HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 27 Case :- FIRST APPEAL FROM ORDER No. - 326 of 2008 Petitioner :- Union Of India Through G.M.Northern Railway Respondent :- Smt. Shyama Pandey And Ors. Petitioner Counsel :- Anil Srivastava Hon'ble Devi Prasad Singh,J.
Hon'ble S.C. Chaurasia,J.
Heard Sri Anil Kumar Srivastava, learned counsel for the appellant, Sri Rajendra Jaiswal, learned counsel for the respondents and perused the record.
The brief facts, giving rise to the present appeal, are that one Anand Kumar Pandey, aged about 20 years, an agriculturist as well as student, was travelling in Train No.3010 Dn Dehradun-Howrah express on 29.5.1999 after purchasing the second class ticket from Lucknow in order to reach Shahganj. When the train reached near railway station Rudauli, the deceased accidentally fell down from the train and sustained grievous injuries, as a result of which, he died at the spot. The mother of the deceased approached the Tribunal for payment of compensation under the Railway Claims Tribunal Act (in short 'Act').
Written statement was filed by the Railway with the plea that it is not a case of accidental fall. The plea was also taken by the Railway that the deceased jumped from the moving train and succumbed to injuries. The Tribunal framed the issues with regard to accident and payment of compensation. The Tribunal recorded the finding that it is a case of accidental death and on account of sudden jerk and jolt, the deceased fell down from the open gate of the train. The Tribunal has further recorded the finding that the deceased had purchased the ticket from Lucknow in the presence of Ram Shabad Pal in order to reach destination. Ram Shabad Pal had deposed before the Tribunal that the deceased had purchased the second class ticket. He was duly cross examined by the appellant-railway but according to Tribunal, no major contradiction comes out from his statement. The Tribunal further held that the mother of the deceased Smt. Shyma Pandey has deposed that when the train was running near Rudauli railway station, the deceased accidentally fell down as a result of sudden jerk and jolt of the train. A detailed account of the accident was given in the affidavit of the mother of the deceased. However, the Railway's counsel has not cross-examined the witness Smt. Shyama Pandey and the affidavit filed by her is un-controverted. The testimony of Smt. Shyama Pandey has been corroborated by the affidavit of Ram Shabad Pal, in whose presence the ticket was purchased by the deceased.
While assailing the order in question, passed by the Tribunal, it has been submitted by the learned counsel for the appellant that the Gateman, Mani Ram had found that the deceased was roaming in the vicinity and when the train came near the gate, he jumped over it and succumbed to injuries. Reliance has been placed on the statement of Gateman, Mani Ram. The statement of Mani Ram was alleged to be recorded by the inquiry officer, Station Superintendent of the Railway. However, no affidavit was filed by Mani Ram before the Tribunal nor he was produced as a witness to substantiate the defence. The Station Superintendent is alleged to have recorded the version of Sri Mani Ram. It is submitted that the inquiry report submitted by the Station Superintendent should have been believed by the Tribunal but the Tribunal failed to take note of it. Learned counsel for the appellant has relied upon Section 191 of the Railways Act, 1989 by stating that the statement of Sri Mani Ram is admissible in evidence. Section 191 of the Railways Act is reproduced as under:-
"191. Proof of entries in records and documents.- Entries made in the records or other documents of a railway administration shall be admitted in evidence in all proceedings by or against the railway administration, and all such entries may be proved either by the production of the records or other documents of the railway administration containing such entries or by the production of a copy of the entries certified by the officer having custody of the records or other documents under his signature and stating that it is a true copy of the original entries and that such original entries are contained in the records or other documents of the railway administration in his possession."
The plain reading of Section 191 shows that the entries made in the records or other documents of a railway administration shall be admitted in evidence in all proceedings by or against the railway administration, and all such entries may be proved either by the production of the records or other documents of the railway administration containing such entries or by the production of a copy of the entries certified by the officer having custody of the records.
The submission of the learned counsel for the appellant is that the inquiry report submitted by the Inquiry Officer shall deem to be document admissible under Section 191 of the Railways Act. The other submission of the learned counsel for the appellant is that station diary also indicates that it is a case of suicide.
