# Ajay Kumar v. U.O.I. & Ors

- **Citation:** (2022) 7 ILRA 594
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-06-14
- **Case number:** First Appeal From Order No. 1005 of 2013
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajay-kumar-v-u-o-i-ors-48810
- **Pages:** 7

## Headnote

(A) Civil Law - Railway Act, 1989 -
Sections 8, 123(C)(2) & 124-A, Railway
Claims Tribunal Act,1987 Section - 23,
Evidence Act, 1872 Section - 102: -
Claimant's Appeal - rejection of Claim -
Untoward
incident
-
Appreciation
of
evidence - tribunal disbelieved untoward
incident on account of a contradiction in
the testimonies of claimant and eyewitness - which could be the result of an
aberration in perception that the claimant
suffered from in the throes of his agony
post
accident
-
finding
of
tribunal
erroneous. (Para -10)

(B) Civil Law - Railway Act, 1989 - Section
8,
123(C)(2),
124-A,
Railway
Claims
Tribunal Act,1987 Section - 23, Evidence
Act, 1872 Section - 102 - Claimant's
Appeal - rejection of Claim - Untoward
incident
-
Bona
fide
passenger
-
Admittedly, railway ticket recovered from
claimant but it was not placed on record -
as such evidential burden not discharged
by the Railways - merely absence of a
railway ticket with victim of a railway
accident would not show that he was not
a bona fide passenger - as well as
overshooting destination would also not
deprive him of his status as 'bona fide'
passenger - finding of tribunal - perverse.
(Para - 12, 13)

(C) Civil Law- Railway Act, 1989 -
Sections 8, 123(C)(2) & 124-A - Railway
Claims Tribunal Act,1987 - Section - 23 -
Evidence Act, 1872 - Section - 102 -
Claimant's Appeal - Untoward incident -
Quantum of compensation - appellant
suffered a fall from the train - sustained
injuries which can be visualized by the
very natural description of incident -
adverse inference drawn against the
Railways for failure to produce recovered
Railway ticket - no means can be regarded
that appellant was not a bona fide
passenger - finding returned by the
tribunal - cannot be sustained - the
compensation computed at Rs. 4 lacs with
9% rate of interest if not paid within 90
days - appeal allowed with costs.(Para - 17,
19)

Appeal - allowed. (E-11)

List of Cases cited: -

## Text

594 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2022)07ILR A594
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.06.2022

BEFORE

THE HON'BLE J.J. MUNIR, J.

First Appeal From Order No. 1005 of 2013

Ajay Kumar ...Appellant
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Appellant:
Sri Jaspreet Singh, Sri Amit Kumar, Sri P.K.
Singh

Counsel for the Respondents:
Sri Manendra Nath Rai, Sri Nandita Bharti,
Sri Pratul Kumar Srivastava

(A) Civil Law - Railway Act, 1989 -
Sections 8, 123(C)(2) & 124-A, Railway
Claims Tribunal Act,1987 Section - 23,
Evidence Act, 1872 Section - 102: -
Claimant's Appeal - rejection of Claim -
Untoward
incident
-
Appreciation
of
evidence - tribunal disbelieved untoward
incident on account of a contradiction in
the testimonies of claimant and eyewitness - which could be the result of an
aberration in perception that the claimant
suffered from in the throes of his agony
post
accident
-
finding
of
tribunal
erroneous. (Para -10)

(B) Civil Law - Railway Act, 1989 - Section
8,
123(C)(2),
124-A,
Railway
Claims
Tribunal Act,1987 Section - 23, Evidence
Act, 1872 Section - 102 - Claimant's
Appeal - rejection of Claim - Untoward
incident
-
Bona
fide
passenger
-
Admittedly, railway ticket recovered from
claimant but it was not placed on record -
as such evidential burden not discharged
by the Railways - merely absence of a
railway ticket with victim of a railway
accident would not show that he was not
a bona fide passenger - as well as
overshooting destination would also not
deprive him of his status as 'bona fide'
passenger - finding of tribunal - perverse.
(Para - 12, 13)

