Gauhati High Court
Smti Asiea Khatun @ Bewa vs Union Of India on 9 January, 2025
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GAHC010137022018
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : MFA/87/2018
SMTI ASIEA KHATUN @ BEWA
W/O LATE ABDUL MALEK, R/O VILL. NAYAGAON, P.O. JHOWDANGA, P.S.
MANCACHAR, DIST. DHUBRI (PRESENTLY SOUTH SALMARA
MANKACHAR) ASSAM.
VERSUS
UNION OF INDIA
REPRESENTED BY THE GENERAL MANAGER, N.F. RAILWAY, MALIGAON,
GUWAHATI-11
BEFORE
HON'BLE MR. JUSTICE KAUSHIK GOSWAMI
For the petitioner : Ms. R. Choudhury ... Advocate
For the respondent : Mr. G. Goswami, SC, ...NF Railway
Date of hearing & judgment : 09.01.2025
JUDGMENT AND ORDER
1. Heard Ms. R. Choudhury, learned counsel for the petitioner. Also heard Mr.
G. Goswami, learned Standing Counsel, NF Railway appearing for the
respondent.
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2. By way of this appeal under Section 23(1) of the Railway Accident Claims
Tribunal Act, 1987, the appellant is assailing the judgment and order dated
17.02.2017 passed by the learned Railway Claims Tribunal, Guwahati Bench in
Claim Application No. OAIIu/141/2012(Old)/OAIIu/GHY/2013/0001 (New).
3. The gist of the relevant facts is that the husband of the
applicant/appellant Late Abdul Malek while was allegedly travelling on
13.03.2012 along with his son by one Passenger Train bearing no. 12505, the
Northeast Express, he fell down from the train due to heavy rush of passengers
on 14.03.2012 at 11:20 a.m. and after conduction of Post-mortem over the
body, the same was handed over to the victim's family. Thereafter, a claim
petition was filed being application no. O.A.-IIu-141/2012 before the Railway
Claims Tribunal, Guwahati Bench at Guwahati (hereinafter referred to as the
Tribunal) by the appellant claiming herself as the wife of the said deceased. The
Tribunal, vide judgment dated 17.02.2017 was pleased to dismiss the said claim
for lack of evidence. Aggrieved by the aforesaid judgment of the Tribunal, the
present appeal has been preferred by the appellant.
4. Ms. R. Choudhury, learned counsel for the appellant submits that the
Tribunal has committed manifest error in rejecting the claim of the appellant and
as such, the impugned judgment and order is required to be set aside. She
further submits that the claimant has enclosed the copy of the UCO Bank
Passbook, wherein the petitioner is mentioned to be the wife of the late
deceased as proof of dependency, and the same being not objected by the
respondent Railway, the appellant has established that she is the dependent of
the said deceased. In support of the same, she relies upon the decision of the
Apex Court in the case of Iqbal Basith and Others vs. N. Subbalakshmi &
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Others, reported in (2021) 2 SCC 718. She further submits that in view of
the fact that the appellant has proved that she is one of the dependent of the
deceased, the Tribunal has erred in law in rejecting her claim. She further
submits that though the Tribunal on 07.12.2016 had summoned the son of the
appellant, however, in view of the fact that he had expired in the meantime, his
evidence could not be adduced. She further submits that the Final Report
submitted in the case which is exhibited as Ex-3(1) clearly establishes the fact
that the alleged husband of the appellant died while travelling in the Train and
as such, the initial burden as required under the law is established by the
claimant.
5. Per contra, Mr. G. Goswami, learned Standing Counsel, NF Railway submits
that the claimant has miserably failed to establish that she is the legal heir of
the deceased by producing cogent evidence whatsoever before the Tribunal. He
further submits that though the son of the deceased who is alleged to have
travelled with him in the railway journey on the day of the alleged accident
though was available at the time of filing evidence in the year 2015, however,
the appellant chose not to bring the evidence of the said son on record by filing
necessary affidavit on evidence. He further draws the attention of the Court that
the appellant had filed her evidence on affidavit on 22.09.2015. He accordingly
submits that the claimant has failed to even discharge the initial burden as
regards the alleged train journey and the untoward incident occurred thereof. In
support of the aforesaid submission, he cites the following decisions :
(i) Union of India vs. Rina Devi, reported in (2019) 3 SCC 572.
(ii) Kaliram Konwar vs. Union of India in MFA 11/2018 passed by the
Gauhati High Court.
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6. I have given my prudent considerations to the arguments made by the
contesting parties and have perused the materials available on record and have
also considered the citations submitted at the Bar.
