Andhra Pradesh High Court - Amravati
Tamada Yasoda vs Union Of India on 5 January, 2024
HON'BLE DR. JUSTICE K. MANMADHA RAO
CIVIL MISCELLANEOUS APPEAL No.548 of 2019
JUDGMENT:
The present Appeal is preferred by the appellants aggrieved by the judgment dated 16.10.2019 passed in OA/II/u/261 of 2010 by the Railway Claims Tribunal, Amaravaati Bench, Guntur (for short "the Tribunal").
2. The claim of appellants/applicants before the Tribunal is that they have filed an application before the Tribunal under Section 16 of the Railway Claims Tribunal Act, 1987 read with Section 124-A and 125 of Indian Railways Act 1989 against the respondent Railway administration claiming compensation of Rs.8,00,000/- with interest from the date of accident and costs for the death of Sri Tamada Kurma Rao (hereinafter referred to as "the deceased") in an alleged untoward incident that occurred on 03.02.2010. The claim of the appellants is that in the early hours of 03.02.2010, the deceased boarded DMU Passenger as usual from Korlam to Surla Railway station. During the course of journey, the deceased accidentally slipped and fell down from the said train at KM No.635/20-22 in between 2 Jadupudi and Ichapuram Railway stations due to heavy rush of passengers and jerks of the train. As a result of which, he died on the spot.
3. The respondent Railway administration filed its written statement and denied all the allegations made in the claim application and stated that no journey ticket or any travel authority was found from the possession of the deceased, thus the deceased was not a bona fide passenger. It is further stated that there was no such report of falling of any passenger either by the guard or by any co-passenger of that train. As such, the claim does not fall within the ambit of Section 123(c ) read with Sections 124, 124A of the Railways Act, 1989. Hence, the Railway administration was not liable to pay compensation.
4. Basing on the above pleadings, the Tribunal framed the following issues:
i) Whether the applicant(s) is/are dependant(s) of the deceased?
ii) Whether the deceased was a bonafide passenger of the train ?
iii) Whether the deceased died as a result of an untoward incident?3
iv) Whether the applicants are entitled to the compensation as claimed by them in the application?
v) To what relief?
5. During course of the trial, the appellant
No.4/applicant No.4 was examined as AW.1 and the documents Ex.A1 to Ex.A7 were marked on their behalf. On behalf of the Railway administration, RW.1 was examined and the documents Ex.R1 and Ex.R2 were marked on its behalf.
6. Basing on the facts and circumstances, attending circumstances and preponderance of evidence on record, the Tribunal has dismissed the application. Challenging the same, the present Civil Miscellaneous Appeal came to be filed.
7. Heard Sri P.L. Rao, learned counsel appearing for the appellants and Sri J.Bhaskar Rao, learned Standing Counsel appearing for the respondent.
8. On hearing, learned counsel for the appellants submits that the judgment of Tribunal is contrary to law and contrary to facts of the case and therefore the same is liable to be set aside. He further submits that the finding 4 arrived at by the Tribunal is based on assumptions and presumptions without any ample evidence. He further submits that the Tribunal committed grave error in taking into consideration the DRM report which was filed beyond the statutory period and therefore the DRM cannot be taken into account as the same is in violation of Rule 7(2) and 13 (1) and (2) of the Manner of Investigation and Untoward Incident Rules and in view of the same, the judgment under appeal is sustainable and vitiated with irregularity and does not stands to judicial scrutiny. As the final report submitted by IO it has been specifically mentioned that the cause of death is due to fallen from DMU passenger and there is no any foul play, this report itself is quite sufficient to hold that the deceased was a passenger travelling the said train. He mainly submits that the Tribunal failed to note that the DRM report has to be filed within 60 days of the accident, otherwise the claim application has to be allowed. He further submits that the Tribunal ought to have seen that the appellants in order to substantiate their claim have let in oral and documentary evidence i.e., AW.1 and Ex.A1 5 to Ex.A7 and therefore there is no justification in dismissing the claim of the appellants.
