FAO No.5507 of 2010 (O&M) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.5507 of 2010 (O&M). Decided on: May 27, 2011. Asha Sharma and others. .. Appellants VERSUS Union of India. .. Respondent * * * CORAM: HON'BLE MR.JUSTICE M.M.S.BEDI 1. Whether reporters of local papers may be allowed to see the judgment? 2. Whether to be referred to the Reporter? 3. Whether the judgment should be reported in the Digest? * * * PRESENT Mr.Kartar Singh Malik-I, Advocate, for the appellants. Mr.Kulvir Narwal, Advocate, for the respondent. M.M.S. BEDI, J. Through the instant appeal under Section 23 of the Railway Claims Tribunal Act, 1987 (for short 'the RCT Act'), the appellants have challenged the order passed by the Railway Claims Tribunal, Chandigarh Bench, Chandigarh, dated 08.03.2010, dismissing the claim petition under Section 16 of the RCT Act arising out of incident of death of Hans Raj Sharma, who was husband of . . . 1 FAO No.5507 of 2010 (O&M) appellant No.1 and father of appellant Nos.2 & 3. Brief facts, relevant for the decision of the present appeal, are that the deceased was working as Loco Pilot in Northern Railway, at Shakur Basti, Delhi. On 05.10.2006, he died on account of fall from passenger train while travelling from Delhi to Jind, as passenger after completing his duty. When the train reached in the area of District Rohtak, the deceased suddenly fell from the train on account of alleged negligence of the driver of the train. The incident had occurred in the area of District Rohtak, as per the Investigation Report. The deceased was holding a Departmental pass being an employee of the Railways. The deceased was drawing monthly salary of ` 18,000/- to ` 20,000/- from the Railway Department. Having lost the sole bread earner, the appellants claimed compensation for the loss suffered. The respondent contested the claim on the ground that the incident was not covered under untoward incident as defined under Section 123 (c) of the Railways Act, 1989 (for short 'the Act'). That the deceased died on account of self-inflicted injury and on account of his own criminal act, while standing at the gate of the compartment of the moving train when the train had already covered a long distance from the place of initiation of journey and he was also not in anyway near to his destination station and as such, Railway Department was not liable to pay any compensation. It was claimed that an enquiry regarding the incident was pending and that the deceased was not a bona fide passenger. It was denied that the . . . 2 FAO No.5507 of 2010 (O&M) appellants are entitled to any compensation. The Railway Claims Tribunal, Chandigarh Bench, Chandigarh, framed the following issues: - 1. Whether the deceased was a bona fide passenger of the above train on above date and place? 2. Whether the case of the deceased fall under Section 123 (2) (c) of the Railways Act? 3. Whether the respondent can save his written statement of para No.2, because the case of deceased fall under his criminal activities or self suffered injuries? 4. Whether the applicants are the legal heirs of the deceased? Whether they are entitled for compensation? 5. Relief. In order to prove above said issues, the appellants examined Asha Sharma AW.1 and Naresh Kumar AW.2, who had seen the deceased travelling and falling down. The said witnesses established that oscillation and jerks resulted in the fall of the deceased. The said AWs had pulled out Hans Raj Sharma injured along with others and took him to the Station Master, Rohtak. He was attended by Railway doctor. Identity Card EX.A1, a copy of the privilege railway pass EX.A2, post-mortem-report dated 06.10.2006, . . . 3 FAO No.5507 of 2010 (O&M) EX.A3, copy of ration card EX.A5, School Certificate of Ranjana Sharma EX.A6, Inquest Report EX.A7 along with certificate of Station House Officer (SHO), regarding fall from the train and Last Pay Particulars EX.A8, have been proved on record before the Tribunal. The respondent proved the report of DRM dated 14.12.2009 (EX.R1), giving an opinion that the deceased was not a bona fide passenger and that he was trying to get down from the running train when he fell down and died. He proved farad jamatalashi recovering SF-I form, two Pens, a Spectacles and cash of ` 1645/-. Death report and statements recorded by the GRP, opining that the death was on account of fall from the train have also been produced on the record. Issue No.1 was decided against the appellants- claimants on the ground that farad jamatalashi EX.R1, proved on the record indicates that the deceased was not having any railway pass along with other articles recovered from him. The Tribunal formed an opinion that the appellants-claimants had pleaded that the deceased was travelling with railway pass and they had failed to discharge the onus in a cogent manner and as such,the deceased was not a bona fide passenger. It was held that the incident was not an untoward incident as defined under Section 123 (c) (2) of the Act, and it not being a case of “accidental fall” as such, the Tribunal held that the deceased had accidentally fallen from the train on account of oscillation when it started from normal halt at Rohtak Station, resulting in the fall of the deceased. But since he was not a bona fide . . . 