The Union of India vs Maqboolbee

S.B. Shukre, J.—This appeal is preferred against the judgment and order dated 7th October, 2011, passed in Claim Application No. 72/OA-II/RCT/NGP/2009 awarding compensation of Rs. 4,00,000/- together with interest to the respondent.

Briefly stated, facts of the case are as under:

On 20th May, 2008, the respondent was travelling by a train along with her son deceased Syed Sher Ali and since her son was a handicapped person, the journey of the respondent along with her son was in the capacity as escort of her son. They were travelling from Aurangabad to Gangakhed by Tapowan Express. When the train approached Chikalthana Railway Station, it was taken on a loop line and when it was moving at slow speed, suddenly brakes were applied as a result of which there was a jerk felt by the respondent and her son leading to his accidental fall to the ground from the train. His fall from the train was on the adjoining track and at that time, to the misfortune of Syed Sher Ali, there was another train, Sachkhand Express, passing from that track. Syed Sher Ali was run over by that train and died on the spot. Since, this was an untoward incident, the respondent filed a claim application claiming compensation from the appellant.

The application was opposed by the appellant contending that there was no accidental fall of Syed Sher Ali from Tapowan Express and his running over by Sachkhand Express was not an untoward incident as defined u/s 123(c)(ii) of the Railways Act, 1989.

Learned Member of the Railway Claims Tribunal, however, after considering evidence on record and arguments of rival sides found that the death of Syed Sher Ali was an untoward incident and, therefore, granted compensation of Rs. 4,00,000/- to the respondent by his judgment and order dated 7.10.2011. Not satisfied with it, the appellant has preferred the present appeal.

I have heard Mr. P.S. Lambat, learned counsel for the appellant and Mr. R.G. Bagul, learned counsel for the respondent. With their assistance, I have carefully gone through the impugned judgment, order and record of the Tribunal.

Now, following points arise for my determination:

1) Whether the death of Syed Sher Ali on 20th May, 2008 was due to an untoward incident as defined u/s 123(c)

(ii) of the Railways Act, 1989 ?

2) Whether any interference with the impugned judgment and order is warranted ?

Mr. Lambat, learned counsel for the appellant has submitted that the evidence on record would show that the respondent could not prove the fact that the deceased Syed Sher Ali had accidentally fallen from Tapowan Express and thereafter was run over by Sachkhand Express. He submits that although there is no dispute about the fact that the deceased Syed Sher Ali was run over by Sachkhand Express, there is a room for saying that his being run over by the said train had no connection with his fall stated by the respondent to be accidental from Tapowan Express. In order to support this contention, he has taken me through the evidence brought on record by the rival parties.

Mr. Bagul, learned counsel for the respondent submits on the basis of same evidence that when the respondent has stated on oath that her son had accidentally fallen on the adjoining track and since there was another train passing from that track, he was run over by it, there is no reason to say that the accident would not squarely be within the scope of Section 123(c)(ii) of the Railways Act, 1989. He submits that the evidence adduced by the Railway Authorities is contradictory in nature. Therefore, according to him, learned Member of the Tribunal has rightly appreciated the evidence and correctly found that the incident comes within the definition of "untoward incident" and, therefore, there is no warrant in interfering with the impugned judgment and order.

Upon going through the evidence available on record, I am not inclined to accept the argument so canvassed on behalf of the respondent and I find that there is great substance in the argument of learned counsel for the appellant in this regard.

