SAIBIDIN vs UNION OF INDIA, GENERAL MANAGER

OA-HuDLI/I93/2022 BEFORE THE RAILWAY CLAIMS TRIBUNAL.

DELHI BENCH, DELHI CORAM: HON'BLE MEMBER (TECHNICAL), SHRI SHAILENDRA K.

SHARMA.

HON'BLE MEMBER (JUDICIAL), SHRI UMESH SHARMA.

0.A.

No.- OA-Ilu/DLI/193/22 Date of filing :- 25.07.2022 Date of decision :- 21.09,2023 Sh.

Saibidin (injured) S/o Sh.

Ram Lal, aged about 52 years, R/o Gali No.

I, Samta Vihar, A-Block, Part-2, Mukandpur, North West Delhi - 110042.

Versus Union of India through its General Manager, Northern Railway, Baroda House, New Delhi.

APPLICATION EOR CLAIM COMPENSATION Shri M.P.

Nagar, Ld.counsel for the applicant JUDGMENT Applicant Sh.

Ghanshyam Mishra, Ld. counsel for the respondent-railways By Sh.

Shailendra K.

Sharnma (Member Technical) ..Respondent 1 1.

The claim application has been filed by the applicant injured, Sh.

Saibidin, u's Section 16 of the Railway Claims Tribunal Act, 1987 read with Section 124-A of the Railways Act, 1989.

He sceks compensation for an amount of Rs.

4,00.000/-(Rupees Four Lakhs Only) alongwith costs and interest @ I8% per annum fronm the date of accident till realisation on account of injuries suflered by the applicant injured in alleged untoward incident that occured on I5.12.2021, while travelling by Train No.

12225 (Kaifiyat Exp).

OA-ll/DLWI93/2022 2 It is averred in the claim application that on 15.

12.2021 at about 9.00 PM the injured was travelling in Train No.

12225 (Kaifiyat Exp.) from Ambedkar Nagar to Old Delhi Railway Station; that there was heavy rush in the train and when the train reached near Railway station Akbarpur, UP and while the applicant was boarding the train, suddenly the train started moving and the injured fell down from the train and received several injuries; that the accident occured on account of negligence of the railway: that the matter was reported to the Railway Police who registered the case in PS.

Akbarpur Railway Police Station, U.P. vide G.D.

No.

046: that the ticket was lost during the course of the accident.

3. cident.

3.

Writen statement was filed by way of reply, wherein the respondent denied all the singular allegations, averments, contents, contentations and submissions made in the claim application.

It is submitted by the respondent that: the applicant injured was not travelling on any train as a bona-fide passenger as he was not found in possession of any ticket; that the alleged injuries to the applicant was not due to any act or omission, lack of duty on the part of the respondent in any manner; that the applicant has concocted a false story of a train accident just to get the Claim from the respondent and has concealed relevant, important and material facts from the Tribunal; that the accident happen due to the own misdeeds of the applicant, that during the investigation conducted by Investigating ofticer it is on record that on 15.12.2021 at 19/32 hrs. at Akbarpur Railway Station, platform no.

I, KM 906/30A-2NA, the applicant fell from the running train as he was trying to Catch thc running train for which n0 one eBse but the apphcant mjured is responsble, that the incdent happencd due to his own wrong, carelessness, fcpligence and rash act, that o bcket was found n hs posseSsion Hence, thhe qucsion of handing ovet a tihet to the polvc does not arisc at all.

Rest 2 of the para were denicd and it was prayed that the claim application may be dismissed in favour of the respondent in the interest of justice.

4.

The applicant in support of the claim has tendered into evidence certain documents besides evidence by way of affidavits of AW-1, Sh.

Saibidin, the applicant injured and AW-2, Sh.

Gajender Kumar Singh, ASI, RPF/Babarpur.

On the other hand, the respondent also cxamined Sh.

OA-Ilu/DLUI93/2022 Subhash Chouhan, Station Master, Akbarpur as RW-1.