(C) Civil Law- Railway Act, 1989 -
Sections 8, 123(C)(2) & 124-A - Railway
Claims Tribunal Act,1987 - Section - 23 -
Evidence Act, 1872 - Section - 102 -
Claimant's Appeal - Untoward incident -
Quantum of compensation - appellant
suffered a fall from the train - sustained
injuries which can be visualized by the
very natural description of incident -
adverse inference drawn against the
Railways for failure to produce recovered
Railway ticket - no means can be regarded
that appellant was not a bona fide
passenger - finding returned by the
tribunal - cannot be sustained - the
compensation computed at Rs. 4 lacs with
9% rate of interest if not paid within 90
days - appeal allowed with costs.(Para - 17,
19)

Appeal - allowed. (E-11)

List of Cases cited: -

1. Vaishali Vs U.O.I.(2011 ACJ 106),

2. U.O.I.Vs Rina Devi (2019 (3) SCC 572),

(Delivered by Hon'ble J.J. Munir, J.)

This is a claimant's appeal, arising out
of a judgment and order dated 16.09.2013,
passed by the Railway Claims Tribunal,
Lucknow Bench, Lucknow rejecting the
claim for compensation on account of
injuries sustained in an untoward incident.

2. Ajay Kumar, the sole appellant
here, who preferred the application for
compensation before the Tribunal, said in
his application, raising the claim, that he
was travelling on a second class general
ticket on board the Farakka Express on
March 18, 2007 from Delhi to Kanpur.
7 All. Ajay Kumar Vs. U.O.I. & Ors.
595
When the train was passing through the
Govindpuri Railway Station, there was a
sudden ''jerk and jolt' in its movement, that
led the appellant to be thrown off board. In
consequence, the appellant was grievously
injured. He was admitted to the care of the
Lala Lajpat Rai Hospital, Kanpur, where he
underwent surgery of amputation closure.
In consequence of the accident, the
appellant lost his journey ticket. Along with
the claim application, the appellant has
submitted photostat copies of documents
that include the discharge slip from the
G.S.V.M. Medical College, Kanpur, Lala
Lajpat
Rai
and
Associated
Hospital,
Kanpur, a copy of his ration card and a
copy of the permanent disability certificate
issued by the Chief Medical Officer,
Kanpur
Dehat,
besides
some
papers
relating to the treatment received by the
applicant as an out-patient at the G.S.V.M.
Medical College, Lala Lajpat Rai and
Associated Hospital. The claimant prayed
that he may be granted compensation in the
sum of Rs. 4 lacs with pendente lite and
future interest at the rate of 18% per annum
from the date of incident.

3. The respondent-Union of India
through the General Manager, Northern
Railways, filed a written statement, refuting
the appellant's claim. The written statement
was filed on 27.11.2007. The respondent
took a stand that the appellant was neither a
passenger on board the Farakka Express
nor did he suffer a fall from the train on
13.03.2007
near
Govindpuri
Railway
Station. There are some additional pleas set
out in the written statement and this Court
must remark that the written statement is so
carelessly drafted that in paragraph no. 8
thereof, it is said that "the deceased was not
the passenger of the Farakka Express train
on 13.03.2007". Admittedly, this is a case
where, in consequence of the untoward
incident, the appellant has survived the fall
and it is he who is claiming compensation.
It is further pleaded in the written statement
that the untoward incident never took place
and the story has been fabricated. It is also
averred that the claim application does not
disclose an untoward incident within the
meaning of Section 123(c)(2) read with
Section 8 of the Railways Act, 19891.

4. On the pleadings of parties, the
following issues were framed :

1. Whether the injured was a
bona fide passenger of the train in
question?

2.
Whether
the
incident
of
sustaining injuries by the injured falls
under the ambit of Section 124-A of the
Railways Act, 1989?

