, learned counsel for the respondent had argued that the deceased was not a bona fide passenger and F.A.O. No.4786 of 2010 (O&M) [3] it is not proved that he was traveling in train No.1DRB, hence it is not an untoward incident within the meaning of Section 123(c)(2) of the Railways Act. He further argued that the appellants were not dependent on the deceased and they are not entitled to claim compensation and the order passed by the Tribunal is well reasoned and no interference is called for. It is the case of the appellants that deceased had to go from Nangloi to Rohtak to his home. After purchasing ticket No.75348, he boarded train No.1DRB, which was going towards Rohtak. During the journey, he fell accidentally from the train and suffered multiple grievous injuries and died at the spot. While declining the claim of the appellants, the Tribunal has observed that from the copy of death report (Ex.A.8), it comes out that the dead body was found lying on the outer side of Down line between KM No.66/2-1. In the site-plan as annexed with the death report, it is shown that UP line is going towards Rohtak side from Asthal Bohar side. The dead body of the deceased was found lying not on the UP line nor in between Up and Down lines, but rather found beyond the Down line in the north side. As per the testimony of Anil Kumar (AW-1) brother of the deceased, Ashok Kumar had boarded train as he was to travel for his native place i.e. Bhiwani from Nangloi, but the ticket shown to have been recovered from the personal search of the deceased was upto Rohtak only and no explanation had been advanced by the appellants side regarding the journey of the deceased upto to Rohtak only and not for Bhiwani while AW-1 has deposed in para No.2 of his affidavit that the “deceased was going back to his home”. The DRM in his report has recorded that Ashok Kumar was the bona fide passenger of the Railways, but he has stated that F.A.O. No.4786 of 2010 (O&M) [4] he was sick and during his traveling in the train, he fell down. Even during inquest proceedings, Peria Swami Gagman own employee of the Railway in his statement (Ex.AR) has deposed that the death of Ashok Kumar has occurred in a Railway accident and one railway ticket from Nangloi to Rohtak has been recovered from his person. In the inquest-report the cause of death has been recorded as Railway accident. From the above, it is evident that Ashok Kumar has died in a Railway accident. It was thus proved that Ashok Kumar was a bona fide passenger. The Supreme Court in Union of India v. Prabhakaran Vijaya Kumar and others, 2008 (3) RCR (Civil) 577 has held that a passenger trying to board a moving train, if fell down and died, the Railway Authority is liable to pay compensation even if there was no fault on the part of the Railways, or that there was contributory negligence. It has been held that Section 124-A lays down strict liability or no fault liability in case of railway accidents, hence, if a case comes within the purview of Section 124- A it is wholly irrelevant as to who was at fault. The Supreme Court has relied upon an earlier decision of the Constitution Bench in M.C. Mehta v. Union of India, AIR 1987 SC 1086. In the present case the death of Ashok Kumar having occurred in railway accident is even admitted by its own employee-Gangman Peria swami during the course of his statement recorded under Section 175 Cr.P.C. and as such provisions of Section 124- A of the Railways Act are not attracted in this case. Since Smt. Savitri Devi expired during the pendency of the claim application, the appellants who are sons of Savitri Devi (brothers of the deceased) were brought on the record. The respondent has not adduced F.A.O. No.4786 of 2010 (O&M) [5] any evidence to controvert that the appellants are not the legal heirs of the deceased. On 17.10.2011, this Court passed the following order:- “During the course of arguments, it has come to my notice that one Savitri Devi claiming herself to be mother of Ashok Kumar (deceased) filed application for compensation from Railway Administration (respondent) and she died during the pendency of proceedings before the Tribunal. Brothers of the deceased have been brought as LRs of original claimant Savitri Devi. It has also come on record that husband of deceased Savitri Devi original claimant has already expired. Learned counsel for the respondent has submitted that brothers of the deceased, now appellants No.1 to 3 who are aged 43, 40 and 34 years, being majors are in no way said to be dependents upon the deceased Ashok Kumar and as such are not entitled for compensation amount. On the hand, learned counsel for the appellants has submitted that under issue