Jharkhand High Court
Smt. Bibha Devi vs Union Of India on 18 January, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Miscellaneous Appellate Jurisdiction)
M.A. No. 456 of 2014
......
Smt. Bibha Devi .... .. ... Appellant
Versus
Union of India, through the General Manager, North East Frontier Railway
Maligaon, Guwahati . ... ... Respondent
...........
CORAM :HON'BLE MR. JUSTICE KAILASH PRASAD DEO
(Through :-Video Conferencing)
.........
For the Appellant : Mr. Krishna Mohan Murari, Advocate.
For the Resp-Railway : Mr. Vijay Kumar Sinha, Advocate
..........
10/ 18.01.2021. Heard, learned counsel for the parties.
2. Appellant/claimant, Smt. Bibha Devi has preferred the instant
Miscellaneous Appeal against the judgment dated 06.10.2014 passed by learned
Member (Technical), Railway Claims Tribunal, Ranchi Bench, Ranchi in Case
No.OA(IIU)/RNC/2012/0026 whereby the claim application of the applicant,
who lost her husband Constable, Satyendra Tiwari in Railway accident. The claim
application has been dismissed on the ground that though the deceased was
holding 'Kaman Patra' as a proof that he was on duty, but he cannot be considered
as a bona-fide passenger, as at the time he fell down from the running train which
was going to the washing pit after the train completed its journey and terminated
at its destination station at Barauni. The train stopped at the platform for
detraining of passengers. After a train terminates at the destination station, the
passenger/s are expected to detrain which should take only a few minutes. Those
remaining in the train after that cannot be considered as bona-fide passenger/s as
the ticket/pass remains valid till the time the train reaches the station and the
passengers immediately leave the station after showing their tickets at the Gate to
the Cheeking staff. Hence the claim application has been dismissed.
3. Learned counsel for the appellant has assailed the impugned award on the
ground that a Constable has to work under his Commanding Officer. The Law
and Order situation of Railway is looked into by the GRP and RPF is responsible
for protection of railway property. Admittedly, the deceased (Satyendra Tiwari)
was a Constable no.297 and he was on duty under the command of A.S.I/S.I.
,Surya Dev Singh with other Constable on 28.12.2011 for escort of Saharsa-
Barauni Express No.15275 Up, which reached Barauni at 10:20 hrs on
28.12.2011. The weather was very cold in winter season and all the police staff
made up their mind to stay in the compartment. At about 02:15 in the night of
28/29.12.2011 the train started moving towards the washing pit for cleaning. The
deceased proceeded towards the gate of the compartment to get down, but his
legs slipped as a result of which he lost his balance and accidentally fell down.
4. Learned counsel for the appellant has submitted that the deceased
(Satyendra Tiwari) was a Police Constable, posted in GRP entrusted with the
work on the basis of 'Kaman' under the control of A.S.I./S.I., Surya Dev Singh, is
not a free person who can leave platform after the train reaches the destination
rather being in a discipline force he has to remain under the control of his
superior officer. There is no facility for GRP to take rest and retire during interim
period after the train reaches the destination, no such facilities have been made by
the Railway in each and every station. As the police party has to escort the same
train during return journey. Accordingly, after having a hectic journey of 8 hours,
a person has to take rest and for that GRP persons are taking rest in the train,
which is vacant accommodation without disturbing any persons, so as to get
themselves revived for next round of journey, as such, considering such
technicalities in decision of the learned Tribunal is not justified. So far the
Railway employee's i.e Railway/RPF/GRP and other persons are concerned, all
the Sections of the employees are for better and smooth functioning of the
Railways and in that the deceased lost his life but his claim application has been
dismissed on technical grounds.
5. Learned counsel for the appellant has further submitted that analogy drawn
by the Railway claim tribunal while adjudicating the issue is not in accordance
with law that every person has to leave the platform. It depends upon the
situation, if train comes to platform in the night, the passengers wait till rising of
the Sun, as they are bona-fide passenger. Nowhere Railway has brought any
circular on record to establish that a passenger has to vacate the platform within a
specified period nor the same mentioned in any of the railway station or on the
railway ticket, as such, this Court may consider it to be a benevolent legislation,
allow the appeal by setting aside the impugned judgment by granting
compensation as the deceased died in-course of his duty.
