Smt. Maimun Bibi vs The Union Of India Through The ...
2021 Latest Caselaw 236 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
            (Civil Miscellaneous Appellate Jurisdiction)
                   M.A. No. 152 of 2014
                          ........

Smt. Maimun Bibi                       ....        ..... Appellant
                              Versus

The Union of India through the General Manager, Eastern Railway, Kolkata .... ..... Respondent .......

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

For the Appellant : Mr. Ashok Kumar Singh, Advocate.

Mr. Hardeo Prasad Singh, Advocate.

For the Respondent : Mr. Vijay Kumar Sinha, Advocate.

........

07/18.01.2021.

Heard, learned counsel for the appellant, Mr. Ashok Kumar Singh assisted by learned counsel, Mr. Hardeo Prasad Singh.

Learned counsel for the appellant has submitted that the appellant namely, Smt. Maimun Bibi has preferred the appeal against the judgment dated 23.08.2013 passed by learned Member (Technical), Railway Claims Tribunal, Ranchi Bench in Case No. TAU/RNC/2002/0018 (Old No. TTU-20018/02), whereby the claim application of the appellant has been dismissed on the ground that the deceased did not fell down from EMU train, as such, the deceased did not die due to untoward incident as defined under Section 123 (c)(2) of the Railways Act.

Learned counsel for the appellant has vehemently argued the case and has submitted that Isak Mian was travelling from Hazaribag Road to Dhanbad by EMU Passenger on 12.12.2000. After purchasing a valid ticket, he boarded the train, but fell down. A UD Case No. 01/2000 was registered by the Railway which is the basis of F.I.R. No. 55/2000. Since the record of UD Case is kept and preserved in the court of Sub-Divisional Magistrate, Dhanbad, where the same has been registered as UD Case No. 158/2003 and this creates a confusion in the mind of learned Tribunal and rejected the claim application of the applicant on the ground that the deceased has not fallen down from running train EMU Passenger.

Learned counsel for the appellant has further submitted that even the fardbeyan of the Keyman Ganesh Mahto specifically states that on 11.12.2000 at around 9:30 a.m. one person fell down from

Gaya - Asansol Passenger, which was going towards Asansol and died on the spot. The dead body could not by identified by any person. A.W.-1 Maimun Bibi has been examined and she has categorically stated in her examination-in-chief, which is paragraph no. 1 to 9 and she was also cross-examined, but nothing has been elucidated by the respondent-railway to disbelieve the evidence of A.W.-1. The evidence of the AW-1 is re-produced hereinbelow:-

"1) That, my deceased husband Isak Mian had boarded the train Gaya-Asansol (MEMU) Passenger on:11/12/2000 at Hazaribag Road Station for going to Dhanbad. He had purchased Ticket for aforesaid Journey from booking counter of - Hazaribag Road Station on : 11/12/2000.

2) That, he fell down accidentally from aforesaid running train between Matari and Nichitpur Station at KM 288-1 to 288-3 due to over crowd and sudden jerks of the train. As a result he succumbed to the injuries on spot.

3) That S.M. Nichitpur reported the aforesaid incident to P.A., (E.R.), Dhanbad. Subsequently S.M. (P.A.), Dhanbad gave memo to GRPS, Dhanbad regarding aforesaid incident.

4) That, after receiving the Memo, Police Officer of GRPS, Dhanbad, went to place of incident where my deceased husband was lying dead.

5) That, Police Officer of Govt. Rail Police Station, Dhanbad, recorded the fardbeyan of Ganesh Mahto (Gangman) of Nichitpur, E.R., on:12/12/2000 in regard to aforesaid untoward incident.

6) That, dead body of my deceased husband Isak Mian was Identified after conducting Post Mortem Examination of my deceased husband by Dr. Shailendra Kumar, P.M.C.H. On : 13/12/2000.

7) That, Police Officer of GRPS, Dhanbad, submitted Final Report No. (01/2001) in respect of aforesaid untoward after investigation of GRPS, Dhanbad, U.D. Case No. 55/2000.

8) That, my deceased husband left behind following dependents.

                     (i)    Maimun Bibi -         Self.
                     (ii)   Jabar Mian            -       Major Son
                     (iii) Satar Mian             -       Major Son
                     (iv)   Jamal Mian            -       Major Son
                     (v)    Nurasa Khatoon        -       Married daughter
              9)     That, my father-in-law and mother-in-law (Parents of
      deceased) died before."

