Sujata Bebnath vs Union Of India
2023 Latest Caselaw 6609 Cal

29.09. 2023
 item No.10
n.b.
ct. no. 551                 FMA 2459 of 2013



                      Sujata Bebnath
                               Vs.
                            Union of India

              Mr. Saswata Bhattacharyya,
              Mr. Sujoy Sinha
                               ..... for the appellant.
              Mr. Sukumar Bhattacharyya,
              Mr. Subrata Santra,
              Ms. Amrita Panday,
                               .... For the Union of India.

                   This   appeal   has   been    preferred   against   the

              judgment dated January 10, 2011 passed by the Vice

              Chairman of Railway Claims Tribunal, Kolkata Bench in

              Railway accident claim case No.U/36/2005.

                   The brief fact of the case is that the present

              appellant being the claimant preferred an application

              before the learned Tribunal for getting compensation of

              Rs.4,00,000/- on the ground that her husband, namely,

              Nani Gopal Debnath was died in an untoward accident on

              18.10.2004 when he was traveling in local train from

              Sealdah with a valid monthly ticket no.007765032 with

              identity card bearing no.065477.

                   The matter was contested by the Union of India

              before the learned Tribunal by filing written statement.

              Oral evidence including documentary evidences were

              produced on behalf of the claimants. The union of India

              has not produced any witnesses.         After hearing the
                                2




parties, the learned Tribunal has dismissed the claim

case.

         Learned advocate on behalf of the appellant argued

before the court that the judgment passed by the learned

Tribunal     is   erroneous.   Learned   Tribunal    has   not

considered the facts and circumstances of the case and

come to an erroneous finding. He further argued that the

learned Tribunal has allowed the issue no. 1 to the effect

that the deceased was bona fide passenger.          But at the

same time, he dismissed the claim case on the ground

that the claimant could proved that the victim was fell

down from the running train.          He argued that the

necessary oral evidence i.e. AW 2 was adduced, who

himself witnessed the accident in his own eyes and

credibility of his oral evidence could not be shakened by

the Union of India in his cross-examination. The inquest

report as well as the investigation conducted by the police

corroborated the claiments case.

         He further argued that the ratio of Hon'ble Supreme

Court in Rina Devi, is applicable and the claimant is

entitled to get the proper relief. He prayed for necessary

order.

         Learned advocate for the Union of India submits

that the observation of the learned Tribunal regarding the

fact that the claimant has failed to prove the plea that the

victim fell down from the running train is quite justified.

The conduct of the investigating officer as well as the facts
                              3




and circumstances of the case to show that the case

stated by the claimant is purposive and false.

       He further argued that the AW 2 was not cited

inquest report or no police report to be the eye witnesses

of the accident. So, at this juncture, the evidence of AW 2

cannot be believed at all

       In support of his contention, he cited a decision of

Hon'ble Supreme Court passed in Kamukayi & Ors.

Vs. Union of India & Ors. reported in (2023)SCC On Line

642.

       The principles laid down in Ria Devi and Kamukayi

are same. It has been held by Hon'ble Apex Court that:

       " We thus hold that mere presence of a boy 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 bone 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."

       Heard the learned advocates. Perused the materials

on record and perused the impugned judgment. It appears
                                4




to me that the effect of the accident was stated by the

claimants as follows:

      On 18.10.2004 p.m. when the victim after his days

word boarded EMU train from Sealdah at about 7.00 p.m,

the compartment of the train was very much overcrowded

and when the said train just depart Agarpara station at

about 7.45 P.M., he approached near the door of the said

compartment to get down at Sodpore station when the

said train arrive near Kilimetre Post number 14/24

station, due to tremendous pressure of jostling near the

door and heavy jerk due to sudden application of break,

the victim handgrip went adrift and he fell down from the

said compartment and remmed on the nearby post at the

said place of occurrence and resulted the instant death.

