ORAL JUDGMENT :
1. Heard.
2. Admit. Heard finally in terms of the order passed on 22nd February, 2017.
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3. This appeal challenges the legality and correctness of the judgment and order dated 8.12.2015, passed by the Railway Claims Tribunal, Nagpur, in case No. OA(IIu)/NGP/2012/0298. By this judgment and order, a claim made by the respondent with South Central Railway Secunderabad for receiving compensation of Rs.8,00,000/- along with interest at the rate of 12%, on account of death of the husband and father of appellant Nos.1 and 2 respectively in a railway accident resulting from an untoward incident was rejected. The accident had occurred at about 12.30 hours of 21.1.2012 at Railway Station Latur Road when the deceased Gautam had fallen off a running train bearing train No. 57548. It was the case of the appellants that deceased Gautam was a bona fide passenger holding a valid ticket to travel on the train and that he had fallen down from a running train, while it was the case of the respondent that the deceased was a hawker and that he had tried to board a running train when it had already gathered momentum and thus it was not a case of untoward incident but a case of criminal negligence as well as self inflicted injury.
4. Learned counsel for the appellants submits that there is ample evidence available on record which would show that deceased Gautam was a bona fide passenger and he had fallen off a running train and not at the time when he was trying to board a running train which had gathered momentum. He, however, does not dispute the claim of
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the respondent that deceased Gautam was a hawker selling some eatables on train. But, according to the learned counsel for the appellants, the hawker's business was carried out by the deceased not at Latur Road Railway Station but at some different place.
5. Shri NP. Lambat, learned counsel for the respondent submits that the evidence available on record shows that the stand taken by the Railway has been duly proved and, therefore, there is no reason for making any interference with the impugned judgment and order.
6. In view of the argument advanced across the bar, following point arises for my determination :
Whether the deceased died in a railway accident on account of untoward incident ?
7. The evidence available on record, on its perusal, does show that whatever has been submitted by the learned counsel for the respondent is having substance in it and there is no merit in the argument of learned counsel for the appellants.
8. Although, it is case of the appellants that the deceased had fallen off a running train while he was already travelling on board the train, the evidence of Shri Ramesh Kumar (RW 1), Assistant Station Master, examined by respondent shows the case to be otherwise, he being an eye witness to the entire incident and, therefore, his evidence has assumed importance in the present case. This is not so with the
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evidence of two witnesses of the appellant, namely, AW 1 Pushpa and AW 2 Rasika as admittedly both of them were not eye witnesses to the incident.
9. While AW 1 Pushpa does not know anything about the incident or going of her deceased husband to Latur Road Railway Station for catching a train, AW 2 Rasika, sister in law of the deceased, knows something which is related to the occurrence of the incident, if not the incident proper. She states that she had been to Latur Road Railway Station in order to see off her deceased brother in law and that she had indeed purchased a railway ticket for her deceased brother in law in order to enable him to travel on a train for going to Udgir. In this regard, I do not see any difficulty in accepting the evidence of AW 2 Rasika as there is nothing in her entire evidence to entertain any doubt about her seeing off her deceased brother in law at Latur Road Railway Station and also purchasing a railway ticket for him. But, she also admits that so far as the occurrence of the accident was concerned, she was not aware of it and that her knowledge regarding falling down from the train of her brother in law was based upon what was told to her by other persons. She also admits that personally she did not witness the accident. Here, we are concerned with the manner in which the accident occurred as the defence of the criminal negligence and self inflicted injury has been taken by the respondent. Therefore, the evidence of that
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person who had an occasion to witness the incident would assume importance and that is why I have found that evidence of RW 1 Ramesh Kumar is the evidence which holds key to resolution of the dispute involved in the present case.
10. RW 1 Ramesh Kumar in his evidence has clearly said that the deceased Gautam was a hawker and that he witnessed the entire incident. He has stated that he had given a green signal to Train No.57548 Purna-Hyderabad Passenger after which the train started rolling down the platform. He has further stated that as the train had started leaving Latur-Road Railway Station, a man i.e hawker, selling puffed rice in the train, tried to get on to the train, but fell down and was caught in the gap between the train and the platform, due to which he was run over by the train and met with an unfortunate death on the spot itself. He has also stated that thereafter he signalled the guard of the train, stopped the train and passed a message to all the concerned officials using the control system. He has further stated that he issued a memo to RPF Sub Inspector and GRC Sub Inspector Parli and also informed the RPF on duty at Latur Road Railway Station in order that further action was taken by them.
11. Such evidence of RW 1 has gone completely unchallenged when one looks at his cross-examination taken on behalf of the appellants. In the cross-examination, it appears, only two questions were
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put to this witness and they were answered by him in terms "Police has recorded my statement. I agree with the facts." This is all about the whole cross-examination of RW 1 Ramesh Kumar. There is nothing further in the cross-examination. The inference will be inevitable. It would be that the appellants accept whatever RW 1 Ramesh Kumar has stated regarding the deceased being a hawker, the deceased selling puffed rice on the trains including the train in question and not the other trains as the appellants submit and the deceased falling down the train at the time when he made an unsuccessful attempt to get on to the train while it was running. As if, such admissions are not enough, the documentary evidence adduced by the Railway through the evidence of RW 1 Ramesh Kumar stamp a further seal of approval to the inference that inevitably arises from considering the evidence of RW 1 Ramesh Kumar. The memo issued by RW 1 Ramesh Kumar at Page A-106 of the record of the trial Court, serves to lend an assurance to the Court that RW 1 Ramesh Kumar indeed witnessed the incident and it occurred the way he deposed before the Court. In this memo dated 21.1.2012 issued at 12.30 hours, 11 minutes after the occurrence of the accident or in other words immediately after the incident also refers to the status of the deceased as a hawker and the fact of falling down of the deceased from the train which had started to roll down on the tracks.
