Heard Mr. Shantanu Gupta, learned counsel holding brief for Mr. Pritish Kumar, learned counsel for appellant and Mr. Mahendra Kumar Mishra, learned counsel appearing on behalf of respondent.
First appeal from order has been filed under Section XXIII of the Railway Claims Tribunal Act,1987 against the judgment and award dated 16.12.2002 passed in Claim Case No.0A0100204 (Smt. Manju Yadav Vs. Union of India) whereby claim of appellant has been rejected on the ground that death of predecessor-in-interest of the claimants has occurred on account of suicide having been committed by him and is thus not liable for compensation in terms of Section 124-A of the Railways Act 1989.
In the claim petition, it is averred that the deceased had travelled from Etawah to New Delhi by train no.4517 Unchahar Express on 06.10.2000, and as per assertion of the claimants the deceased was having second class general journey ticket. It was claimed that when the train was passing Jaswant Nagar Railway Station, the deceased accidentally fell from the compartment and sustained injuries resulting in his instant death. It was claimed that the journey ticket was lost during course of incident. It was also claimed that the entire incident has been witnessed by an eye witness namely Netra Pal Singh Yadav who was produced as plaintiff witness to substantiate and corroborate the claim petition.
The respondent-claimant had filed written statement denying its liability primarily on the ground that the deceased was not a passenger in the aforesaid train and since he was not a bona fide passenger, the alleged accident does not come within the ambit of an 'untoward incident' and therefore the railways is not liable to compensate under the exception provided under Section 124-A of the Act.
The tribunal has framed four issues which are as follows:-
"1. Whether applicants are only dependents of the deceased Amod Yadav within the meaning of Section 123(b) of the Railways Act ?
2. Whether on 06.10.2000, the deceased Amod Yadav was bonafide passenger of the train no.4517, Unchahar Express ?
3. Whether on 06.10.2000, death of the deceased was caused due to an untoward incident as defined in Section 123(c) of the Railways Act?
4. Relief & costs?"
With regard to issue no.1, the tribunal has held in favour of the claimants while issues no.2 and 3 were decided conjointly in which the tribunal has held against the claimants while recording a finding that the deceased was not a bona fide passenger and was not victim of the incident of accidental falling from the train due to which the railways was protected under exception indicated in Section 124 (A) of the Act.
From material on record, it is evident that the Panchnama being paper no.11/1 to 11/4 and the post mortem report being paper no.11/5 are on record which relate to an unknown male person having died due to decapitation on account of falling down from the train. Since there is no dispute about claimants being dependents of deceased the following points for determination are being framed:
(a) whether the deceased Amod Yadav can be said to be a bona fide passenger of the train no.4517 Unchahar Express and died owing to an accident on 06.10.2000.
(b) whether the railways would be liable to satisfy the claim of the claimant in view of Sections 123 and 124A of the Act.
The aforesaid issues being conjoint are therefore being decided together.
Learned counsel for appellant has submitted that the tribunal has erred in failing to consider the testimony of eye witness account of one Netra Pal Singh Yadav who was co-passenger of the deceased and had clearly established that death of the deceased had occurred due to an accident in which he fell off the passenger train. It is submitted that eye witness account of the said witness has been disbelieved on extraneous factors. It is also submitted that the judgment and award under challenge is not in consonance with the evidence on record and judgment on the said point. Learned counsel has also submitted that the incident in which the deceased passed away has been clearly and conclusively proved by evidence on record which has been unnecessarily disbelieved.
Learned counsel appearing on behalf of respondent has refuted the submission advanced by learned counsel for appellant with the submission that the tribunal has recorded a perfectly cogent finding which is established by material on record and by pertinent case laws on the subject in which it has been clearly held that in case of death occurring due to decapitation of the deceased, there is no occasion for an accident to have taken place and it was therefore a clear case of suicide for which the railway is not liable. It is further submitted that the tribunal has correctly recorded a finding that deposition of the eye witness was not liable to be believed in view of the circumstances of the aforesaid accident.