6. Learned counsel for the respondent/Railway has submitted that deceased
was not a passenger as defined under Section 2(29) of the Railway Act, and if his
leg slipped from the train after arriving at the final destination while trying to get
down from the train when the train has started moving towards the washing pit
for cleaning, then it is negligence on the part of the deceased for which Railway
cannot be allowed to suffer.
7. Considering the rival submissions of the parties, looking into the facts and
circumstances of the case, it appears that in this case the applicant has examined
herself as witness AW-(1) and has furnished a number of document, which has
been brought on recorded at paras 4 and 5 of the impugned judgment, which are
as follows :-
a. Memo issued by GRP-cum-Medical Report
b. Application dtd.29.12.11 of Sri Suryadeo Singh, ASI/Saharsa
c. Inquest Report
d. Final Report
e. Investigation Report in three sheets of Rail Police Inspector, Barauni
f. P.M. Report in two sheets
g. Death Certificate
h. Genealogical Certificate
i. I.Card of the deceased of BMP, Dumraon (Buxar)
j. Voter ID of Sri Rajendra Tiwari
k. Voter ID of Smt. Kismato Devi
l. PNB pass Book in two sheets
Later the applicant has furnished the original/certified copies of the
following documents which were marked exhibits as:-
a. Final Report in two sheets- Ext.A1
b. Statement of Sri Suryadeo Singh, ASI/Saharsa-Ext. A2
c. Case Diary- Ext.A3
d. Inquest Report-Ext.A4
e. Dead body receipt-Ext.A5
f. P.M. Report-Ext.A6
g. Supervision Note- Ext. A7
h. Photo copy of 'Kaman Patra'
i. Photo copy of Citation of Hon'ble High Court/Patna UOI-vs-Malti Kunwar.
Respondent has also adduced Sri Suryadeo Singh, Sub-Inspector as witness
RW(1), but has not filed any documentary evidence.
A.W-1 in her evidence has disposed at paras 2, 3, 4, 5, 8, 9 and 10 as
under:-
2. That the untoward incident occurred in the intervening night of on
28/29.12.2011 at Barauni Jn.
3. That the deceased Satyendra Tiwari being the husband of the present
deponent was a GRP constable being no.297 posted at GRPS, Barauni JN and
at the time of untoward incideent, he was on escort duty having proper and
valid "Kamanpatra" treated as valid authority to travel in the alleged train
while performing his escort duty.
4. That the deceased alongwith other police personnel was on escort duty in
train no.15275 Saharsa- Barauni express from Saharsa to Barauni. The alleged
train reached at Barauni JN in the ngiht at about 10:20 p.m. on 28.12.2011.
5. That the wheather was extremely cold and as such, the deceased including
other police personnel made up their mind to stay in the compartment till its
moving towards washing pit for cleaning.
8. That in this regard, Sri Surdeo Singh ASI, GRPS, Barauni who accompanied
with the deceased on escort duty, has made statement and on the basis thereof,
an U.D. Case bearing no.34/2011 has been registered with GRPS, Barauni Jn.
9. That the concerned GRP after due inquiry at length as well as recording the
statement of other police personnel on escort duty including the present
deponent and keeping in view of supervision note, have submitted final report
stating therein that it is case of accidental death due to fall from the alleged
moving train.
10. That the deceased has left behind the following surviving dependents as
under:
(i) Bibha Devi aged about 29 years being the wife of the deceased.
(ii) Shivani Kumari aged about 11 years being minor daughter of the deceased.
(iii) Supriya Kumari aged about 9 years being minor daughter of the deceased.
(iv) Khushi Kumari aged about 7 years being minor daughter of the deceased.
(v) Khusboo Kumari aged about 5 years being the minor daughter of the
deceased.
(vi) Shivam Tiwari aged about 5 years minor son of the deceased.
