Jharkhand High Court
Pratima Kunwar vs Union Of India Through The General ... on 11 January, 2021
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Miscellaneous Appellate Jurisdiction)
M.A. No. 172 of 2017
........
Pratima Kunwar .... ..... Appellant
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 Appellant : Mr. Shubham Mishra, Advocate.
For the Respondent : Mr. Vijay Kumar Sinha, Advocate.
........
09/11.01.2021.
Heard, learned counsel, Mr. Shubham Mishra on the instruction of
leaned counsel for the appellant, Mr. Kishore Kumar Mishra.
Learned counsel for the appellant has submitted that this is second
round of litigation by the appellant whose compensation has been dismissed
by the learned Railway Claims Tribunal, Ranchi Bench.
Learned counsel for the appellant has submitted that earlier Tribunal
has dismissed the claim application of the claimant in terms of order dated
20.08.2013 passed by learned Railway Claims Tribunal, Ranchi Bench in
Case No. OA(IIU)/RNC/2010/0023 filed on 27.01.2010 holding that
deceased did not fall in the route from Chopan to Ramna Station. Against
the aforesaid judgment, the appellant has moved before this Court in M.A.
No. 410/2013, which was dismissed as withdrawn in terms of order dated
12.08.2015. However, liberty was given to the appellant to file a fresh claim
application before the learned Tribunal.
Learned counsel for the appellant has submitted that deceased was a
bonafide passenger having journey ticket no. B-99786679, which has been
brought on record as Exhibit. A-6 and even then, the learned Tribunal has
rejected the claim application of the applicant considering it not to be an
untoward incident as defined under Section 123 (c) (2) of the Railways Act
read with Section 124-A of the Railways Act, 1989.
Learned counsel for the appellant has placed reliance upon the
judgment passed by the Apex Court in the case of Jameela & Others Vs.
Union of India reported in (2010) 12 SCC 443. Para-6 to 12 of the
aforesaid judgment are profitably quoted hereunder:
"6. Before the High Court, reliance was placed on behalf of the
Railways on the proviso to Section 124-A of the Act which provides
that no compensation will be payable under that section by the
Railway Administration if the passenger died or suffered injury due
to (a) suicide or attempted suicide by him, (b) self-inflicted injury,
or (c) his own criminal act. A reference was also made to Section
154 of the Act which provides that if any person does any act in a
rash and negligent manner, or omits to do what he is legally bound
to do, and the act or omission is likely to endanger the safety of any
person travelling or being upon any Railway, he shall be
punishable with imprisonment for a term which may extend to one
year, or with fine, or with both. It was further contended on behalf
of the Railways that the deceased M. Hafeez who was travelling in
a negligent manner was standing at the door from where he fell
down near Magarwara Railway Station, where the train does not
stop. (It needs to be pointed out that this contention could only be
based on speculation, as admittedly there was no eyewitness to the
accident.) The High Court accepted the contentions raised on
behalf of the Railways and allowed the appeal observing as follows:
"On the basis of the law and facts indicated by the learned counsel
for the parties, we find that in the present case the victim is to be
blamed for the incident being negligent and therefore this case is
not covered by the definition of untoward incident. However, so far
as the compensation is concerned the case of the claimant is
covered by the provision of Section 124-A as because of his own
negligence the deceased had fallen down from the train which
caused his death. Further, in the light of the fact that the deceased
acted in a negligent manner without any precaution of safety by
station (sic) going at the open door of the running train which
resulted into his death."
(emphasis added)
7. We are of the considered view that the High Court gravely erred
in holding that the applicants were not entitled to any compensation
under Section 124-A of the Act, because the deceased had died by
falling down from the train because of his own negligence. First,
the case of the Railways that the deceased M. Hafeez was standing
at the open door of the train compartment in a negligent manner
from where he fell down is entirely based on speculation. There is
admittedly no eyewitness to the fall of the deceased from the train
and, therefore, there is absolutely no evidence to support the case
of the Railways that the accident took place in the manner
suggested by it. Secondly, even if it were to be assumed that the
deceased fell from the train to his death due to his own negligence
it will not have any effect on the compensation payable under
Section 124-A of the Act.
