RAVIKANT TRIVEDI S/O LT INDRAJEET TRIVEDI vs GM/SECR

Case No OA/II(u)/BPLl6612020 Date of incident 04.10.2019 Date of Registration 16.03.2020 Date of Decision o \- oq.z"LJ Versus ...,.RESPONDENT Claim for Rs.

8,00,000/ Represented by : Shri Ashok Kumar Srivastava/Sm tFazanaAziz,Counsel for the Applicani Shri lnderjeet Singh Rajput, Ld.

Counsel for Respondent' JUDGMENT 1.

Applicant has filed the present claim application clairning Rs, 8,00,000/- under section 16 of the Railway Claims Tribunal Act, 1989, for the death of his Mother )effisfrr+rfitfr (hereinafter called the deceased) in an untoward incident on 04.10.2019 Z, Applicant vide his claim petition, has averred that -ftrrma.10.201e6i+frm effiqfranfr+fr'+er Atg*S*{qrmsft"rfiqRqrSAEfrH€vrT+*gri-s+tvr.rrr*.qTkfi-qi!frqr"rqiTetrcm'qqtrft t t-.gi+s!di tvrq a-m r s z : : p<i G-ogt t en rfi fi r tqr n-s H +uq w fr t wil erurro fr * u-o ?+ * mn"r +t qt ffi sfrqr frilfi tr xr fr*r mA t erq-+ ug1a+ Tfr re qr$ efu +Sr rfcffi effi q{ {trfr tr+tFnx.rqrq1r€r.r$sfu s+fir+qca-ifrr€talerai&v-rdr'rttftciffivfrarlfi+fr*ismre*ftil "roA"..*n*.ilror*Jr,n.rqrwtiwgarw*strn+frci*q-ffirrfr+fr*Hi*l.ro.zorqelrrait ,r-$ efir s.riffi q+.{r * sq-+r sq €vn sdtt-{, +-gr +s t xm c.n'p' +fr irs q'r * G eft ks tn c.n.P. n-'Hr irs * anr c",i *izs-oqlrq tn q'rqfr * vnqt vnq-fiq srrttrrTFT.ltor t Eq 6I Yltt ffifi q-.rrqr qr*l vrq q} qFru-{i t gS Fsqr qrqr fr-q qrffi ft .r$ sfr r c.n.r. gfuc \it t-" s.n t$ fr-q 6ffi t eqvn tft li rn c-fr qfr 'n- fd+{' # Xqurar t <tn+ "-crfi F + m t en$ ;itzt * mnw g$ t t 3.

Respondent has filed Written Statement & DRM reporl in supporl of its contention.

DRM Repod R-1 b:sed on police investigation, has concluded its findings as under:- qrq ar rM - gff Trq-e a? irifu t wrr t fr yft-or rfr cfl &+4, frila- o t. t o. t g a} em'+ +A eF{ gfi ts + w E rTrA F. u z.r: g<h frara3t #dr ('€n€ + rd tad dfl" t @s ia+ EiTr{ aa qr*r * d'm ve ?ne?' iv-9r,lstd-+drra*"+em.rCalarl:rfu*vqrqq-d-a?FCrd-.J;eqm{q-dde6ldsd?F*.'tq'+fi?Td' frsaT*"rsrefrRqaer+. efrRqaer+.r6f +esrrq?s*{furtr*str"wrsafeg$rtrrdrPttinirrficadqq?

ETtYd?T m,E)-Adtr{gerrqd qfrFrer?nf,r6Tft? ef o-€tieru-}q{rm#qflrql pnfhrfl#aE""-d-dti{ira-rl'* rfl€ 4 ftar rrdn ;z i'r+ a sTt 67gd ,rt ffi td vvlr€-{ afi a)d ma-a? rd tr rrr+r * Erq r?*-a t?'3r 6t+ crr+r gag v-a rqg Ehr ?'& qH E-r+ &+r ttr& A*z * E? sEr a-i rd er? adifr e}# ffi; qsq Fdq-{ ffir{r 6T tqe q& {+dr I t qd uznt Yda-,T B' +a.d fi t,rfi -d fr s-A e fr IH-i tdd vrrnr+ aft aH qrral' rd^ ?t {k*i-d B+* s/o w aft E;q-*-il G+fr ffi sml*r'e&rr+r ermr6t&,fu€{rs?r+r 6es) Union of lndia, through General Manager South East Central RailwaY Bilaspur (C.G.) ..,..

