The importance of independent eye witness testimony and the relaxed procedural rules of the Railway Claims Tribunal Act, 1987, in proving untoward incidents and awarding compensation.

Valmiki J. Mehta, J. (Oral)

1. This first appeal is filed under Section 23 of the Railway Claims Tribunal Act, 1987 impugning the judgment of the Railway Claims Tribunal dated 10.2.2012 which has dismissed the claim petition filed by the applicant/appellant who is the mother of the deceased Brijesh.

2. The facts as pleaded before the Tribunal were that the deceased Sh. Brijesh on 19.4.2010 early in the morning was returning from Palwal to Faridabad by EMU train when the said Sh. Brijesh fell down from the train, resulting in his death, and therefore the claim petition was filed.

3. A reference to the impugned judgment shows that the Tribunal has gone into great details with respect to variations in train timings ignoring the statement recorded of eye witness Mr. Salim Khan as Ex.AW1/6. As per the DD entry Ex.AW1/4 the death is recorded at 6.15 hours and the Tribunal holds that this timing is suspicious because the trains up and down from this area were earlier at 5.55 hours and 5.20 hours. This is so stated in para 4.1 of the impugned judgment and which reads as under:-

“4.1 Daroga Rai, RW-1, Deputy Station Supdt., Tughlakabad:- He deposed during oral evidence that on 19.4.10, at 6.15 hours in the morning, RPF Constable Rajinder Kumar informed that one dead body was lying at K.M 1518/27. He gave this information to GRP and Section Controller, New Delhi. The first DN train prior to receipt of this information was Train No.2779, which passed through Tughlakabad railway station at 5.55 hours. In the Up direction, 8238 had passed through at 5.20 hours. There was no information from Drivers and Guards of these trains about anybody falling from this train. During cross-examination, he deposed that I.O of this case never met him. He did not give his statement to the police, as nobody had come to take his statement.

RW-1 filed a copy of TSR Record, RW1/1, copy of Untoward Incident, RW1/2 and Station Diary Book, AW1/3, which support the evidence of RW-1.”

4. The Tribunal also holds in para 4.4 that if the deceased was travelling between Palwal and Faridabad, his body could not have been found at Tughlakabad railway station and which is not in between Palwal and Faridabad railway stations. This is so stated in para 4.4 of the impugned judgment and which reads as under:-

“4.4 The applicant has pleaded in the claim application that his son was returning from Palwal to Faridabad by EMU Train. However, as per Exht. RW1/2, RW1/3 and AW1/4, a dead body was found lying at K.M 1518/27 between Junction Cabin-Tughlakabad. Thus, the incident happened between Junction Cabin and Tughlakabad railway station and not between Palwal and Faridabad Railway Stations, as alleged in the claim application.”

5. I have held in a number of cases that it is not possible for the dependents of the deceased to recreate the entire chain of events perfectly and methodologically, including the train numbers on which the deceased had travelled, inasmuch as, the deceased obviously is no longer alive and there is/was no person who was travelling with the deceased. The claim petition is therefore filed on the basis of best available information which is received and therefore the Tribunal cannot weigh facts in a golden scale with strictness as to timings of train once especially there is an eye witness, more so an independent eye witness to the incident. That there was an independent eye witness Mr. Salim Khan to the incident, and who gave a statement which is recorded in DD No.5A (Ex.AW1/5) on the same date of the incident and around the same time, is clear from paras 3.4.2 to 3.4.3 of the impugned judgment which read as under:-

“3.4.2 DD No.5-A dated 19.4.10 (Brief Facts, AW1/5):- It discloses that the deceased could not be indentified at spot. His photographs were taken. No item was recovered from the person of the deceased during Jamatalashi. One person, whose name was Salim Khan, told at the spot that the deceased, who was travelling by EMU Local, fell down from the