(vii) Rajendra Tiwari aged about 65 years being the father of the deceased.
(viii) Smt. Kismato Devi aged about 60 years being the mother of the deceased.
The evidence of R.W.1, A.S.I./S.I., Suryadeo Singh which is profitably
quoted hereunder:-
"EkSa tks Hkh tkudkjh ns jgk gWwa oks lR; gSA esjk uke lw;Znso flag gSA esjs
firk dk uke Lo- }kfjdk flag gSA eSa xzke txriqj] csrkSyh] gqyklxat]
tgkukckn] fcgkj dk jgus okyk gwWaA eSa fnukad 28-12-2011 dks jsyFkkuk
lgjlk esa inkfLFkfir FkkA ;s vkosnu ;wMh [email protected] fnu- 29-12-2011
dks esjs }kjk fy[kk x;k Fkk ftlesa eSaus gLrk{kj fd;k gSA mlesa esjs lkFk
ch,eih ds vkSj 4 yksxksa dk gLrk{kj gSA e`rd lrsUnz frokjh] flikgh
la&297 ,d lkFk gekjs lkFk fM;wVh esa FksA ge lHkh LdkVZ fM;wVh esa Fks
Vsªu la-15275 esa Fks mlh LVs'ku ls Vsªu la-15276 dks lgjlk ls cjkSuh
dks Hkh LdkVZ djrs gq, gesa tkuk FkkA jkr ds 2-15 cts jkf= vkSj Ba< ds
dkj.k ge Vsªu esa gh cSBs Fks tc ,ukml gqvk fd oks Vsªu /kqykbZ ds fy,
okf'kaxihB tk,xh rks geyksx mrjus ds fy, rS;kj gq, rc rd xkM+h
[kqy x;hA lrsUnz frokjh xsV ds ikl x, vkSj mldk iSj fQly x;k
vkSj os uhps fxj x,A Vsªu IysVQWkeZ ls vkxs fudy pqdh Fkh vkSj
okf'akaxihB igqap x;h ge lHkh gYyk djrs gq, mrj dj ?kVukLFky ij
x, vkSj mUgsa csgks'kh dh gkyr esa mBk dj vLirky ys x, tgkWa MkWDVj
us mUgsa e`r ?kksf"kr dj fn;kA"
8. A.W.-1 though not an eye witness to the occurrence, but during her cross-
examination she has replied to the question that:-
"Q. Where did the incident occurred?
A: Quite before from Barauni Station. His leg got slipped. Post-mortem as
well as thereafter last ritual was done.
Sugg: Your husband trying to get down from the running train and in that
way fallen down due to his own mistake. There is no fault on the part of
Railway.
A: I denied it."
9. From perusal of the evidence, it appears that deceased (Satyendra Tiwari)
Constable No.297 was an authorized person. As per the evidence and as per
exhibit brought on record i.e. Kaman Patra that deceased along with three other
Constables under the control of ASI (Suryadev Singh) was deployed in train
no.15275 which reached Barauni station at about 10:20 hrs on 28.12.2011, but
because of cold they remained in the train, as they have to return from the said
train in return journey vide train No.15276, as such, when it was announced by
the Railway that train is going for washing deceased- Satyendra Tiwari started
getting down but because of slip of leg the deceased (Satyendra Tiwari) lost his
balance and fell down.
10. During cross-examination, RW-1, Suryadeo Singh has categorically stated
that they are on duty on train no.15275 which goes from Saharsa to Barauni and
returned from Barauni to Saharsa, as such, considering the nature of duty of
Constable under the control of superior in a discipline force, this Court is inclined
to allow the appeal.
11. So far with regard to amount of compensation is concerned, 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, which has already been dealt with by 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.
12. Accordingly, the instant Miscellaneous Appeal is hereby allowed.
13. Railway is directed to indemnify the compensation @ Rs.8,00,000/- or Rs.
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 favour of the
claimant.
14. LCR be sent down to the court below.
(Kailash Prasad Deo, J.)
Sandeep/R.S.
