Shri Vijay Kumar Sinha vs Union Of India
2021 Latest Caselaw 449 Jhar

             IN THE HIGH COURT OF JHARKHAND AT RANCHI
             (Civil Miscellaneous Appellate Jurisdiction)
                      M.A. No. 49 of 2015
                                ......

1. Shri Vijay Kumar Sinha

2. Smt. Manjula Devi .... .. ... Appellants Versus Union of India, through the General Manager, East Central Railway, Hajipur (Bihar) . ... ... Respondent ...........

CORAM :HON'BLE MR. JUSTICE KAILASH PRASAD DEO (Through :-Video Conferencing) .........

      For the Appellants             :      Ms. C.C. Sinha, Advocate
      For the Resp-Railway           :      Mr. Vijay Kumar Sinha, Advocate
                          ..........

06/ 01.02.2021. Heard, learned counsel for the parties.

2. Learned counsel for the claimants/appellants has submitted that claim application of the claimants, Shri Vijay Kumar Sinha and Smt. Manjula Devi has been dismissed vide order dated 21.05.2014 passed by Member/Technical, Railway Claims Tribunal, Ranchi Bench, Ranchi in Case No.OA(IIU)/RNC/2010/0011 on the ground that applicant has not mentioned the number of the monthly ticket purchased by his son, as such, he was not a bonafide passenger nor the incident comes under untoward incident as defined under Section 123 (c)(2) of the Railways Act.

3. Learned counsel for the appellants in support of his submission has placed reliance on the evidence of AW-1 (Vijay Kumar Sinha) particularly at paras 2, 3, 4, 5, 6, 7, and 8 , which may profitably be quoted herein-below:-

"2. That on 02.06.2009 after purchasing and having a valid second class (general) ticket For Koderma to Patna Jn. my deceased son boarded train No.8624 Dn., Hatia -Patna Express at Koderma for going to Patna Jn.

3. That there was heavy rush in the general compartment.

4. That due to heavy rush my deceased son was standing near the gate inside the compartment.

5. That the passengers were jostling one another for space.

6. That due to heavy rush and jostling amongst the passengers my deceased son accidentally fell down from the running train near Tineri Halt near Pole No.34/15.

7. That as a result of which my deceased son sustained serious injuries and died on the spot.

8. That after information I and other family members reached there and identified the deceased as my son Rituraj. We also received the dead body after Post-Mortem for cremation."

4. Learned counsel for the appellants has further submitted that as per the inquest report at column no.2 and column No.3, it has been established that deceased was a resident of Patna and his dead-body was found near Tineri Halt, as such, deceased was a bonafide passenger as no contrary evidence has been brought on record by the Railway to hold that deceased was not 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 at para 29 which is profitably quoted herein:-

"29. 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."

5. Learned counsel for the appellants has also submitted that the as per postmortem report of the deceased brought on record as Exhibit-A/6, the cause of death was due to head injury, hemorrhage and shock caused by hard and blunt substance and its crushing impact sustained by the Railway accident as suggested by Investigating Officer. The injuries are ante-mortem in nature and the time since death was 24 - 36 Hours since postmortem as such, in view of the judgment passed by the Apex Court in the case of Union of India vs. Prabhakaran Vijaya Kumar, reported in 2008(9) SCC 527, the deceased died in an untoward incident, as defined under Section 123(c)(2) of the Railways Act, as such, instant Misc. Appeal may be allowed.

6. Learned counsel for the appellants has further submitted that the amount of compensation of Rs.4,00,000/- has been enhanced to Rs.8,00,000/- vide Railway Accidents and Untoward Incident (Compensation) Amendment Rules, 2016 effective from 01.01.2017, as such, claimants may be granted compensation to the tune of Rs.4,00,000/- with interest @ 7.5% per annum from the date of filing of the claim application till its realization or Rs.8,00,000/- whichever is higher in view of the judgment of the Apex Court in the case of Union of India vs. Radha Yadav, reported in 2019(3) SCC 410 in para 11 which is quoted hereunder:-

"11. This issue raised in the matter does not really require any elaboration as in our view, the judgment of this Court in Rina Devi (supra) is very clear. What this Court has laid down is that the amount of compensation payable on the date of accident with reasonable rate of interest shall first be calculated. If the amount so calculated is less than the amount prescribed as on the date of the award, the claimant would be entitled to higher of these two amounts. Therefore, if the liability has arisen before the amendment was brought in, the basic figure would be as per the Schedule as was in existence before the amendment and on such basic figure reasonable rate of interest would be calculated. If there be any difference between the amount so calculated and the amount prescribed in the measure of compensation. 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.