3. What are the injuries sustained
by the injured applicant?

4. To what relief?

5. In support of the claim, the appellant,
Ajay Kumar, examined himself as AW1. His
examination-in-chief was put in, in the form
of an affidavit along with photostat copies of
documents viz. the discharge slip from the
hospital, the handicap certificate from the
Chief Medical Officer, Kanpur Dehat and
medical prescriptions. Another witness who
testified on behalf of the appellant was Smt.
Maya, AW2, an eye-witness of the incident.
She too put in an affidavit, carrying her
evidence by way of examination-in-chief.
Both the witnesses for the appellant were
cross-examined on behalf of the respondents.

6. The respondent filed documentary
evidence, which is an inquiry report of the
596 INDIAN LAW REPORTS ALLAHABAD SERIES
Inspector, RPF/GMC, Kanpur, a police
G.D. entry and a report of the Station Incharge, NCR, Govindpuri. This Court
notices that no witness was examined on
behalf of the respondents. The Tribunal,
after hearing parties, decided Issue Nos. 1
and 2 together, by the judgment impugned.
It is remarked by the Tribunal that
according to the evidence of the appellant,
he fell off the Farakka Express while it was
passing through the Govindpuri Railway
Station on 18.03.2007 and got injured. He
was hospitalised in the Lala Lajpat Rai
Hospital, Kanpur by Smt. Maya Devi. It is
remarked
that
during
his
crossexamination, the appellant has said that
after the untoward incident, the Police had
visited the site and returned without
extending any help. The Police made no
efforts to convey him to the hospital. It is
said that it was Smt. Maya Devi who took
him to the hospital. The Tribunal notes that
Smt. Maya Devi has also submitted an
affdiavit and has been cross-examined by
the learned Counsel for the respondent.
Smt. Maya Devi, in her cross-examination,
said that she picked up the injured appellant
from the site and took him to the Police and
Railway Authorities. The Police arranged a
tempo to convey the appellant to the
hospital. This difference in the version of
the appellant and his witness, Maya Devi,
has been regarded as a contradiction by the
Tribunal, fundamental enough to shake the
veracity of the appellant's case.

7. The Tribunal has then considered
the documentary evidence offered by the
respondents. It is remarked that the inquiry
conducted by the Inspector, RPF/GMC,
Kanpur and the Police G.D. show that a
certain porter, Chhote Lal from the West
Cabin, at 07:00 hours, handed over a memo
regarding a man who had sustained injuries
by train. When the police officials reached
at the site, they found the appellant and his
nephew, Deepu alias Pradeep Kumar there.
The Tribunal records the fact that the
inquiry report of the Inspector says that the
second class general ticket, on which the
appellant was travelling, was from Delhi to
Jhinjhak. It was recovered from the person
of the injured by the Police and he was
dispatched to the Lala Lajpat Rai Hospital
by the police officials. Again, at this stage,
the assertion in the cross-examination of
the appellant that the Police, after reaching
the site, went away without assisting him,
has been found, on a comparison with the
report of the Inspector, RPF/GMC, Kanpur
to be a material contradiction. Apart from
the
contradiction,
the
Tribunal
has
concluded that the appellant had a ticket up
to Jhinjhak and therefore, at Govindpuri, he
was not a bona fide passenger. It has been
held by the Tribunal that initially, burden
lies upon the appellant to prove his case of
being a victim of an untoward incident by
adducing documentary evidence, and the
respondents need not disprove the case of
the appellant, which on its own strength, is
not proved by cogent evidence. The
Tribunal has remarked that no evidence
was produced on behalf of the appellant,
leading to a failure on the appellant's part to
discharge his evidential burden under
Section 102 of the Indian Evidence Act,
1872. The Tribunal has held that it is not
proved that the appellant was a bona fide
passenger on board the train in question, or
that he sustained injuries in an untoward
incident while travelling on board the said
train. In this view of the matter, the
Tribunal has dismissed the claim vide
judgment and order dated 26.09.2013.

8. Aggrieved, the appellant has
come up through this appeal under
Section 23 of the Railway Claims
Tribunal Act, 1987.
7 All. Ajay Kumar Vs. U.O.I. & Ors.
597

9. Heard Ms. Amrita Singh, learned
Counsel
for
the
appellant
and
Mr.
Manendra Nath Rai, learned Counsel
appearing on behalf of the respondents. The
records have been carefully perused.