Upon consideration of material on record and submission of learned counsel for parties it is admitted that no journey ticket was produced in the proceedings by the claimant to indicate or substantiate that the deceased was a bona fide passenger in the aforesaid train. However, it has been submitted that in the muddle following the incident, journey ticket of the deceased was lost. From the deposition of Netra Pal Singh Yadav, as plaintiff witness, it is evident that the aforesaid witness has introduced himself as eye witness of the incident. In his examination in chief, the aforesaid plaintiff witness has clearly stated in paragraph 2 of the affidavit that he had purchased journey ticket for the said train along with deceased Amod Kumar. It has also been stated that both persons thereafter met the Traveling Ticket Examiner for purposes of reservation, which was denied where after the deceased had put his railway ticket in his hand bag. The said plaintiff witness has also stated that both persons had thereafter travelled in the general compartment in train and had sat near the door since there was no availability of seat in the compartment. It has further been stated in his deposition that just as the train passed Jaswant Nagar Railway Station, at about 01.00 AM, there was a sharp jerk in the train due to which deceased Amod Kumar fell from train along with his hand bag. It has been stated that the deceased had fallen head first and although the plaintiff witness along with other co-passenger had raised hue and cry but the train could not be stopped since there was no such provision in the compartment. It is stated that upon happening of the incident, plaintiff witness had informed brother of the deceased.
The aforesaid witness was cross-examined on 25.09.2002, which is on record. However, it is a mere repetition of the examination in chief with nothing being elicited from plaintiff witness which was contrary to the stand taken in the examination in chief.
The aforesaid statement clearly indicates the fact that the plaintiff witness was an eye witness not only to the alleged incident but also to the fact that deceased had purchased a journey ticket for travelling in general compartment of the train in question. However, it is admitted that no such journey ticket was found upon person of deceased.
Hon'ble the Supreme Court in the case of Union of India vs. Rina Devi reported in AIR 2018 Supreme Court 2362 has considered regarding burden of proof upon a body found on railway premises without journey ticket and definition of passenger; it has been elucidated in paragraph 17.4 which is as follows:-
"17.4 We thus hold that mere presence of a body on the Railway premises will not be conclusive to hold that injured or deceased was a bona fide passenger for which claim for compensation could be maintained. However, mere absence of ticket with such injured or deceased 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 the 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 explained accordingly."
The aforesaid judgment is squarely covering the issue whereunder it has been held that mere absence of ticket with such injured or deceased will not negative the claim that he was a bona fide passenger. Initial burden will be on the claimant to prove this such fact which can be discharged by filing an affidavit of the relevant fact whereafter the burden would shift to the railways and issue can be decided on the facts shown on attending circumstances. Upon applicability of the said judgment in present case, it is apparent that initial burden has been discharged by the claimant upon production not only of affidavit but also the eye witness who has squarely deposed that deceased had purchased a journey ticket along with the eye witness for journey upon the train in question. In the considered opinion of this Court, the initial burden as such has been discharged by the claimant but the same could not be refuted by the railways upon production of any documentary or oral evidence. In view of aforesaid judgment of Hon'ble the Supreme Court as applicable upon the facts and circumstances of the case, it is held that the deceased Amod Yadav was clearly a bona fide passenger in the train in question.
With regard to establishment of the alleged accident, the same has also been corroborated and established by the eye witness account of Netra Pal Singh Yadav who was produced as plaintiff witness. From deposition of the said plaintiff witness, it is evident that examination in chief and the cross examination are virtually the same with nothing contradictory elicited from the said witness by the railway. However, deposition of the said eye witness has been disbelieved by the tribunal on the ground that it is not in consonance with circumstances of the case.
Once it is seen that there is an eye witness account with regard to accident in question and nothing contradictory could be elicited by railways in cross examination, it is to be seen as to whether discarding of eye witness account by the tribunal was sustainable or not. With regard to the said proposition, Hon'ble the Supreme Court in the case of Union of India vs. Prabhakaran Vijaya Kumar and Others reported in (2008)9 SCC 527 has held as follows:
"6. Before the Tribunal PW 2, K. Rajan, deposed that while he was at Varkala Railway Station he found one passenger falling from the Parasuram Express and that the train had stopped. He further stated in his evidence that he went to the north side of the platform and saw the injured lying on the platform. He further stated that the person falling down was the lady who died on the spot. He also stated that the deceased fell down from the compartment of the train when the train was moving.