7. Learned counsel for the railways, Mr. Vijay Kumar Sinha has submitted that learned Tribunal has rightly passed the impugned order on the basis of the materials brought on record.

8. Learned counsel for the respondent has further submitted that a counter- affidavit has been filed by Mr. Pankaj Kumar, posted and working as Deputy CCM/CL/Hajipur, assailing the question of jurisdiction in para 11 of the counter- affidavit and the factual aspect at paras 12 to 19 of the counter-affidavit, which may profitably be taken note of.

Paras 11 to 19 of the counter-affidavit read as follows:- "11. That in reply to the instant memo of appeal, the preliminary objection of the respondent is that the victim and appellants are resident of Patna, Bihar and the office of the respondent situated at Hajipur, Bihar, thereafter incident took place between Taregana Railway Station and Nandaul Station which is situated in Patna District within Jehanabad Railway Police Station, therefore, cause of action of this case arising out within the territorial jurisdiction of the Hon'ble High Court of Judicature at Patna. Therefore, this Hon'ble Court has no jurisdiction to adjudicate this case at the present form due to lack of territorial jurisdiction as provided under Section 34 of the Bihar Recoganization Act, 2000 and the Rule 84 of the Jharkhand High Court Rules, 2001 (as amended time to time).

12. That the second objection is that Train No.8626 DN, Hatia- Patna depart from Ranchi at 06:10 AM and arrived at Gaya at 12:55 PM and departed from Gaya at 13:20 PM. As per inquest report prepared by GRP Taregana dated 03.06.2009 at 13:05 hours (it would be evident from Exhibit A4), this fact completely falsefy the case of the appellant due to at that time, train is standing at Gaya Station, but, the appellants claimed his son was travelling in the alleged train and fell down at Taregana Railway Station. So, there is no substance in this case, on that ground alone, this appeal is liable to be dismissed by the this Hon'ble Court.

13. That it is most important to mention here that the postmortem done by Dr. R.K.P. Singh of PMCH, Patna, at 04:4 PM on 03.06.2009 (it would be evident from Exhibit A6) who reported the inuries which are anti mortem in nature and this time, since, death was 24 to 26 hours, since postmortem which also falsifies the claim of the appellant.

14. That according to Final Report prepared by I.O. Shri Vijay Kumar Mishra, SI/GRP/Taregana dated 03.06.2009 mentioned that it was a case of run over (it would be evident from Exhibit A7). Moreover, during enquiry, Shri Pancham Kumar, the informant stated that at 06:30 AM on 03.06.2009, he was informed on telephone by the villagers that the body of Rituraj was lying on the track at Tineri Halt during enquiry conducted the villages pointed out that the deceased died due to run over from unknown train, it would also falsify the case of the appellant and there is no leg to stand the claim.

15.That it is also significant by this Hon'ble Court that this Train No.8626 DN runs between the Hatia to Patna in day light departed from Hatia at 06:10 AM and arrived Patna at 15:30 PM and if the deceased was travelling by this train on 02.06.2009 and as per claim application, the deceased was accidentally fallen down from the running train due to heavy rush and jostling. But, no one has raised hulla, pulled alarm chain or given information to the police or railway officials. Therefore, entire story made by the applicant is false, fabricated and an afterthought.

16.That the grounds made in this memo of appeal is no force and there is no substance for considering the matter by this Hon'ble Curt and fit to be dismissed in limine at this stage.

17.That the judgment dated 11.05.2014 which is under challenge is fit, just and proper. There is no error of irregularities committed by the learned Presiding Officer. Hence, it may be confirmed or affirmed by this Hon'ble Court.

18.That this memo of appeal is hopelessly barred by law of limitation.

