FAO No. 5007 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -- FAO No. 5007 of 2009 Date of decision: October 14, 2009 Union of India ........ Appellant Versus Rukmani Devi and others .......Respondent(s) Coram: Hon'ble Ms Justice Nirmaljit Kaur -.- Present: Ms Abha Rathore, Advocate for the appellant -.- 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in the Digest? Nirmaljit Kaur, J. C M Nos. 24064 -24065 CII of 2009 For the reasons stated in the applications, delay of 43 days and 35 days, respectively, in filing and re-filing the appeal are condoned. C.Ms. stand disposed of. Appeal This is an appeal against the order dated 19.02.2009 passed by the Railway Claims Tribunal, vide which, the respondents-claimants i.e. widow, son, minor son and minor daughter were awarded a sum of Rs.4,00,000/- as compensation on account of death of Baldev. FAO No. 5007 of 2009 2 While challenging the aforesaid order, learned counsel for the appellant submitted:- i) the incident does not fall under Sections 123 (c), 124-A and alternatively the Railway Administration was protected under Section 12 A (c) of the Railway Act, because the deceased was travelling on the roof of the train, which is an offence; ii) The claimants did not produce any ticket or particulars of the ticket, purchased by the deceased for travelling on any train. As no ticket was recovered from the body of the deceased, the deceased was not a passenger as per Section 124 of the Act; iii) The Tribunal had failed to note the discrepancies regarding the time given by the one witness whose statement was recorded by the police i.e. AW-4 Jagdish. He has stated that the drowning of the deceased was before 7.00 am on 10.02.2002 whereas, the train No. 4 JNK had passed over the bridge around 1.00 p.m; iv) That father of the deceased-Amar Nath had stated before the police on 14.02.2002 that he was travelling on the same train. However, he has not examined himself as a witness which appears highly suspicious; v) No FIR in this regard was registered; vi) That the Tribunal had also failed to appreciate the evidence given by RW-1 that there were passengers on the roof top of Pehowa Road Railway Station, who could not be removed because of non availability of GRP at that Station. The alleged incident is after this station. Hence, the order passed by the Tribunal is incorrect and is liable to be set aside; and vii) The appellant Railway Administration produced RW1 FAO No. 5007 of 2009 3 Guard of the train who has given evidence that there was heavy rush of passengers and many persons were sitting on the roof of the train at Kaithal and he gave a report to the Station Superintendent to have these persons removed from the roof with the help of GRP and the train was allowed to move after persons on the roof of the train were removed. He further stated that again it was found that people had climbed on the roof of the train at Railway Station Pehowa Road. Warning was given by making announcements that there was high voltage electricity wire at Kurukshetra, therefore, they should come down from the roof of the train. But since, no GRP force was available at Railway Station Pehowa Road as such no action could be taken to remove the persons who were on the roof of the train. The alarm chain was pulled at K.M. 80/5-6 and he was informed that some persons have fallen down from the train at kilometres 78/4-5. He went to the Coach from which the chain was pulled and made enquiries and was told that no person had fallen from the coach but cries had been heard from persons sitting on the roof top of the coach. The train was reversed to K.M. 78/4-5 but nobody was found on the tracks or nearby who had fallen down, and the train proceeded. On cross question, he pointed out that there were four stations between Kaithal and Kurukshetra where train No. 4 JNK stops and any person can climb on the roof when the train starts because it is dead slow at that time. Learned counsel for the appellant has been heard. The case of the claimants in the claim petition was that on 10.02.2002, deceased Baldev was travelling on the roof of a passenger Train No. 4 JNK which was coming from Narwana to Kurukshetra at about 01.00 p.m. Due to heavy rush, the deceased fell down from the train into the river FAO No. 5007 of 2009 4 and was drowned. Taking up the argument of the learned counsel for the appellant that the incident does not fall under Sections 123-c and 124-C of the Railways Act and that the deceased was not a bona fide passenger, as he was not carrying a ticket, is liable to be rejected on account of the fact that it was a case of the deceased having drowned in the canal after falling from the roof of the train. It is admitted that the body of the deceased was found after three days. The ticket in possession of the deceased was washed away and could not be recovered. Thus, there is nothing on record to prove that the deceased was travelling ticket-less. In this view of the matter, the deceased has been rightly held to be a bona fide passenger. Taking up the other arguments of the learned counsel for the appellant that there were discrepancies in the evidence of the witnesses that drowning of the deceased was before 7.00 a.m. on 10.02.2002 whereas, Train No. 4 JNK had passed over the bridge at around 1.00 pm, cannot be accepted, as this fact was required to be proved beyond doubt by the appellant-Railway, which has not been proved. Further, the argument that the father of the deceased Amar Nath although stated that he was travelling by the same Train, did not examine himself, cannot be termed as fatal to the finding in view of the other concrete evidence led by the claimants. In fact, the arguments raised by the learned counsel for the appellant that a number of persons were removed from the roof of the Train with the help of GRP, but subsequently, the people climbed up on the roof of the Train at the Railway Station at Kaithal and Pehowa Road in spite of the warnings and announcements, rather prove the case of the FAO No. 5007 of 2009 5 claimants that there was a heavy rush and the people had climbed up the roof of the train. The Witness RW1-Railway Guard produced by the Railways leaves no doubt that the incident did occur. RW1 was cross examined on 18.07.2007 and during testimony the witnesses stated that the passengers had boarded roof top of train at Kaithal and with the help of GRP and RPF all passengers on the roof top were removed and only then the train was directed to move-chain was pulled at KM. 80/5-6 between Pehowa Road and Kurukshetra. On enquiry of reason for ACP pulling, two persons came to him and informed orally that some persons fell down from the train before the train crossed the canal and that it was not correct to suggest that three persons had fallen in the canal. He stated that it was true to suggest that two persons fell down due to heavy rush-it was true to suggest that when he was permitted to start the train from Kaithal Railway Station, there was nobody on the roof of the train- it was possible that persons could climb on the roof of the train when the train started because speed of the train was slow; copy of station memo dated 10.06.2002 at 12 hours. EX R-1A Guard memo dated 10.06.2002 proves that ACP was pulled in coach No. 16248 at Km. 80/5-6. This evidence rather is enough to show that two persons did fall from the train, which is evident from R-1A to R5-A, as also the fact that the train was reversed to the site of the incident. Further the circumstantial evidence of the recovery of the body from the canal also supports the story of the claimants. In view of the aforementioned facts, the incident cannot be denied on the ground that no FIR was lodged, especially when the entire information was admittedly supplied to the RW1, the Guard. Thus, no fault can be found with the finding recorded by the FAO No. 5007 of 2009 6 Tribunal that the deceased was a bona fide passenger and died due to untoward incidents by falling in the canal by travelling on the roof top of the Train. Dismissed. (Nirmaljit Kaur) Judge October 14, 2009 mohan