12. Learned counsel for the appellants at this stage has invited
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my attention to the statement of the Ramesh Kumar, Assistant Station Master, recorded by the Station Master on 1.3.2012, which is at Page A-81 of the record of the trial Court. He submits that the story narrated in this statement by Ramesh Kumar is somewhat different. He points out from this statement that according to Rameshkumar, the deceased had fallen down from a running train. He submits that this statement nowhere mentions the fact that deceased Gautam had tried to catch a running train and in that process, he fell down from the train. He submits that this is the own document of the Railways and, therefore, would have to be accepted as giving a correct picture about the manner in which the accident occurred. Shri N.P. Lambat, learned counsel for the respondent disputes this. He submits that what was produced before the Lower Court was a copy of the alleged statement dated 1.3.2012, which was issued by P.S.I. Railway Station Parli-Vajnath as true copy of the statement. He further submits that the original statement was not tendered in evidence. Therefore, according to him, it was the duty of the learned counsel for the appellants, to have invited attention of RW 1 Ramesh Kumar specifically to this statement when he was subjected to cross-examination by him and if he had done so, the explanation of RW 1 Ramesh Kumar in this regard would have appeared on record and since that was not done, no reliance can be placed upon this statement. I think learned counsel for the respondent is right in his such submission.
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Attention of RW 1 Ramesh Kumar ought to have been invited to this statement and if it had been done, something useful for doing justice in the present case would have appeared on record. But, unfortunately that is not the case. On the contrary, the evidence of RW 1 Ramesh Kumar has been accepted by the appellant as correct and not even a whisper of protest has been made by the appellant about whatever has been deposed before the Court by RW 1 Ramesh Kumar. If the suggestions in the nature of simple denial had been put to this witness, one could have said that the evidence of RW 1 Ramesh Kumar was not accepted to be true and correct by the appellant. But no such suggestions of denial were ever put to this witness. Therefore, the only conclusion that can be made in the instant case is that the appellants themselves have admitted the crucial facts relating to the manner in which accident occurred. These crucial facts are already discussed by me and, therefore, they are not reproduced here. In such a case, the latest statement of RW 1 Ramesh Kumar dated 1.3.2012, on which reliance has been placed by the appellant at this stage, cannot be read in evidence. That apart, the memo issued by RW 1 Ramesh Kumar was almost immediately after the accident and the contents of this memo broadly corroborate the evidence of RW 1 Ramesh Kumar. Therefore, the evidence of RW 1 Ramesh Kumar before the Court would have to be taken as trustworthy whereas copy of his statement dated 1.3.2012 cannot be read in evidence.
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13. So, accepting the evidence of RW 1 Ramesh Kumar what emerges on record are the facts that deceased Gautam was a hawker and on the fateful day he had tried to board a running train but could not succeed in his attempt and fell down the train only to be caught in the gap between the train and the railway platform and thus dying instantaneously of the injuries that he suffered in the process.
14. Such an attempt by a hawker has been viewed by the trial Court as something amounting to criminal negligence on his part and also an effort to inflict injuries to himself. The trial Court reasoned that if the deceased had to sell his goods by boarding a train, he should have ensured to do so only when it was quite safe for him to get on to the train or otherwise he could have avoided catching the train and waited for another train to come. It also hinted that there was absolutely no compulsion or hurry for the deceased in the present case to make an attempt to somehow or the other board the train while it was gathering speed. For such conclusions, the Tribunal has relied upon the cases of the superior Courts including that of Hon'ble Supreme Court which is of
Jameela and others vs. Union of India, reported in (2010) 12 SCC 443, wherein the Hon'ble Supreme Court held that when the negligence is not an ordinary negligence but a criminal negligence, the deceased only would have to be held as responsible for his own death and compensation could not be granted. The trial Court found that facts of
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the instant case also disclosed that this was not a case of ordinary negligence but a case of criminal negligence as well as injuries being self inflicted. I do not think that any fault in this reasoning, which is based entirely upon the facts established on record, can be found. If it is found, which in fact has been found in the present case, that the deceased was a hawker who was trying to board a running train, one would have to say that the deceased, in his wisdom, could have let go the train and waited for another train to come by so that he could carry on his trade as usual, there being neither any compulsion on his part to catch this particular train only nor there being any urgency for him to board this train only. Therefore, I am of the view that the findings recorded by the Tribunal in this regard cannot be said to be illegal or perverse. The Tribunal has rightly held that the accidental fall of the deceased did not amount to untoward incident as defined under Section 123 (C)(2) of the Railways Act and therefore, the appellants are not entitled to receive any compensation in the present case. The point is answered accordingly.
15. The appeal stands dismissed.
16. The parties to bear their own costs.
JUDGE
okMksns
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