APPLICANT 1"" \.

I r'.' ,:,' ,.:- I ,aJ O- Contd....2...

HON'BLE SHRI AJAY KUMAR GARG,MEMFER (JUDICIAL) oA ilut66t2020 ..', ..

4, The Tribunal after going through the pleadings and hearing counsel for the parlies, framed the following issues 1 0.

02.2 021 for adjudication: 1, Whether the deceased was a bonafide passenger of the train in question at the time of occurrence of the alleged untoward incident?

2 Whether the death of the deceased was due to the s;aid alleged untoward incident as defined uis 123O rlw 124-A of the Railways Act, 1989?

3, Whether the respondent railway is protected under ther Section 124-A of the Railways Act and is not liable to pay any compensation to the applicants?

4 Whether the applicants is the legal dependents of the deceased to claim/receive the compensation , if any granted ?

Who else are the dependents?

5 Relief and cost?

5.

Applicant witnesses- {E6id E-i& (Son of deceased) as AW-1 and ffi gw gi{Sister iCc-passenger of deceased) as AW-2 appeared before courl and filed their affidavits(AW-1/A) & AW-2/A) respectively towards examination in chief.

I3aid applicant witnesses were cross- examined by Respondent's Counsels, 6, Respondent does not want to adduce any evidence and is relying upon the statutory report of DRM R-1 and annexure annexed to it.

7. to it.

7.

Having perused the records made available on behalf of both the applicant and the respondent by their respective counsels, heard the argument advanced by them and have gone through the various submissions made by both the counsels and my findings on the issues are as under:- lssueNos.

1,2&3:- Thethreelssuesbeinqinter-connectedarebeinqtakenuptoqetherfor discussion and disposal:- 8.

Applicant in Claim Petition under Para No.

07 has averred that Journey ticket of deceased was lost ln order to discharge onus, Smt, Sudha Dubey W/o Late Shri Pooran Lal Dubey(Sister/Co-passenger of deceased) has been examined as AW-2 by filing self Affidavit AW-2/A.

During Cross-examination, she has stated on oath that-'qr+l04-10-20rsfrt,itsrq+ft e-S s-6c l-d-sr vftET fri-fr cq +fr qnfr *qfr sfiq r SA v1.

3fr,rGt cr nu s iqr i-S {ar, fl fiii qrrr-qTq qs frBlqtdt't,qrcTific-efufr,trs-aTamrifrfr-qlerT,ft+-csmSqr,fus-aqa-*fl'frtSr*ir+w,g* svfifirorSqqrt I .

With regard to bonafide of deceased, Respondent Counsel has contended on the issue that no journey ticket was recovered from the body of deceased .

10.

