Pramod Kumar and Kaliya Devi vs Union of India

Akhilesh Chandra, J.—Heard learned counsels representing the parties. This is an appeal preferred against the judgment dated 15.10.2004 passed by Railway Claims Tribunal, Patna Bench, in Claim Application No. OA9800004 refusing the prayer made on behalf of the Claimants-Appellants for compensation worth Rs. 4,00,000/- against death of his unmarried son, namely, Vinod Kumar, who was travelling by 5027 UP Maurya Express on 04.12.1997 and fell down from the train near Starter Signal of Silot station, resulting into his death.

The Railway-Respondent by filing written statement contested the claim with specific case that it was the deceased, who was standing on the gate of the compartment and negligently did not contain his body within the limited range and the head was dashed with stop-board resulted into his death and the Railway-Respondent is not liable to pay the compensation.

The Claim Tribunal, on the materials available, held that deceased was a bona fide passenger, but due to his own negligence, he died. Consequently, the Railway-Respondent is not at all liable to pay the compensation.

In view of the above, the only point for consideration in this appeal is that as to whether the Claimants-Appellants are entitled for the compensation and deceased died due to his own negligent act.

Undisputedly the deceased died during his journey in a train and the inquest report indicates that he sustained mainly head injuries, whereas, the postmortem report indicates two injuries sustained by the deceased, such as:-

(i) Lacerated injury 8" x 3 x brain deep on centre of head extending from frontal bone to occipital bone with fracture of frontal both parietal and occipital bone with injury to brain matter.

(ii) Multiple brains and abrasion of different shape, size on left shoulder, left side of chest and left dorsee of hand, left knee, left ankle and foot.

But on basis of the injuries sustained, it is evident that somehow or the other, the head of the deceased dashed with any object resulting into his fall from the train.

Learned counsel representing the Claimants-Appellants laid stress upon Exhibit - 1, the information given by the Station Master of Silot Railway Station within whose jurisdiction the accident taken place indicating that the train passed through did not stop and deceased fell down sustained head injuries and died. Further, it is contended that in investigation (Exhibit - 3) it comes that deceased boarding in a train on Silot Railway Station, but when the train, as per the statement of the Station Master, did not stop there, the investigation appears nothing, but a paper work. Moreover, the learned counsel relied upon a decision of High Court of Orissa in a case of Mataji Bewa and Others Vs. Hemanta Kumar Jena and Another, , where, in paragraph - 6 it is held:-

6...The contents of a charge-sheet cannot possibly be treated as an evidence in the claims proceeding.

On the above principle, submission made on behalf of the learned counsel representing the Railway-Respondent is that during police investigation it also came that it was the deceased, who was negligent in spite of warning given by different persons present at the time on the platform, he could not brought his head within safe zone and dashed, also cannot be accepted in absence of any other material.

Further, reliance is placed on a decision of Hon''ble Apex Court in a case Union of India (UOI) Vs. Prabhakaran Vijaya Kumar and Others, , where, in paragraph - 14 it is held:-

In our opinion, if we adopt a restrictive meaning to the expression ''accidental falling of a passenger from a train carrying passengers'' in Section 123(c) of the Railway Act, we will be depriving a large number of railway passengers from getting compensation in railway accidents. It is well known that in our country there are crores of people who travel by railway trains since everybody cannot afford travelling by air or in a private car. By giving a restrictive and narrow meaning to the expression we will be depriving a large number of victims of train accidents (particularly poor and middle class people) from getting compensation under the Railway Act. Hence, in our opinion, the expression ''accidental falling of a passenger from a train carrying passengers'' includes accidents when a bona fide passenger i.e. a passenger travelling with a valid ticket or pass is trying to enter into a railway train and falls down during the process. In other words, a purposive, and not literal, interpretation should be given to the expression.

On behalf of Claimants-Appellants there are only two witnesses examined i.e. A.W. 1, Bachchu Prasad, claimant and father of the deceased, undisputedly, not an eye-witness, but on the point of accident his evidence has no relevance. Another witness A.W. 2, Ramjee Prasad, in his examination-in-chief through affidavit has come to say that he along with the deceased and other co-passengers was travelling and standing near compartment door, at the moment, the train crossed the Silot Railway Station wherein there was sudden jerk resulting into fall of the deceased from the compartment. He intimated the father of the deceased after arriving at Muzaffarpur and return back at the place of occurrence. In cross-examination, he is specific that in spite of fall of the deceased the running train did not stop, consequently his arrival at Muzaffarpur without any halt in between, cannot be questioned in spite of the fact that it was the Railway, who could have brought the evidence of stoppage of the train in between the moment any accident took place and a bona fide passenger fell down from the running train and lost his life. In a normal course after any such accident the train is bound to stop, but if nothing of kind was done it further indicates the careless and inhuman act of the relevant persons under the control of the affairs of running train. If at all it was stopped and any due assistance was provided to the deceased, it could have been established by relevant entries on the station regarding time of arrival and departure or even passing through the particular stations coming in between Silot to Muzaffarpur.

No documents in spite of availability have been produced rather one witness has been examined by the Railway, namely, Roshan Ali, but his entire statement-in-chief on affidavit is based on the investigation report of the police which already stated cannot be taken as a piece of evidence.

The learned counsel representing the Railway-Respondent further placed reliance upon un-reported decision of this Court in a case of "Jagdish Singh Vs. The Union of India", dated 14.02.2011, passed in Miscellaneous Appeal No. 247 of 2010, but the said decision is not applicable in the instant case since it is evident in the said case, it appears the case of the claimant that deceased was travelling on the foot board, consequently, hit with the door of the passing good trains, whereas, in the case in hand, the matter is altogether different.

The learned counsel representing the Railway-Respondent tried his level best to establish that since copy of investigation report of the police was produced by the Claimants and marked as exhibit, but in absence of any comment in writing against such report, the Claimants-Appellants cannot challenge. But this submission is not acceptable since as stated earlier the investigation report appears only paper work more than real investigation while the investigating officers arriving at the conclusion that deceased boarded at Silot Railway Station which is contrary to the statement of Station Master also (vide Exhibit - 1). Having regard to the facts and circumstances, the death of the deceased cannot be said to be caused due to negligence on his part, which may exonerate the Railway-Respondent from the liability to compensate. Accordingly, the impugned order in the extent denying the claim is set-aside and the appeal stands allowed. The Railway-Respondent is directed to pay Rs. 4,00,000/- with interest @ 6% per annum to the Claimants-Appellants from the date of filing of the application till the date of actual payment.