In the High Court of Punjab and Haryana at Chandigarh ...... F.A.O. No.3765 of 2011 (O&M) ..... Date of decision:1.9.2011 Union of India through its GM, Northern Railways .....Appellant v. State of Punjab and others .....Respondents .... CORAM : HON'BLE MR. JUSTICE MOHINDER PAL ..... 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the reporters or not? 3. Whether the judgment should be reported in the digest? ...... Present: Mrs. Abha Rathore, Advocate for the appellant. Mr. Paul S. Saini, Advocate for the respondents. ..... Mohinder Pal, J. Union of India (appellant) has preferred this appeal against the award/order dated 4.2.2011 passed by the Railway Claims Tribunal, Chandigarh Bench, Chandigarh (hereinafter referred to as `the Tribunal') whereby brother of the respondents Sonia Rani and Naved Kumar alias Sonu had died in a railway accident, whereby respondent No.2-Naved Kumar alias Sonu was granted compensation to the extent of `4,00,000/- along with simple interest at the rate of 9 per cent per annum from the date of filing of the claim petition till the date of its realization. F.A.O. No.3765 of 2011 (O&M) [2] It stands proved on record that Rajiv Kumar alias Raju brother of the respondents had died while he was travelling in a train from Ludhiana Junction to Saharanpur Junction with ticket No.37676051 (Train No.3006) on 24.2.2009. Due to heavy rush, Rajiv Kumar alias Raju was standing near the gate of compartment and when the train was passing through Sahnewal – Doraha Section, he accidentally fell down from the train due to jerk and jostling of passengers and got fatal injuries. He succumbed to his injuries at the spot. I have heard learned Mr. Abha Rathore, learned counsel for the appellant and Mr. Paul S. Saini, learned counsel for the respondents and have gone through the record very carefully. Learned counsel for the appellant argued before me that there is no proof that respondent No.2 was related to the deceased. She further argued that no certified copy of birth certificate of respondent No.2 has been filed to show that he was minor. It was further argued that no proof was placed on record that he was dependent on the deceased. On the other hand, learned counsel for the respondents argued that minor brother of the deceased was dependent on him as his parents had already died. He further argued that he has placed copy of birth certificate of respondent No.2, which shows that he was minor at the time of incident. The Tribunal after appreciating the evidence and material on record came to the conclusion that appellant No.1 being married sister of the deceased could not be legally dependant. Appellant No.2-Naved Kumar alias Sonu is unmarried brother of the deceased and was minor at the time of incident. He could not have been availing full employment and, therefore, F.A.O. No.3765 of 2011 (O&M) [3] he was partly dependent upon the deceased. Therefore, he was held dependent of the deceased as his parents has already died. Learned counsel for the respondents relied upon the judgment of Division Bench of this Court in Dhyan Singh and another v. Union of India and others, Civil Writ Petition No.3398 of 2007 (decided on 17.10.2008) to contend that Section 123 (b) of the Railways Act define “dependent” to include minor brother if dependent partly or wholly on the deceased passenger. The Division Bench of this Court in the above case has held as under:- “The provisions of the Motor Vehicles Act, 1939, authorised a legal representative of the deceased to claim compensation. Under the Railways Act, the legal representatives have not been specifically made eligible to apply for compensation. The Railways Act being a Central Act, as also Fatal Accidents Act, can be deemed to supersede such provisions of the Fatal Accidents Act for which corresponding provision is made under the Railways Act. Since there is no corresponding provision in the Railways Act in respect of Compensation for the loss of estate and the person entitled to claim compensation, would continue to be governed by the provisions of Fatal Accidents Act, 1855. therefore, loss to the estate falling within Section 2 of the Fatal Accidents Act, 1855 could be claimed by the legal representatives of the deceased. The Railways Act will only supersede the provisions of Section 1-A of the Fatal Accidents Act, 1855, whereas loss to the estate computable under Section 2 of the Fatal Accidents Act can be claimed by F.A.O. No.3765 of 2011 (O&M) [4] the legal representatives but from a forum created under the RCT Act in view of the bar of jurisdiction of civil Court. The provisions of Section 2 of the Fatal Accidents Act, 1855, cannot be deemed to be superseded by enactment of Railways Act and the Railway Claims Tribunal Act, 1987. The substantive right created by the Fatal Accidents Act, 1855, cannot be deemed to have been curtailed in any manner by the enactment of the aforesaid Acts. The subsequent enactment has only changed the forum from the civil Court to the Tribunal constituted under the Railway Claims Tribunal Act, 1987. Thus, the compensation on account of loss of estate could be claimed by the eligible legal representatives from the Railway Claims Tribunal in accordance with the procedure prescribed under the Railways Act. The matter can be examined from another angle as well. Section 123 (b) of the Railways Act define “dependent” to include minor brother if dependent partly or wholly on the deceased passenger. The work dependency is not restricted to economic dependence but dependence of love, affection, care and protection of the deceased passenger as well. The word “dependent” in clause (ii) of Section 123(b) of the Railways Act is not to be given restrictive meaning but contextual meaning keeping in view the objective of the statute so as to compensate unfortunate death of a passenger in railway accident. Such provision cannot be interpreted so as to benefit F.A.O. No.3765 of 2011 (O&M) [5] the tort feasor which in the present case would be the Railways. Sub-section (ii) of Section 123 (b) of the Railways Act deals with dependency wholly or in part, therefore, the dependence of care and protection, love and affection by the deceased on their minor brother would be dependence within the meaning of the Act. It may be noticed that the parental grandparents can be said to be dependents only if they are wholly dependent on the deceased passenger. Such dependency is in contravention to even part dependency of a minor brother under clause (ii) of Section 123(b) of the Railways Act.” Learned counsel for the appellant argued that no certified copy of birth certificate of respondent No.2 has been placed on record to show that he was minor at the time of incident. A copy of birth certificate has been produced on record. Two witnesses have put in appearance but they were not cross-examined regarding the age or regarding the genuineness of the birth certificate produced by the claimants. Learned counsel for the appellant further argued that no proof has been produced on record that respondent No.2 was dependent on his deceased brother. In this regard respondent No.2 tendered evidence wherein it has been stated that their parents had already expired and the respondent No.2 was dependent on deceased- brother. It stands proved on record that Rajiv Kumar alias Raju brother of respondent No.2 had died in an untoward incident. So far as payment of compensation in the case of death or injury to a railway passenger in the course of a railway accident or untoward incident is concerned, the same is F.A.O. No.3765 of 2011 (O&M) [6] governed by the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990 as amended in 1997. These Rules provide a sum of `4,00,000/- as compensation on account of the death of a railway passenger. So, the Tribunal has rightly awarded the compensation to the extent indicated above. Resultantly, I do not find any merit in this appeal which is hereby dismissed. September 1, 2011. (Mohinder Pal) Judge *hsp*