Smt. Sarita Devi & Others vs Union Of India
2021 Latest Caselaw 445 Jhar

    IN THE HIGH COURT OF JHARKHAND AT RANCHI
             (Civil Miscellaneous Appellate Jurisdiction)
                    M.A. No. 148 of 2015
                             ........

Smt. Sarita Devi & Others                     .... ..... Appellants
                               Versus
Union of India, through General Manager,
East Central Railway, Hajipur.                .... ..... Respondent

CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
            (Through : Video Conferencing)
                                 ............
For the Appellants               : Mrs. Chaitali C. Sinha, Advocate.
For the Respondent               : Mr. Vijay Kumar Sinha, Advocate.
                                 ........
07/01.02.2021.

Heard, learned counsel for the appellants, Mrs. Chaitali C. Sinha and learned counsel for the Railway, Mr. Vijay Kumar Sinha.

The claimants, (1) Smt. Sarita Devi (2) Pramod Kumar (3) Mamta Kumari, (4) Jhari Yadav and (5) Yashoda Devi have preferred this appeal against the award dated 07.08.2014 in Case No. OA (iiU)/RNC/2012/0048 passed by learned Member (Technical), Railway Claims Tribunal, Ranchi Bench, whereby the claim application of the applicant has been dismissed only on the ground that deceased, Adhik Prasad Yadav though was having a valid ordinary ticket bearing No. W-15528340 from Jasidih Jn. to Jamui, fell down from the running train no.63211 Jhajha - Patna passenger between Jamui Station and Katauna Halt near Pole No.389/09 and 389/90.

Learned counsel for the appellants has submitted that though learned Tribunal has considered the incident to be an untoward incident under Section 123(c) (2) of the Railways Act, but while deciding issue No.1 with regard to the bonafide passenger, the learned Tribunal has taken view that though inquest report does not mention recovery of the ticket, but at subsequent stage recovery of ticket mentioned in final police report creates serious doubt regarding the case of the claimants.

Learned counsel for the appellants has submitted that neither the railway has brought any contrary evidence to the ticket No. W-15528340 nor claimants can be held responsible, if the same has not been mentioned in the inquest report by the Investigating Officer / Police Officer, but mentioned in the final report.

Learned counsel for the appellants has thus submitted that deceased was a bonafide passenger in view of the judgment passed by the Apex

Court in the case of Union of India vs. Rina Devi, reported in (2019) 3 SCC 572. Para-29 of the aforesaid judgment is profitably quoted hereinbelow:-

"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."

(emphasis supplied) Learned counsel for the appellants has submitted that the appeal may be allowed by setting aside the impugned award and the appellants may be granted compensation to the tune of Rs.4,00,000/- along with interest @ 7.5 % per annum from the date of filing of the claim application i.e. 17.10.2012 till the actual date of indemnifying the award or Rs.8,00,000/-, in view of the new amendment made in the Railways Accident and Untoward Incident (Compensation) Rules, 1990, which has been amended in the year 2016 w.e.f. 01.01.2017 by enhancing the same from Rs. 4,00,000/- to Rs.8,00,000/-, whichever is higher and in view of the judgment passed by the Apex Court in the case of Union of India Vs. Radha Yadav reported in 2019 (3) SCC 410, wherein the Hon'ble Apex Court has held in paragraph-11 as under:-

"11. ...................... For instance, in case of a death in an accident which occurred before amendment, the basic figure would be Rs 4,00,000. If, after applying reasonable rate of interest, the final figure were to be less than Rs 8,00,000, which was brought in by way of amendment, the claimant would be entitled to Rs 8,00,000. If, however, the amount of original compensation with rate of interest were to exceed the sum of Rs 8,00,000 the compensation would be in terms of figure in excess of Rs 8,00,000. The idea is to afford the benefit of the amendment, to the extent possible. Thus, according to us, the matter is crystal clear. The issue does not need any further clarification or elaboration."

Learned counsel for the Railway, Mr. Vijay Kumar Sinha has opposed the prayer and has submitted that learned Tribunal has came to a finding based on materials available on record, as such, this Court may not interfere with the same.

Learned counsel for the Railway has submitted that detail counter affidavit has been filed in this regard, Paras-9, 10 and 11 of which are profitably quoted hereunder:-

"9. That the Learned Presiding Officer, Railway Claims Tribunal, after hearing the parties on 17.05.2013 framed three issues for appreciating and adjudicating the claim petition on the basis of available materials:- (1) Whether Adhik Prasad Yadav was a bonafide passenger as alleged? (2) Whether any untoward incident as defined under Section 123(C)(2) of the Railways Act, 1989, occurred to him while travelling by Jhajha - Patna Passenger Train No. 63211 on 12.03.2012 from Jasidih Junction to Jamui?

(3) Whether the applicant is entitled for the compensation as claimed and other relief, if any?