9. To support his contentions, learned counsel for the appellants has placed reliance on the decision of Allahabad High Court reported in Union of India through General Manager vs. Jogeshwar Prasad & another1, wherein it was held that :
It is settled law that right to life is fundamental right, guaranteed under Article 21 of the Constitution of India, Once the Railway issues the tickets to board the train, then it is the duty of the Railway to take necessary measures for safety and security of the passengers. It is for the Railway to take steps or provide appropriate measures or infrastructures, so that whenever the train moves from the platform, the doors are closed. Whether it is reserved or unreserved compartment, the life of citizen cannot be put to risk. Lives of people travelling in reserved compartment cannot be treated superior to the people travelling in unreserved compartment. So far as security measures are concerned, that should be taken by the Railway uniformly for the reserved and unreserved compartments. Necessary steps must be taken by the Railway through mechanical device or by appointment of appropriate staff, so that whenever, train moves from the platform, the doors must be closed and on arrival of train on platform, it may be opened. The Railway or the Government cannot shirk from its responsibility with regard to the safety and security of the passengers travelling by train or using the platform. Needless to mention that as per legal maxim- Salus Populi Est Supreme Lex means "regard for the public welfare is the highest law"
10. Learned counsel for the appellants while relying on the above citation, submits that the facts of the above 1 IV (2010) ACC 569 6 case are applicable to the present set of facts of the case. Therefore, prayed to pass appropriate orders.
11. Per contra, learned counsel for the respondent submits that the respondent's evidence in DRM's report has annexed statements of the concerned guard, SS/Jhadupudi and on-duty Keyman under SE/P.Way/SPT which have rebutted the assertion of the applicants. He further submits that there was no such report of falling of any passenger either by guard or by any co-passenger of that train.. He further submits that there is no train journey ticket was recovered from the dead body of the deceased or from the vicinity of the place of incident. There is no corroborative evidence to support the averment. Therefore, the deceased was not a bona fide passenger of the said train.
12. On perusing the entire material available on record, this Court observed that, the appellants in their claim stated that the deceased was boarded DMU passenger as usual from Korlam to Surla Railway station and during the course of journey, the deceased accidentally slipped and fell down from the said train at KM No.635/20-22 in 7 between Jadupudi and Ichapuram Railway stations due to heavy rush of passengers and jerks of the train.
13. As seen from the evidence of AW.1, he has admitted that the exact date of accident of the deceased was not known to him. He also stated that "the deceased left the house on 3.2.2010 but we don't know when he died". Nothing has been mentioned about the purchase of journey ticket in his chief affidavit. This Court observed from the impugned judgment that, as per Memo, the location of the dead body was stated to be a distance of 10 meters from the track. However, it is recorded at Column VII of the Panchanama that body was at a distance 20 feet and was giving bad odor. It is also recorded that "there are no information regarding properties of the deceased for which there are no credible information". Injuries on the right side of the head and the forehead, fracture of right leg, left leg completely crushed and left hand completely fractured were noted in the Panchanama. The Panchayatdars opined that the deceased, while travelling on 03.02.2010 in unknown train, fell down accidentally. However, this opinion is not supported by any corroborative fact brought out in the 8 Panchanama. It appears that the panchayatdars formed their opinion on the basis of information gathered by them that the deceased was doing business by selling breads in Itchapuram and was last seen by his wife on 03.02.2010 at 5.00 AM.
14. As far as the bonafide of the deceased as a passenger is concerned, this is a case where the relevant journey ticket has not been found. In such cases the Hon'ble Supreme Court reported in Union of India Vs. Rina Devi2, wherein it was held that the mere presence of a dead body on the Railway premises will not be conclusive to hold that the injured or deceased was a bonafide passenger for which claim for compensation could be maintained. However, mere absence of ticket which such injured or deceased will not negative the claim that he was a bonafide 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. 2 Civil Appeal No.4945 of 2018 9
15. It is pertinent to mention here that as per Section 123 (c )(2) of the Railways Act, 1989, the accident falling of any passenger from a train carrying passers, reads as under:
Section 123 in The Railways Act, 1989
123. Definitions.--In this Chapter, unless the context otherwise requires,--
(a) "accident" means an accident of the nature described in section 124;
(b) "dependant" means any of the following relatives of a deceased passenger, namely:--
(i) the wife, husband, son and daughter, and in case the deceased passenger is unmarried or is a minor, his parent;
(ii) the parent, minor brother or unmarried sister, widowed sister, widowed daughter-in-law and a minor child of a pre-deceased son, if dependant wholly or partly on the deceased passenger;
(iii) a minor child of a pre-deceased daughter, if wholly dependant on the deceased passenger;
(iv) the paternal grandparent wholly dependant on the deceased passenger.