7. The Tribunal strangely enough held that PW 2 was an interested witness because if he was present on the spot he would have definitely helped the Station Master in removing the dead body from the railway track. Further, the police would have definitely recorded his evidence. For this reason, the Tribunal disbelieved the evidence of PW 2. We are, however, of the opinion that there was no good reason to disbelieve PW 2 because there is nothing to show that he had any motive to give false evidence, or that he was an interested witness. Further, his evidence could not have been discarded merely because he did not go to the spot and help in removing the dead body from the railway track. Moreover, merely because the police did not record his statement does not mean that he was not present or gave false evidence. It is common knowledge that in our country often there is a large crowd on railway platforms, and it is simply not possible for the police to take the statements of everyone there."
Upon applicability of the aforesaid judgement in the facts and circumstances of the present case, it is seen that eye witness account has been disbelieved by the tribunal only on account of the fact that the eye witness did not disembark from the train despite dis-balanced accidental falling of co-traveller. The tribunal could not believe that the eye witness thereafter undertook his entire journey upto New Delhi and did not break the same on the next stoppage of the train. On the said basis, the tribunal has recorded a conclusion that the eye witness had not travelled by the train in question and his deposition was not reliable. The tribunal has also disbelieved eye witness account on the basis of the Panchnama in which it is indicated that the body was lying about 300 yards away towards West of the Railway Station on railway track and neck and head of the deceased were found separated from the body. The tribunal has further recorded a finding that eye witness account was liable to be disbelieved since the position of the body was not in consonance with the running direction of the train. On that basis, the tribunal has recorded a finding that death had occurred due to injuries inflicted not on account of accidental falling of deceased from the train but as a result of suicide committed by him.
With regard to the aforesaid finding of the tribunal, it is apparent that while disbelieving the version of eye witness, explanation for the said factor as indicated in his deposition has been ignored by the tribunal. The said plaintiff witness not only in his examination-in-chief but also in his cross-examination has clearly indicated that upon the accident taking place, witness had not disembarked since the area in which they were passing was not a safe area. The witness has further stated that upon the incident happening, he alongwith other co-passengers had raised hue and cry but since there was no provision for stopping the train in the compartment nothing further could be done. The said fact has been indicated by the witness in his cross examination. In view of the specific statements of the eye witness, there was no occasion for the tribunal to reject the claim only on the basis of assumption and surmises.
The case of Prabhakaran (supra) has clearly indicated the conditions under which an eye witness account can be disbelieved. None of the conditions indicated in the aforesaid judgment are applicable in the present case particularly since no finding had been recorded by the Tribunal that the eye witness produced as plaintiff witness had any motive to give false evidence or that he was an interested witness. The mere fact that he did not go to the spot or did not get off from the train on the next station would not automatically lead to a conclusion that he was not present or had given false statement. In view of aforesaid, it is apparent that the tribunal has clearly fell in error in discarding the eye witness testimony of said Netra Pal Singh Yadav.
The tribunal has thereafter recorded a finding with regard to the accident having taken place as a result of suicide. Regarding the said finding, the tribunal has indicated position of the body which was in a North-South direction whereas railway track in question runs from East to West. The tribunal has also noticed that except for the decapitation, there was no other injury found on the body of the deceased and as such has concluded that the nature of injury and position of the body indicated that death was not caused due to accidental falling of the deceased but as a result of suicide.
The tribunal has found the aforesaid finding to be corroborated by the Panchnama. The tribunal has also found that in case of a person accidentally falling from the train, there is no occasion for the body to be cut into two pieces and at best death can occur on account serious injury on the body of the person.
With regard to the aforesaid finding recorded by the tribunal, it is apparent that the position of the body was not in consonance with running track of the train.
