Union Of India vs Kashinath Chowhan @ Chouhan
2023 Latest Caselaw 3602 Cal

                    IN THE HIGH COURT AT CALCUTTA
                     CIVIL APPELLATE JURISDICTION
                            APPELLATE SIDE

PRESENT:
THE HON'BLE JUSTICE BIVAS PATTANAYAK

                           FMAT 1162 of 2018
                              CAN 1 of 2022
                              Union of India
                                 versus
                      Kashinath Chowhan @ Chouhan
                                  With
                             COT 76 of 2022
                      Kashinath Chowhan @ Chouhan
                                 versus
                            The Union of India


For the Appellant               : Mr. Avinash Kankani, Advocate

For the Respondent-             : Mr. Jayanta Banerjee, Advocate

Claimant                          Ms. Ruxmini Basu Roy, Advocate

Heard on                        : 05.12.2022

Judgment on                     : 19.05.2023


Bivas Pattanayak, J. :-

1. The present appeal is directed against the judgment and award dated 25th

July 2018 passed by Railway Claims Tribunal, Kolkata Bench in Claim

Application No. OA (IIu)/KOL/0087/2010 granting compensation of

Rs.8,00,000/- in favour of respondent-claimant and his wife Reshmi

Chowhan under Section 16 of Railway Claims Tribunal Act, 1989.

2. The brief fact of the case is that on 25th December 2009 at about 2.30 p.m.

while the victim was travelling from Howrah to Uttarpara Railway Station by

local train with valid second-class railway ticket, accidentally he fell down

from the running train due to overcrowding pressure and sudden jerk

between Belur and Bally Railway station, as a result of which he received

serious head injury on his person. Immediately thereafter he was taken to

Belur S.G. Hospital, wherefrom he was referred to Medical College and

Hospital where he succumbed to his injuries and died on 29th December

2009. The Police authority of Bowbazar Police Station in order to investigate

the incident registered one General Diary being GD Entry No. 2999 date 29th

December 2009. The claimants being the parents of the victim filed

application under Section 16 of the Act claiming compensation of

Rs.4,00,000/- together with interest.

3. The claimants in order to establish their case examined father of the victim

and also filed documents which has been marked as Exhibits A/1 to A/7.

4. The appellant-Union of India did not adduce any evidence before the

tribunal.

5. Upon considering the materials on record and the evidence adduced on

behalf of the claimants, the learned tribunal granted compensation of

Rs.8,00,000/- in favour of the applicants being the parents of the deceased.

6. Being aggrieved by and dissatisfied with the impugned judgment and

award of the learned tribunal the Union of India has preferred the present

appeal. The respondent-applicant has also filed a cross-objection being COT

76 of 2022.

7. Mr Avinash Kankani, learned advocate for appellant-Union of India

submitted that the learned tribunal erred in opining that the burden to prove

that the person was not in possession of a valid ticket for journey was on the

Railway Authority and failure to discharge such burden the victim will be a

considered as a bonafide passenger. He further submitted that the initial

burden to establish that the victim was a bonafide passenger is on the

applicant and after such initial burden is discharged, the applicant can claim

compensation. However, in the case at hand the applicant has miserably

failed to discharge such initial burden. Therefore, the applicants are not

entitled to get compensation under the Act since the primary burden of proof

that the victim was a bonafide passenger on the date of accident has not been

discharged in accordance with law. In support of his contentions he relied on

the decision of Hon'ble Supreme Court passed in Union of India versus

Rina Devi reported in (2019) 3 SCC 572. In the aforesaid backdrop he

submitted the appeal be allowed by setting aside the impugned judgment and

award of the learned tribunal.

8. In reply to the contentions raised on behalf of the appellant, Mr Jayanta

Banerjee, learned advocate for respondent-claimant submitted that neither

any specific case has been made out by the Railway Authority that the victim

was not a bonafide passenger nor any evidence has been led to establish that

the victim had no ticket to travel as a bonafide passenger on the date of

accident. On the other hand the claim of the applicants that the victim was a

bonafide passenger has not been rebutted by the appellant-Railway Authority

through any cogent evidence. Thus, where there is no proof that the victim

had no railway ticket with him the claimant is entitled to get compensation

and in support of his contentions he relied on the decision of this court

passed in Bandana Mondal versus Union of India, Through the General

Manager, Eastern Railway reported in (2010)1 WBLR (Cal) 106.

He further submitted that the learned tribunal has directed that 90% of the

awarded sum be kept in fixed deposit scheme for the period of five years.

Since there is no disabling factors such as unsoundness of mind or illiteracy

of the applicant such direction for keeping the awarded sum in fixed deposit

scheme is uncalled for and accordingly appropriate order to that effect be

passed for disbursement of the awarded amount in full to the applicant. To

buttress his submission, he relied on the decision of Hon'ble Supreme Court

passed in H.S. Ahammed Hussain & Anr. versus Irfan Ahammed & Anr.

reported in (2002) 2 WBLR (SC) 305 and another decision of Hon'ble Orissa

High Court in Kabi Pradhan versus Union of India reported in 2021 (4)

TAC 562 (Ori). In light of his aforesaid submission, he prayed that the award

passed by the learned tribunal be affirmed with the modification as indicated

above.

He informed the court that after passing of the award the mother of the victim

namely Reshmi Chouhan expired on 5.4.2019 and on consideration of such

fact the learned tribunal by order dated 21.4.2021 modified the award in

favour of the respondent-claimant, father of the victim. The respondent-

claimant has filed an application being CAN 1 of 2022 for noting the death of

claimant no.2, mother of the victim.

9. Both the appeal and the cross objection are taken up together for

consideration and disposal.

