SH.VIVESH KUMAR vs UNION OF INDIA THROUGH GENERAL MANAGER

Claim A Date of F Date of D Sh.

Vivesh Kumar R/o 36, Gangora, B Bharthana Kushna Etawah, Uttar Pradesh - 26 Union of India, thr General Manager, North Central Rail Allahabad.

Smt.

A Ms.

Ja By Shri Vijay Kumar, 1.

Sh.

Vivesh Kumar, fa 16 of Railway Claim Achendra Yadav, ag RAILW HON’BLE HON'BLE OA/II/u/DLI/272/2022 1 Application No. : OA/II(u)/DLI/27 Filing : 02.12.2022 Decision : 20.09.2023 r, S/o Sh.

Fulan Singh.

Bajhera, a, 6242. ....AP Versus rough lway, ….RES Claim for Rs.

8,00,000/- Ashima Sood, Counsel for the Applicant atinder Kaur, Counsel for the Respondent J U D G M E NT , Member (Technical) father filed the present claim application ms Tribunal Act praying that for the de ed 24 years in an untoward incident o रेलवे दावा Ɋायािधकरण, Ůधानपीठ WAY CLAIMS TRIBUNAL, PRINCIPA JUSTICE SHRI K.

S.

AHLUWALIA, SHRI VIJAY KUMAR, MEMBER (TE 72/2022 PPLICANT SPONDENT t under Section ath of his son on 14.05.2022, ठ AL BENCH CHAIRMAN ECHNICAL) OA/II/u/DLI/272/2022 2 compensation be awarded.

It is the case of the applicant that Achendra Yadav (hereinafter called ‘deceased’) was undertaking journey by a train from Bhartahana to Etawah and he had an accidental fall as a result of which he died on the spot.

Applicant has further averred that incident had occurred at KM 1150/30 and the journey ticket of the deceased was lost in the incident.

It is further the case of the applicant that he had to further take a train from Etawah for going to Dadra Nagar Haveli where he was working as a Security Guard and he had come home to attend a marriage ceremony on 02.05.2022.

Applicant has further averred that deceased had told his father about the journey before leaving his house.

Panchayatnama and Post mortem was conducted by police officials and thereafter the body was handed over for cremation.

Mother of the deceased had predeceased her son.

2.

Pursuant to notice issued, respondent filed their initial reply by way of Written Statement along with Report of DRM (Ex.

R-1). (Ex.

R-1).

Respondent has vehemently denied the claim in their Written Statement stating vide Para 3, 4 & 5 as under:- “3.

That as per the enquiry report, it came on record that the deceased was not a bonafide passenger of any railway train as no journey ticket or pass has been recovered from the possession of the deceased.

Further Mr.

Arun Kumar, the brother of the deceased, during enquiry had given his written statement as tehreer to Inspector GRP Etawah, in which he disclosed that on 14.05.2022 in the night, his brother (Achendra Yadav) OA/II/u/DLI/272/2022 3 was crossing railway line under Farukhabad bridge and then suddenly train came and he suffered injuries, which resulted into his death.

As such it is a clear cut case of unauthorized trespassing, hence the claim of the applicant is liable to be dismissed.

4.

That the claim petition filed by the applicant is not liable to be considered as during the enquiry, the statement of the Loco Pilot of train No.19037, who was the informant, was recorded and he has stated that on 14.5.2022 he was duty on Train No.

19037 as Loco Pilot along with co-pilot Jihender from Tundla to Kanpur and the train was running timely and at KM No.

1155/30 he saw a dead body and he informed the same to DY/SS/ETW.

The Loco Pilot further stated that there was no MRO with his train, the dead body was lying at main ride, for which he given information.

As such it was concluded that the incident took place with some unknown train, while the deceased was crossing the railway line, hence the applicant is not entitled to any compensation and claim application of the applicant deserves to be dismissed.

5.

That when Sub Inspector Shri Sandeep Kumar Thana GRP Etawah and RPF staff Etawah attend incident place found that the deceased dead body was found in two parts, his foots are found separated from his upper body in mid of the railway track (going towards Kanpur) i.

Kanpur) i.e Down line, though as per the statement of deceased's father statement deceased was travelling from Bharthana to Etawah i.e.

Up line.

Moreover, during enquiry contradiction has been observed in the statement of deceased father and brother, as per statement of deceased's father he went to GRP Etawah with his son Arun Kumar, whereas the deceased's brother stated that he has not given any tehreer to GRP Etawah, but two tehreer signed by the deceased's brother Arun Kumar addressed to Inspector Thana GRP Etawah is annexed with investigation report.

Hence, the claim of OA/II/u/DLI/272/2022 4 the applicant deserves dismissal being based on fictitious and fabricated grounds. (Reproduced in verbatim) 3.

