FAO No. 5007 of 2009 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
--
FAO No. 5007 of 2009
Date of decision: October 14, 2009
Union of India ........ Appellant
Versus
Rukmani Devi and others .......Respondent(s)
Coram: Hon'ble Ms Justice Nirmaljit Kaur
-.-
Present: Ms Abha Rathore, Advocate
for the appellant
-.-
1. Whether Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in
the Digest?
Nirmaljit Kaur, J.
C M Nos. 24064 -24065 CII of 2009
For the reasons stated in the applications, delay of 43 days and 35
days, respectively, in filing and re-filing the appeal are condoned.
C.Ms. stand disposed of.
Appeal
This is an appeal against the order dated 19.02.2009 passed by the
Railway Claims Tribunal, vide which, the respondents-claimants i.e. widow,
son, minor son and minor daughter were awarded a sum of Rs.4,00,000/- as
compensation on account of death of Baldev.
FAO No. 5007 of 2009 2
While challenging the aforesaid order, learned counsel for the
appellant submitted:-
i) the incident does not fall under Sections 123 (c), 124-A and
alternatively the Railway Administration was protected under Section 12 A (c)
of the Railway Act, because the deceased was travelling on the roof of the
train, which is an offence;
ii) The claimants did not produce any ticket or particulars of
the ticket, purchased by the deceased for travelling on any train. As no ticket
was recovered from the body of the deceased, the deceased was not a
passenger as per Section 124 of the Act;
iii) The Tribunal had failed to note the discrepancies regarding
the time given by the one witness whose statement was recorded by the police
i.e. AW-4 Jagdish. He has stated that the drowning of the deceased was before
7.00 am on 10.02.2002 whereas, the train No. 4 JNK had passed over the
bridge around 1.00 p.m;
iv) That father of the deceased-Amar Nath had stated before the
police on 14.02.2002 that he was travelling on the same train. However, he has
not examined himself as a witness which appears highly suspicious;
v) No FIR in this regard was registered;
vi) That the Tribunal had also failed to appreciate the evidence
given by RW-1 that there were passengers on the roof top of Pehowa Road
Railway Station, who could not be removed because of non availability of GRP
at that Station. The alleged incident is after this station. Hence, the order
passed by the Tribunal is incorrect and is liable to be set aside; and
vii) The appellant Railway Administration produced RW1
FAO No. 5007 of 2009 3
Guard of the train who has given evidence that there was heavy rush of
passengers and many persons were sitting on the roof of the train at Kaithal
and he gave a report to the Station Superintendent to have these persons
removed from the roof with the help of GRP and the train was allowed to move
after persons on the roof of the train were removed. He further stated that
again it was found that people had climbed on the roof of the train at Railway
Station Pehowa Road. Warning was given by making announcements that
there was high voltage electricity wire at Kurukshetra, therefore, they should
come down from the roof of the train. But since, no GRP force was available
at Railway Station Pehowa Road as such no action could be taken to remove
the persons who were on the roof of the train. The alarm chain was pulled at
K.M. 80/5-6 and he was informed that some persons have fallen down from the
train at kilometres 78/4-5. He went to the Coach from which the chain was
pulled and made enquiries and was told that no person had fallen from the
coach but cries had been heard from persons sitting on the roof top of the
coach. The train was reversed to K.M. 78/4-5 but nobody was found on the
tracks or nearby who had fallen down, and the train proceeded. On cross
question, he pointed out that there were four stations between Kaithal and
Kurukshetra where train No. 4 JNK stops and any person can climb on the roof
when the train starts because it is dead slow at that time.
Learned counsel for the appellant has been heard.
The case of the claimants in the claim petition was that on
10.02.2002, deceased Baldev was travelling on the roof of a passenger Train
No. 4 JNK which was coming from Narwana to Kurukshetra at about 01.00
p.m. Due to heavy rush, the deceased fell down from the train into the river
FAO No. 5007 of 2009 4
and was drowned.
Taking up the argument of the learned counsel for the appellant
that the incident does not fall under Sections 123-c and 124-C of the Railways
Act and that the deceased was not a bona fide passenger, as he was not
carrying a ticket, is liable to be rejected on account of the fact that it was a case
of the deceased having drowned in the canal after falling from the roof of the
train. It is admitted that the body of the deceased was found after three days.
The ticket in possession of the deceased was washed away and could not be
recovered. Thus, there is nothing on record to prove that the deceased was
travelling ticket-less. In this view of the matter, the deceased has been rightly
held to be a bona fide passenger.
Taking up the other arguments of the learned counsel for the
appellant that there were discrepancies in the evidence of the witnesses that
drowning of the deceased was before 7.00 a.m. on 10.02.2002 whereas, Train
No. 4 JNK had passed over the bridge at around 1.00 pm, cannot be accepted,
as this fact was required to be proved beyond doubt by the appellant-Railway,
which has not been proved.
Further, the argument that the father of the deceased Amar Nath
although stated that he was travelling by the same Train, did not examine
himself, cannot be termed as fatal to the finding in view of the other concrete
evidence led by the claimants. In fact, the arguments raised by the learned
counsel for the appellant that a number of persons were removed from the roof
of the Train with the help of GRP, but subsequently, the people climbed up on
the roof of the Train at the Railway Station at Kaithal and Pehowa Road in
spite of the warnings and announcements, rather prove the case of the
FAO No. 5007 of 2009 5
claimants that there was a heavy rush and the people had climbed up the roof
of the train. The Witness RW1-Railway Guard produced by the Railways
leaves no doubt that the incident did occur. RW1 was cross examined on
18.07.2007 and during testimony the witnesses stated that the passengers had
boarded roof top of train at Kaithal and with the help of GRP and RPF all
passengers on the roof top were removed and only then the train was directed
to move-chain was pulled at KM. 80/5-6 between Pehowa Road and
Kurukshetra. On enquiry of reason for ACP pulling, two persons came to him
and informed orally that some persons fell down from the train before the train
crossed the canal and that it was not correct to suggest that three persons had
fallen in the canal. He stated that it was true to suggest that two persons fell
down due to heavy rush-it was true to suggest that when he was permitted to
start the train from Kaithal Railway Station, there was nobody on the roof of
the train- it was possible that persons could climb on the roof of the train when
the train started because speed of the train was slow; copy of station memo
dated 10.06.2002 at 12 hours. EX R-1A Guard memo dated 10.06.2002 proves
that ACP was pulled in coach No. 16248 at Km. 80/5-6. This evidence rather is
enough to show that two persons did fall from the train, which is evident from
R-1A to R5-A, as also the fact that the train was reversed to the site of the
incident. Further the circumstantial evidence of the recovery of the body from
the canal also supports the story of the claimants.
In view of the aforementioned facts, the incident cannot be denied
on the ground that no FIR was lodged, especially when the entire information
was admittedly supplied to the RW1, the Guard.
Thus, no fault can be found with the finding recorded by the
FAO No. 5007 of 2009 6
Tribunal that the deceased was a bona fide passenger and died due to
untoward incidents by falling in the canal by travelling on the roof top of the
Train.
Dismissed.
(Nirmaljit Kaur)
Judge
October 14, 2009
mohan