Fudher on perusal of Merg lntimation Repod(Ai2), Request by GRP Pendra Road to Civil Hospital (Ai3), Memo of Station Master Pendra Road (fu4) & Naksha Panchnama (A/5) wherein it has been averred that the death of deceased had occurred owing to fall from train and all these documents have been admitted by Respondent through Respondent's Counsel during the process of admission/denial of documents, I need not detain myself so far as death due to untrward incident is concerned, as in the DRM report, it is specifically concluded that the deceased had died as a result of fallfrom train, The conclusion drawn in the DRM ReportExhibit R-1 is reproduced below: -4) a- Contd......3... oA ilut66t2020 ::3:: " Er6 rcs t k cirnr cftcn ff+fr * 94,6 oo.ro.ts *i src+ *A EB{ g* S t Hrn, .1 {'. rn, .1 {'. tezse vft-ftfirrg{ {+fl qqqiq { E{TH *flq t t grfutd+ trn rq'qFrT in-r rfr frr we 'nS tr{rfu\m} *vr+ t EM'*. or ii y}w m r& sft n$ rron.r sfrqr GraA rmift tr t s-di} * vflq ii T6 +emr{ orh tr t tc fr Fn rqt frs qT rur *t ftn a apr ii rrrfr rFe sil{fr 3ttr $i{rc * *flq ynflfiq enqara rfrter ii rr& .* U rrfr fr r rrql fr *& "E* gur S cfr {TrE qrxr 6T {fr ,fr ffii+ qar fr+iq'm) s{q} qqn it EiTTqr ET fr sa5 dR-{ Tirfr tr + ffi{+ * qqrs t FRq.{ rr6fr d-c iflT+ + qrq-o g$ *, frs{to svng-+ + a'$ q-6ffi qtt tr rnrqr ff qr+ cfr s{fr rr.S ii HrE qrx en {fr fr e+r qfrFTr fu' Efr + Ws *{H * frq {FfrTr *E ii qmr m rt tr sft qar * er{ E*-c $ Uq d rrqr errqr frr* rcs *trr t fu ffi cr+ t+n H fr.*.'c t S urx mT rS Et difr ffi Afl+ t qsq dq{ ffir€ * ft* *S "=* } q5 qa+r rmm fr F{d ft rrertr + s-A t Mi ta} ETns-{ ft *t-$ rrd-fr a-S t t " ll.Sofarasnegligenceisconcerned, theapplicationof PrincipleofStrictLiability-Conceptof Self-lnflicted lnjury has been widely discussed in para no.

16.1 of Apex Court Judgement.in Union of lndia Vs Rina Devi (CivilAppeal No.

4945 of 2018), The same is reproduced below:- "Secflons 124 and Sectlon 124A provide that compensation is payable whether or not there has been wrongful act, neglect or fault on the paft of the railway administration in the case of an accident or in the case of an "untoward incident".

Only exceptions are those provided under provision lo Secfion 124A. ln Prabhakaran Vijaya Kumar it was held that Section 124A lays down strict liability or no fault liability in case of railway accidents.

Where principle of strict liability applies, proof of negligence is not required" 12.

Further, Ld.

Counsel for the applicant subnritted that in case of accidental fall of any passenger from a train carrying passengers, in order to escape the liability to pay compensation, it is necessary for the railways to adduce evidence that the incident is of the kind described in proviso (a)to (e) of sec.124A. sec.124A.

Here Respondent has failed to prove, by bringing any evidence either oral or documentary, that the instant case does not come within the purview of an untoward incident as defined in section 123 (c) of the Railways Act, 1989.

Thus, lssue No.

2 is decided in favour of the applicants by holding that the deceased died as a result of fall from the train and the same tentamounts to an "untoward incident", for which Railway Administration is liable to compensate uls 124 A of the Railways Act, Accordingly, lssue No, 3 is decided in negative against the Respondent.

13. lt is the case of the applicant that the ticket purchased was lost during the course of incident , The applicant Ravikant Trivedi(Son of deceased) examined as AW-1 & Smt.

Sudha Dubey-Sister and copassenger of deceased) examined as AW-2 have stated in their affidavits and also sated onoath that deceased had purchased a ticket from Harari to Pendra Road and said ticket was lost in the incident.

14.

Respondent Counsel vehemently argued the case on the issue that no journey ticket was recovered from the body of deceased, hence deceased cannot be termed to be a bonafide passenger on the alleged date of the journey.

15.