With regard to the aforesaid facts, the Hon'ble the Supreme Court in the case of Solanki Chimanbhai Ukabhai vs. State of Gujarat reported in AIR 1983 Supreme Court 484 has held as follows:
"12. Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye witnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eye witnesses, the testimony of the eye witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence."
The aforesaid judgment clearly indicates that medical evidence is only corroborative and proves that injuries could have been caused in the manner alleged and nothing more. The use of medical evidence can only be to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit eye witness. However the testimony of the eye witness cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence.
Regarding finding of Tribunal that severing of body into two parts indicates suicide and not death by falling from train the High Court of Delhi in the case of SH. Prempal Singh & Another vs. Union of India in F.A.O.No. 211 of 2014 has in its judgment and order dated 24.04.2018 held as follows:
"7. The reasoning in the impugned order that because the deceased was cut into halves: one part found inside the railway tracks and the other outside, the death could not have been caused due to accidental falling from a moving train, is flawed. The impossibility of a passenger being so crushed after a fall from a moving train has not been conclusively established in law, so as to obviate all such claims for compensation. It is possible that the deceased while standing near the overcrowded passenger compartment door, slipped down while holding on to the door- railing, and frantically tried to recover and re-board the train - with his legs flailing violently, and in the valiant and violent melee his legs or his body could have unfortunately come under the wheels of the train leading to his being consumed in the fatal accident. As long as such possibility exists, the claim cannot be ousted or denied on technical assumptions. There is not a divine camera which could replay the actual manner of the fatality, but all factors lead to the inexorable conclusion that a bonafide passenger died in an untoward train accident. There is also no reason why the deceased would be walking the railway tracks in an odd place en-route his destination - his home. It is not that he lived near the site of the accident or that he had any regular business anywhere near the place of the accident. Thus the inference that he died while crossing the tracks, is unwarranted and untenable."
The same observations have been made by the Delhi High Court in the case of Smt. Ram Payari vs. Union of India in FAO No.142 of 2012 vide judgment and order dated 31.03.2014 in which also the same reasoning has been followed.
The same reasoning has also been indicated by High Court at Calcutta in the case of Suchitra As (Ash) vs. Union of India in F.M.A. 384 of 2015 vide judgment and order dated 11.04.2019. The Division Bench at Calcutta High Court has held as follows:
"Whether a person would commit suicide by laying or putting his body before a moving train, or causing a person's body to put in front of a moving train', while crossing the track carelessly could be conveniently ascertained from the facts and circumstances involved in a particular case together with the attending circumstances, if therebe any. The intention behind of the deceased is of paramount consideration, which has to be gathered from the facts and circumstances together with the attending circumstances of a particular case. It is a case, where the deceased victim had no mental depression conducive for commission of suicide. The victim even had purchased monthly ticket with effect from 1.4.04. The deceased suffered death in course of his return journey. The place of occurrence where the dead body of the deceased was found to exist was intervened by distance of 20 minutes walk from the locality, where the deceased had his own house. PW-2 is not a person having his blood relation with the deceased victim. The facts and circumstances, as gathered here together with the attending circumstances discussed herein above, would not demonstrate the requisite intention necessary to reveal the attending circumstances, supportive of commission of suicide, far to speak off a case based on run over, caused purposefully and carelessly."
On the contrary, with regard to the aforesaid proposition that in case of decapitation of body, it cannot be said that a person has died due to falling from a train, learned counsel for respondent has relied upon the Division Bench Judgment of this Court in the case of Tara Chand Mathur vs. Union of India in First Appeal From Order Defective No.763 of 2011 in which following another judgment it has been held that in case the body of deceased was cut into two pieces, we cannot draw inference that the accident has occurred as a result of falling down of the deceased from the train.
Upon applicability of the aforesaid judgment, it is apparent that the Division Bench has clearly held that the fact whether the person has died due to accident occurred as a result of falling down from the train or has committed suicide is to be seen from the prevailing factors which in that case was that the deceased had failed in examination, the result of which had been declared on the same day due to which he was under depression and jumped before the train. It is quite evident that facts of the said case are completely different from the present case since no such depression has been indicated pertaining to the deceased.