7. It appears that the appellant's alleged husband's body was found near the
railway track at a distance from his residence and in the Post-mortem Report the
cause of death is mentioned due to hemorrhage and shock caused by heavy
blunt substance. It further appears that pursuant to the death of the said
deceased, the appellant had preferred the claim before the Tribunal, wherein
the Tribunal was pleased to frame the following Issues, which are quoted
hereunder for ready reference :
"1. Whether the death of the victim was in an untoward incident?
2. Whether the victim was a bonafide passenger?
3. Whether the victim (Sic) applicant is entitled for any
compensation? If so, to what amount?
4. Relief & costs?
8. It appears that the specific case of the appellant is that the son of the
victim had allegedly travelled with the deceased as co-passenger. However,
since the evidence on record of the said son was not adduced by the claimant
before the Tribunal while filing evidence on record, the Tribunal vide order dated
07.12.2016 summoned the said son of the deceased in Witness Box to adduce
evidence in the matter. However, it appears that the said son expired on
19.12.2016 and accordingly a copy of the Death Certificate of the said son of
the deceased was submitted before the Tribunal and the same is reflected in the
Order Sheet of the Tribunal, vide order dated 22.12.2016. It further appears
that the Tribunal rejected the claim petition of the appellant due to lack of
evidence.
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9. Before adverting to the findings of the Tribunal, apt to refer to the claim
petition filed by the appellant before the Tribunal. It appears that though in the
claim petition, the appellant has described herself as the wife of the deceased in
the Column No.17 as regards "relation with the deceased". However, in support
of the same, the front page of a UCO Bank Passbook has been enclosed. A
perusal of the aforesaid front page of the bank Passbook appears that the said
Account of the appellant in the UCO Bank was opened after the death of the
deceased and in the Address Column of the Passbook, the appellant has been
described as the wife of the late deceased. It is unconceivable as to how the
aforesaid Passbook of an account opened in the bank after the death of the
deceased can be taken as a proof of dependent of the said deceased. That
apart, no other documents/certificate appears to have been brought on record
by the appellant to indicate her relation with the late deceased. Apt to refer the
Section 123 (b) of the Railways Act, 1989 (hereinafter referred to as "1989 Act")
which defines-
"(b) "dependent" means any of the following relatives of a deceased
passenger, namely:--
(i) the wife, husband, son and daughter, and in case the deceased
passenger is unmarried or is a minor, his parent;
(ii) the parent, minor brother or unmarried sister, widowed sister, widowed
daughter-in-law and a minor child of a pre-deceased son, if dependant
wholly or partly on the deceased passenger;
(iii) a minor child of a pre-deceased daughter, if wholly dependant on the
deceased passenger;
(iv) the paternal grandparent wholly dependant on the deceased
passenger."
10. Apt also to refer to the definition "untoward incident" which is defined
under Sub-Section (c) of Section 123 of the 1989 Act, which is reproduced
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hereunder for ready reference-
(c) "untoward incident" means -
(1) (i) the commission of a terrorist act within the meaning of sub-section
(1) of section 3 of the Terrorist and Disruptive Activities (Prevention) Act,
1987 (28 of 1987); or
(ii) the making of a violent attack or the commission of robbery or
dacoity; or
(iii) the indulging in rioting, shoot-out or arson,
by any person in or on any train carrying passengers, or in a waiting
hall, cloak room or reservation or booking office or on any platform or
in any other place within the precincts of a railway station; or
(2) the accidental falling of any passenger from a train carrying
passengers.]
Apt also refer to Section 124A of the 1989 Act which provides for
compensation on account of untoward incident, which is reproduced hereunder
for ready reference-
"124A. compensation on account of untoward incident - When in the
course of working a railway an untoward incident occurs, then whether or
not there has been any wrongful act, neglect or default on the part of the
railway administration such as would entitle a passenger who has been
injured or the dependant of a passenger who has been killed to maintain
an action and recover damages in respect thereof, the railway
administration shall, notwithstanding anything contained in any other law,
be liable to pay compensation to such extent as may be prescribed and to
that extent only for loss occasioned by the death of, or injury to, a
passenger as a result of such untoward incident:
Provided that no compensation shall be payable under this section by
the railway administration if the passenger dies or suffers injury due to--
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(a) suicide or attempted suicide by him;
(b) self-inflicted injury;
(c) his own criminal act;
(d) any act committed by him in a state of intoxication or insanity;
(e) any natural cause or disease or medical or surgical treatment
unless such treatment becomes necessary due to injury caused by the
said untoward incident.