25 [(c) "untoward incident" means--
(1) (i) the commission of a terrorist act within the meaning of sub-section (1) of section 3 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 1987); or
(ii) the making of a violent attack or the commission of robbery or dacoity; or
(iii) the indulging in rioting, shoot-out or arson, by any person in or on any train carrying passengers, or in a waiting hall, cloak room or reservation or booking office or on any platform or in any other place within the precincts of a railway station; or (2) the accidental falling of any passenger from a train carrying passengers.
16. On one hand, the contention of the learned counsel for the appellants is that the deceased was a bona fide passenger with a valid journey ticket. On the other hand, the contention of the learned counsel for the respondent is that no railway ticket was found on the body of the deceased. It is indeed a matter of concern that the Government Railway police who are supposed to investigate all such deaths are too happy to close cases of body found 10 near the track as one due to fall from a train. In this case they have not applied their mind as to how anyone who has allegedly fallen from a running train could be found in the state that the deceased was found. The deceased in the present case is not shown to be a bonafide passenger and his death is not on account of an untoward incident. Due to the said reasons, the Tribunal dismissed the claim petition.
17. In a case of Union of India (stated supra) , the Hon'ble Supreme Court held that, on the burden of proof, which emphasized that any person found dead or injured on railway premises is presumed to be a bona fide passenger unless the railway administration proves otherwise. Therefore, the findings of the Tribunal are perverse.
18. In the light of judgment of UOI v. Radha Yadav3, wherein the Hon'ble Supreme Court held that "because death is proved due to outcome of untoward incident of the deceased being a bona fide passenger, the adequate amount of compensation may be awarded."
19. Needless to mention that the lives of the people travelling in second class or upper class are equally precious 3 (2019) 3 SCC 410 11 for the respective family and nation. It does not make any difference as to whether the passengers are travelling in the second class or upper class. The burden lies on the railway to make necessary arrangements by mechanical/electronic/ manual devise so that the even to departure of the train from platform, the doors are shut and on arrival at the station, it may be open. Further, it is the duty of the railway to make necessary arrangements to regulate the safe entry of the passengers in the compartments. Sections 57, 58 and 59 have been provided in the Act to secure safety measures and welfare of the people at large. The burden lies on the Railway to give effect the statutory provisions in its letter and spirit.
20. In view of the foregoing discussion and upon perusing the material available on record, it is observed that the respondent is failed to establish that whether the deceased is a bona fide passenger or not, as the burden lies on the respondent authorities and hence the railway administration is liable to pay the adequate compensation. Therefore, considering the submissions made by learned counsel for the appellants, this Court is of the considered 12 opinion that while setting aside the impugned judgment, inclined to allow the present appeal.
21. Accordingly, the Civil Miscellaneous Appeal is allowed. The impugned the judgment dated 16.10.2019 passed in OA/II/u/261 of 2010 by the Railway Claims Tribunal, Amaravti Bench, Guntur, is hereby set aside and the application filed by the applicants claiming compensation is allowed by awarding compensation of Rs.8,00,000/- (Rupees Eight Lakhs only) along with interest at 7% p.a. from the date of filing the claim application till its realization. The respondent, Union of India, is directed to deposit compensation amount before the Tribunal within a period of two (2) months from the date of receipt of a copy of this order. On such deposit, the applicants are entitled to equal shares in the compensation amount without furnishing any security. There shall be no order as to costs.
22. As a sequel, all the pending miscellaneous applications shall stand closed.
______________________________ DR. K. MANMADHA RAO, J.
Date : -01-2024
Gvl
13
HON'BLE DR. JUSTICE K. MANMADHA RAO
CIVIL MISCELLANEOUS APPEAL No.548 of 2019 Date : 01.2024 Gvl 14