5.

No replication was filed by the applicant injured. t injured.

On examination of the pleadings and after hcaring counsel for the respondent and going through the pleadings and report of DRM exhibit R-1, the following issues were formulated on 03.01.2023 for adjudication: III.

IV.

FINDINGS Whether the deceased was a bonafide passenger in the train in qucstion at the timc of incident ?

Whether there was any untoward incident as defincd under the provisions of Section 123(c) of Railways Act, 1989?

Whether the applicants are dependent of the deceased?

Whether the applicant is entitled for any relief and interest as prayed for in the application?

Relief if any?

6.

We have heard the arguments put forth by both the sides and also perused the matcrial on record.

Our findings on the various issucs are as under: 3 Issue No.:J&I OA-llu/DLV193/2022 7.

At the very outset, the ld. counsel for the respondent strongly contended that no journey ticket was recovered from the applicant injured and as per Sh.

Gajender Kumar Singh, ASI/RPF/ Akbarpur, who was present at the time of the incident and who attended the applicant injured after he fell down from the train while disposing as AW-2, stated in his examination-in-chief that the injured has himself told him that he was not having any ticket as when be had gone to purchase the ticket, the ticket window was closed.

The counsel for the respondent further argued that in the claim petition, the applicant injured has mentioned that he had purchased the ticket which got lost in the accident.

Hence, there is contradiction in the facts mentioned in the claim application regarding the purchase of ticket and the deposition of AW-2 i.c.

Sh.

Gajendra Kumar Singh, ASI/RPF/Akbarpur.

This fact regarding non recovery of ticket from the applicant injured has also been mentioned by Sh.

Gajendra Kumar Singh, ASI, RPF, Akbarpur, in his investigation report filled in the model proforma for Investigating officer of RPF for DRM's report under Railway Passengers (Manner of Investigation of Untoward Incidents Incidents) Rules 2003, Amendment Rules 2007.

8.

The counsel for the applicant on the other hand asserted that the applicant injured had purchased a ticket for his travel however, the same was lost in the incident when the applicant injured fell on the track.

He further asserted that this fact regarding purchase of ticket has been mentioned by the applicant injured in his claim petition in Para ll (1 XB) where it is mentioned that ticket no. lost during the course of the accident.

He also contended that in his examination-in-chicf as AW-1, The applicant injured in reply to the Court question as wcll as cross examination by the counsel for the respondent, had clcarly statcd that he purchascd the ticket from Akbarpur 4 OA-llWDLV193/2022 Station to Delhi for travelling by Kaifiyat Express and his ticket has becn lost in the incident.

9.

After hearing both the counscls and going through the evidence on record we are of the opinion that the applicant injured was a bona-fide passenger who was travelling on a valid ticket which was lost in the incident.

This conclusion is based on the fact that though in his examination-in-chief AW-2 Sh.

Gajendra Kumar Singh, ASIRPFIAkbarpur has deposcd that when on receipt of information he approached the injured, who was lying on platform no.

1, the applicant injured himself told him that he has not purchased any ticket as when he went to purchase the samc, the ticket window at Akbarpur station was closed.

In this regard, we are of the opinion that though the applicant injured has stated that he had purchased the ticket which was lost in the incident, but for the moment even if we agrec with the deposition of AW-2 that the applicant injured has not purchascd the ticket because the ticket window was closed at the Akbarpur station, we find that the applicant injured was not at fault for not taking a ticket. a ticket.

This is bccause as per the verification report submitted by Chicf Commercial Inspector, Akbarpur to the investigating officer, RPF, it was clearly mentioned that due to COVID-19 protocol, at that time i.e.

15.12.2021 the sale of unreserved ticket at Akbarpur station was stopped and these tickets were not being issued.

Hence, even if we agree with the facts mentioned in the deposition of AW-2, the applicant injured cannot be blamed for non purchase of ticket as he had the intention to purchase the tickct but as ticket window was closed. he could not do so.

