Page No.# 1/9 vs The Union Of India And Ors
2024 Latest Caselaw 4023 Gua

Gauhati High Court

Page No.# 1/9 vs The Union Of India And Ors on 6 June, 2024

                                                                 Page No.# 1/9

GAHC010194592011




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : MFA/115/2011

            ABDULLA CHOUDHURY @ ABDULLA AND ANR
            S/O LATE ABDUL KADIR CHOUDHURY

            2: ON THE DEATH OF MUSTT. HAMIDA BEGAM CHOUDHURY HER LEGAL
            HEIR MINA BEGUM CHOUDHURY
             D/O MD. ABDULLA CHOUDHURY @ ABDULLA
             BOTH ARE R/O VILL. MORAGANG
             LALANG PT.-IV
             P.O. UJANTARAPUR
             P.S. LAKHIPUR
             DIST. CACHAR
            ASSAM.

            3: MUSTT. HAMIDA BEGAM CHOUDHURY

             W/O MD. ABDULLA CHOUDHURY @ ABDULLA
             BOTH ARE R/O VILL. MORAGANG
             LALANG PT.-IV
             P.O. UJANTARAPUR
             P.S. LAKHIPUR
             DIST. CACHAR
             ASSAM

            VERSUS

            THE UNION OF INDIA and ORS
            REPRESENTED BY THE GENERAL MANAGER, N.F. RAILWAY, MALIGAON.



Advocate for the Petitioner   : MR. M TALUKDAR

Advocate for the Respondent : MSB DEVI

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Date of hearing :18.03.2024 Date of Judgment : 06.06.2024

BEFORE HONOURABLE MR. JUSTICE BUDI HABUNG

JUDGMENT & ODER (CAV) Date : 06-06-2024

Heard Mr. M. Talukdar, learned counsel for the appellant. I have also heard Mr. G. Goswami, learned Standing counsel NF Railways.

2. This appeal has been filed by the claimants/appellants against the judgment dated 22/12/2006 passed by the learned Railway Claims Tribunal, Guwahati Bench in Claim Petition No. OA-IIU/GHY/2006/0563 (Old No.OA.II U-563/2006) whereby the claim petition was dismissed amongst others on the ground that there was no evidence to establish that the victim died due to an injury sustained while travelling in the train.

3. The fact of the case in brief is that on 11/6/2006, the deceased Ismail Rahman @ Ismail Rahman Choudhury was on the way to his journey from Secunderabad Railway station to his home at Assam. He was traveling by 5637 UP Summer Special Train with a valid Railway journey ticket No. 24467101 with a crowded general passenger compartment door. Then all of a sudden, the train started with a jerk and due to that impact, the deceased could not control himself and dashed with the compartment door and sustained trauma in his abdomen. That aggravated his physical health condition and consequently died on 13/6/2006 within the compartment. Accordingly, the GRPF/Guwahati registered a U/D case No.54/06 dated 13/6/2006. Since the deceased lost his life while travelling on the Train with a valid Railway general ticket, the appellants filed the Claim Petition before the Tribunal seeking compensation of Page No.# 3/9

Rs.4,00,000/- for the death of the victim.

4. The case was contested. The learned counsel for the Railways submits that after consideration and appreciation of the evidence, the learned Tribunal dismissed the Claim Petition as there was no evidence to support the claimant's case that the victim died as a result of an injuries sustained while travelling on the train. On the basis of the pleadings of the parties, the learned Tribunal framed the following issues:

1. Whether the deceased was a bonafide passenger of the train in question?

2. Whether the incident is covered under section 123(c) of the Railways Act, 1989?

3. Whether the deceased died due to illness as a consequence of natural death and therefore, the Railway is not responsible?

4. Whether the applicant is the sole dependent of the deceased?

5. What amount of compensation the applicant is entitled to get from the respondent?

5. To prove his case, the claimants/appellant produced one witness as PW-1. However, the respondent did not produce any witness. After consideration and on appreciation of the evidences, the learned Tribunal decided the matter issue- wise on the following ways:

(1) Issue No.1 has been decided in favour of the applicant that the deceased was a bonafide passenger of the train in question.

(2) Issue No.2 was decided against the applicant and in favour of the respondent.

