Calcutta High Court (Appellete Side)
Nurbanu Bibi vs Union Of India & Ors on 2 August, 2023
02.07. 2023
item No.6
n.b.
ct. no. 551 FMA 2881 of 2016
with
IA No. CAN 2 of 2011(Old No. CAN 11384 of 2011)
+
CAN 3 of 2020(Old No. CAN 2002 of 2020)
(not here)
Nurbanu Bibi
Vs.
Union of India & Ors.
Mr. Supritim Dhar,
Mr. Kazi M. Rahman,
.....for the appellant.
Mr. Pradip Kumar Das,
Mr. Chirantan Sarkar,
... for the respondent.
The instant appeal has been preferred against the
judgment and order dated December 8, 2010 passed by
the learned Judge, Railway Claims Tribunal, Kolkata in
claim application No. O.A.(11U)/198/2008. The present
appellant being the claimant filed one application under
Section 124A of the Railway Claims Act, 1989 praying for
compensation on account of death of her husband
namely, Ajumuddin Mia in an untoward incident of falling
from the train. The union of India contested the matter
before the learned Tribunal. After the hearing of both the
parties and after receiving the evidence on record both
oral and documentary, learned Tribunal has dismissed the
claim petition. Hence this appeal.
It appears from the impugned judgment that the
learned Tribunal has attended in the finding that the
victim was a bona fide passenger in the train and he died
in an untoward incident. The claim application was only
dismissed on the ground that the identity of the present
claimant to be the wife of the deceased is not convincing.
Learned advocate for the claimant submitted before
the court that the learned Tribunal has committed an
error for not considering the entire materials on record.
The present appellant/claimant is married wife of the
deceased and she submitted the application with proper
form. The Voter Identity Card of both the claimant and
the deceased were filed before the learned Tribunal, which
was not considered by the learned Tribunal, for which he
came to an erroneous finding. It is the submission of the
learned advocate for the appellant that the impugned
judgment should be set aside and order of appropriate
compensation may be passed in favour of the present
claimant/appellant..
Learned advocate appearing on behalf of the Union
of India submitted before this Court that the learned
Tribunal has committed no error. After the said accident,
the police authority had conducted inquest over the death
body of the victim, where in LTI of the wife of the deceased
was taken viz. Jannu Bibi but the Nurbanu Bibi. the
present appellant is not the wife of the deceased. He
submitted that the application filed by the claimant under
Order 41 Rule 27 of the Code of Civil Procedure in this
appeal is not maintainable.
Heard the learned advocates and perused the
materials on record also perused the application filed by
the appellant under Order 41 Rule 27 of the Code of Civil
Procedure. The application being CAN 3 of 2020 under
Order 41 Rule 27 of the Code of Civil Procedure is
supported by a copy of Voter Identity Card of the present
appellant. It appears that the copy of Voter Identity Card
was filed along with claim application before the learned
Tribunal.
During the cross-examination of the appellant who
appears before the learned Tribunal as AW 1, she
specifically stated that she is wife of the deceased and she
produced the Voter Identity Card. The Voter Identity Card
was tendered before the learned Tribunal but was not
marked as exhibit.
It appears to me that the learned Tribunal has
committed an error not considering the Voter Identity
Card of the present appellant. It further appears to me
that the Voter Identity Card was prepared in the year
1005, much prior to the alleged accident. The Voter
Identity Card was issued by the Election Commission of
India which mentioned the husband's name of the present
appellant to be Ajimuddin Miya. The respondent Union of
India never produced any document to disprove the Voter
Identity Card of the appellant.
I make it clear that the note in the inquest report by
taking LTI of one person namely, Jannu Bibi to be the
wife of the deceased Ajimuddin Miya is not sufficient proof
to deny the claim of the present claimant. The present
appellant filed claim form before the Tribunal by putting
her LTI. To disprove the claim of the appellant the LTI of
the appellant may be verified by the Railway Authority
with the alleged LTI in the inquest report. No such steps
was taken by the respondent. Moreover, the evidentiary
value of voter I-Card is much higher than the stray note
on inquest report. The application under Section 41 Rule
27 CPC appears to me justified to be accepted at this
stage. The compensation has to be granted according to
the law to the original dependent. The present appellant
appears to me the wife of the deceased. Thus, I find no
justification to deny her claim at this juncture. After
considering the entire materials, in my view, the impugned
judgment passed by the learned Tribunal in respect of
issue no.1 is erroneous. The issue should have been
decided in favour of the claimant. Thus, the
claimant/appellant is entitled to get the compensation.
By virtue of the decision of the Hon'ble Supreme
Court in Radha Yadav and Rina Devi the present
appellant is entitled to get the compensation amounting
to Rs.4,00,000/- along with the interest of 12% per
annum from the date of filing of the claim application. If
the interest along with principal appears to be less than
Rs.8,00,000/- then the compensation should be at least
Rs.8,00,000/- and if the compensation along with interest
appears more than Rs.8,00,000/- then the higher value of
compensation should be awarded.
The respondent/Union of India is directed to pay the
compensation through the office of the learned Registrar
General, High Court, Calcutta within six weeks from the
date of passing of this order, on such deposit the
appellant is at liberty to withdraw the same according to
prevalent rules.
Accordingly, FMA 2881 of 2016 is disposed of.
Connected applications, if any, are also disposed of.
All parties shall act on the server copy of this order
duly downloaded from the official website of this Court.
( Subhendu Samanta, J.)