10. Having heard the learned advocates for the respected parties it is found

that the appellant-Union of India in the present appeal has challenged the

claim on sole ground that the deceased-victim on the relevant date was not a

bonafide passenger.

11. With regard to the aforesaid issue raised in the appeal, at the outset on

going through the impugned judgment and award of the learned tribunal it is

found that the learned tribunal considering the history of injury report

(Exhibit A/4), medical certificate of cause of death (Exhibit A/5), inquest

report (Exhibit A/6) and postmortem report (Exhibit A/7) came to a definite

finding that the deceased met with a railway accident between Belur and

Bally railway stations on 25.12.2009 and suffered head injury. The fact that

the deceased died in the said railway accident has not been disputed by

appellant-Union of India. Mr. Kankani, learned advocate for the appellant

relying on Rina Devi (supra) had tried to impress upon the court that since no

valid railway journey ticket was recovered from the dead body of the deceased

or any eyewitness was examined to substantiate that the deceased boarded

the train with a railway ticket, hence initial burden was not discharged and

as such the deceased was not a bonafide passenger.

In Rina Devi (supra) the Hon'ble Supreme Court held as follows.

"29. We thus hold that mere presence of the 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 affidavit by 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."

Bearing in mind the aforesaid observation of the Hon'ble Court, it is found

that claimant no. 1, father of the deceased, namely Kashinath Chauhan

(PW1) filed his affidavit-in-chief wherein he stated that on 25th December

2009 his son Biswanath Chauhan was travelling from Howrah junction to

Uttarpara by Tarakeswar local train. He further stated that at about 2.30pm

his son fell down from the running train due to overcrowding pressure and

sudden jerk in between Belur railway station and Bally railway station as a

result of which his son sustained head injuries and was shifted to hospital.

Furthermore he stated that his son was travelling on 2nd class valid railway

ticket on the relevant day but due to the accident the ticket could not be

recovered. Thus by filing affidavit disclosing relevant facts the claimants

discharged their initial burden and the burden shifted upon the railways. One

cannot be oblivious to the fact that a ticket can easily be lost in an accident

resulting in death of a victim. The railways have not discharged its burden as

per law. It is placed on record that no attending circumstances has been

established by the railways that the deceased did not die out of a railway

accident. Accordingly the ground that the no ticket was recovered from the

dead body of the deceased cannot sustain to establish that the victim was not

a bonafide passenger and negative the claim of claimant. In view of the above

discussion the ground taken by the appellant-Union of India fails.

11.1. So far as the decision of Bandana Mondal (supra) is concerned in the

said case there was evidence of mother of a victim who deposed that she

purchased the ticket for her son, handed over the same to him and saw him

off at the railway station. Thus the facts of the case stands distinguished from

the case at hand.

12. Now cross objection is taken up for consideration. Mr. Jayanta Kumar

Banerjee, learned advocate for the respondent claimant has only pressed into

service the ground that full of amount compensation be released to the

respondent since there is no disabling factor relying on H. S. Ahammed

Hussain (supra) and Kabi Pradhan (supra). It is found from the impugned

judgment and award that the learned tribunal has directed that the out of the

total awarded amount 90% will remain in a fixed deposit scheme for a 5 years

and only 10% of decreed money shall be released through ECS with liberty of

premature breaking of the fixed deposits in case of urgent need by order of

the tribunal. It is relevant to note that there is no such reason for making

such arrangement. There is no material on record of any disabling factors

which may impair judicious use of amount under the award. That being the

position I find the substance in the submissions of Mr. Banerjee, learned

advocate for respondent-claimant relying on the decision of Hon'ble Supreme

Court in H.S. Ahammed Hussain (supra) which has been followed in Kabi

Pradhan (supra) of Orissa High Court. It is found that the awarded sum has

not been deposited by the appellant as yet. Accordingly, the entire

compensation amount and the interest, on failure to satisfy the decree,

awarded by the learned tribunal is to be released in favour of the respondent-

claimant.

13. In the present appeal respondent has filed one application being CAN 1 of

2022 for appropriate order for recording the death of claimant no. 2 Reshmi

Chouhan @ Chowhan mother of the deceased. It is contended in the

application that the wife of respondent no.1 namely Reshmi Chouhan @

Chowhan, mother of the deceased, expired on 5.04.2019 after passing of the

award. By order dated 21st April 2021 the learned tribunal considered the fact

of death of claimant no. 2 Reshmi Chouhan, mother of the deceased, and

treated the father of the victim (respondent herein) as the sole claimant and

the modified the award in favour of respondent only. The death certificate

annexed to the application shows that the mother of the deceased Reshmi

Chouhan died on 5th April 2019. The fact of death of Reshmi Chouhan mother

of the deceased is taken note of. The application CAN 1 of 2022 in FMAT 1162

of 2018 stands disposed of.

14. In view of the above discussion the appeal being no. FMAT 1162 of 2018

stands dismissed. The cross objection being no. COT 76 of 2022 is allowed to

extent that the entire amount of compensation and the interest, on failure to

satisfy the decree, awarded by the learned tribunal be released in favour of

the respondent-claimant. The impugned judgment and award is modified to

the above extent.

15. Appellant-Union of India is directed to deposit the awarded amount

together with interest as directed by the learned tribunal, by way of cheque

before the learned Registrar General, High Court, Calcutta within six weeks

from date.

16. Upon deposit of the aforesaid amount and interest, learned Registrar

General, High Court, Calcutta shall release the entire amount in favour of the

respondent-claimant upon satisfaction of his identity.

17. All connected applications, if any, stand disposed of

18. Interim order, if any, stands vacated.

19. Urgent photostat certified copy of the order if applied for be given parties

on compliance of all necessary legal formalities.

(Bivas Pattanayak, J.)