4 FAO No.5507 of 2010 (O&M) passenger, it was concluded that the incident was not an untoward incident as defined under Section 123 (c) (2) of the Act. Issue Nos.2 & 3 have been decided against the appellants. Issue No.4 was decided in favour of the appellants. The claim was, thus, rejected. Counsel for the appellants, Mr.Kartar Singh Malik, has vehemently contended that the Tribunal has fallen in error in holding that the appellants are not entitled to any compensation on account of untoward incident of fall of Hans Raj Sharma from the running train on account of he being not a bona fide passenger. It was vehemently contended that the onus to prove that the incident was not an untoward incident was upon the respondent but the respondent had failed to prove that the deceased was not a bona fide passenger. The person who had investigated the matter i.e., the Investigating Officer was not examined. Strong reliance was placed on the railway pass EX.A2, to contend that the Tribunal had wrongly rejected the railway pass as it was not found during jamatalashi. Neither any ticket nor any pass was recovered from the deceased by the Investigating Officer. It was contended that the deceased was travelling as a passenger after completing his duty at Delhi. He started his journey in Train No.2555, which was coming from Delhi to Rohtak. The time table of Train No.2555, has been placed on the record showing that the same was brought to the notice of the Tribunal at the time of arguments, but it has not been considered. It was also argued that the deceased had started the . . . 5 FAO No.5507 of 2010 (O&M) remaining journey by Train No.341 UP for Jind at about 9:00 AM. The time table of train No.341 UP, has been placed on record as Annexure A.2, claiming that the same was brought to the notice of the Tribunal, but has been ignored. I have heard the counsel for the appellants as well as counsel for the respondent at length and carefully considered the facts and circumstances of the case. The fact that the deceased was an employee of the Railways posted at Shakur Basti, Delhi, is not a disputed question of fact. It is also established that while travelling he died in an accident on account of fall from the train. An application for compensation under Section 124 (A) of the Act is maintainable by a passenger who has been injured or the dependents of a passenger who has been killed, to recover the damages. A passenger has been defined in the Explanation attached to Section 124A of the Act. Explanation.- For the purpose of this section, "passenger" includes- (i) a railway servant on duty; and (ii) a person who has purchased a valid ticket for travelling by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident. An untoward incident has been defined under Section 123 (c) (2) of the Act as follows: - (c) "untoward incident" means-- (1) (i) the commission of a terrorist act within the . . . 6 FAO No.5507 of 2010 (O&M) meaning of sub-section (1) of section (3) of the Terrorist and Disruptive Activities (Prevention) Act, 1987; (28 of 1987) or (ii) the making of a violent attack or the commission of robbery or dacoity; or (iii) the indulging in rioting, shoot-out or arson, by any person in or on any train carrying passengers, or in a waiting hall, cloak room or reservation or booking office or on any platform or in any other place within the precincts of a railway station; or (2) the accidental falling of any passenger from a train carrying passengers. It is also an admitted fact that the deceased held a valid pass EX.A2, proved on the record. The said pass entitled not only the deceased but his family members also to travel on one birth in 2 AC or two births in 3 AC by Rajdhani Exp. and two seats in AC Chair Car by Shatabdi Express with permission to break journey at KLK, UMB, DLI, CNB. The time table of train No.341 UP and 2555 show that the said train operated on New Delhi, Rohtak, Jind, Jakhal etc. A perusal of the pass indicates his status as Loco Pilot posted at Shakur Basti on the route Shimla-Hawrah and from Hawrah-Shimla. The journey pass was valid till 25.11.2006. The pass was valid on the date of the accident. The claim of the appellants has been rejected solely on the ground that the deceased was not a passenger. A perusal of the definition of passenger indicates that a . . . 