10.

However, we are of the opinion that, we have no valid reason not to belicve the version of the applicant injured as put forth in his claim application as well as in his deposition as AW-1, wherein he has deposcd while answering OA-llWDLW193/2022 the court questions and in his cross examination that he had purchascd the ticket which was lost in the incident, his deposition as AW-I is as follows: (Reproduced in verbatim) (ufrart faquaa frGA) 11.

Coming to the aspect of loss of ticket in the incident, it is pertinent to mention that possession of journey ticket could certainly prove beyond any doubt that the applicant injured was a bonafide passenger however the mere absence thercof doesn't, by itsclf, lcad to a conclusion to the contrary.

The fall from a moving train could result in a horrifying situation when the victim suffers such grievous injuries, it would be difficult that the ticket remain to be intact with the applicant injured and loss of ticket and other articles cannot be ruled out.

12.

In this regard, it would be profitable to refer the relevant paragraph of a decision of Hon'ble Apex Court, rendered in the case titled as Union of OA-lHu/DLWI93/2022 India vs.

Rina Devi reported in 20I83) TAC 26(SC), which is reproduced hereunder: Para No.

17. ra No.

17.4 "we thus hold that mere prescnce of a body on the Railway premiscs will not be conclusive to hold that the injurcd or deccased was a bonafide passenger for which claim for compensation could be maintained.

However, mere absence of ticket with such injured or deccased will not negative the claim that he was a bona fide passenger.

Initial burden will be on the claimant which can be discharged by filing an affidavit of the relevant facts and burden will then shift on thc Railways and the issue can be decided on the facts shown or the attending circumstances.

This will have to be dealt with from case to case on the basis of facts found.

The legal position in this regard will stand explaincd accordingly." 13.

In this case the applicant injured has filed the affidavit and also deposed before the Tribunal that he has purchased the ticket which was lost in the incident.

Therefore, in view of the evidence on record and attending circumstances of the incident, it is held that the applicant injured was having a valid ticket for his journey which was lost in the incident and thus he was a bona-fide passenger of the train at the time of the incident.

14.

So far as the occurrence of the untoward incident is concerned the counscl for the respondent has submitted that during his deposition before this Tribunal as RW-I, Sh.

Subhash Chauhan Station Master Akbarpur, has stated in his examination-in-chief that on 15.12.2021 during his duty hours from i6 hrs. to 24 hrs. no untoward incident has taken place at Akbarpur Station. ln this regard his deposition during examination and cross exaination by respondent counsel is as follows; OA-HuDLUI93/2022 (Reproduced in verbatim) (ara faUIATA fJaEII ) 15.

The counsel for the respondent further contended that the Driver and Guard of the Train No.

12225 Up have also stated in their statements recorded by ASLRPF.Akbarpur that on 15.12.2021 during their duty in Train No .

Train No .12225 Up between SHG to LJN, no person was injured as per their knowledge and no one informed them about any such incident.

16.

Counsel for the applicant on the other hand contended that in the conclusion arrived at in the DRM Report, it has been concluded as under: d 3hGyR TY CST0I KM no.

906/ 30A-906/28A H a do 8 (Reproduced in verbatim) OA-llwDLVI93/2022 17.

In the form-1| of untoward incident column 25 also in the reason for the incident it has been mentioned that the applicant injured fell down while trying to board the moving train.

In his deposition AW-2 who was also the Investigating Officer of the incident also deposed as follows: (Reproduced in verbatim) 18.

Hence, the applicant injured having falling down from the train and getting injured is proved on record and there is no doubt regarding the applicant 9 OA-IluDLV193/2022 injured suffering injury duc to untoward incident.