The first submission of the learned counsel for the appellant that the inquiry report submitted by the Station Superintendent is admissible under Section 191 of the Railways Act seems to be mis-conceived. Section 191 of the Railways Act speaks for those documents which are maintained at the railway station in pursuance of the circulars, orders, rules and regulations of the department. Sections 74, 78 and 80 of the Evidence Act also speak for only those documents admissible in evidence which are regularly maintained during the course of business. In the present case, Section 191 of the Railways Act provides that only those documents or records are admissible which are maintained at the Railway Station in pursuance of the circulars, orders of the Railway Board or other statutory authorities. The inquiry report prepared by the Inquiry Officer shall not fall within the ambit of Section 191 of the Railways Act. The inquiry report shall be admissible and may be taken as evidence only in case it is proved like other evidence. It cannot be a substantive piece of evidence. In the present case, the Station Superintendent who submitted report and took note of the statement given by the gateman Mani Ram, has not filed any affidavit. Moreover, the report submitted by the Station Superintendent is in pursuance to the exparte inquiry and the claimant-respondent was provided no opportunity to cross-examine Mani Ram who has been relied upon by the Inquiry Officer. The affidavit of Mani Ram was also not filed nor he was produced as a witness before the Tribunal.
So far as reliance with regard to the entry made at the Railway Station is concerned, that too seems to be based on the statement of Mani Ram. It has been vehemently argued that the dead body of the deceased was found in the mid of the railway track. However, from Panchnama, it has been submitted by the learned counsel for the respondents that the dead body was found on the side of the railway track.
While rebutting the submission of the learned counsel for the appellant, it has been submitted by the learned counsel for the respondents that since Panchnama was done on the next date and the dead body was found on the side of the railway track, the burden was on the railway to prove with cogent and material evidence that the dead body was removed from the railway track and it was placed adjoining to railway track when panchnama was done.
Needless to say that in case the railway authorities want to make out a case different than one which is being pleaded by the claimants, then the burden shall be on the railway to prove by some cogent and trustworthy evidence. The observation made in the Panchnama could have been refuted by the appellant-railway only by leading the evidence or by filing affidavit. The attention of this Court has not been invited to any material on record or affidavit filed by the Railway asserting that the observation made in the Panchnama is not correct. In absence of any affidavit filed by the railway assailing the entry made in the Panchnama and having conflicting material on record, being beneficial legislation, the material which lies in favour of the claimant-respondent should be believed and accordingly the argument of the learned counsel for the appellant does not seem to be sustainable.
Learned counsel for the appellant has relied upon the case, reported in (2004) 2 Supreme Court Cases, 370; National Insurance Co. Ltd. Vs. Keshav Bahadur and others. In the case of National Insurance Co. Ltd., their Lordships of Hon'ble Supreme Court have observed that a direction in the award for retrospective enhancement of interest for default in payment of the compensation together with interest payable thereon virtually amounts to imposition of penalty which is not statutorily envisaged and prescribed. Therefore, the Hon'ble Supreme Court directed that the rate of interest as awarded by the High Court shall alone be applicable till payment, without the stipulation for higher rate of interest being enforced, in the manner directed by the Tribunal. The submission of the learned counsel for the appellant seems to be correct and based on sound principle of law. The Tribunal could not have awarded the penal interest in the event of default on payment of dues within stipulated period. Accordingly, we are of the view that the finding recorded by the Tribunal with regard to the higher interest rate in the event of default on payment of dues, seems to be incorrect.
Learned counsel for the appellant has relied upon two other judgments ; one reported in 2002 ACJ 833; Union of India through General Manager, North Eastern Railways Vs. Kaushalya Devi and others whereby the Patna High Court has held that when the inquest report prepared immediately after accident did not indicate that the deceased was in possession of a valid ticket, then it may be treated that the deceased was not bonafide passenger. The finding recorded by the Patna High Court respectfully seems to be incorrect. We respectfully show our dis-agreement. When the railway took a plea that the deceased fell down from train and succumbed to injuries because of accident was not having ticket, then the burden shall be on the railway to prove it by material and cogent evidence. In case the railway failed to discharge its obligation to prove that the deceased was not having ticket, then it is not for the court to draw a negative inference on its own.