10. That in course of appreciation of the Issue No.1, the Learned Member (Technical) of the Railway Claims Tribunal, it is discussed that by affidavit the claimant asserted that Adhik Prasad Yadav, since deceased was travelling with a valid railway ticket EN Jasidih to Jamui, but, ticket has not been filed and in the inquest report not mentioned about the recovery of said ticket and in final report, it has been mentioned that the said ticket was recovered from the pocket of the part of the deceased. During postmortem which was handed over by one Constable Swami Nath Sah who handed over the dead body to the family after postmortem, it is astonishing that in postmortem report does not mention about the recovery of the said ticket.

Further Learned Member of the Railway Claims Tribunal went through the judgment of the Hon'ble High Court of Judicature at Patna rendered in the case of Maghu Sah Vs. Union of India. In the above case, it was the case of the applicant that his father had an accidental fall from a Train 741 UP and was a bonafide passenger, as he had a valid ticket, a copy of which was annexed with the plaint. Though the ticket was not recovered during inquest, recovery of the same was mentioned. Subsequently in the final police report, the Tribunal had

rejected the petition doubting the conduct of the police officer. This was upheld by the Hon'ble Court who opined that the Tribunal had committed no error. An extract of Para-6 of the judgment is given below:-

"6. Besides hearing the parties, I have also perused, the materials available on record including Lower Court Record without going into the detail of the case, the Court is of the opinion that once inquest report can prepared immediately after recovery of the dead body on the railway track, non-mentioning of the recovery of ticket in Column 7 of the inquest report was sufficient to come to the conclusion that the deceased was not having any railway ticket. At subsequent stage, though in the police report, it been been mentioned regarding recovery of railway ticket, the court is of the opinion that the Learned Claims Tribunal has rightly doubted the conduct of the police officer. Moreover, if in the inquest report, there was not mentioning of the recovery of ticket, at subsequent stage mentioning recovery of the ticket creates serious doubt on the case of the claimant. Besides this, no other reliance evidence can brought or record save and except evidence of the claimant himself, which was not sufficient to prove the case."

But, in the instant case not even a photo copy of ticket was filed, the underlying principle would be applicable to the case. Further, the Bench is of the opinion that when a specific plea has been made that the deceased had a particular Ticket No. W- 15528340, it has to be first substantiated by the applicant by filing the original ticket given the circumstances that it was admittedly not recovered during the inquest or postmortem and it is the case of the appellant and in the application and affidavit that the said ticket was found in the deceased person's possession. On cross- examination, the applicant stated that when she was at the spot of the accident, police did not find ticket, which corroborates the finding of non-recovery of the said ticket in the inquest report.

In view of the above facts of the findings, the Learned Court below, it is held that in absence of the prosecution of the original journey ticket, the claimant has failed to discharge the burden of proof that Adhik Prasad Yadav, since deceased, was travelling with the authority of the valid said ticket. He was, therefore, not a bonafide passenger.

11. That with regard to the appreciation of the Issue No.2, the Learned Court below adopted the manner which is as under:

The applicant Smt. Sarita Devi has stated in the petition and affidavit that her husband Adhik Prasad Yadav, since deceased, while traveling in Train No. 63211 Jhajha -- Patna Passenger Train had accidently fallen down from the running train while due to jostling by passengers between Jamui Station and Katuana Halt near KM 389/ 09 and 389/ 10. He sustained injuries and died on the spot. the appellant appeared as witness AW(1) and during cross examination stated that she has not seen the incident with her own eyes. Therefore, her evidence would riot be of much use in dealing the issue. In the absences of any eyewitness, the Tribunal has to depend on the documentary evidence adduced by the claimant. The appellant files inquest report by GRPS / Jhajha, UD Case No. 4/ 12 at 06:30 hours, on 13.03.2012. The deceased Adhik Prasad Yadav, aged 40 -- 42 years found between Jamui Railway Station and Katauna Halt at KM Pole No. 389/ 09 and 389/ 10 between UP and DN line at 06:30 on 13.03.2012. There were two witnesses. Opinion of the Investigating Officer by seeing the dead body, it appears that cause of death is due to falling down from train and sustaining injury.

The appellant filed fard beyan before GRPS / Jamui, fard beyan given by Ranjit Kumar Yadav that his uncle Adhik Prasad Yadav on 12.03.2012 went to Deoghar for treatment. At about 08:00 PM, there was rumour in the village that one person fell down from some running train and died between Jamui Station and Katauna Halt. He them went along with other people of the village a n d identified that the body was of his uncle, Adhik Prasad Yadav. While coming from Deoghar by some train fell down, sustained severe injury and died.

The appellant filed F.I.R. made by GRPS / Jhajha No. 04/ 12 dated 13.03.2012. This is based on the fard beyan of the informant Ranjlt Yadav, cause of death -- falling down from train while coming from Deoghar by some UP Train, sustaining severe injury between Pole Nos. 389/ 09, and 380/ 10. The investigation will be done by ASI, Subhash Chandra Prasad.