As regards the plea of the respondent railway that the applicant injured suffered injuries due to his own self negligence, this plea is not tenable as the Railways Act fastens strict liability on the railways and this plca of negligent act by the respondent has been dealt by the Hon'ble Supreme Court in the case titled as Union of India vls Rina Devi (Civil Appeal No, 4945 of 2018 decided on May 9, 2018) wherein in Para 16.6 of the judgment, Hon'ble Supreme Court has observed as under: "16.6 We are unable to uphold the above view as the concept of 'self inflicted injury' would require intention to inflict such injury and not mere negligence of any particular degree.

Doing so would amount to invoking the principle of contributory negligence which cannot be done in the case of liability based on 'no fault theor:.' We mnay in this connection refer to judgment of this Court in United India Insurance Co. versus Sunil Kumar laying down that plea of negligence of victim cannot be allowed in claim based on no fault theory under section l634 of Motor vehicle Act, 1988.... " 19. .... " 19.

Therefore, in vicw of the evidence on record and the law laid down by Hon'ble Supreme Court in the case of Reena Devi (Supra), it is held that the injured while travelling in the train as a bonafide passenger met with an untoward incident as defined under section 123(c)(2) read with section 124A of Railways Act 1989 and sustained injuries.

Accordingly both these issues are decided in the favour of the applicants and against the respondent railways.

10 Issue No, IL JV & y OA-lu/DLUI93/2022 20.

These three issues being interrelated are decided together for the sake of Convenience.

As per the medical documents attached and examination of the injuries sustained by the applicant injured before this Tribunal jointly by the counsel for the applicant and counsel for the respondent in the presence of CLA, Sh.

Nihal Singh, it was unanimously agrecd by them that the injurics sustaincd by applicant injured fall under Entry No.

20 of Part II of the Schedule of amount of compensation payable under the Railways Accidents and Untoward Incidents (Compensation) Rules 1990.

In the case of injuries, the compensation is regulated on the basis of scheduled injuries and non scheduled injuries.

In this case, the injury suffered by the applicant is covered under scheduled injuries at Sr.

20 of Part Il of the schedule attached to the aforesaid rules for which an amount of Rs.

4,00,000/- (Rs.

Four Lakh Only) has been prescribed.

Therefore, the applicant injured is held entitled to receive an amount of Rs.

4.00,000/- (Rs.

Four Lakh only) as compensation for the injurics sustaincd by him during the said untoward incident from the railways-respondent.

ORDER 21. () In the result the present claim application is allowed on contest with an award of s.

Four Lakh only) alongwith interest (@ 9% from the date of accident till the date of payment. (I) Applicant is, hereby, directed to furnish his fresh Bank account particulars of a Nationalized Bank, as per the column no. column no.l3-A of their claim application, situated nearest to their place of residence, along-with the original Mandate Form, duly authenticated by the concerned Bank, self attested copics of his Aadhar card, PAN card etc., to the Presenting Oficer, Delhi, as well as the Addi.

Registrar, Railway Clais Tribunal, Principal Bench, Dclhi, within a period of 30 days.

The respondent atler receiving the aforesaid documents as well as bank aCCOunt particulars pertaining to the 11 OA-llwDLV193/2022 applicant shall immcdiately transmit all the details of the applicant to the Addl.

Registrar, RCT, Delhi, and thereafte, will deposit the entire awarded compensation, through RTGS in the Suitor's Account (ADR, RCT, Principal Bench, Delhi), within a period of 30 days.

Thereafter, on receipt of the requisite documents as well as that of the awarded compensation amount qua the applicant, the ADR/RCT/Delhi, shall disburse the compensation award amount, as directed above, to the applicant, after verification of his identity details and bank particulars, following the laid down duc procedure. (III)The accrual of interest shall cease on this date of the order.

However, in case the payment is not made by the respondent in the Suitor's account within the time prescribed, the interest shall start accruing again. (IV) It may be noticed that in Geeta Devi vs.

Union of India, Delhi High Court had observed as under : "5.

As Regards Amendment to the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990. $.1.

Many of thc claimants are drawn from rural areas with low levels of literacy and lower levels of making appropriate decision for the use of amounts guaranteed under the awards.