Counsel for applicants has relied upon the observations made by the Hon'ble Supreme Court in Union of lndia Vs Rina Devi (2018 ACJ 144'1)wherein, it is held that if an affidavit is filed by the victim or the dependants of the victimr, the same is sufficient to hold that the victim was a bonafide passenger. lt would be apposite here to reproduce para17.4 of Judgement of Rina Devi (supra) as under:- ... t . r// Contd,,..4.,,. oA ilu/66/2020 it4:: '17,4 We thus hold that mere presence of a body on the, Railway premises will not be conclusive to hold that iniured or deceased was a bona flde passenger for which claim for compensation could be maintained. aintained.

However, mere absence of ticket with such injured or deceased will not negative the claim that he was a bonafide passenger lnitial burden will be on the claimant which can be discharged by filing an affidavit of the relevant facts and burden willthen shift on the Railways and the issue can be decided on the facls shown or the attending circumstance, This will have to be dealt with from case fo case on the basis of facts found.

The legal position in this regard will stand explained accordingly." 16.

Based on the observations made by the Hon'ble Supreme Courtin Rina Devi (supra)the Applicants have discharged their duty in the shape of aifidavit of AW-1 and now the onus shifts on the Respondent to prove by substantial evidenr;e that deceased was not a bonafide passenger on the date of the alleged journey Respondent has not proved the same, ln view of above, it has been held that the deceased was a bonafide passenger of the train in question on 04.10.2019whi|e travelling ex Harari to Pendra Road. -lhus, both issues nos.

1&2 are decided in favour of the applicant and against the respondent and lssue No.

3 in negative against the Respondent, 17.

Applicant herein is the only Son of deceased who has stated during the course of cross- examination that his parents are no longer alive.

In support of his sole dependency, Applicant has filed Death Cedificate of his Sister (Pooja Trivedi- Second child of deceased- died on 19.102005).

Applicant has also filed documents annexed atA/7(16-19) alongwith his claim petition, There is no other evidence, which may s;how that the deceased had any other dependant, Nothing contrary has also been shown on behalf of the Respondent.

Nobody else has come before the Tribunal, claiming himself/herself as dependent upon the deceased.

Thus, it is held that under Section 123 (b) (i)of the Railways Act, 1989, Applicant above is the sole legal dependant of the deceased and lssue No,4 is decided accordingly. lssue No.5:- 18.

No.5:- 18.

The applicant, under Part-l of the Schedule of the llailway Accidents & Untoward lncidents (Compensation) Rules, 1990, as amended in 1997 and 2016, is entitled for Rs.8,00,000/. interest @ 9% p.a. from the date of incident i,e, 04,1020'19 till the date of realization, to the aforesaid dependant of the deceased as compensation on account of the death of the deceased in an Untoward lncident. l, award the amount of compensation to the applicant as 19.

The claim application is allowed on contest without costs.

The following order is passed :- ORDER 20.

Respondent Railway Administration is hereby drrecterd to pay jointly Rs 8,00,0001(Rupees Eight Lakhs) alongwith interest @ 9% p.a. from the date of incident i.e.04,10.2029 till the date of realization, to the aforesaid dependant of the deceased as compensation.

21.

The aforesaid applicant is hereby directed to furnish nis fresh Bank account pa(iculars of a Nattonalized bank, situated nearest to his place of residence, to the Respondent Railway as well as to the Addl.

Registrar of this Tribunal within a period 30 days from the date of receipt of this Order C0ntd....5....

Applicant No. ,*)d- under and lssue No,5 is decided Name of Applicant Relation with deceased Amount(Rs) 1. {lqt5rd l=lqE[ Et=r H 9rI Eqqlir l=ltrEt Son 8 .00.000/.

TOTAL 8,00,000/. ili{&[fiie&e&&&dd6idb*;;iai;:-;l:=:r1^*iY!ffi,wa'.-' - oA llu/66/2020 ::5:: 22.

The Respondent Railway shallendeavorto make paym€)nt as eai]Y.as possible' but not beyond 60 days from the Oate oi receipt of copy of the Award passed by Tribunal in compliance of the directions of Railway Board letter No.

