U.O.I. Thru. General Manager ... vs Harish Chandra Tiwari
2021 Latest Caselaw 11363 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 18
 
										A.F.R.
 
Case :- FIRST APPEAL FROM ORDER No. - 140 of 2021
 

 
Appellant :- U.O.I. Thru. General Manager Northern Railway New Delhi
 
Respondent :- Harish Chandra Tiwari
 
Counsel for Appellant :- Mahendra Kumar Misra
 
Counsel for Respondent :- Dhiraj Chaurasiya,Keshav Ram Chaurasia,Om Hari Tripathi
 

 
Hon'ble J.J. Munir,J.

This is an appeal by the Union of India through the General Manager, Northern Railways from a judgment and order of the Railway Claims Tribunal, Lucknow Bench, Lucknow, in Case No. OA/II/U/384/2013, Harish Chandra Tiwari v. Union of India, awarding compensation to the claimant-respondent on account of his father's death in a railway accident.

2. The claimant, Harish Chandra Tiwari, instituted proceedings under Section 16 of the Railway Claims Tribunal Act, 1987 with allegations that on 17.03.2011, his father, Ram Prasad Tiwari, died in a railway accident, while travelling on board the Ganga Gomti Express from Lucknow to Prayag. It was pleaded by the claimant that his father boarded the Ganga Gomti Express at Lucknow with Prayag as the destination on a Second Class ticket, on 17.03.2011. As the train was moving near the Up Advance Signal at the Lalgopalganj Railway Station, the deceased suddenly fell off the train. In consequence of the injuries sustained in the accident, Ram Prasad Tiwari died. The petitioner filed a written statement, wholesomely denying the respondent's claim. The claim was particularly resisted on the plea that the deceased was neither travelling on the train in question nor did he suffer injury in consequence of a railway accident. It was averred that the claim is baseless and founded on concocted facts. The petitioner pleaded that the claim was barred by Section 124A of the Railways Act, 1989.

3. On the pleadings of parties, the Tribunal framed the following issues (rendered into English from Hindi vernacular) :

(i) Whether the deceased was a bona fide passenger on board the train in question?

(ii) Whether the accident resulting in the deceased's death fell within the definition of an unexpected incident within the meaning of Section 123(c)(ii) read with Section 124A of the Railways Act, 1989?

(iii) Who are the dependents of the deceased?

(iv) To what relief is the claimant entitled?

4. The claimant filed his affidavit in support of the claim, testifying as A.W.1. Another affidavit of Sanjeev Kumar was filed, who deposed as A.W.2. Documentary evidence comprising photostat copies of the Station Master's memo, the Panchnama, Police Form No. 13, Police Form No. 379, the Postmortem Report, the Final Report put in by the Police and the Voter ID Card was filed. The petitioner, by way of documentary evidence, placed a copy of the Divisional Railway Manager's report regarding the accident. Issue nos. 1 and 2 were decided together by the Tribunal, holding that the deceased was a bona fide passenger on board the Ganga Gomti Express train. It was further held that the deceased died in consequence of a fall that he had from the train, that occurred due to a sudden jerk, as the deceased was emerging from the toilet. The accident occurred on 17.03.2011 at 09:45 p.m. near the Up Advance Signal of the Lalgopalganj Railway Station. It was held that there was no evidence about the deceased sustaining injuries on account of being run over by a train or a self-inflicted injury or one sustained as a result of criminal negligence. Issue Nos. 1 and 2 were decided in favour of the claimant and against the petitioner. The Tribunal held that the claimant was the deceased's son, drawing that inference from the Voter Id Card. He was held entitled to dependency, in view of provisions of Section 123B of the Railways Act, 1989. The claimant was held entitled to compensation in the sum of Rs. 8 lacs, as the accident occurred prior to 01.01.2017, but, with the award being pronounced after that date, where higher of the two compensations would be that to which the claimant was entitled on the date of award, compared to his entitlement on the date of accident with the accrued interest. To adopt this principle of quantification, the Tribunal relied on the Supreme Court in Union of India v. Rina Devi, (2019) 3 SCC 572.

5. Heard Mr. Mahendra Kumar Mishra, learned Counsel for the petitioner and Mr. Dhiraj Chaurasai, learned Counsel appearing for the claimant-respondent.