10. The way the Tribunal has looked
at the evidence of the appellant AW1 and
his witness Smt. Maya Devi, AW2 is
patently fallacious. It has disbelieved the
untoward
incident on
account
of
a
contradiction in the testimonies of the
appellant and Smt. Maya Devi that could
logically be there, given that the appellant
had sustained a grievous injury in the
untoward incident, leading to amputation of
one of his limbs. The contradiction in the
evidence of the two, about which the
Tribunal has made much ado, is that
whereas the appellant says that the Police
came to the site and went away without
assisting him and that it was Smt. Maya
Devi who conveyed him to the hospital,
Smt. Maya Devi says that she picked up the
appellant on seeing him fall off the train
and suffer injuries and took him to the
Police
and
the
Railway
Authorities.
According to Smt. Maya Devi, AW2 it was
the Police who arranged a tempo to convey
the appellant to the hospital. This has been
discerned as a vital contradiction in the
cross-examination of the appellant and his
witness Smt. Maya Devi. The evidence of
parties is not to be understood or
appreciated as if it were by the rules of
grammar. It is to be appreciated to
understand facts relevant to the issue or the
fact in issue itself, as it unfurled on the
ground. The Tribunal lost sight of the fact
that the appellant was a man who had
suffered a grievous injury as a result of the
fall from the train that led to the traumatic
amputation of one of his lower limbs. In the
quick
sequence
of
events
after
the
untoward incident, it is very logical that the
appellant misunderstood that the Police did
not help, but Smt. Maya Devi conveyed
him to the hospital. The fact that Smt.
Maya Devi took the help of the Railway
Authorities and the Police in conveying the
appellant to the hospital may be presenting
a full picture of which the traumatized
appellant reported the half, that he
perceived. Both the appellant and Smt.
Maya Devi are ad idem on the point that it
was she who picked up the appellant and
got him conveyed to the hospital. Whether
she did this of her own, without any
assistance from the Police or with their
assistance, is not at all material. As already
remarked, this could be the result of an
aberration in perception that the appellant
suffered from in the throes of his agony
post accident. The Tribunal has, therefore,
gone
utterly
wrong
in
inferring
a
contradiction on this count between the
testimonies of AW1 and AW2.

11. The other count on which the
Tribunal has held against the appellant is
that he could not establish himself to be a
bona fide passenger on Board the Farakka
Express, when he claims to have met the
accident. In reaching this conclusion, the
Tribunal has heavily relied on the inquiry
report
conducted
by
the
Inspector,
RPF/GMC Kanpur, enclosing with it a
copy of the Police G.D. No. 4. The
Tribunal has remarked that a perusal of the
inquiry report and the Police G.D. shows
that at 07:00 hours, a porter, Chhote Lal
from the West Cabin, handed over a memo
regarding a person who had sustained
injuries by train. The report has further
been noticed to show that when the Police
officials reached the site, they found the
appellant and his nephew Deepu alias
Pradeep Kumar there. The general ticket
from Delhi to Jhinjhak was recovered from
the appellant and he was dispatched to the
598 INDIAN LAW REPORTS ALLAHABAD SERIES
Lala Lajpat Rai Hospital by the Police for
treatment. It is remarked that what the
appellant has said in his cross-examination
is not acceptable, in view of the entry in the
G.D. The Tribunal has inferred that the
appellant had a journey ticket from Delhi to
Jhinjhak,
and
not
Kanpur.
Since
Govindpuri is beyond Jhinjhak, he was not
a bona fide passenger on board the Farakka
Express, when he suffered the injury, as a
result of the untoward incident. The
Tribunal has also remarked that the
appellant has been trying to mislead the
Tribunal and for the purpose, has planted a
false witness Smt. Maya Devi. It has also
been stated by the Tribunal that the
appellant has not come with clean hands.

