Sikha Modak vs Union Of India
2023 Latest Caselaw 4069 Cal

04.07. 2023
 item No.42
n.b.
ct. no. 551               FMA 1606 of 2008

                          Sikha Modak.
                                Vs.
                          Union of India.

              Mr. Jayanta Banerjee,
              Mr. Prasanta Banerjee,
              Ms. Ruxmini Basu Roy,
              Mr. Sandip Bandyopadhyay,
                               ..... appellant.
              Mr. Avinash Kankani,
              Mr. Suan Majunder
                               ...... the respondent.

The instant appeal has been preferred by the

claimant/appellant, being aggrieved by and dissatisfied

with the judgment and order dated January 30, 2008

passed by the Railway Claims Tribunal, Kolkata in

connection with Claim Application being No. U/784/2004.

The brief fact of the case is that one claim

application was preferred by the appellant before the

Learned Tribunal on the ground that on 14.10.2003 the

applicants son Indra Modak, after selling fish at Memari

Market left for Burdwan by a local train at about 10.00

a.m. to purchase ice. During the office time the train was

overcrowded and he was standing at the doors with the

others, when the train at the Banka bridge in between

Gangpur & Burdwan station he was about to spit up by

leaning his head from the door, and suddenly his head

dashed with electric post and he fell down from the

running train. Other passengers shouted loudly and tried

to pull the chain but the ACM system was out of order and

train was not stopped. The victim succumbed of his

injuries on the spot. It was pleaded by the appellant that

the victim was travelling on the second class monthly

ticket being No.0302 between Memari and Burdwan,

which was valid up to 02.11.2003.

Postmortem over the dead body was conducted at

Burdwan Medical College & Hospital. Initially, the dead

body was un-identified and thereafter, the grandfather of

the deceased identified the dead body and received the

same from the Morgue. In support of the case, the

claimant has produce several documents including F.I.R,

monthly ticket of the victim and other police papers. The

present appellant deposed before the learned Tribunal as

A.W.1, one Bimal Saha was deposed as A.W.2 as

eyewitness to this case.

Learned Tribunal after hearing the parties and after

perusing the evidences on record both oral and

documentary disbelieve the case of the claimant/appellant

and rejected the claim petition. Hence this appeal.

Learned advocate appearing for the appellant

submitted before this Court that it was not disputed that

the deceased at the relevant point of time was travelling at

the local train with a valid monthly ticket. The monthly

ticket was verified by the respondent and it was observed

be as correct. He also pointed out that the dead body was

identified and received by the grandfather of the deceased

from the Morgue after proper identification. The A.W.2,

who was co-passenger of the said local train has deposed

before the learned Tribunal regarding the factum of the

accident but the learned Tribunal has not believed the

case of the claimant on some flimsy grounds. He further

argued that learned Tribunal should have considered the

claim case to be true and necessary award should have

passed. He further pointed out that the observation of the

learned Tribunal on the attending facts and circumstances

of the case is totally erroneous. The police papers have

already proved the death of the deceased due to felling

from the train, by virtue of Postmortem Report and other

statement of witnesses. Thus, at this juncture, the case of

the claimant cannot be disbelieved.

He further pointed out that the observation of the

learned Tribunal regarding the statements of A.W.2 is not

correct. It was appeared from the evidence of A.W.2 that

he was co-passenger at the same local train in the same

compartment. He knew the deceased to be a co-

passenger, though he was not aware the actual name of

the deceased, but his statement cannot be disbelieved

only on the ground that just at the time of accident, did

not see the deceased fall down from the local train; but it

is the fact after such accident, the A.W.2 returned back

from the next railway station to the accident spot. The

belongings of the deceased and the monthly are deposited

to the nearest Stationmaster. No evidence was adduced

before the learned Tribunal to contradict the statement of

A.W.2. Thus, the statement of A.W.2 need be believed.

Learned advocate appearing for the Union of India

submitted before this Court that the learned Tribunal has

considered the evidence both oral and documentary. It is

the observation of the learned Tribunal that the claimant

has failed to prove their burden to prove the case. He

further pointed out that there is no illegality in the

observation of the learned Tribunal. He again pointed out

that the evidences adduced by the claimant before the

learned Tribunal was properly scanned by the Tribunal

and as a result thereof, the learned Tribunal is of the

opinion that the claimant has failed to prove the case. He

again pointed out that the A.W.2 cannot be believed as he

stated before the learned Tribunal that he knew the

deceased prior to the accident. It is the reasonable

suspicion before the learned Tribunal that why the dead

body of the deceased remained unidentified for long three

days.

On such submission, the learned advocate

appearing for the Union of India submitted that the so-

called accident is fabricated in nature. Thus, the Union of

India is not liable to pay the compensation.