6. It was strenuously argued before us that there is no evidence on record to indicate that the deceased was a bona fide passenger on board the Ganga Gomti Express on the fateful day and that he died as a result of a railway accident while travelling as such. Mr. Mishra invited the attention of the Court to the fact that the testimony of the claimant that the deceased was travelling on board the train in question with a valid travelling ticket is based on no evidence. He says that the Tribunal has failed to notice the fact that no travelling ticket was recovered/found on the deceased's person during the Panchnama. Also, the deceased's ticket was not produced by the claimant as well. It has been pointed out by Mr. Mishra that the claimant's case was that his father boarded the train in question on a Second Class railway ticket, accompanied by Sanjeev Kumar, the claimant's son. It is then pointed out that though A.W.2 Sanjeev Kumar has said in his testimony that he was travelling with the deceased on board the train in question and that he had the travelling tickets for himself as well as his grandfather, but there is no pleading in the claim petition regarding the presence of Sanjeev Kumar with his grandfather in the train or at the railway station. Also, there is no evidence of Sanjeev Kumar's presence at the Lalgopalganj Railway Station.

7. Learned counsel for the claimant-respondent Mr. Chaursiya, on the other hand, has repelled the above submissions and urged that there is no reason to disbelieve the eye-witness account of A.W.2 Sanjeev Kumar, who is the grandson of the deceased. It is submitted that so far as non-recovery of the deceased's travelling ticket from his body at the time of Panchnama is concerned, the possibility of loss of a small paper ticket is high in the case a person who dies as a result of a fall from train and then being crushed under its wheels. It is pointed out that the said fact was pleaded in Column 7 of the claimant's application, where it is specifically mentioned that the journey ticket from Lucknow to Prayag railway station was lost somewhere at the site of the accident, along with other belongings of the deceased. So far as this part of the submission of learned counsel for the appellant is concerned, it must be remarked that there is no dispute about the fact that the deceased died as a result of injuries sustained in a railway accident near Lalgopalganj Railway Station. The fact whether he was a bona fide passenger on board train or a man wandering on the tracks, who was crushed under its wheels, or still more, an unfortunate man, who cannot be regarded as a bona fide passenger for travelling on board the train in question without a valid travelling ticket, is a matter to be wholesomely assessed. It has been asserted by Sanjeev Kumar that he purchased journey tickets for himself and his grandfather at the Lucknow railway station to secure a passage from Lucknow to Prayag railway station. It has been testified by Sanjeev Kumar in Paragraph 4 that his grandfather placed the journey ticket in the upper pocket of his shirt (kurta) which was lost in the accident. It could not be recovered despite best efforts.

8. This Court has perused the lower court records, and what we find is that about this categorical assertion of Sanjeev Kumar in Paragraph Nos. 3 and 4 of his affidavit, he has not been cross-examined or contradicted in any manner by the appellant. The Tribunal has remarked that the deceased was neither a native of Lalgopalganj, nor was he employed there. Thus, according to the Tribunal, he had no business to be on the railway tracks in Lalgopalganj, except as a passenger on board train. The assertion of the deceased's grandson that he was travelling with his grandfather on a valid ticket and the fact that the deceased died on the railway tracks as a result of a fall from a jerky movement of the train, followed by a crush injury under its wheels, has a wholesome truth to it, which the Tribunal has rightly believed. It is accordingly held that the deceased was a bona fide passenger on board the train in question, when he suffered the fatal accident giving rise to this claim.

9. There is then this contention urged on behalf of the appellant that the story about A.W.2 Sanjeev Kumar, being a co-passenger with his grandfather, is not believable, inasmuch as, soon after the accident, he neither gave information to his parents nor the G.R.P. or the local Police nor reached the site of accident. As such, his testimony is of no worth. It has also been argued that the deceased's son and father of A.W.2, that is to say, the claimant, reached the spot and participated in the Panchnama, but there is no evidence that A.W.2 did anything to establish his presence on the spot along with his grandfather. The affidavit of A.W.2 carries a categorical assertion that after the deceased's fell off the train, Sanjeev Kumar was left shell-shocked. He raised an alarm and pulled the emergency chain to stop the train. The train did not stop; rather it moved on and halted at the next scheduled stop, that is to say, Prayag Railway Station. It is also testified in the affidavit by A.W.2 that he went to the G.R.P. Chowki to report the matter, but the policemen on duty said that the control room had already sent out that information, and that the witness should proceed to Lalgopalganj. These assertions in the affidavit have not been contradicted by the appellant through any kind of cross-examination or other evidence in rebuttal.