12. On a reading of the inquiry report
submitted by the Inspector, RPF/GMC,
Kanpur, the Police G.D. and the crossexamination of Smt. Maya Devi, it is
evident the finding of the Tribunal on this
score is not only wrong, but also perverse.
Perverse this Court says because once the
Inspector,
RPF/GMC,
Kanpur
had
acknowledged
in
his
inquiry
report
supported by the G.D. that a railway ticket
had been recovered from the appellant,
entitling him to travel from Delhi to
Jhinjhak, the failure of the respondent in
producing the recovered ticket would result
in failure to discharge evidential burden on
the respondents' part. The inference would
be that the appellant was travelling on a
valid ticket up to Kanpur and the
respondents, after admittedly recovering
the railway ticket, have not produced it in
evidence, because if produced, it would go
against their stand. There is no explanation
given why the recovered ticket mentioned
in the report of the Inspector, RPF/GMC,
Kanpur has not been put in evidence by the
respondents. Therefore, it has to be held
that the appellant was travelling on a valid
railway ticket from Delhi to Kanpur. If one
were to assume on the admitted state of
evidence, that is established by the report
of the Inspector, RPF/GMC, Kanpur, that
the appellant had a ticket valid up to
Jhinjhak alone and had overshot his
destination, suffering the accident at
Govindpuri, that too would not deprive him
of his status as a bona fide passenger. If a
passenger overshoots his destination vis-àvis the railway ticket held by him, the legal
position is beyond cavil. All that the
Railways can do is to charge him for the
extra distance travelled, but cannot dub him
as a passenger not bona fide travelling on
board train. In this connection, reference
may be made to the decision of the
Bombay High Court in Vaishali v. Union
of India2, where it has been held :

10. ....Merely because he had
over-travelled
beyond
his
authorised
distance of Bhusawal, it would not be
enough to label him a mala fide or
fraudulent passenger. Looking to the
rulings cited and provisions of the Act,
Railway Manual, at the most, the Railways
could have recovered excess fare or charge
from him beyond the travelling destination;
furthermore, he could also be allowed to
return to the station of his destination in
view of the Rules. .....

13. Also, it is well-settled that the
mere absence of a railway ticket with the
victim of a railway accident would not
show that he was not a bona fide passenger.
The claimant would discharge his initial
burden or evidential burden by asserting on
affidavit that he was a bona fide passenger,
whereupon the burden would shift to the
Railways and the issue has then to be
decided, after both the sides lead evidence,
according to the facts of each case and the
circumstances. In this regard, reference
7 All. Ajay Kumar Vs. U.O.I. & Ors.
599
may be made to the decision of the
Supreme Court in Union of India v. Rina
Devi3, where it was held :

29. 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.

(Emphasis by Court)

14. Here, the facts place the appellant,
as already said, on a much better footing,
because possession of railway ticket by him
is admitted to the Inspector, RPF/GMC,
Kanpur Nagar and a mention of it is to be
found in the Police G.D. The reference to
the ticket specifically shows that it was
taken away by the police officials, when
the appellant was sent to the hospital.

15. Before parting with the matter, the
fact that the appellant sustained injuries in
an untoward incident while travelling on
board the train in question, can be best
visualised by the very natural description of
the incident in the cross-examination of
AW2 Smt. Maya Devi, who is, in no way,
related to the appellant. She has, in her
cross-examination, described the incident
thus :

घटना 18-3-2007 िी है। घटना 5 बिे िे
लगिग िी है। घायल अिय मेरे सामने दगरा िा। उस समय गाडी
चल रही िी। पहले मैने घायल िो उठाया और अपना िाम मैं उस
समय िूल गयी। मैं घायल िो नहीं िानती िी। घटनास्िल से घायल
िो उठािरिे, लोग स्टेशन ले गए िहााँ पुदलस और रेलिे - िालों
िो बताया। दफर पुदलस ने टेम्पों िरािर, उसमें घायल िो,
अस्पताल ले गए। पुदलस िालों ने िोई दलिा-पढी नहीं िी। पुदलस
मेरे साि गयी िी। मैं अिय िे िहने पर गिाही िेने आयी ह ाँ। यह
िहना गलत है दि मैं यहााँ पर गलत बयान िे रही ह ाँ।

सुनिर तस्िीि दिया।

16. The aforesaid testimony of AW2
Smt. Maya Devi leaves this Court in no
manner of doubt that the appellant was a
bona fide passenger on board the Farakka
Express, who suffered a fall from the train
and became the victim of an untoward
incident, while the train was moving.