8.Chapter XIII of the Railways Act, 1989 deals with the liability of
Railway Administration for death and injury to passengers due to
accidents. Section 123, the first section of the Chapter, has
definition clauses. Clause (c) defines "untoward incident" which
insofar as relevant for the present case is as under:
"123. (c) 'untoward incident' means--
(1)(i)-(iii)***
(2) the accidental falling of any passenger from a train
carrying passengers."
9. Section 124-A of the Act provides as follows:
"124-A. Compensation on account of untoward incidents.--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--
(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."
(emphasis added)
10. It is not denied by the Railways that M. Hafeez fell down from
the train and died while travelling on it on a valid ticket. He was,
therefore, clearly a "passenger" for the purpose of Section 124-A
as clarified by the Explanation. It is now to be seen, that under
Section 124-A the liability to pay compensation is regardless of any
wrongful act, neglect or default on the part of the Railway
Administration. But the proviso to the section says that the Railway
Administration would have no liability to pay any compensation in
case death of the passenger or injury to him was caused due to any
of the reasons enumerated in clauses (a) to (e).
11. Coming back to the case in hand, it is not the case of the
Railways that the death of M. Hafeez was a case of suicide or a
result of self-inflicted injury. It is also not the case that he died due
to his own criminal act or he was in a state of intoxication or he
was insane, or he died due to any natural cause or disease. His
falling down from the train was, thus, clearly accidental.
12. The manner in which the accident is sought to be reconstructed
by the Railways, that the deceased was standing at the open door
of the train compartment from where he fell down, is called by the
Railways itself as negligence. Now negligence of this kind which is
not very uncommon on Indian trains is not the same thing as a
criminal act mentioned in clause (c) to the proviso to Section 124-
A. A criminal act envisaged under clause (c) must have an element
of malicious intent or mens rea. Standing at the open doors of the
compartment of a running train may be a negligent act, even a rash
act but, without anything else, it is certainly not a criminal act.
Thus, the case of the Railways must fail even after assuming
everything in its favour."
Learned counsel for the appellant has submitted that a person having
a valid ticket cannot commit suicide and learned Tribunal has wrongly
considered the word fallen while rejecting the claim application of the
claimant, as such, the impugned order may be set aside and the claimant
may be given compensation.
Learned counsel for the Respondent-Railway, Mr. Vijay Kumar
Sinha has submitted that though the deceased has purchased a ticket, which
has been brought on record as Exhibit. A-6, but there is no evidence that the
deceased boarded which train for going from Chopan to Ramna. Initial
claim application has been filed on the ground that deceased has boarded
train no.624 DN at Chopan Railway Station on 20.08.2009 at 17.35 hours,
which departed at 17.50 hours. The earlier claim application has been
dismissed on the ground that said train never goes towards the Ramna
Railway Station. Against the aforesaid judgment, the appellant has moved
before this Court in M.A. No. 410/2013, which was dismissed as withdrawn
in terms of order dated 12.08.2015. However, liberty was given to the
appellant to file a fresh claim application before the learned Tribunal.
Thereafter, another claim application vide Case No. OA(IIU)/
RNC/2010/0023 was filed, which was also dismissed by the learned
Tribunal in terms of judgment dated 04.01.2017 on the ground, which has
been discussed at paragraph-10 of the impugned judgment while dealing
Issue Nos.1 and 2, which has been referred before this Court as hereunder:
10. Issues No.1 and 2:-
"The journey ticket No.99786679 is available on record (Ext.A6). One
Sri Lal Chand Ram has appeared as witness AW-2 to depose that ticket was
purchased by the deceased on 20.8.2009 for going to Ramna by Chopan-Gomoh
Passenger leaving Chopan at 6.53 AM on 20.8.2009. However, there is no
evidence available on record to show that the deceased boarded the train and he
had an accidental fall from the train. The fresh claim petition itself hows that the
deceased did not reach the station to board the train. On the other hand Sri Lal
Chand Ram, a vendor at the station has deposed that he found the deceased lying
in a dead condition near Mallgodown at the end of platform in the morning of
20.8.2009. Evidence is also available on record that the dead body of Bibhuti
Kumar Pathak (deceased) was lying at the end of platform No.1 near
Mallgodown; that the Inquest Report (Ext.A3) was prepared there and other legal
formalities were completed there. There is no evidence on record to prove the
essential ingredient of untoward incident. There is also no evidence that the
deceased boarded the train or fell down from the train. The burden of proof rests
entirely upon the applicants to prove the untoward incident, within the meaning
of section 123 (c) read with section 124-A of the Railways Act. In this
connection, a reference may be made to a decision of Hon'ble Delhi High Court
titled as Jamirul Nisha and another Vs Union of India, 2009 ACJ 1393, wherein
it is held in Para No.34 & 35 of the Judgment as under;
"34. From the perusal of section 123 (c)(2) & 124 A, it is clear that "sine
qua non" for claiming compensation, on account of death or injury
sustained in a train accident is that the victim of a train accident, or his
dependents as the case may be, must first establish that the victim or the
deceased had accidentally fallen from the train."