10. The appellant has largely sought to challenge the respondent-claimant's case about the deceased being a victim of a railway accident while travelling on board train as a bona fide passenger on the basis of documents, such as the Station Superintendent's memo dated 17.03.2011, who has said that he had received information from gateman Ram Bahadur that an old man, aged about 70 years, had been crushed under the wheels of the train near the Up Advance signal at the Lalgopalganj Railway Station. Besides the statutory inquiry report of the Divisional Railway Manager, these documents project the accident to be a case of death, with the deceased being run over by the train while moving about the tracks. This Court must remark that the manner in which the accident has been described by A.W.2, the deceased's grandson, inspires confidence and is a plausible version that coalesces with the circumstances. It is not unnatural for an old grandfather to travel along with his grandson. The stand of A.W.2 that he was shocked to see his grandfather fall off the train as a result of a jerk as he was emerging from the toilet is a fact that is, in no way, fantastic or incredible. The further assertion by A.W.2 that he attempted to halt the train by pulling the emergency chain, which did not work, is also something quite possible. These are experiences that are commonplace, where alarm chains installed in railway bogies, particularly general bogies of the Second Class unreserved compartment, are often not in working order. The assertion by A.W.2 that the train did not halt when he pulled the emergency chain, but proceeded to Lalgopalganj, is quite a natural happening. The fact that this information was conveyed to the Police by A.W.2, who told witness that it had already been flashed by the control room and that the witness should proceed to Lalgopalganj, is also logical.

11. The claimant, on the other hand, has asserted in his affidavit that he had received information, at midnight, from sources of the Police, who conveyed it through the claimant's neighbours. This version corroborates the account of A.W.2. The further assertion in the affidavit of A.W.2 that he set out to the place of accident along with 8-10 natives of his village is also a behaviour that is quite logical in the settings of rural India. The grandson apparently proceeded from Prayag Railway Station to Lalgopalganj, after being advised by the Police there, whereas the claimant-son of the deceased proceeded from his native village on information by the Police. These facts, all fit into a chain of connected circumstances, which speak for themselves. Not much reliance can be placed on the report of the Divisional Railway Manager or the reports of Railway Protection Force or other communications between the Railway Authorities, all of which are not based on any dependable evidence as to how the deceased landed on the railway tracks at Lalgopalganj. The Tribunal has rightly held that the deceased had no business at Lalgopalganj to be about the tracks there. The Tribunal has believed evidence about the deceased being a bona fide passenger on board the train in question and suffering a fatal railway accident, while travelling as such. Here, reference may be made to the law about burden of proof vis à vis the victim being a bona fide passenger, laid down in Rina Devi (supra). In Rina Devi the law relating to burden of proof on this count has been laid down by the Supreme Court thus :

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)

12. It would, thus, be seen that once it is asserted on affidavit by the claimant that the deceased was travelling on a valid ticket, the burden of proof would shift on the Railways and the issue has to be decided on the basis of attending circumstances. There is an eye-witness account about the accident coming from the grandson of the deceased. There is no unnatural inertia or lack of action attributable to A.W.2, on the basis of which, his presence at the scene of accident or his presence along with his grandfather on the fateful journey may be doubted. The findings of the Tribunal, therefore, on issues nos. 1 and 2, receive our affirmation.

13. The other point on which the judgment of the Tribunal has been assailed is about the rate of interest that has been awarded. It is 9% per annum from the date of judgment. It is argued again on the strength of the law laid down by the Supreme Court in Rina Devi that compensation cannot carry interest over and above what is payable on the date of award, that is to say, Rs. 8 lacs. In this connection, reference may be made to paragraph 19 of the report in Rina Devi, where it is held :

19. Accordingly, we conclude that compensation will be payable as applicable on the date of the accident with interest as may be considered reasonable from time to time on the same pattern as in accident claim cases. If the amount so calculated is less than the amount prescribed as on the date of the award of the Tribunal, the claimant will be entitled to higher of the two amounts. This order will not affect the awards which have already become final and where limitation for challenging such awards has expired, this order will not by itself be a ground for condonation of delay. Seeming conflict in Rathi Menon [Rathi Menon v. Union of India, (2001) 3 SCC 714, para 30 : 2001 SCC (Cri) 1311] and Kalandi Charan Sahoo [Kalandi Charan Sahoo v. South-East Central Railways, (2019) 12 SCC 387 : 2017 SCC OnLine SC 1638] stands explained accordingly. The four-Judge Bench judgment in Pratap Narain Singh Deo [Pratap Narain Singh Deo v. Srinivas Sabata, (1976) 1 SCC 289 : 1976 SCC (L&S) 52] holds the field on the subject and squarely applies to the present situation. Compensation as applicable on the date of the accident has to be given with reasonable interest and to give effect to the mandate of beneficial legislation, if compensation as provided on the date of award of the Tribunal is higher than unrevised amount with interest, the higher of the two amounts has to be given.