(3) Issue No.3, 4, 5 and 6 has been decided against the claimants on the Page No.# 4/9

grounds that the applicants failed to prove that the incident comes within the purview of untoward incident; as such, neither the incident is falling under section 123 which incorporates the meaning of untoward incident under section 123(c) and 123(2) of the Railways Act, 1989 nor is it covered under section 124-

A the main and the proviso. And as the present case according to the Tribunal was not covered under section 123 and 124 of the Act, it was held that the applicants are not entitled to any compensation and accordingly, the same was dismissed.

6. Being highly aggrieved, the claimants filed this appeal amongst other on the grounds that the I.O. of the case held inquest over the dead body of the deceased wherein it is stated that although the cause of death of the deceased is suspected to be illness, but the actual cause of death will be ascertained after post mortem examination. And accordingly, the Doctor had conducted the post mortem examination over the dead body of the deceased and submitted PM report. The said doctor was examined as Court witness; however, the learned Tribunal has not considered the evidence of the Doctor (CW-1). As per the doctor's evidence, the death of the deceased was due to exhaustions as a result of septic peritonitis following blunt trauma abdomen; he died due to injuries sustained in his abdomen and it was not a natural death. However, the learned Tribunal did not consider the said evidence of doctor (CW-1) and dismissed the claim.

7. On the other hand, the learned counsel for the respondent contended that the deceased was suffering from illness because of which reason he was on the way back from Secunderabad to his home. He was accompanied by two co- workers of the same native place. After the death of the deceased on train, the said two friends on reaching Guwahati had reported the matter to the Guwahati Page No.# 5/9

Railway Station. They have also given statement before the police who held the inquest over the dead body of the deceased after receipt of information. The said two friends had given their statements before the police and stated that the deceased expired inside the compartment due to his illness. The learned counsel for the respondent further submitted that as per the time mentioned in the post mortem report the death of the deceased occurred in between 1.15 PM on 12/6/2006 and 1.15 PM on 11/6/2006. From the above fact it clearly reveals that the death of the deceased occurred due to illness; hence, the Railway is protected under exceptional clause of section 124 A of the Railway Act, 1989. It is further submitted that the two persons who accompanied the deceased were his friends and co-workers. They are stated to have travelled with the deceased from Secunderabad and were present at the time of the alleged incident. But they have never stated before the police that such an incident occurred nor have they been produced before the Tribunal for adducing evidences. Further, the PW-1 who gave evidence before the Tribunal admittedly is not an eye witness to the alleged incident. Her evidence, thus, is merely hearsay evidence which cannot be relied upon. Hence, prays for dismissal of the appeal.

8. In support of his submission, the learned counsel for the respondent relied on the decision in the case of Kaliram Konwar vs Union of India (MFA 11/2018) whereby although the deceased was found dead was not given compensation as it was not supported by evidence. The relevant paragraph is quoted herein below:

"21. From the Inquest Report dated 29-12-2014, it is seen that the body of the victim was found lying in between two railway lines facing the earth and brain matters and pieces of the skull were found lying scattered in the railway track. If the victim had actually fallen down from a running train as claimed by the appellant, it is not clear as to how the body could have been found lying inside the two railway lines. It is highly improbable that a person accidently falling down from a running train would come under the wheels of the same train.

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Likewise, after falling down from the running train the victim could not have suffered the nature of Page No.# 7/9 injuries indicated in the post mortem report. The learned counsel for the appellant also could not give any satisfactory answers to the queries made by the court on the above points.

23. From a careful analysis of the materials available on record, it is evident that the story projected by the claimant regarding the accidental death of the victim is entirely speculative, nothing but guess work which is not supported by an iota of evidence. The materials on record raises more question than giving answers to the queries as to the circumstances under which the victim had died. In the absence of any witnesses account, it is not known as to how the claimant could know that there was rush in the train and the victim fell down while trying to get down from the train. The said aspect of the matter assumes great significance since the claimant himself has claims to have learnt about the death of his wife from the morning newspaper."