It is true that the Station Master-Ram Venkatrao s/o. Patloba Phad, who was examined by appellant as RW 1(A-59) was not an eye witness to the accident, but he being the controller of movements of the train, his evidence is certainly relevant for ascertaining the time of arrival of Tapowan Express and time of departure of Sachkhand Express from Chikalthana Railway Station. The incident has taken place at about 14.28 hours on 28.5.2008 as stated by this witness. But, according to him, when the incident occurred, Tapowan Express was already standing at Chikalthana Railway Station in stationary condition and that about 10 minutes after the arrival of Tapowan Express, that Sachkhand Express departed from that railway station. There is a suggestion given to this witness in his cross-examination taken on behalf of the respondent that after Tapowan Express entered in Chikalthana Railway Station, Sachkhand Express rolled up on the platform of Railway Station Chikalthana and this suggestion was denied by RW 1-Ram Venkatrao. After such denial, this witness has gone on record saying that 10 minutes after the arrival of Tapowan Express, Sachkhand Express departed from Chikalthana Railway Station. This answer has appeared in the cross-examination taken on behalf of the respondent and, therefore, assumes great importance. It creates a doubt about genuineness of version of the respondent about the manner in which accident. No further evidence of rebuttal as regards the said fact stated by RW 1-Ram Venkatrao has been given by the respondent. It was absolutely necessary for the respondent to have cleared the said doubt as it was the case of the respondent that the accident had occurred at a time when Tapowan Express was coming to a halt and Sachkhand Express was passing from another track at Chikalthana Railway Station. Since, this doubt has not been cleared by the respondent, The possibility that the deceased may have voluntarily jumped out of the train and standing or walking on the adjoining track for some reason has not been ruled out in this case. This possibility in fact, has appeared in this case, as seen from the evidence of Loco Pilot, RW 2 Shaikh Yusuf who has stated that he had seen the deceased on the track from which his train was passing and he had tried to drive the deceased away by blowing whistle. Therefore, it has to be said that respondent failed to establish the fact that the accident occurred due to a jerk experienced by Syed Sher Ali and his mother, the respondent after the brakes were suddenly applied by the driver of Tapowan Express at Chikalthana Railway Station.

Learned counsel for the respondent has pointed out to me some improvements made in evidence by RW 2, Shaikh Yusuf Abdul Aziz, (A-61), and some omissions in the memo of accident submitted by him, vide Exhibit-RW-1/2. In his opinion they create a doubt about reliability of RW 2, Shaikh Yusuf. It is true, he failed to mention in the memo of accident the fact that he had seen the deceased Syed Sher Ali as in the middle of the track from which Sachkhand Express was passing and he had tried to shoo him away from the track by blowing whistle. These facts, however, were deposed about by RW 2, Shaikh Yusuf, in his evidence recorded before the Railway Claims Tribunal. I do not think that said omissions in the memo of accident can be considered to be so material in nature as to create a doubt about the version of RW 2, Shaikh Yusuf Abdul Aziz, as regards the manner in which accident occurred. The reason being that the memo of accident is always about reporting of the accident and, therefore, would not necessarily contain details about how the accident occurred. It''s purpose is to set railway administration in motion as early as possible and, therefore, would not contain other details of the accident, which may require some time to be added in the memo of accident. If such details are to be mentioned, the process may ultimately delay the inquiry into the accidental death. There is also a possibility that the reporter may not be aware of exact reasons why a person came under the train in some cases. That apart, attention of said witness was not invited to these omissions in the memo of accident during his cross-examination. Therefore, no importance can be given to non-mentioning of the aforestated facts by RW 2, Shaikh Yusuf, in the memo of accident.

In view of above discussion, I am of the view that the learned Member of the Railway Claims Tribunal has committed a serious error in recording a finding that the respondent proved her case that death of her son Syed Sher Ali was due to an accidental fall from the train, she and her son were travelling by, and the accident fell within the definition of "untoward incident" u/s 123(c)(ii) of the Railways Act, 1989. The finding of the learned Member in this regard is required to be quashed and set aside and consequently the direction granting compensation of Rs. 4,00,000/- to the respondent will also have to be quashed and set aside. The claim for compensation lodged by the respondent cannot be allowed and this appeal deserves to be allowed. Both the points are answered accordingly.

The appeal is allowed.

A) The impugned judgment and order are hereby quashed and set aside.

B) The claim application claiming compensation from the appellant is hereby dismissed.

C) In the circumstances of the case, there shall be no order as to costs.

D) The amount deposited in this Court by the appellant is permitted to be withdrawn by the appellant.