There are several instances of their Cxploitation by middlemen and touts operating in the field.

The scope for such exploitation is itsclf one of the incentives for fomenting bogus claims, fabricated documents and duplicate claims in different Benches of the Tribunal for the same cause of action. of action.

The availability of bulk funds in the name of an ill-informed claimant is also a cause for exploitation.

A scheme for protection of the amount due to such a claimant is the need of the hour.

Earlier, this Court has involved 21 Nationalised Banks in dialogue to evolve a schemc of annuities for disbursement of claims.

They have been ordered aiready to be implemented in this case vide directions passed on 22nd February, 2019.

This scheme as applied to motor accident claims has been approved by the Supreme Court in its order dt.

Sth March,2019 in Krishnamurthi vs New Indian Insurance Company SLP(C)No.

31521-31522 of 2017.

A statutory rule backing will therefore, best serve the interest of the litigant in thc manner set out beforc.

12 OA-lu/DLVI193/2022 5.2 Insert following Rule 5 after Rule 4 : Rule No.

5: Mode of payment -(I ) The Tribunal may, in order to protect the sum awarded to the claimant, having due regard to the illiteracy or other disabling factor impairing the judicious use of such sum issue directions for disbursing the award in terms of annuities, fixed deposits or other suitable mode as shall sub serve justice. (2) If any of the claimants is a minor or person of unsound mind, the Tribunal may give libertly to the guardian ad litem to use the interest accruals on the deposit that shall be made during the minority for maintenance. (3) Nothing in this Rule shall limit the power of the Tribunal to make modification of the mode of disbursal for reasons to be stated in writing depending on the exigencies requiring liquidation of any corpus created for annuity or premature closure of fixed deposit, for the bencfit of the claimant" In pursuance of the order passed by Delhi High Court, recently, Government of India has issued a Notification on 3rd of June, 2020 amending Railway Accidents & Untoward Incidents (Compensation) Amendment Rules 2020 amending Rule 5 which reads as under : "5, MODE OF PAYMENT : S1.

MENT : S1.

The Tribunal may, in order to protect the sum awarded to the claimant, having duc regard to the literacy or other disabling factors impairing the judicious use of such sum issue directions for disbursing the award in terms of annuities, fixed deposit or other suitable mode as shall sub serve justice.

5.2 If any of the claimants is a minor or person of unsound mind, the Tnbunal may give liberty to the guardian ad litem to use the interest aceruals 53 Nothingin this Rule shall lmit the power of the Tribunal to make modification of the ode of disbursal for reasons to be stated in wnting depend1ng on the cxigenies requrmg lqundation of any copus ereated for anuty o prenature cosure ol ixed deyposit, tor thie benetit ot the clalant.

13 on the deposit that shall be made durng the minority for maintenance OA-IlwDLVI93/2022 5.4 The orders dated 2Ist Apil.

2017.

24h May 2019. and 6th November.

2019 of Hon'ble High Court of Delhi in FAO No.

22/2015 and CM Application No.

4501/2015 in Geeta Devi Vs Union of india. relaung to disbursement of compensation shall be read as part of this rule.

22.

Therefore, relying upon the judgment rendered by Hon'ble Declhi High Court in the case of Geeta Devi and in pursuance of Rule 5 quoted above, in the present case, the amount of award along-with interest shall be disbursed in the following manner : () The applicant shall receive an amount of Rs.

Four Lakh oniy) alongwith proportionate interest. (ii) Out of the compensation amount awarded to the applicant, 10% of the award money shall be disbursed immediately through RTGS and the remaining amount shall be kept in Fixed Deposits on his name for three years. (iii) Consequently. the above claim application stands allowed with no orders as to the costs. (iv) A copv of this order bc sent to the applicant frec of cost. (v) Filc be consigncd to the rccord.

Umesh K Sharma Member (Judicial) Shailendra K.

Sharma (Member Technical)