14. It is submitted that higher of the two amounts being the revised compensation payable on the date of award, which is one made after 01.01.2017, whereas the accident occurred prior to it, no further interest is payable. It is trite that the Tribunal has awarded the higher of the two amounts of compensation, one worked according to the rate applicable on the date of accident together with the accrued interest, and the other according to the rate on the date of award, rightly choosing the higher amount of compensation according to the principles in Rina Devi. The Tribunal, however, has directed payment of interest at the rate of 9% per annum on the compensation awarded from the date of judgment until realization, without providing for a period of time after expiry whereof and persisting default by the Railways, interest would be payable over and above the sum of Rs. 8 lacs. However, this does not mean that the appellant can pay the compensation awarded whenever they like, and yet not be liable to pay any interest. The question whether over and above the sum of Rs.8 lacs interest, if any, would be payable and reckoned from what date, fell for consideration of a Division Bench of this Court in Union of India through General Manager, Northern Railway v. Smt. Gayatri Devi, First Appeal From Order No. 166 of 2018, decided on 14.08.2018. In Gayatri Devi (supra), it was held:

In Rina Devi's case [supra] while dealing with grant of interest on compensation amount (issue no.4), the Apex Court held that interest can be awarded from the date of accident itself when the liability of the Railway arises upto the date of payment without any difference in the stages. The relevant paragraph reads as under:-

"As already observed, though this Court in Thazhathe Purayil Sarabi (supra) held that rate of interest has to be at the rate of 6% from the date of application till the date of the award and 9% thereafter and 9% rate of interest was awarded from the date of application in Mohamadi (supra), rate of interest has to be reasonable rate at par with accident claim cases. We are of the view that in absence of any specific statutory provision, interest can be awarded from the date of accident itself when the liability of the Railways arises upto the date of payment, without any difference in the stages. Legal position in this regard is at par with the cases of accident claims under the Motor Vehicles Act, 1988. Conflicting views stand resolved in this manner."

As far as the case at hand is concerned, in view of the proposition of law as propounded in Rina Devi's [supra] it is necessary to calculate the total amount i.e. amount of compensation plus interest to ascertain whether the amount so calculated is less than the amount prescribed as on the date of the award. In the event the amount of compensation with interest was less than the amount prescribed on the date of award, then the amount which is higher is to be paid to the claimants.

For the reasons aforesaid, we are of the view that the ends of justice will be secured by awarding Rs. Eight lac in all as compensation to the claimants. It may be added that provisions for compensating monetarily either under the Railways Act or Motor Vehicles Act is a beneficial piece of legislation and the purpose for award of interest is to put pressure on the relevant person not to delay in making the payment. In other words, when any amount is due to a creditor and the same is not paid by the debtor over a certain period, the creditor is deprived of the use of the said amount for the period during which the amount remains unpaid for which he is entitled to be compensated by way of payment of interest. Therefore, in the event the appellants fails to pay the aforesaid amount of Rs. Eight lacs within a period of 90 days, then interest @ 9% shall be payable till the date of actual payment.

(Emphasis by Court)

15. Going by the principle laid down in Gayatri Devi, the direction to pay interest on the compensation awarded ought to be modified by ordering interest to be payable at the rate of 9% per annum after expiry of a period of ninety days from the date of judgment till realization.

16. The appeal partly succeeds and stands allowed in part. The impugned award is modified to the extent that on the sum of compensation ordered to be paid by the Tribunal, interest shall be payable at the rate of 9% per annum after expiry of a period of ninety days from the date of judgment passed by the Tribunal till realization, if within the aforesaid period of time, the awarded compensation is not paid to the claimant or deposited with the Tribunal.

17. There shall be no order as to costs.

Order Date :- November 25, 2021

I. Batabyal / Ravi/-

(J.J. Munir, J.)