No.3 it has been held by Tribunal that appellants are the legal heirs of the deceased Ashok Kumar and as per law they are certainly entitled to claim compensation on account of the death of the deceased. Learned counsel for the appellants has submitted that before appreciating the legal position, some time may be given to him for production of law on this point. F.A.O. No.4786 of 2010 (O&M) [6] In view of the request of the counsel for the appellant, case is adjourned to 19.10.2011.” Learned counsel for the appellants has made reference to Order XXII Rule 1 and 3 of CPC and also relied upon the judgment of this Court in Dhyan Singh and another v. Union of India and others, 1 (2010) ACC 102 (DB) in which similar plea was taken before the Division Bench of this Court that except the petitioners there is no other legal heir or dependent who is entitled to claim compensation under Railways Act, 1989. It was contended that the dependents mentioned in clauses (ii) and (iv) are not the financially dependent but has to be construed as the one who is entitled to claim compensation on account of loss of the estate as well. Further, it was contended that in the absence of any other legal heir, the petitioner No.2 (all appellants in the case in hand) is (are) the nearest legal heirs of the deceased. While deciding the matter in favour of the petitioners, the Division Bench of this Court also referred to the provisions of Section 8 of the Hindu Succession Act, 1956 and also referred to the decision of Full Bench of this Court in Parkash Chand v. Pal Singh, AIR 1984 P&H 329 wherein the brothers were also held to be entitled to claim compensation on account of loss of the deceased. The Division Bench of this Court in Dhyan Singh’s case (supra) held as under:- “The provisions of the Motor Vehicles Act, 1939, authorized a legal representative of the deceased to claim compensation. Under the Railways Act, the legal representatives have not been specifically made eligible to apply for compensation. The Railways Act being a Central Act, as also Fatal Accidents Act, F.A.O. No.4786 of 2010 (O&M) [7] can be deemed to supersede such provisions of the Fatal Accidents Act for which corresponding provision is made under the Railways Act. Since there is no corresponding provision in the Railways Act in respect of Compensation for the loss of estate and the person entitled to claim compensation, would continue to be governed by the provisions of Fatal Accidents Act, 1855. Therefore, loss to the estate falling within Section 2 of the Fatal Accidents Act, 1855 could be claimed by the legal representatives of the deceased. The Railways Act will only supersede the provisions of Section 1-A of the Fatal Accidents Act, 1855, whereas loss to the estate computable under Section 2 of the Fatal Accidents Act can be claimed by the legal representatives but from a forum created under the RCT Act in view of the bar of jurisdiction of civil Court. The provisions of Section 2 of the Fatal Accidents Act, 1855, cannot be deemed to be superseded by enactment of Railways Act and the Railway Claims Tribunal Act, 1987. The substantive right created by the Fatal Accidents Act, 1855, cannot be deemed to have been curtailed in any manner by the enactment of the aforesaid Acts. The subsequent enactment has only changed the forum from the civil Court to the Tribunal constituted under the Railway Claims Tribunal Act, 1987. Thus, the compensation on account of loss of estate could be claimed by the eligible legal representatives from the Railway Claims Tribunal in accordance with the procedure prescribed F.A.O. No.4786 of 2010 (O&M) [8] under the Railways Act.” A perusal of the above shows that the compensation on account of loss of estate could be claimed by the eligible legal representatives from the Railway Claims Tribunal in accordance with the procedure prescribed under the Railways Act. It stands proved on record that Ashok Kumar, brother of the appellants had died in an untoward incident. So far as payment of compensation in the case of death or injury to a railway passenger in the course of a railway accident or untoward incident is concerned, the same is governed by the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990 as amended in 1997. These Rules provide a sum of `4,00,000/- as compensation on account of the death of a railway passenger. So, the appellants are held entitled to a sum of `4,00,000/- as compensation. Resultantly, this appeal is allowed and claimants-appellants are awarded compensation of `4,00,000/- in equal shares which the respondent- Railways shall pay from the date of this order within sixty days. October 19, 2011. *hsp* (Mohinder Pal) Judge