Sri Ashok Yadav @ Ashok Prasad vs The Union Of India Through The ...
2021 Latest Caselaw 133 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
             (Civil Miscellaneous Appellate Jurisdiction)
                    M.A. No. 296 of 2013
                           ........

Sri Ashok Yadav @ Ashok Prasad .... ..... Appellant Versus The Union of India through the General Manager, East Central Railway, Hajipur (Bihar) .... ..... Respondent WITH M.A. No. 297 of 2013 ........

Sri Ashok Yadav @ Ashok Prasad .... ..... Appellant Versus The 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. Sanjeev Thakur, Advocate. For the Respondent : Mr. Vijay Kumar Sinha, Advocate.

........

25/11.01.2021.

Both the appeals are arising out of same accident. M.A. No. 296/2013 has been preferred by the claimant for the death of his wife namely, Tanikan Devi and M.A. No. 297/2013 has been preferred by the claimant for the death of his son namely, Nitish Yadav.

Heard, learned counsel, Mr. Sanjeev Thakur on the instruction of learned counsel for the appellant Mr. Sahjanand Saraswati.

Learned counsel for the appellant has submitted that appellant has preferred these appeals against the Judgments dated 22.08.2013 passed by learned Member (Technical), Railway Claims Tribunal, Ranchi Bench, Ranchi in Case No. OA(IIU)/RNC/2012/0020 and Case No. OA(IIU)/RNC/2012/0019, whereby the claim applications of the claimant have been dismissed.

Learned counsel for the appellant has submitted that the Tribunal has wrongly repudiated the claim of the claimant contrary to the materials brought on record.

Learned counsel for the appellant has submitted that Exhibit- R4 i.e. the memo of Dy. SM/Bihar Sharif to GRP/Bihar Sharif dated 28.05.2011 at 09:50 hours indicates the information given by Keyman, Jagdish about one woman aged about 30 years and child aged about 02 years died due to fall from train near Soh Sarai Halt.

Learned counsel for the appellant has submitted that UD Case No. 09/11 dated 25.08.2011 was also instituted, no contrary finding has been recorded by the Investigating Agency and the A.W.-1 namely, Ashok Yadav @ Ashok Prasad in his evidence has categorically stated in para-4 that ";g fd fnukaad 27.05.2011 dks eSa cPpsa dks xksn esa fy, Fkk vkSj esjh iRuh jkWph ls fcgkj 'kfjQ LVs'ku ds fy, ,d fVdV dkmUVj ls £jhnh rFkk gfV;k iVuk ,Dlizsl Vªsau ls ;k=k izkjEÒ dh A mlh le; eSa viuh iRuh dks [email protected]& #å vkSj ns fn;k A"

Learned counsel for the appellant has submitted that the initial burden has been discharged by the claimant 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 submitted that the Tribunal has wrongly given finding contrary to Exhibit-R4 relied by the Railway itself holding that the incident does not come under the definition of "untoward incident" as defined under Section 123(c)(2) of the Railways Act, rather the document, which has been brought by the Railway as Exhibit-R4 itself, shows that Keyman, Jagdish has informed that a woman aged about 30 years and a child aged about 02 years died because of fall from train near Soh Sarai Halt.

Learned counsel for the appellant has submitted that so far bonafide passengers are concerned, in view of the evidence of A.W.- 1, the deceased were bonafide passengers, as such, the finding

recorded by the learned Tribunal may be set aside in both the appeals and compensation may be allowed.

Learned counsel for the respondent-Railway, Mr. Vijay Kumar Sinha, has opposed the prayer and has submitted that the deceased might have committed suicide. Why a person will board a train for going to Rajgir from Ranchi, when the road route is of four hours, whereas if a person is boarding train, a person has to go first from Ranchi to Patna and then Patna to Rajgir, as such, the finding recorded by the learned Tribunal may not be interfered.

Learned counsel for the respondent-Railway has further submitted that Train No. 53232 arrived at Bihar Sharif at 13:00 hours as per T.S.R., hence Soh Sarai Halt will come at approx. 12:50 hours. Since the dead body was found at 09:50 hours, hence Tanikan Devi and her son could not possibly have travelled by Danapur-Rajgir Express, which would have arrived at Bihar Sharif at 13:00 hours and at Soh Sarai Halt at 12:50 hours. Apparently, the entire story of the claimant has no credibility as there is no eye witness to the incident, no one has seen Tanikan Devi and her son either boarding in the said train or falling from the said train, as such, the finding recorded by the learned Tribunal cannot be disturbed.

Heard, learned counsel for the parties and perused the materials on record. Since, there is ample evidence on record of claimant Ashok Yadav @ Ashok Prasad in para-4 that the deceased was travelling along with her two years minor child having ticket, this Court is inclined to accept the deceased to be a bonafide passengers in view of judgment passed by the Apex Court in the case of Rina Devi (Supra) as no contrary evidence has been brought on record by the Railways. So far untoward incident is concerned, this Court consider the submission made by the learned counsel for the appellant that Exhibit-4 produced by the Railway itself shows that Keyman Jagdish has given a information that one woman aged 30 years and a child aged about 02 years died due to fall from train near Soh Sarai Halt. The submission made by learned counsel for the respondent that train Danapur-Rajgir Express which has different

timing is not acceptable to this Court as several trains are plying between Rajgir to Patna and no contrary evidence has been brought on record by the Railway to establish that except this train there is no other train, rather on the other hand Keyman, Jagdish has informed which has been brought on record by the Railway as Exhibit-R4 that woman aged about 30 years and a child aged about 02 years fall from the train, this Court is inclined to consider the incident to be an untoward incident as defined under Section 123 (c)(2) of the Railways Act.

Accordingly, both the miscellaneous appeals are allowed and the impugned orders dated 22.08.2013 passed by learned Member (Technical), Railway Claims Tribunal, Ranchi Bench, in Case No. OA(IIU) / RNC/2012/0020 and Case No. OA(IIU)/RNC/2012/0019 are set aside.

The Railways is directed to indemnify the compensation to the claimants. The occurrence is of dated 27.05.2011, the claim application was filed on 18.04.2012 and the same was dismissed on 22.08.2013 and the appeal was preferred in the year 2013 itself and thereafter, the same remain pending before this Court. In the meantime, the Railway has amended the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990 by bringing the Railway Accidents and Untoward Incidents (Compensation) Amendment Rules, 2016, which has been made applicable w.e.f. 01.01.2017, whereby the compensation has been enhanced from Rs. 4,00,000/- to Rs. 8,00,000/- and in view of the judgment passed by the Apex Court, the claimants are entitled for compensation @ Rs. 8,00,000/- or Rs. 4,00,000/- with interest @ 7.5% from the date of filing of the claim application till the date of actual payment, whichever is higher 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."

As such, the railway shall indemnify the compensation to the tune of Rs. 4,00,000/- with simple interest @7.5% per annum from the date of filing of the claim applications till the date of its realization or Rs. 8,00,000/- whichever is higher to the claimant separately in both the cases within a period of 90 days.

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