19.That one similar matter decided by this Hon'ble Court in case of Smt. Archana Verma vs. Union of India through General Manager, South Eastern Railway as

reported in 2015 (Volume 4) JLJR 134, wherein Railway denying the liability and contended that no untoward incident had taken place due to running of train and the deceased was not bonafide passenger, informant and other witnesses did not disclose the fact that the deceased was travelling in that very train, claimant failed to prove that deceased was travelling in train and he had fallen from the running train due to rush in the compartment, which was heard by Hon'ble Mr. Justice D. N. Upadhyay and dismissed, thus, this said judgment of Archana Verma case is fully applicable in this case and liable to be dismissed."

9. Learned counsel for the respondent-Railway has further submitted that from perusal of the inquest report, it appears that before arrival of the train, in question, a deadbody was found near Pole No.34/15 near Tineri Halt, dated 03.06.2009 at 13.05 Hrs., for which Railway P.P. Taregna, Sanha No.43/2009, dated 03.06.2009 has been recorded, as such, the claim of the claimants has rightly been refused by the learned Tribunal which does not require any interference by this Hon'ble Court.

10. Learned counsel for the claimants/appellants, Ms. Chaitali Chatterjee Sinha has submitted that because of discrepancy committed by SHO Rail, Taregna, an officer of the GRP, which is a State machinery, the claim application of the claimant cannot be refused.

11. Considering the rival submissions of the parties and looking into the facts and circumstances of the case, it appears that deceased (Rituraj) while travelling on 02.06.2009 in train No.8626 DN, Hatia-Patna Express Train possessing a 2 nd class valid ticket coming from Koderma to Patna had accidentally, fallen down from the running train due to heavy rush and jostling at Pole No.34/15 near Tineri Halt Railway Station. This Court has considered the evidence of A.W.-1 (Vijay Kumar Sinha) who has categorically stated at para 2 of his examination-in-chief that "that on 02.06.2009 after purchasing and having a valid second class (general) ticket For Koderma to Patna Jn. my deceased son boarded train No.8624 Dn., Hatia -Patna Express at Koderma for going to Patna Jn.", as such, in view of judgment of Apex Court in the case of Rina Devi (Supra) deceased was a bona-fide passenger.

12. So far with regard to untoward incident is concerned, as per postmortem report cause of death was due to head injury, hemorrhage and shock caused by hard and blunt substance and its crushing impact sustained by the Railway accident as suggested by Investigating Officer, as such, in view of the judgment passed by the Apex Court in the case of Prabhakaran Vijaya Kumar (supra) accident comes under untoward incident as defined under Section 123(c)(2) of the Railways Act.

13. Further the plea at para 11 of counter-affidavit with regard to jurisdiction of learned Tribunal taken by learned counsel for the respondent/Railwa y, in view of rule 8 of the Railway Claims Tribunal (Procedure) Rules, 1989, the same is not in accordance with law.

14. Another contention of learned counsel for the respondent-railway is with

regard to time mentioned in inquest report i.e. dead-body was found near Pole No.34/15 near Teneri Halt, dated 03.06.2009 at 13.05 i.e. before arrival of the train, this Court is of the view that this mistake is because of Railway Officials (GRP) and for the same claimants cannot be allowed to suffer.

15. As such, the impugned judgment passed by the learned Tribunal requires to be set aside.

16. Accordingly, the judgment dated 21.05.2014 passed by Member/Technical, Railway Claims Tribunal, Ranchi Bench, Ranchi in Case No.OA(IIU)/RNC/2010/0011 is hereby set aside.

17. The instant Miscellaneous Appeal is hereby allowed.

18. The respondent- Railway is directed to pay compensation to the tune of Rs.4 Lac with interest @7.5 from the date of filing of the claim application i.e. 30.12.2009 or Rs.8 Lacs whichever is higher in favour of the claimants in view of the judgment passed in the case of Radha Yadav (supra).

19. Let the LCR be sent down forthwith.

20. It is expected that the Railway shall indemnify the award within a reasonable time as it is a benevolent legislation and occurrence took place on 02.06.2009.

(Kailash Prasad Deo, J.) Sandeep/