Jhajee Munda vs The Union Of India Through The ...
2021 Latest Caselaw 132 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
            (Civil Miscellaneous Appellate Jurisdiction)
                   M.A. No. 332 of 2013
                          ........

Jhajee Munda                         ....          ..... Appellant
                              Versus
The Union of India through the General Manager,
South Eastern Railway, Kolkata       ....          ..... Respondent

CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
            (Through : Video Conferencing)
                                ............
For the Appellant         : Mr. Krishna Mohan Murari, Advocate.
For the Respondent        : Mr. Mahesh Tewari, Advocate.
                                 ........
09/11.01.2021.

Heard, learned counsel for the appellant, Mr. Krishna Mohan Murari and learned counsel for the respondent, Mr. Mahesh Tewari.

Learned counsel for the appellant has submitted that the claimant / appellant Jhajee Munda has preferred this appeal against the Judgment dated 23.08.2013 passed by learned Member (Technical), Railway Claims Tribunal, Ranchi Bench, Ranchi in Case No. OA(IIU)/RNC/2010/0142, whereby the claim application of the applicant / claimant / appellant has been dismissed on the ground that the deceased was not a bonafide passenger as held by learned Tribunal from the analysis, enquiry report and other documents, as he had boarded train no. 8476 DN at GTS railway station to go Kharagpur, which is not permissible in that train, because journey beyond 250 KM was impermissible from Ghatsila by that train, therefore, it appears that Mangal Munda, after realizing his mistake, must have tried getting down from running train, that is how he fell down at KM 180/19-20 and sustained grievous injuries and died. Thus, the incident is not covered under the definition of "Untoward Incident" as defined in Section 123(c)(2) of the Railways Act.

Learned counsel for the appellant has submitted that witness A.W.-1 Jhajee Munda has categorically stated in para-3 of his evidence that "That on 17.05.2006, the unmarried deceased son Mangal Munda of the present appellant after having purchased proper and valid train journey ticket at Ghatshila railway station for Kharagpur railway station, boarded 2nd class compartment of express train bearing no. 8476 DN.", but nothing in contrary has

been brought on record by the Railways to disbelieve the case of the claimant.

Learned counsel for the appellant has submitted that in view of Section 138 of the Railways Act, the deceased can be considered to be a bonafide passenger, even if he has boarded train with valid ticket, but travelled beyond the permissible limit, where he was not permissible. Section 138 of the Railways Act reads as under:-

138. Levy of excess charge and fare for travelling without proper pass or ticket or beyond authorised distance.--(1) If any passenger,--

(a) being in or having alighted from a train, fails or refuses to present for examination or to deliver up his pass or ticket immediately on a demand being made therefor under section 54, or

(b) travels in a train in contravention of the provisions of section 55, he shall be liable to pay, on the demand of any railway servant authorised in this behalf, the excess charge mentioned in sub-section (3) in addition to the ordinary single fare for the distance which he has travelled or, where there is any doubt as to the station from which he started, the ordinary single fare from the station from which the train originally started, or, if the tickets of passengers travelling in the train have been examined since the original starting of the train, the ordinary single fare from the place where the tickets were so examined or in the case of their having been examined more than once, were last examined.

(2) If any passenger,--

(a) travels or attempts to travel in or on a carriage, or by a train, of a higher class than that for which he has obtained a pass or purchased a ticket; or

(b) travels in or on a carriage beyond the place authorised by his pass or ticket, he shall be liable to pay, on the demand of any railway servant authorised in this behalf, any difference between the fare paid by him and the fare payable in respect of the journey he has made and the excess charge referred to in sub- section (3).

(3) The excess charge shall be a sum equal to the amount payable under sub-section (1) or sub-section (2), as the case may be, or 30 [two hundred and fifty rupees], whichever is more: Provided that if the passenger has with him a certificate granted under sub-section (2) of section 55, no excess charge shall be payable.

(4) If any passenger liable to pay the excess charge and the fare mentioned in sub-section (1), or the excess charge and any difference of fare mentioned in sub-section (2), fails or refuses to pay the same on a demand being made therefor under one or other of these sub-sections, as the case may be, any railway servant authorised by the railway administration in this behalf may apply to any Metropolitan Magistrate or a Judicial Magistrate of the first or second class, as the case may be, for the recovery of the sum payable as if it were a fine, and the Magistrate if satisfied that the sum is payable shall order it to be so recovered, and may order that the person liable for the payment shall in default of payment suffer imprisonment of either description for a term which may extend to one month but not less than ten days.

(5) Any sum recovered under sub-section (4) shall, as and when it is recovered, be paid to the railway administration.

Learned counsel for the appellant has submitted that the learned Tribunal has wrongly considered the deceased Mangal Munda to be not a bonafide passenger, in view of Section 55 of the

Railways Act, which is profitably quoted hereunder:-

55. Prohibition against travelling without pass or ticket.--(1) No person shall enter or remain in any carriage on a railway for the purpose of travelling therein as a passenger unless he has with him a proper pass or ticket or obtained permission of a railway servant authorised in this behalf for such travel.

(2) A person obtaining permission under sub-section (1) shall ordinarily get a certificate from the railway servant referred to in that sub-section that he has been permitted to travel in such carriage on condition that he subsequently pays the fare payable for the distance to be travelled.

Learned counsel for the appellant has further submitted that no contrary evidence has been brought on record to discharge the onus by the Railways 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). 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 appellant has thus submitted that the appeal may be allowed by setting aside the impugned judgment.

Learned counsel for the respondent-Railways has submitted that once the passenger was not allowed to travel beyond 250 KM in Train No. 8476, the deceased Mangal Munda cannot be considered to be a bonafide passenger and no ticket can be issued for such distance from Ghatsila to Kharagpur by the Railways.

Learned counsel for the respondent-Railways has further submitted that Exhibit.R-2 and R-3 shows that boarding in Train No. 8476 DN is not allowed in view of the enquiry report of Sr.

DSC/KGP. The distance between Ghatsila-KGP is not beyond 250 KM and the deceased fell down from Train No. 8476 DN at KM 180/19-20 as per station diary entry No. 789 of 17.05.2006 (Exhibit. R-4).

Learned counsel for the claimant / appellant has replied that the Railways has not brought any evidence on record that in Train No. 8476 DN, travelling from Ghatsila to Kharagpur was not allowed and the evidence of A.W.-1 Jhajee Munda cannot be denied in absence of any document, that railway ticket issued to the deceased Mangal Munda was journey ticket, which never specifies the train number. Even if assuming that deceased boarded a wrong train to travel shorter distance, which was also not permissible then also railway authority can only charge fair in view of Section 138 of the Railways Act, but compensation under the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990, amended in the year 2016 i.e. the Railway Accidents and Untoward Incidents (Compensation) Rules, 2016, which has been made applicable w.e.f. 01.01.2017, cannot be denied on such frivolous plea as Railway Act is beneficial legislation.

Learned counsel for the respondent-Railway has submitted that for proper adjudication of this case, Exhibit. R-2, R-3 & R-4 are necessary document, which have to be perused, as such, the case may be fixed when the physical court starts.

Considering the same, let the appeal be listed in the 1 st Week when the physical court starts.

(Kailash Prasad Deo, J.) Sunil-Jay/-