Learned counsel has also relied upon another Division Bench of this Court in the case of Smt. Meena & Another vs. Union of India (First Appeal From Order No.229 of 2018) decided vide judgment and order dated 09.04.2018. In the said judgment, the Division Bench has not found any error with the finding recorded by the trial court that it is not possible that passenger would fall off the train and his body would be found lying in the centre of the tracks that too without extensive injuries and lacerated marks. The aforesaid judgment also in the considered opinion of this Court is not applicable in the present situation where although the body was found lying on the tracks without extensive injuries and without any laceration marks with the body cut into two pieces but the witness in that case was held to be chance witness without any explanation about his presence since he was not travelling in the train. Furthermore, 9 trains has passed without any major injury or further amputation of body.
As has been held in the judgment indicated herein above by the Delhi High Court and Calcutta, the Division Benches of this Court have not recorded any specific finding or have laid down a specific law that death cannot be caused by decapitation of a person upon falling from train. The fact that death cannot be caused upon falling from a train once body has been cut into two parts has not been conclusively established either in law or on expert medical opinion. Such a finding has been recorded only on the basis of an assumption that it is not probable for the body to be cut into two parts upon falling from train. However this Court is in respectful agreement with the judgment rendered by the High Court of Delhi and Calcutta to the effect that no such hard and fast Rule can be established without any pertinent medical advise or opinion.
The circumstances indicated in the judgment of Prempal Singh & Another (supra) are quite probable that there is no divine camera which can indicate the actual manner of the fatality but that all factors lead to an inexorable conclusion that a bona fide passenger has died in an untoward train accident.
Learned counsel has also relied upon the Division Bench judgment of this Court in the case of Dinesh Kumar Singh Maurya vs. Union of India in F.A.F.O. No.1023 of 2010, the Single Judge Judgment in the case of Smt. Sumitra Mishra and Others vs. Union of India in F.A.F.O No.583 of 2013 and the judgment of High Court of Delhi in the case of Smt. Dharambiri Devi & Others vs. The Ministry of Railway and Another promoted No.149(2008)DLT 434.
However in the aforesaid judgments, no hard and fast rule has been stated that a dead body which is cut into two parts and is found in the middle of the track cannot be occasioned upon falling from a train. The findings recorded in the said case laws are merely on the basis of probability rather on the hard and fast medical advice or any law on that point. As indicated herein above, upon applicability of the reasoning indicated in judgments rendered by the High Courts of Delhi and Calcutta, the same is merely an assumption which has to be corroborated from the facts and surrounding circumstances of each and every case. As such, in the view of this Court, the aforesaid factor cannot be a relevant factor for discarding an eye witness account.
The judgments cited by the learned counsel for respondent would have applicability probably in a case where there is no eye witness account and there is no corroborative evidence with regard to death having occurred as untoward incident due to falling of a passenger. However in the present case, there is a clear eye witness account not only corroborating but substantiating the incident as claimed in the claim petition. No cogent reason has been indicated in the impugned award for discarding the eye witness account.
It is also a relevant factor upon reading of the Panchnama that none of the signatories to the Panchanama recognized the dead body. Even if theory of suicide as set up by the railways is to be believed, naturally the deceased should have been a person living in the vicinity of the accident. It is improbable that a person living in Etawah, would travel all the way to Jaswant Nagar to commit suicide on the railway tracks which could have done in his place of residence itself. Even if theory of suicide is to be believed with the natural consequence of deceased belonging to vicinity of the accident, it would have been but natural for the signatories to the Panchnama to have recognized the dead body. The failure of local persons to recognize the deceased itself indicates that the deceased was not a native and therefore it could not have been a case of suicide. The said aspect of the matter has been completely lost sight of by the tribunal although details of Panchnama have been indicated in the impugned award.