17. In the circumstances, the
Railways must be held, as already said, to
have failed to discharge their evidential
burden by producing the ticket, leading to
an adverse inference against the Railways.
By no means can the appellant be regarded
as one who was not a bona fide passenger,
under the circumstances, travelling up to
Kanpur. The findings returned by the
Tribunal, in the considered opinion of this
Court, cannot at all be sustained and the
judgment deserves to be reversed.

18. In the result, this appeal succeeds
and is allowed with costs. The impugned
judgment and order dated 16.09.2013
passed by the Railway Claims Tribunal,
Lucknow Bench, Lucknow in Case No.
OA0700241 is hereby set aside and
reversed. The claim application stands
allowed.

19. It is ordered that the appellant is
entitled to receive in compensation a sum
600 INDIAN LAW REPORTS ALLAHABAD SERIES
of Rs. 4 lacs, which shall be paid to him,
within a period of 90 days from the date of
receipt of a copy of this judgment, by the
respondents. In the event, the compensation
awarded is not paid within a period of 90
days, the compensation awarded shall carry
interest at the rate of 9% per annum after
expiry of the period of 90 days from the
date of this judgment till realisation. Let the
lower court records be sent down to the
Tribunal, together with a certified copy of
this judgment passed by this Court.

20. Let a copy of this order be
communicated to the General Manager,
Northern Railways, Baroda House, New
Delhi by the Senior Registrar.
----------
(2022)07ILR A600
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.05.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

First Appeal From Order No. 1241 of 2021

Satpal Singh ...Appellant
Versus
The Oriental Insurance Co. Ltd. & Ors.
 ...Respondents

Counsel for the Appellant:
Sri Sharve Singh

Counsel for the Respondents:
Sri Krishna Agarawal

Civil Law- Motor Vehicles Act, 1988 -
Sections -168 & 171 : - Claimant's Appeal
for
enhancement
-
quantum
of
compensation - left leg of appellant was
amputed from his hip - Partial permanent
disability - determination of compensation
u/s 168 must be reasonable, just, fair,
equitable & accepted by legal standards -
Assessment of income by tribunal is
erroneous - Income reassessed by High
Court

-
Since
injured
would
be
incapacitated for lifetime, 40% must be
added for future loss of income - Age of
appellant was 27 years at the time of
accident - hence, multiplier should 17 be
applied - amount granted for pain, shock
and suffering enhanced - Omission to
grant any amount for future medical
expenses & procuring artificial limb was
erroneous
-
therefore,
compensation
awarded by the tribunal, enhanced as
from Rs. 3,64,160 with 9% rate of interest
to Rs. 15,80,000/- with 7.5% rate of
interest - Appeal is partly Allowed -
judgment of tribunal shall stand modified
accordingly. (Para -11, 31, 32, 33)

Appeal - partly allowed. (E-11)

List of Cases cited: -

1. Smt. Sarla Verma Vs Delhi Transport
Corporation (2009 (6) SCC 121),

2. Raj Kumar Vs Ajay Kumar & anr. (2011 (1) SC
343),

3. Anthony Vs Managing Director KSRTC (2020
ACJ 1592),

4. Sanjay Verma Vs Haryana Roadways (2014
(3) SCC 210),

5. Kajal Vs Jagdish Chand (2020 (0) AIJEL - SC
65725),

6. H. West & son Ltd. Vs Shephard 1963 (2)
WLR 1359),

7. Philips Vs Western Railway Company (1874) 4
QBD 406,

8. K Suresh Vs New India Assurance Company
Ltd. & ors.,

9. Sanjay Kumar Vs Ashok Kumar & anr. (2014
(5) SCC 330),

10. Syed Sadiq & ors. Vs D.M. United India
Insurance Co. Ltd. (2014 (2) SCC 735),