7 FAO No.5507 of 2010 (O&M) person who has purchased a valid ticket for travelling by a train carrying passengers or holding a valid platform ticket having become victim of untoward incident would fall within the definition of passenger. A railway servant on duty has been also held to fall in the class of passenger for the purpose of compensation on account of untoward incident in an application under Section 124A of the Act. According to Section 123 (c) (2) of the Act, accidental fall of any passenger from a train carrying passengers is an untoward incident. The short question which arises for determination in the present case is whether railway servant holding a valid pass to travel, travelling in a passenger train and accidentally falling from the train carrying passengers would not be treated as a passenger for the purpose of grant of compensation on account of untoward incident merely because at the time of incident, he was not carrying the said pass. It is not disputed in the present case that the deceased was travelling in a passenger train at the time of his accidental fall and he was entitled to travel without a valid ticket because he had been issued a pass which was valid uptil 26.07.2006. The said pass was not found in his pocket at the time of enquiry under the Railway Passenger (Manner of Investigation of Untoward Incidents) Rules, 2003, as amended in 2007. Section 124A of the Act, indicates that a Railway Servant on duty can be described for the purpose of untoward incident if he is travelling in a train carrying passengers. The status of said Railway Servant on . . . 8 FAO No.5507 of 2010 (O&M) duty is same as that of a person who has purchased a valid ticket for travelling by a train carrying passengers. A victim of untoward incident accidentally falling from passenger train is entitled to compensation on account of untoward incident. A railway servant who becomes a victim of accidental fall from a passenger train, is certainly entitled to compensation on account of untoward incident if he holds a valid permission to travel in a train carrying passengers. When a railway servant is issued an authority to travel in a train carrying passengers in the capacity as a passenger by issuing him a travelling pass, he becomes an authorized passenger. The pass carried by any person is same as a valid ticket. Merely because a person entitled to travel against a validly issued pass, is not carrying the same at the time of untoward incident, he cannot be deprived of a statutory benefit available to the said passenger or his dependents, as grant of compensation on account of untoward incident to a passenger is a part of welfare legislation and it has to be construed liberally. The benefit of a social legislation cannot be denied to a citizen on mere technicalities. The simple language of explanation of passenger under Section 124A of the Act, shows that the passenger is either a railway servant on duty or a passenger who had purchased a valid ticket for travelling by a passenger train. If the railway servant is not on duty and he is travelling in a passenger train with a valid pass, he cannot be excluded from the definition of a “passenger”, for the purpose of determining compensation under Section 124A of the Act. The finding of the Claims Tribunal that the . . . 9 FAO No.5507 of 2010 (O&M) deceased Hans Raj Sharma was not a passenger within the definition of victim of untoward incident under Section 123 (c) (2) read with Section 124-A Explanation (ii) of the Act, is absolutely erroneous and is based on misconstruction of the provisions of the Act. In view of above discussion, the order of the Tribunal, dismissing the claim petition is hereby set aside and the appellants are held entitled to compensation of ` 4 lacs (rupees four lacs only) as provided in the Schedule (Compensation payable for death and injuries). The appellant-claimants are also entitled to interest @ 6 per cent per annum from the date of application. Appellant-claimant No.1 will be paid a sum of ` 2 lacs, whereas appellant-claimant Nos.2 & 3 will be entitled to ` 1 lac each with interest as mentioned above. In case appellant-claimant Nos.2 & 3 are minors, the amount of compensation will be disbursed to appellant-claimant No.1, against an undertaking that he would spend the amount for the welfare of minor appellants-claimants. (M.M.S.BEDI) JUDGE May 27, 2011. rka . . . 10