"35. In the instant case, applicants have failed to establish that the
deceased had accidentally fallen from the train, therefore, the question of
the proof by the Railways that the death of the deceased was not the
result of untoward incident does not arise."
The decision of Supreme Court in Union of India-vs-
Prabhakaran Vijaya Kumar and others (supra) and Supreme Court in
Jameela and others-vs-Union of India (supra) are not applicable to the
instant case being distinguishable in facts since none of the cases dealt
with a situation of the victim had an accidental fall and died.
In the above circumstances, I hold that the deceased was not a victim of
an untoward railway incident."
Learned counsel for the Respondent - Railway has further placed
reliance upon the previous judgment passed by learned Tribunal while
deciding the issues particularly internal page no. 3 running page-36 of the
present brief, where a map of railway track has been prepared, which shows
that for going from Chunar, Chopan, Ramna and Barwadih are in the one
track whereas place Malgodam is on different railway track, as such, if a
person has not been found fallen on the track of the route and his dead body
was found on a different route then it is upon the claimant to explain that
under what circumstances the deceased went to such place on different
track.
Learned counsel for the Respondent-Railway has further submitted
that it is not the case of the claimant that deceased wrongly boarded
different train and in haste and fallen down and died because of the railway
accident, as no evidence with regard to the same has been brought on record
by the claimant nor such pleading has been made by the claimant, as such,
this Court may not grant compensation without having proper ingredient of
bonafide passenger and untoward incident, as the claimant fails to explain
how the deceased was found on different railway track.
Learned counsel for the Railway has further submitted that map
prepared by the learned Tribunal in the previous order may also be
considered, which is being depicted herein:-
Chunar
Place of occurrence Malgodam
Chopan
Ramna
Barwadih
Learned counsel for the Respondent-Railway has thus submitted that
since no illegality or irregularity is apparent on the record, as such, the
appeal may be dismissed.
Learned counsel for the appellant, Mr. Shubham Mishra even after
given opportunity to explain the map with regard to the railway track and
the place of occurrence, could not be able to reply satisfactorily.
After hearing learned counsel for the parties and on the basis of the
material brought on record, though deceased has purchased a ticket, which
has been brought on record as Exhibit. A-6, but to have compensation, two
things are relevant (i) person must be a bonafide passenger and (ii) that
occurrence must be an untoward incident as defined under Section 123 of
the Railways Act.
Considering the fact of the case, since the appellant has failed to
establish that how dead body was found at a place far from the route from
Chopan to Ramna, the learned Tribunal has rightly rejected the claim
application as by purchasing a ticket by the deceased, the claimant cannot
be made entitled to have compensation unless and until the second part that
is untoward incident is proved properly in accordance with law. The
judgment placed by the learned counsel for the appellant with regard to
Jameela & Others (Supra) is not applicable in present fact and
circumstances of the case as dead body of the deceased was never found on
the same track nor the same has been explained by the appellant that how
the dead body was found in a different track, which goes towards the
Malgodam but not towards the passenger track.
Considering such submissions, this Court is not inclined to interfere
with the same, accordingly, the appeal is hereby dismissed.
(Kailash Prasad Deo, J.)
Sunil-Jay/-