2021/TC-lll/2610 dated 29.09.202'l' 23. lf the Respondent fails to deposit the compensation a.mount within 60 days from the date of receipt of copy of Award, the respondent shall pay further interest @ 120/' from the date of receipt of copy oi award till the date of actual payment' 24. yment' 24.

So far as disbursal of the amount of award is concernerd, we have heard the learned counsel for the parties.

25. we may notice that in Geeta Devi Vs. union of lndia Delhi High court had observed as under: ,,5 As Regard s Amendment to the Railway Accidents and tJntoward lncidents (Compensation) Ru/es, 1990. i.l.

Many of the claimants are drawn from rural areas with low levels of literacy and lower /eve/s of making appropriate di,iision for the use of amounts gttaranteed under the awards' There are severalinsfances or tiii iiplaftation by middlemen an-d touts operating in the field' The scope of such exploitafion ls rfse/f onie of the inientives for fomenting bogus claims, fabricated documents and duplicate claims in different Benches of the Tribunal for the sa/ne cause of action' The availability of bulk fundis in the name of an ill-informed claimantis a/so a cause for exploitation' A scheme for protection of the amount due to such a claimant is the need of the hour' Earlier' this couft has involved 21 Nationalized Banks in dialogurt to evolve a scheme of annuities for disbursement of clai ms.

They have oeen or6eiled already to be implemented in t,his case, vide directions passed on 22nd February, 2019.

This scheme as applied to motor accident claims has been approved by the SupremeCoutlinltsorderdated}sthMarch,20lginKrishnamurthiversusNewlndialnsurance Company'SLP(C)No'31521-3ls22of20lT,Astatutoryrulebackingwilltherefore,besfseryefhe interest of the titigant in the manner set out below: 5.2 lnsert following Rule 5 after Rule 4:' Rule 5; Mode of payhrit-1t1The Tribunal may, in orderto protect.the sum awarded to the claimant, having due regard to the illiteracy or otier disabting factors impairing the iudicious u,se of such surn, lssue direcflJns for dlsbursin g ihe award in terms of annuitles, fixed deposlts or other suitabte mode shall sub-serve iustlce' (2) lf any of the ctaimants is i minor or person of unsound mind, the Tribuna may give liberty to the ty to the guardian ad item fo use the inferest accruals on the depos it that shall be made during the mi noritY f or m ai nten ance, (3) Nothingin this Rute sha tt limit the power of the Tribunat to make modifications of the mode of dlsbursa/ for reasons to oe statejin iri;iting deiending on the eiligencieti requiri.ng liquidation of any corpus created for annuilv or premature closure of ixed deposit, for the benefit of the claimant' 26'lnpursuanceoftheaboveorderspassedbytheDrelhiHighCourt,Governmentoflndiahas issued a Notification on 3rd of June, 2020, ambnding Railway Accidents & untoward lncidents (Compensation) Amendment Rules, 2020, amending Ruler 5, which reads as under: 2T,Thenewbanka/c(s)shallbeopenedwithfollowingconclitions; i) No ATM/Debit Card should be issued' ii) No cheque book should be issued' iii) Electronic transfer of funds shall be disabled' iv)Mobileorlnternetbankingfacilitywillalsobedisabled.

2g. ihe Bank shall not release any amount received by the bank, unless the governing conditions of payment framed uy ttris triuunal is conveyed to the Nodal Bank through Respondent Railway' ,! ' SJ C0ntd,...6.... oA ilu/66/2020 ::6:: 29. lf the Claimant(s) are not willing to open fresh bank. account(s), the concerned bank shall cancel cheque book and/or ATM/Debit Card (if issued), Electronic transfer and Mobile lnternet Uanf<fng faciliiy, before the disbursement of the awarded arnount and shall stamp the passbook to this effect.

30. withdrawal by the claimant (s) will be only through with-drawal form(s).

31.