In an identical situation, learned counsel for the respondents relied upon the case decided by the Division Bench of this Court, reported in 2009 (27) LCD, 240; Smt.Aktari Vs. Union of India, submitted that in the event of falling down from train, the burden shall be on railway to prove that the deceased was not having ticket or he was not bonafide passenger. The railway failed to discharge its obligation. The court cannot take different view except the plea that the deceased was bonafide passenger in view of the provision of Section 114 of the Indian Evidence Act. One of the judgment relied upon by the learned counsel for the appellant is decided by a Division Bench of this Court on 28.8.2010 in F.A.F.O. No. 1023; Dinesh Kumar Singh Maurya Vs. Union of India. The Division Bench of this Court noticed certain contradiction in the case before it relying upon certain entries made in the Station diary held that in the event of normal functioning of the department due weightage should be given to the entries made in the station diary. There appears no dispute over the proposition of law that weightage should be given to the entries made in the railway record keeping in view Section 191 of the Act but that shall depend upon the facts and circumstances of the each case. In case the accident is based on variety of the evidence on record then the court should look into other facts and circumstances, like in the present case. Much emphasis has been given to the statement given by Mani Ram before the Inquiry Officer but the same was not proved by the railway during the course of trial before the Tribunal. The claimant-respondent could not get any opportunity to cross examine Mani Ram. No site plan has been produced nor proved either before the Tribunal or before this Court to establish that the accident was occurred adjacent to Gate No. 134-B where Mani Ram was posted. The burden was on the railway to point out and establish that accident occurred adjacent to Gate No. 134-B where Mani Ram was posted Accordingly, inquiry report relied upon by the appellant's counsel cannot be treated to be substantive evidence.
One of the submission made by the learned counsel for the appellant is with regard to the entries made in the police record. There appears no entry in the police record that the deceased himself jumped from train or before moving the train supported by statement given by passerby except the statement of Mani Ram. Attention of this court has not been invited towards any other witness or statement of passer by who would have stated that deceased himself jumped before the train. In absence of any statement to establish the factum of suicide, no inference can be drawn from the material and the evidence on record to the effect that the deceased himself jumped before the moving train and committed suicide.
One of the submission made by the appellant's counsel is that after 1 or 2 days of the incident, a suicide note was recovered from the railway track that deceased had committed suicide. The appellant's counsel has not invited attention to any evidence on record that the suicide note was written by the deceased himself. No evidence has been led by the railway to establish that the alleged suicide note recovered after two day was written by the deceased himself. It appears that the suicide note is after thought creation of the railway and that is why it was not sent to the writing expert to find out whether it was written by the deceased or not.
Much emphasis has been given and argument has been advanced by the appellant's counsel that it is a case of suicide. We have gone through the written statement filed by the railway before the Tribunal. The case set up by the learned counsel for the appellant before this Court does not seem to be pleaded before the Tribunal. There is no reference of any suicide note. While filing written statement, Sri M.P. Singh Deputy Chief Commercial Manager, has not taken plea that it is a case of suicide. There is no whisper in the pleading on record which makes out a defence of suicide and not the accidental fall from the train. There is no pleading in the written statement filed by the appellant that the deceased jumped before the coming train nearby Gate No. 143-B. It is also not pleaded that the deceased was seen roaming around the Gate No. 143-B and later on he jumped before moving train. For the first time this plea has been raised by the appellant while filing the present F.A.F.O. under section 123 of the Railway Claims Tribunal Act. In absence of any pleading before the Tribunal by the appellant-railway, the claimant respondent was not having any opportunity to rebut the plea raised by the appellant, hence such plea cannot be looked into at appellate stage for the first time unless the pleading is amended.
It appears that the appeal has been filed by improving the pleading on record without making prayer for amendment in the written statement filed before the Tribunal. The appellant-railway has tried to make out third case while approaching this court which is abuse of appellate power conferred under Section 123 of the Railway Claims Tribunal. It is a fit case where cost should be imposed upon the appellant on invoking appellate forum without applying mind to the pleading on record and making third case. Even if certain material would have been on record in the form of inquiry report and in the form of other documents that should have been pleaded before the Tribunal by filing the written statement. In the absence of pleading, neither it was open to the Tribunal nor for this Court to record the finding different from what emerges from the pleading on record made by the parties.
In view of the above, while dismissing the appeal on merit, we reiterate the liability of the appellant except to modify the impugned award to the extent of penal interest and warn the appellant to be cautious in future for preferring the appeal in a routine manner, that too without applying mind to the pleading on record before the Tribunal.
Subject to aforesaid observation, we dispose of the appeal and modify the Tribunal's award to the extent that the claimants shall not be entitled for any penal interest and the appellant shall ensure the payment of entire compensation in terms of award with simple interest at the rate of 9% as awarded by the Tribunal, say, within a period of two months from today by depositing the same before the Tribunal and the Tribunal shall immediately release the amount in favour of the claimant-respondents, say, within a month.
Order date:-5.4.2011 Sanjay