DRM Report has also drawn similar conclusion as under:- ŵीमान जी उपरोƅ मामले की जाँच करने पर िनɻ तȚ Ůकाश मŐ आये जो िनɻ है- 01. उƅ घटना की जाँच करने पर मृतक अचेȾ यादव के पास याũा सɾɀी कोई रेल िटकट का बरामद होना नहीं पाया गया। 02. उƅ घटना को उ0िन0 संदीप कुमार थाना जी०आर०पी० इटावा व रे०सु०ब० ːाफ इटावा Ȫारा अटैǷ करने पर पाया गया िक मृतक का शरीर धड़ से कटा Šआ दो भागों मŐ व पैर रेलवे पटरी के अȽर (कानपुर की तरफ जाने वाली) डाउन रेलवे लाइन पर पड़े िमले। जबिक मृतक के िपता Ȫारा पुũ अचेȾ यादव को भरथना से इटावा आना बताया है जो अप लाइन से सɾİɀत है। 03. उƅ घटना की जाँच मŐ मृतक के िपता Ȫारा अपने पुũ के पास याũा बाबत कोई िटकट का न िमलना और नाही याũा से सɾİɀत गाड़ी बताया गयी है। जबिक मृतक के पास तलासी मŐ (पसŊ आधार काडŊ, बœक ए०टी०एम० काडŊ तथा मोबाइल फोन) आिद घटना के समय िमले पाये गये। 04. उƅ घटना की जाँच मŐ पाया गया िक मृतक के िपता िववेश कुमार Ȫारा ली गयी अŝण कुमार के नाम से िलİखत तहरीर पर हˑाƗर होना पाया गया और िववेश कुमार से पूछताछ करने पर हˑाƗर करना तो ˢीकार िकया गया है लेिकन बताया गया िक मैने बगैर पढ़े और जवान लडके की मृȑु से मानिसक ŝप से परेशान होने पर हˑाƗर करना बताया । 05. उƅ घटना मŐ भाई अŝण कुमार पुũ िववेश यादव से थाना जी०आर०पी० इटावा मŐ दी गयी िलİखत तहरीर के बारे मŐ पूछा गया तो बताया िक मेरे Ȫारा जी०आर०पी० इटावा थाने मŐ िकसी भी Ůकार की कोई िलİखत तहरीर नहीं दी गयी थी और ना ही मेर ना ही मेरे Ȫारा कोई हˑाƗर िकया गया। 06. उƅ घटना मŐ मृतक के भाई अŝण कुमार ने अपने बयान मŐ िपता िववेश कुमार को इटावा जी०आर०पी मŐ अकेला जाना बताया गया है जबिक िपता िववेश कुमार OA/II/u/DLI/272/2022 5 Ȫारा अपने बयान मŐ अŝण कुमार को साथ लेकर इटावा जी०आर०पी० थाना बताया गया। जो दोनो बयानों मŐ िभɄता दशाŊता है। 07. उƅ घटना का कोई ŮȑƗदशŎ साƗी नहीं है। 08. उƅ घटना मŐ उ0िन0 संदीप कुमार Ȫारा शव िशनाƢ के समय ली गयी तहरीर मŐ मृतक के भाई अŝण कुमार Ȫारा मृतक अचेȾ यादव को फŝŊ खाबाद पुल के िनकट इटावा मŐ टŌेन की चपेट मŐ आने से मृȑु होना बताया गया है िजस पर पोːमाटŊम कराने वाले डॉƃर के हˑाƗर Ůमाण है। तȋʮात उ0िन० संदीप कुमार Ȫारा जाँच के दौरान पीिडत पįरवार से पुनः सɼकŊ कर तहरीर Ůाɑ की गयी। िजसमŐ मृतक की मृȑु रेलवे लाइन पार करते समय िकसी टŌेन से टकराकर होना दशाŊया गया है। जो जाँच įरपोटŊ का आधार है। पįर̾थितजन साƙों व बयानातों से ˙ʼ है िक मृतक अचेȾ यादव पुũ िववेश कुमार जो िकसी टŌेन से याũा नहीं कर रहा था, िजसकी मृȑु डाउन मेन लाइन पर िकमी स० 1155/30 इटावा- इकिदल के मȯ अनािधकृत ŝप से रेलवे लाइन Ţास करते समय अǒात िकसी टŌेन की चपेट मŐ आकर Šई है। 4.

On 15.05.2023 Tribunal framed the following issues for adjudication:- 1) Whether the deceased was a bona fide passenger in the train in question at the time of incident?

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

3) Whether the applicant(s) is/are dependent(s) of the deceased?

4) Whether the applicant(s) is/are entitled for any relief and interest as prayed for in the application?

5) Relief if any?

OA/II/u/DLI/272/2022 6 4.

Vivesh Kumar, father of the deceased tendered his affidavit towards examination in chief and appeared before the Tribunal on 10.07.2023.

He was examined as AW-1.

He was duly cross examined by Ms.

Jatinder Kaur, counsel for the Respondent.

Thereafter, the case was listed for arguments.

FINDINGS 6.

INDINGS 6.

Today, we have heard arguments advanced by both the learned counsels, gone through the pleadings made in the report of DRM and also gone through the evidences brought before us by both the learned counsels.

Our findings on the issues framed are as under:- Issue No.

1 & 2 7.

We shall take up both the issues together as they are inter related.

8.