The appellant filed final report by GRPS / Jhajha dated 13.03.2012, Sl. No. 125, cause of death as per investigation is death due

to falling down from running train and sustaining grievous injury while coming down from Deoghar by any UP Train. The summary of this U/ D case is that on 12.03.2012 at 2 1:00 hours, a written memo was obtained from Station Manager / Jamui stating that a person aged about 24 years fell down from some running train and was lying dead between Katauna and Jamui near bridge. Based on the information, left for initiating necessary action with Swami Nath Sah. Time elapsed, since death 12 -- 18 hours. He gave one ticket from Jasidih to Jamui No. W- 15528340. He said ticket was found during postmortem from inside pocket of the trouser.

The appellant filed memo of SMR / Jamui addressed to OC / GRP Jamui. It reads that one person is lying dead between Jamui and Katauna. It appears that the person fell down from running train. The aged of the person is about 42 years. The information about this given by one Gauri Shankar Yadav, resident of Village Bharkahua.

The appellant filed postmortem report. It reads, rigour mortis present in all limbs. The finding includes -- A lacerated wound 2" x ½ " bone deep with fracture of occipital bone on occipital region of scalp. A lacerated wound 2" x ½" x ¼" on right heel. Multiple abrasions on trunk. Injuries are ante-mortem, caused by hard and blunt substance, cause of death due to injury no.1. Time elapsed from death 12 -- 18 hours.

The FIR, inquest report and final police report all mentioned that death occurred due to falling down from some unknown moving train in course of coming from Deoghar. The respondent in the written statement has only given a formal generalized denial of the allegations and nothing specific has been pleaded questioning the claim of the appellant regarding its genuineness. Though the respondent has crave leave to file the additional written statement, he has not submitted the DRM's report for which an adverse reference may be drawn. It is not the case of the respondent that the alleged incident has not come within any exceptional clauses (a) to (e), as enumerated under Section 124-A of the Railways Act for which in the instant case, the respondent Railway may be relieved from paying compensation. Further, no subsequent evidence, either oral or documentary has been adduced on behalf of the respondent for which the alleged incident can be termed as one of any

exceptional clauses, as stated. Thus in absence of any contrary evidence led by the respondent.

It is further submitted that the Learned Presiding Officer of the Tribunal held that by preponderance of the probability Adhik Prasad Yadav, since deceased had died due to accidental fall from a passenger train, and as such, the alleged incident is an untoward incident within 123(C)(2) of the Railways Act. Hence, the issue no.2 is decided in favour of the appellant,but, issue nos.1 and 3 was decided against the appellant an finally held that the appellant is not entitled for compensation and claim application is dismissed on contest. No order as to cost, the judgment pronounced by the Learned Tribunal on the 7 th day of August, 2014."

Heard, learned counsel for the appellants and learned counsel for the Railway and perused the materials available on record. It appears that learned Tribunal has framed three issues. The issue No.2 with regard to untoward incident as defined under Section 123(c)(2) of the Railways Act has already been decided in favour of the appellants, but the issue No.1 with regard to the bonafide passenger has not been decided in favour of the claimants by the learned Tribunal, even though the ticket has been brought on record as ticket No. W-15528340, on the ground that the same has not been mentioned in the inquest report and as such, in absence of production of the original journey ticket, the claimants failed to discharge the burden of proof that Adhik Prasad Yadav was a bonafide passenger. Though no contrary evidence has been brought on record by the Railways.

This Court has taken note of the submissions made by learned counsel for the appellants particularly the ticket number mentioned in the claim application and in the evidence. This fact has also been corroborated from the final report submitted by the police, (the document of the police department), which has been brought on record as Exhibit- A2. In view of such evidence and in absence of any contrary evidence brought on record by the Railway and in view of the ratio laid down by Apex Court in the case of Rina Devi (Supra), this Court is inclined to accept that the deceased, Adhik Prasad Yadav was a bonafide passenger.

Accordingly, the impugned judgment is set aside, the appeal is allowed.

The Railway is directed to indemnify the compensation of Rs. 8,00,000/- or Rs. 4,00,000/- with interest @ 7.5% from the date of filing of the claim application i.e. 17.10.2012 till the date of actual payment, whichever is higher in favour of the claimants, in view of the new amendment made in the Railways Accident and Untoward Incident (Compensation) Rules, 1990, which has been amended in the year 2016 w.e.f. 01.01.2017 and in view of the judgment passed by the Apex Court in the case of Union of India Vs. Radha Yadav (Supra).

Let the amount be distributed in equal share to all the five appellants.

Let the L.C.R. be sent down to the court below forthwith.

(Kailash Prasad Deo, J.) Jay/-