Registry shalltake the following documents on record fn:m the Applicant(s): lal"oetiits of the Bank lccounilsl of the Applicant(s) near the place of their residence with the necessary endorsement (b) Aadhaar Card and PAN Card or anyother appropriate lD card; and i.j f*o sets of photographs and specimen signatures of the Applicant(s).

32.Tiansfer of Account(sfshall not be allowed, except with the permission of the Tribunal, 33. bunal, 33.Respondent Railway, after receiving the particulars of thr: bank account of all the applicants shall verify and transmit all ihe details of the same to Additional Flegistrar, RCT/Bhopal, and thereafter, 34.

Respondent will deposit the entire amount of awardr:d compensation and interest through RTGS in the Suitors Account No.

10064520760 IFSC Code SB1N0005798 (State bank of lndia, Shivaji Uagar Branch, Bhopal, under advice to Additional Reqistrar within a period of 60 days from the date of communication of the Award.

35,1t is further directed that the Respondent shall issue necessary instructions to the Suitors Bank to not to release any amount from the said fixed deposit amount till the order in origlnal to this effect from this Tribunal, is received by the Suitors Bank 36.The claimant(s) be directed to produce the copy of the order passed by the Railway claims Tribunal before the concerned bank whereupon the bank be directed to make an endorsement on the passbook regarding compliance of conditlons imposed by the Cour1.

The Claimant(s) be directed io produce the passbook with the necessary endorsement as well as Aadhaar card, PAN Card or any other appropriate lD Card before Respondent.

37, Before disbursement of the award amount, Respondr:nt Railway shall satisfy himself that the iavings bank account(s) of the Claimant(s) is nearest to the place of their permanent residence and a-n endorsement has been made by ihe banx on the passbook of the Claimant(s) to the effect that no cheque book(s) and/or debit card(s) shall be issued to the Claimant(s) without prior permission of Railway Claims Tribunal.

3g. ln order to ensure safety of the amount so deposited, the bank shall not permit any addition in the individual saving bank account except where this is necessary i.e. in case of mino(s).

3g, To protect the amount from being frittered away, the iamount shall be deposited/released in the following manner.

40.

Applicant No. licant No.lRavi Kant Trivedi being dependent of deceased shall be permitted to withdraw 10% of their awarded compensation amount alongwith total updated interest accrued on their respective awarded share amount.

The remaining 90% balance amount of their award share amount shall be invested in FDR for a period of five years in their respective names in the Nationalised banks, near to the place of their residence, with monthly payment of accrued interest to them.

41.

The originalfixed deposit(s) Receipts shall be retained by the bank in safe custody.

However, the statement containing FDf numUer, FDR amount, date of maturity and maturity amount shall be furnished by bank to the Claimant(s).

42.

The maturity amounts of the FDR(s) be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant(s) near the place of their residence. '' Contd...,7.... oA l{u/66/2020 ,,:7:: 43.

No. loan, advance, withdrawal or pre-mature discharge be allowed on the fixed deposits without permission of the Court.

44.

The copy of the Order be sent to the Nodal Office/Branch Manager of the State Bank of lndia for complying with the above directions.

45, Railway shall place on record the proof of deposit of the award amount with up to date interest alongwith a calculation sheet.

46, Upon such proof being filed, Registry shall ensure that the interest up to the date of notice of deposit has been deposited by the Railways.

47.

The Original Claim Application stands disposed otf accordingly.

48.

Registry is directed to send a copy of this iudgement to the padies.

49.

Parlies to bear their own costs.

50. xegistry will report compliance within 90 days of this Order, 51.

Let the case file be consigned to the record room after due compli 4:1,. ,.,\'' o .* .--** ) t-$fr +3--.-. r'}ffMlEr(( J tJ D I E IAL), RET/ B P L Dictated to PS-II, transcribed by her, corrected, signed and pronQunrc't *- -" in 99 open Court on this day of e \ ffi1ZOZS k . i1ZOZS k .r: \-/ ,l'-(AP''"' NEMBER(JUDIEIAL), RIT/BPL