The learned counsel for the respondents also relied on the decision of the Hon'ble Supreme Court in Civil Appeal 4945 of 2018(Special Leave Petition (Civil) No.10223, Union of India vs Rina Devi whereby it was held that the initial onus lies with the Appellants/claimants to show that there is death due to untoward incident of a bona fide passenger. The relevant paragraph is quoted below:

17.1.............................3(ii) In my opinion, the contention of the learned counsel for the Appellants/claimants is totally misconceived. The initial onus in my opinion always lies with the Appellants/claimants to show that there is death due to untoward incident of a bona fide passenger of course, by filing of the affidavit and depending on the facts of a particular caase that initial onus can be a light onus which can shift on the Railways, however it is not the law that even the initial onus of proof which has to be discharged is always on the railways and not on the claimants. I cannot agree to this proposition of law that Railways have the onus to prove that the deceased was not a bonafide passenger because no such negative onus is placed upon the Railways either under the Railways Act or the Railway Claims Tribunal Act & Rules or as per any judgment of the Supreme Court. No doubt, in the facts of the particular case, onus can be easily discharged such as in the case where deceased may have died at a place where he could not have otherwise been unless he was travelling in the train and in such circumstances depending on the facts of a particular case it may not be necessary to prove the factum of the deceased having a ticket because ticket as per the type of incident of death can easily be lost in an accident. I at this stage take note of a judgment of a learned Single Judge of this Court in the case reported as Pyar Singh v, Union of India 2007 (8) AD Del.262 which holds that it is the claimant upon whom the initial onus lies to prove his case. I agree to this view and I am bound by this judgment and not by the ratio of the case of Leelamma (supra).

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17.2. ".................................................. 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..........................."

9. Upon consideration and hearing the parties, the issue to be considered by this Court are:

(i) Whether the Tribunal erred in dismissing the Claim Petition on the ground of lack of evidence showing that the victim had died due to injuries received while travelling in the train.

(ii) Whether the Tribunal erred in not considering the appellant's claim that the victim sustained injuries due to sudden jerk caused by the movement of the train.

10. The primary contention raised by the claimants in this appeal is that the Tribunal erred in dismissing the claim petition without considering the evidence of the Doctor who had conducted post mortem examination over the dead body of the deceased. It is the case of the appellant/claimants that the doctor opined that the death of the deceased was not a natural death, but it was caused due to injuries received by the deceased. However, the respondent contended that the claimants has miserably failed to produce any evidence showing that the deceased fell in the train while it started and gave sudden jerk due to which he had received injury and ultimately succumbed to his injury. The further case of the respondent is that, not a single witness could be produced by the claimants/appellant to show that some incident had taken place inside the train in which the deceased received an injury in his person. It is further argued by the learned counsel for the respondent that the two friends of the victim who are stated to have been travelling with the deceased and were present with him Page No.# 8/9

at the time of the incident had never appeared before the trial Court to give any evidence in support of the claimants that the deceased fell in the train due to certain jerk while it started. The said two co-worker friends of the deceased had reported to the Railway Station at Guwahati about the death of the deceased on the Train and had not even whisper that there was any incident in the train, they rather categorically stated that the deceased died due to illness. Thus, the claimant failed to prove that there was any incident of falling of the deceased due to which the deceased had received an injury on his abdomen as a result of which he died on the train.

11. Heard both the learned counsel for the parties. I have also examined and considered the documents available on records.

12. Upon careful examination of the records and considering the submissions made by both the parties, this Court finds it hard to deduce and draw any inference from the evidence showing that any incident took place on the train that led to the deceased receiving an injury resulting his death. Under the facts and circumstances of the case, this Court did not find any substance in the appeal as it lacked merit. The learned Tribunal has rightly dismissed the Claim Petition of the appellant in absence of any evidence establishing that there was some incident of sudden jerk due to which the deceased fell and received an injury that subsequently led to his death. The claimants failed to provide any evidence to support their claims. The absence of the two friends of the deceased who are stated to have accompanied the deceased on the train from Secunderabad further weakens the case of the claimants as they were his friends and the only witnesses in the case and had given statement before the police that the deceased died due to illness. Further, it is not the case of the appellant that they will produce the said witnesses to give evidence in any Page No.# 9/9

future date to substantiate their claims; if any. Under the fact and circumstances of the case, and in the absence of any clue of evidence to suggest that the deceased had received an injury on the train, leading to his death, this Court finds no reason to interfere with the decision of the Tribunal. The appeal is therefore, dismissed.

13. Send back the LCR immediately.

JUDGE

Comparing Assistant