It is an undisputed fact that no journey ticket was recovered from the body of the deceased or from site of the incident.

Applicant has averred that journey ticket was lost in the incident.

Respondent has however brought out during investigation that on 14.05.2022 loco-pilot of train no.

19307 informed Station Master, Etawah that at KM 1155/30 a dead body was lying between Dn and Up track.

Based on this information, a memo was issued at 23 hours to RPF by Dy.

SS, Etawah.

Memo was also issued to GRP which was received at 23:28 hours and they conducted the Panchayatnama between OA/II/u/DLI/272/2022 7 23:30 hours of 14.05.2022 till 09:05 hours of 15.05.2022.

As per the Panchayatnama the dead body was lying on Dn track with half of his body outside the railway track and head portion inside the track with body divided in two parts at abdomen.

A black purse was recovered containing his Aadhar Card, Vijaya Bank ATM Card, Admit Card of High School Examination, one loan application to Security Company Civil Protection Force, Dadar Nagar Haveli, one Rs.

1,000/- currency note, 15 Passport size photographs and a mobile phone lying slightly away from the body.

Based on the Aadhar Card and the address therein family members were informed and his brother Arun Kumar was present when the Panchayatnama was prepared.

Cause of the death as per Panchayatnama was train accident.

We have seen the Post mortem report where his injuries have been noted which are crushed injuries of head with brain matter coming out, multiple contusion on both upper limbs with underlined bone fracture, lower part of chest badly crushed and lacerated, viscera d, viscera missing, abdomen badly crushed and lacerated and separated from the body, body divided into two parts and right lower limb badly crushed and lacerated.

9.

Counsel for the respondent referred to the application (Page 22/32 of DRM report) given by brother of deceased Arun Kumar to Officer In-charge, GRP, Etawah which states that deceased got run over while crossing the railway OA/II/u/DLI/272/2022 8 track below Etawah, Farukkhabad Bridge.

She further referred to another application which is also filed as part of the DRM Report (Page 22/32) where also it is stated that deceased had left home at 07:30 and at 11 when he tried to contact his brother, his phone was not picked up.

Thereafter family members went to search for him and were informed that one person had died due to run over near Farukkhabad Bridge at Etawah.

Thereafter he along with his cousin Ashish went to Etawah and identified the dead body.

Father of the deceased during his testimony before the Tribunal on 10.07.2023 filed his affidavit towards examination in chief where he stated that deceased had left home in evening of 14.05.2022, 6 PM and had boarded train from Barthana to Etawah and informed him after boarding.

However, in reply to a court question, deponent stated that he had gone to Bharthana and had seen his son purchasing the ticket at around 09:30 PM and after his purchasing ticket deponent had come back home.

On 15.05.2022 he was informed by GRP about the accident of his son.

During cross examination by counsel for the respondent about his contradiction with respect to purchase of ticket as stated in reply to Court question vis a vis his statement in the examination in chief, deponent stated that the affidavit was prepared by his counsel.

OA/II/u/DLI/272/2022 9 10.

In the present case we find that neither any train no. has been indicated anywhere nor has it has been mentioned anywhere by which train deceased was undertaking journey. g journey.

Moreover, it is also not mentioned as to which train he had to take for going from Etawah to Dadara and Nagar Haveli where he was working as a Security Guard.

About the journey ticket also for the first time deponent who is also applicant and father of the deceased gave a statement before the Tribunal that he had seen his son buying the ticket whereas his affidavit is contradicting to what he has stated.

Further, to that, we find that the injuries sustained by him as mentioned in the Panchayatnama and Post Mortem are such that it cannot usually happen in case of accidental fall.

Division of the body in two parts, location of the body on the other track with half body inside the railway track and divided in two parts are also indicative of a case of run over.

This is further fortified with the application of brother of the deceased which is in his own hand writing had given tehreer to Police Officials of GRP, Etawah stating that his brother had died while crossing the track and not as a result of accidental fall.

Taking the totality of the circumstances we find that applicant’s version in course of his deposition before the Tribunal is totally contrary to what was stated in the claim application and also in his examination in chief.

The OA/II/u/DLI/272/2022 10 testimony of the witness AW-1 is full of contradiction and difficult to rely upon.

Finding it highly unreliable it needs to be discarded.

11.

Relying upon the available evidences brought before us by both the learned counsels we are unable to accept the version of the applicant and are inclined to go with the findings of DRM Report that deceased was not a bona fide passenger and he had not died as a result of accidental fall.

12.

Accordingly, we decide both issue no.

1 of bona fide and 2 of untoward incident against the applicant and in favour of the respondent.

ISSUE No.

3:- 13.

Applicant being the father of the deceased his dependency on the deceased is established.

4 & 5 :- 14. & 5 :- 14.

Having decided the issue of bona fide and untoward incident against the applicant, he is held not held to be eligible to receive any compensation.

ORDER 13.

The claim application being devoid of merits is dismissed without any order as to costs. (VIJAY KUMAR) (JUSTICE K.

AHLUWALIA) MEMBER TECHNICAL CHAIRMAN d