Explanation.--For the purposes of this section, "passenger" includes--
(i) a railway servant on duty; and
(ii) a person who has purchased a valid ticket for travelling by a
train carrying passengers, on any date or a valid platform ticket and
becomes a victim of an untoward incident."
11. A perusal of the aforesaid provisions indicate that a claimant has to first
establish that he or she is a relative of the deceased passenger i.e. wife,
husband, son and daughter, and in case the deceased passenger is unmarried
or is a minor, his parent, amongst others. It further appears that untoward
incident means the commission of a terrorist act within the meaning of sub-
section (1) of section 3 of the Terrorist and Disruptive Activities (Prevention)
Act, 1987 or the making of a violent attack or the commission of robbery or
dacoity; or indulging in rioting, shoot-out or arson,
by any person in or on any train carrying passengers, or in a waiting hall, cloak
room or reservation or booking office or on any platform or in any other place
within the precincts of a railway station; or the accidental falling of any
passenger from a train carrying passengers. In other words, in a given case
where compensation is sought on account of falling of any passenger from a
Train carrying passengers, the dependent has to prove that the accident
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occurred while the passenger was travelling in a Train carrying passenger. Thus,
the pre-requisites of Section 124A of the 1989 Act as regards the compensation
is firstly one has to be a dependent of the deceased passenger and secondly the
occurrence of an untoward incident.
12. In the present case it appears that though the son of the deceased who
was alive at the time of adducing evidence in the year 2015, would have been
the best person to give evidence as regards the account of the accident alleged
to have been happened while the deceased was travelling in the Train was not
brought in as a listed witness nor his evidence was adduced on affidavit. Non-
examination of the said son who was alive at the time of adducing evidence
weakens the case of the appellant before the Tribunal. It further appears that
the Tribunal has carefully analysed the entire evidence of the matter and has
held as under -
"5. Issues No.- 1 to 4 (These four Issues No. 1 to 4 are heard, discussed
& decided together for the sake of convenience.)
In this case, contention of the respondent is that son of the victim,
who was allegedly traveling with the victim as co-passenger had neither
filed his affidavit nor had come in the witness box. It is also averred that
the statement of applicant is contrary to report given by the S.I. of
Naogachia Railway P.S. Shri Nand Kishore, regarding cremation of body of
the victim. As per police report, his body was disposed off as per Muslim
rites, whereas, in cross- examination, applicant has deposed that body
was handed over to his family. It is also one of the contentions of the
respondent that the tickets are seemed to be planted by the applicant as
the police has only seized one PAN Card from the possession of deceased;
as mentioned in the police report Applicant has also failed to prove her
relation with the deceased through any cogent evidence like legal heir
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certificate.
6. After careful analysis of the matter, this court finds favour in the
contentions of the respondent for the reasons that all these contradictions
in the case creates doubt in the mind of the court. The respondent's plea
is found to be plausible that why son of the deceased has not come into
witness box to corroborate the contentions of the applicant, as he was the
best person to give exact particulars of the case, if he was the co-
passenger with his father. This case relates to 2012 and applciant's son
Ful Miah alleged co-passenger died on 19.12.2016. Thus, he had ample
time to depose as eye-witness & to file his affidavit in support of
applicant's case. Mere recovery of body near railway track is not enough
to hold that the fell down from the train & died, if this fact is not
corroborated by other cogent evidence, person which in this case is not
found.
7. It is also very surprising and unbelievable that the aforesaid Ful
Miah, son of the deceased, who was allegedly traveling with the victim
and was going to Delhi, has not cared to see as to when his father fell
down from the train. Had he been traveling with the victim, he would
have seen the incident & could have immediately informed somebody
after getting down from the train, atleast on the next station but his
presence is no where found in the documents placed on record. Even
F.I.R. (A/2) is found to be registered by one Md. Khalid, who has not
identified the body of the victim & no other document filed by either of
the parties as to on what basis, in said F.I.R., the police has recorded that
the victim was traveling on 13.03.2012 along with his family.
8. It is also not clear from the record as to how two original tickets
exhibited as A/5 (1) & A/5 (2) are placed on record by applicant as the
police has only seized one PAN Card from the person of deceased.
9. Undoubtedly, body of the victim was found near railway track quite
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far away from his residence and in post mortem report also the cause of
death is mentioned due to haemorrhage and shock caused by heavy blunt
substance. Time lapsed since death within 24 hours but fact remains that
the other surrounding facts & record of the case makes this case
suspicious to hold that the victim was traveling in train & died in an
"untoward incident" and possibility of procuring the tickets by applicant
through some source cannot be ruled out for the reasons stated above.