Heard the learned advocates for the parties and

perused the materials on record. It appears that the

accident stated to be happened when the deceased wanted

to split up by leaning his head from the running train.

Whether this act of the deceased would be "self-inflicted"

or not which can only be ascertained as per view of

Section 124A of the Railways Act. Section 124A of the

Railways Act mentioned same exceptions.

The Hon'ble Supreme Court in the case of Union of

India Vs. Rina Devi has dealt with the same

consequences and the Hon'ble Supreme Court is of the

view that the conduct of splitly leaning outside the train is

not come under the purview of the "self-inflicted injury"

mentioned in Section 124A(B) of the said Act.

Learned advocate for the appellant also submitted

some decisions reported in Union of India Vs. Radha

Yadav reported in 2019(1) T.A.C 731(S.C) and Union of

India Vs. Rina Devi. reported in (2019) 3 SCC 572 and

in the case of Union of India Vs. Prabhakaran Vijaya

Kumar reported in (2008) 3 SCC(Cri) 813.

I have perused the observation of the Hon'ble

Supreme Court in the above-mentioned judgments. The

Hon'ble Supreme Court in the case of Provakaran (supra)

has held that the injury inflicted by the passenger and the

claim of the claimant under the Railways Act, 1989 should

be dealt with principle of "no fault liability". It is also

observed by the Hon'ble Supreme Court that accidentally

falling of passenger from the train carrying passenger is

not come under the purview of "self-inflicted injury".

In considering the facts and circumstances of the

case, it appears that the learned Tribunal has disbelieved

the evidence of A.W.2 on the ground that A.W.2 has not

seen the accident. It appears from the statement of A.W.2

that he was a co-passenger, who usually travelling with

some other co-passengers regularly. By virtue of their

travel in the same train and in the same compartment

they appears to face-known to each other. Their names

and proper address may not be within the acquaintance of

other passengers, but it is within their knowledge that

wherefrom the particular passengers boarded the train

and where they left train. It appears that A.W.2 has

deposed before the learned Tribunal that he knew the

deceased on such way. The A.W.2 has also stated before

the learned Tribunal that on the fateful day the deceased

board the train with the A.W.2 in the same compartment

just because of the fact that A.W.2 did not notice when the

deceased felll from the train does not prove that A.W.2

never witness the accident. The A.W.2 was all along in the

ride of the train with the deceased and he noticed that

deceased fall from the running train. It is further stated

that he returned back to the spot of accident from the

nearest station and collected the documents from the

possession of the deceased and produced the same before

the Stationmaster. The submission of A.W.2 cannot be

disbelieved on that score. Thus, finding of the learned

Tribunal regarding the correctness of the statement of

A.W2 appears to be erroneous.

Considering the entire facts and circumstances of

the case and considering the view of the Hon'ble Supreme

Court in the case mentioned herienabove, I am of the view

that the claimant has successfully proved the case and

she is entitled to get the compensation, as prayed for.

Thus, the appeal succeeds.

The impugned judgment and order passed by the

learned is set aside.

To assess just and proper compensation in this

case, it appears that the claimant has filed to claim

application for getting compensation to Rs.4,00,000/-. By

virtue of notification of Central Government published in

the Gazette of India, Extraordinary, Part II, Section 3,

Sub-Section ( i) No.877 dated 22 nd December, 2016,

the amount mentioned in Sub-Rule 2 is amended from

Rs.4,00,000/- to Rs.8,00,000/-. The Hon'ble Supreme

Court in Bimla Devi & Ors. has discussed the amount of

compensation. Consequently, it was clarified by the

Hon'ble Supreme Court in Radha Yadav(Supra) at

paragraph 10.

Considering the attending facts and circumstances

of the case, the claimants are entitled to get the

compensation of Rs.4,00,000/- along with 6% per annum

from the date of the accident. If the accrued interest along

with principal appears to less than Rs.8,00,000/-, then

the compensation would be at least Rs.8,00,000/- and if

the principal along with accrued interest appears more

than Rs.8,00,000/- then the higher amount should be

awarded.

The Union of India/respondent is directed to pay the

compensation within 12 weeks from the date of this order

through learned Registrar General, High Court, Calcutta

by issuing an account payee cheque in the name of the

appellant (Smt. Sikha Modak). The appellant shall receive

the cheque upon proper identification and verification by

the concerned office of the learned Registrar General.

The instant claim is pending since 2003.

Considering the long pendency of this matter, the office of

the learned Registrar General is requested to disburse the

cheque as early as possible.

Accordingly, FMA 1606 of 2008 is disposed of.

Connected applications, if any, are consequently

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.)