Gauhati High Court
On The Death Of Hakimuddin Sk. vs Union Of India on 24 February, 2022
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GAHC010013712013
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : MFA/155/2013
ON THE DEATH OF HAKIMUDDIN SK., REPRESENTED BY LEGAL HEIRS-
BAJINTAMALA BIWI
W/O LATE HAKIMUDDIN SK, R/O VILL. DUBRIRCHAR, P.O. FALIMARI 783,
DIST. DHUBRI, ASSAM
VERSUS
UNION OF INDIA
GENERAL MANAGER, N.F.RAILWAY, MALIGAON, GUWAHATI-1.
Advocate for the Petitioner : MR.M M RAY
Advocate for the Respondent : SC, NF RLY
BEFORE
HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA
JUDGMENT
24.02.2022
Heard Mr. A. R. Agarwala, learned counsel appearing for the appellant as well
as Mr. G. Goswami, learned counsel representing the respondent.
2. This is an appeal under Section 23 of the Railway Claims Tribunal Act, 1987
against the common judgment and order dated 23.08.2013 passed by the Railway
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Claims Tribunal, Guwahati in Original Application No. II-U-51/2010.
3. On 24.11.2009, Jamir Uddin Sk. was travelling in the train no. 4056, Brahmaputra
Mail from New Delhi to Coochbehar. He had a sleeper class journey ticket. When the
train was between Jamamiya and Darouli, Jamir Uddin Sk. fell down from the train
and died instantly.
4. The Station Master of Jamaniya Railway Station informed Jamania Police
Station that unknown and unidentified deadbody was recovered on the railway
track. That news was also published in a newspaper 'Amar Ujala'. From the said
newspaper, it was found that one sleeper class ticket from Delhi to New Coochbehar
along with some other articles were found. Police seized all these articles.
5. In the meantime, one social organization discovered that the deceased was
none other than Raju Sk. who was a resident of Dhubri, Assam.
6. A co-passenger, namely, Abdul Akher, who was also travelling with the
deceased on 24.11.2009 disclosed that when he had arrived at New Coochbehar he
could not find the Jamir Uddin. This co-passenger also came to know that on
26.11.2009 late Hakim Uddin, the father of Jamir Uddin, had received a phone call
and came to know that Jamir Uddin was dead.
7. Therefore, the co-passenger Abdul Akher along with Hakim Uddin and some
other persons went to Jamaniya and identified Jamir Uddin through the photo proof
kept by the Police.
8. Upon the aforesaid facts, a claim petition was filed before the Railway Clams
Tribunal. The railways contested the claim by filing the written statement.
9. On the basis of the pleadings, the Tribunal framed the following issues:
(i) Whether the deceased was a bonafide passenger as contended? (sic.)
(ii) Whether the incident is covered under Section 123/124 of the Railways
Act, 1989?
(iii) Whether the applicant is entitled for compensation as applied for?
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(iv) Relief, if any.
10. Finally, after hearing both sides, dismissed the claim petition.
11. I have given my anxious consideration to the submissions made by the learned
counsels for the both sides.
12. Here, at this stage, paragraph 13 of the judgment of the Tribunal is important. It
reads as under:
"13. The applicant initially claimed that his son Jamir Uddin Sk. also known as
Raju. Subsequently, in the affidavit Hakim Uddin, the applicant and Abdul
Akher claimed that Jamir Uddin Sk. was also known as Raju Sk. However, neither
in the PAN card (Ext. A 5) nor in the Voter List (Ext. A 6) nor in the legal heir
certificate and death certificate, the name of Raju is mentioned. Question here
is why did Jamir Uddin Sk. booked himself from Delhi to New Coochbehar as
Raju Sk., when the PAN (identity) card carried by him indentified him as Jamir
Uddin Sk. Moreover, as per the PAN card (Ext. A-5) his death of birth is
05.08.1984. He was therefore, more than 25 years old on the day of journey.
However, the ticket of Raju Sk. indicates his age as M-24. It is thus proved
beyond doubt that the ticket produced as evidence (Ext. A 4) did not belong
to Jamir Uddin Sk. I am convinced that an used ticket belonging to someone
else was procured clandestinely to prove a particular point and for that
purpose it was mentioned in the application and also in the affidavit that Jamir
Uddin Sk. was also known as Raju and Raju Sk."
13. So, the Tribunal held that the identity of the deadbody to be that of Jamir Uddin
Sk. was not proved because the railway ticket contained the name Raju Sk. The
appellant claimed that Jamir Uddin Sk. was also known as Raju Sk. but there is no
evidence to that effect.
14. In the case of Union of India v. Rina Devi, (2019) 3 SCC 572 the Supreme Court
has held as under:
"27. In Jetty Naga Lakshmi Parvathi [Jetty Naga Lakshmi Parvathi v. Union of
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India, 2011 SCC OnLine AP 828 : 2013 ACJ 1061] the same view was taken by a
Single Judge of Andhra Pradesh after referring to the provisions of the Evidence
Act as follows : (SCC OnLine AP para 24)
"24. So, from Section 101 of the Evidence Act, 1872, it is clear that the
applicants, having come to the court asserting some facts, must prove that the
death of the deceased had taken place in an untoward incident and that the
death occurred while the deceased was travelling in a train carrying
passengers as a passenger with valid ticket. Therefore, having asserted that the
deceased died in an untoward incident and he was having a valid ticket at
the time of his death, the initial burden lies on the applicants to establish the
same. The initial burden of the applicants never shifts unless the respondent
admits the assertions made by the applicants. Such evidence is lacking in this
case. Except the oral assertion of AW 1, no evidence is forthcoming on behalf
of the applicants. The court may presume that the evidence which could be,
and is not produced, would, if produced, be unfavourable to the person who
withholds it. The best evidence rule, which governs the production of evidence
in courts, requires that the best evidence of which the case in its nature is
susceptible should always be produced. Section 114(g) of the Evidence Act,
1872 enables the court to draw an adverse presumption against a person who
can make available to the court, but obstructs the availability of such an
evidence. The Claims Tribunal, upon considering the material on record, rightly
dismissed the claim of the applicants and there are no grounds in this appeal
to interfere with the order of the Tribunal."
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".
15. Reverting to the case in hand, every document submitted by the appellant
before the Tribunal relates to Jamir Uddin Sk. There is no evidence in the case that
Jamir Uddin Sk. was also known as Raju Sk. From the deadbody, a railway ticket
issued in the name of Raju Sk. was recovered and then only it was claimed that Jamir
Uddin Sk. was also known as Raju Sk. But the appellant did not prove the fact.
16. In such a circumstance, the Tribunal has correctly held that the claim case was
filed with a melafide intention by claiming the deadbody of Raju Sk. to be that of
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Jamir Uddin Sk. This Court is satisfied that the Tribunal has correctly appreciated the
evidence placed before it and arrived at a correct finding. The appellant failed to
prove that Jamir Uddin Sk. was also known as Raju Sk. Therefore, the appellant is not
entitled to any relief on the basis of death of Raju Sk.
17. Under said premised reasons, the appeal is found to be devoid of merit and
stands dismissed.
18. Send back the LCR.
JUDGE
Comparing Assistant