10. Above all, the applicant has not placed on record, legal heir or
dependency certificate issued by competent authority to prove her
relationship with the victim. She has placed on record photocopy of pass-
book in which, it is not mentioned the date of opening of account by the
applicant to infer that it was opened by the applicant before death of the
victim.
11. Therefore, after due consideration of the matter & analysis of the
record and for the reasons detailed herein above, it is held that the
applicant has miserably failed to prove that the victim was a bonafide
passenger & died in an "untoward incident", bring this case within the
ambit of Section 123 (c) of the Railway Act, 1989. Therefore, she is held
not entitled for compensation. It is ordered accordingly. Thus, issues No.1
to 4 are decided against the applicant."
13. I am of the considered opinion that the Tribunal has not committed any
error whatsoever while rejecting the claim of the appellant. As stated above,
this Court has already observed that the appellant has failed to show her
relation with the deceased by producing any cogent evidence. That apart, there
is no eyewitness as regards the untoward accident alleged to have occurred. As
stated above the son of the deceased who had accompanied him in the train
journey in question though was available at the time of evidence was not
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produced at the time of adducing evidence. In the absence of proof as regards
the untoward accident, the claim of the appellant is not maintainable. Reference
in this regard is made to the decision of the Apex Court in the case of Union of
India vs. Rina Devi (supra). Paragraph 26, 27 & 29 of the aforesaid
judgment is quoted hereunder for ready reference :
"26. Conflict of decisions has been pointed out on the subject. As noticed
from the statutory provision, compensation is payable for death or injury
of a 'passenger'. In Raj Kumari (supra) referring to the scheme of
Railways Act, 1890, it was observed that since travelling without ticket
was punishable, the burden was on the railway administration to prove
that passenger was not a bonafide passenger. The Railway Administration
has special knowledge whether ticket was issued or not. 1989 Act also has
similar provisions being Sections 55 and 137. This view has led to an
inference that any person dead or injured found on the railway premises
has to be presumed to be a bona fide passenger so as to maintain a claim
for compensation. However, Delhi High Court in Gurcharan Singh (supra)
held that initial onus to prove death or injury to a bona fide passenger is
always on the claimant. However, such onus can shift on Railways if an
affidavit of relevant facts is filed by the claimant. A negative onus cannot
be placed on the Railways. Onus to prove that the deceased or injured
was a bona fide passenger can be discharged even in absence of a ticket
if relevant facts are shown that ticket was purchased but it was lost. The
Delhi High Court observed as follows :
"4......(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 a 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 case 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
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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
the Railways have the onus to prove that a 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 a 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 leaned Single Judge of this Court
in the case reported as Pyar Singh Vs. 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)."
27. In Jetty Naga Lakshmi Parvathi (supra) same view was taken by a
single Judge of Andhra Pradesh after referring to the provisions of the
Evidence Act as follows :
"24. So, from Section 101 of the Indian 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
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the applicants. Such evidence is lacking in this case. Except the oral
assertion of A.W.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 Indian 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."
14. Reference is also made to the decision of this Court in the case of
Kaliram Konwar (supra). Paragraph 23 and 24 of the aforesaid judgment is
also reproduced hereunder for ready reference -
"23. From a careful analysis of the materials available on record, it is
evident that the story projected by the claimant regarding the accidental
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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.
24. In the case of Rina Devi (Supra), the Hon'ble Supreme Court has
held that initial burden to establish the plea of bonafide status of the
passenger or the injury of the deceased in a claim for compensation
would be upon the claimant. By taking note of the decisions of different
Courts on the aforesaid subject, the Hon'ble Supreme Court has
interpreted the proviso to Section 124(a) and held as follows :-
"17.4 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 negate 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."
That was also a case where the wife of the victim had filed a claim
petition claiming that her husband had died in an untoward incident when
he fell down from the train due to rush of passenger and died on the spot.
The Railways had opposed the claim on the ground that the deceased was
not a bona fide passenger but was wandering in the Railway track since
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he was suffering from mental disorder."
15. In view of the above, I am of the unhesitant view that the Tribunal has not
committed any error or infirmity whatsoever in rejecting the claim petition of the
appellant. Accordingly, the impugned judgment and order dated 17.02.2017
passed by the Tribunal stands upheld. Resultantly, the appeal fails.
16. For the reasons stated above, the appeal stands dismissed.
JUDGE
Comparing Assistant