As as a result of the aforesaid discussion, it is held that the deceased a was bona fide passenger and his death had occasioned due to an accident which can be termed as an 'untoward incident' as defined under Section 123 of the Act and would therefore not be covered by the proviso of Section 124 (A) of the aforesaid Act of 1989.
In view of the fact that the deceased has been found to be a bona fide passenger and that his death had occurred due to an untoward incident, compensation for the same is to be decided in terms of the Railway Accident (Compensation) Rules, 1990 which has been notified in terms of Section 129 of the Railway Act 1989.
The parties are in agreement on the point that the alleged incident has taken place on 06.10.2000 while the impugned judgment and award has been rendered on 16.12.2002. The Railway Accident (Compensation) Rules, 1990 have been amended with effect from 01.11.1997 whereby the amount of compensation under Rule 3 has been enhanced to Rs. 4,00,000/-including of death under part I. It has been submitted by learned counsel for parties that prior to amendment, the amount of compensation as indicated was Rs.2,00,000/- and subsequently the rules were amended in 2017 as has been noticed in the case of Smt. Rina Devi (supra) whereunder, it has been held that awarding of compensation in terms of Section 124-A is based on no fault theory and as such negligence on the part of any person or principles of contributory negligence cannot be invoked particularly when fixed compensation has been provided in the Rules of 1990.
In the present case since accident has taken place on 06.10.2000, the amendment notified on 25.10.1997 with effect from 01.11.1997 would came into effect whereunder a fixed amount of compensation of Rs.4,00,000/- has been indicated in Part I of the Schedule to Rule 3. As such, it is held that the claimant would be entitled to amount of Rs.4,00,000/-. With regard to the rate of interest, it has already been held in the case of Smt.Rina Devi (supra) that the rate of interest should be 6% per annum from the date of application till the date of award and 9% thereafter in case the payment is not made within specified time period.
Applying the aforesaid dictum of Hon'ble the Supreme Court it is held that the claimants would be entitled to interest @ 6% simple interest per annum from the date of claim till the date of award and @ 9% thereafter till the date of actual payment.
At this stage learned counsel for respondent submits that in view of the statutory provision, the principal compensation with interest cannot exceed the sum of Rs.8,00,000/-.
The aforesaid aspect of the matter has already been considered by Hon'ble the Supreme Court in the case of Union of India vs. Radha Yadav reported in (2019) 3 Supreme Court Cases 410 in the following manner:
"11. The issue raised in the matter does not really require any elaboration as in our view, the judgment of this Court in Rina Devi [Union of India v. Rina Devi, (2019) 3 SCC 572] is very clear. What this Court has laid down is that the amount of compensation payable on the date of accident with reasonable rate of interest shall first be calculated. If the amount so calculated is less than the amount prescribed as on the date of the award, the claimant would be entitled to higher of these two amounts. Therefore, if the liability had arisen before the amendment was brought in, the basic figure would be as per the Schedule as was in existence before the amendment and on such basic figure reasonable rate of interest would be calculated. If there be any difference between the amount so calculated and the amount prescribed in the Schedule as on the date of the award, the higher of two figures would be the measure of compensation. For instance, in case of a death in an accident which occurred before amendment, the basic figure would be Rs 4,00,000. If, after applying reasonable rate of interest, the final figure were to be less than Rs 8,00,000, which was brought in by way of amendment, the claimant would be entitled to Rs 8,00,000. If, however, the amount of original compensation with rate of interest were to exceed the sum of Rs 8,00,000 the compensation would be in terms of figure in excess of Rs 8,00,000. The idea is to afford the benefit of the amendment, to the extent possible. Thus, according to us, the matter is crystal clear. The issue does not need any further clarification or elaboration."
In view of aforesaid judgment, the submission of learned counsel for respondent does not have any merit.
In terms of aforesaid, judgment and award dated 16.12.2002 passed by Railway Claims Tribunal, Lucknow in Claim Case No.0A0100204 (Smt. Manju Yadav & others Vs. Union of India) is set aside. Consequently, the appeal succeeds and is allowed. Parties shall bear their own costs. Office is directed to remit the lower court record to the tribunal.