The fact of the case to shows that after such accident a

railway memo was forwarded by the Station Master which

mentioned that the Station Master has received the

information from the duty gate man that, one male aged

bout 30 years knocked down by the running train. On the

basis of the said memo, the police along with Dom went to

the place of occurrence and made inquest over the dead

boy of the victim.      At the time of inquest, the railway

monthly ticket along with identity card recovered from the

pocket of the dead body. The police thereafter, sent the

dead body for post mortem. The investigation of the police

concluded with a report that the victim died by falling

from train. The inquest report also stated that statement
                               5




of the nearby witnesses who stated that the victim was fell

down from the train. The claimant appearing herself to be

the wife of the deceased and produced the original ticket

along with identity card. One witnesses was examined to

be eye witness of the incident appearing before the learned

Tribunal as AW 2. AW 2 stated on oath that he boarded

the same train along with victim and he saw the victim to

fell down from the train due to overcrowded and certain

applying of break     by the train.     No witnesses were

adduced by the Union India.

      After hearing the both parities, the learned Tribunal

has framed three issues.

      1.

Whether the victim sustained injury by falling

down from a running train on the alleged date

and time and if so, whether this incident is

covered as an untoward incident in terms of

provisions of Sec 123 of the Railways Act, 1989?

2. Whether the applicant is entitled to get

compensation, as prayed for?

3. To what other relief, if any is the applicant

entitled?

So, issue no.1 was famed to answer the question

whether the victim sustained injury of falling down from

the running train on the alleged date of time and if so,

whether this incident is occurred as an untoward in terms

of the provision of Section 123 of the Railways Act 1989.

After deciding the issue no.1, the learned Tribunal

has decided the issue in favour of the appellant. The

entire issue no.1 has come under all question raised in

the accident,l which was decided in favour of the claimant.

Now, in deciding issue nos.2 and 3 and learned Tribunal

has again proceeded to decide some portion of the issue

no.1. He is of the opinion that though the deceased was a

bona fine passenger with valid monthly season ticket but

claimant has fail to proved that the victim fell down from

the running train.

The observation of the learned Tribunal appears to

be self-contradictory; If a person boarded a running train,

how is it possible for the person to be knocked down by

the said train.

Learned Tribunal has observed that name of the AW

2 was not mentioned in the police paper i.e. in the inquest

as well as final investigation report as eye witnesses.

Several persons may witnesses of an accident. It is not

mandatory for the police to mention the name of each and

every person to be the eye witnesses in the inquest report

or police final report.

It further appears that the Union of India i.e.

railway have not produced any convincing document or

witnesses to disbelieve the fact of AW 2. Considering the

same, I am of the view that the observation of the learned

Tribunal regarding issue nos. 2 and 3 is completely

erroneous and not justified to the fact and circumstances

of the case.

I am of the view, the instant appeal has got merit

and there are sufficient reasons to believe that the

claimants are entitled to get the compensation according

to law.

The appeal is hereby allowed; the impugned finding

passed by the learned Tribunal in respect of issue nos.2 ,3

and 4 is hereby set aside

To assess just and proper compensation of this

case, it appears to be that by virtue of decision of Hon'ble

Supreme Court passed in Rina Devi, the claimants are

entitled to get compensation amount to Rs.4,00,000/-

along with 9% interest per annum from the date of filing of

the claim application. If the amount i.e. principal along

with interest come less than the Rs.8,00,000/- then the

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

amendment coupled with interest appears to be more than

8 lakh, then, the higher amount is to be the award in this

case.

Accordingly, FMA 2459 of 2023 is disposed of.

Connected applications, if any, are also disposed of.

The Union of India is directed to pay the

compensation with the officer of the learned Registrar

General, High Court, Calcutta within eight weeks from the

date of passing of this order. On such deposit the claimant

is entitled to receive the same according to the prelevant

rules.

All parties shall act on the server copy of this order

duly downloaded from the official website of this Court.

( Subhendu Samanta, J.)