Learned counsel for the appellant has further submitted that A.W.-2 Sadik Mian is a co-villager, but his evidence in para-2, 3, 4 & 5 have not been considered by the learned Tribunal only because of confusion cropped up in the mind of learned Tribunal that occurrence is of dated 12.12.2000, but this co-villager has not

informed anybody for three days. Evidence of A.W.-2 at paras -2, 3, 4 & 5 are reproduced herein:

"2) That, he met me at Booking Counter of Hazaribag Road Station on:11/12/2000. He had purchased 2nd class Ticket for going to Dhanbad from aforesaid Railway Booking Counter and I had purchased Ticket for going to Gaya.

3) That, both of us came of Platform of Hazaribag Road Station. After few minutes, Gaya-Asansol (MEMU) Passenger arrived at Hazaribag Road Station. My villager Isak Mian boarded in over crowded 2nd class compartment (general bogie) of Gaya-Asansol (MEMU) Passenger and bound for Dhanbad. Thereafter the train left the station.

4) That, subsequently Asansol-Varanasi Passenger arrived and I boarded the said train for going to Gaya.

5) That, I returned to my village after 3 days and thereafter I heard that Isak Mian died on the same day (i.e. 11/12/2000) due to accidental falling from train Gaya-Asansol (MEMU) Passenger."

Learned counsel for the appellant has submitted that another confusion which has been cropped up in the mind of learned Tribunal is with regard to the case mentioned i.e. UD Case No. 158/2003 which is because of the record maintained by Sub-

Divisional Magistrate, Dhanbad, but Railway has not brought any evidence contrary to the evidence placed by the applicant with respect to 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 (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 nothing has been brought on record by placing the F.I.R. No. 55/2000 or UD Case No. 01/2000 of the Railway to disbelieve the case of the

claimant and as such, the appeal may be allowed with enhanced compensation amount in view of the amendment made in the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990 in the year 2016 w.e.f. 01.01.2017 i.e. the Railway Accidents and Untoward Incidents (Compensation) Amendment Rules, 2016, whereby the compensation of Rs. 4,00,000/- has been enhanced to Rs. 8,00,000/-.

Secondly the co-villager could not inform the family for three days which will apparent from para-5 of deposition and got information about occurrence on return to village after three days.

Learned counsel for the appellant has further submitted that the occurrence took place in the year 2000, but this amendment was brought in the year 2016, as such, now the applicant is entitled for Rs. 8,00,000/- 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."

Learned counsel for the respondent-Railway, Mr. Vijay Kumar Sinha, has filed counter affidavit and has submitted that the learned Tribunal has rightly passed the judgment as record shows that UD Case No. 01/2000 whereas the Exhibit, which has been brought on record shows UD Case No. 158/2003, as such, the learned Tribunal has rightly passed the impugned judgment and this Court may not interfere with the same.

Considering the rival submission of the parties, looking into facts and circumstances of the case, it appears that Isak Mian, who was travelling in the train after having valid ticket from Hazaribag Road to Dhanbad on 12.12.2000 fell down from the running train which has been apparent from the fardbeyan of Ganesh Mahto brought on record. On the basis of such fardbeyan, UD Case No. 01/2000 was instituted by the Railway and FIR was also instituted as 55/2000, but these UD Cases are finally deposited in the court of Sub-Divisional Magistrate, Dhanbad as the territorial jurisdiction lie before the Sub-Divisional Magistrate, Dhanbad, as such, the court of Sub-Divisional Magistrate, Dhanbad is keeping record by entering fresh number in their office as UD Case No. 158/2003, as such, such confusion has cropped up in the mind of learned Tribunal. Had learned Sub-Divisional Magistrate has maintained the record as UD Case No. 158/2003 related to Railway UD Case No. 01/2000 connected with FIR No. 55/2000, such confusion could not have cropped up in such type of benevolent legislation, as such, this Court in inclined to accept that UD Case No. 01/2000 of Railway, corresponds to UD Case No. 158/2003 of Sub-Divisional Magistrate, Dhanbad as for the same occurrence.

Considering the same, this Court consider the evidence of AW-1 and AW-2 as stated above and considering the judgment passed by the Apex Court in the case of Rina Devi (Supra)(para-

29), this Court is inclined to accept the deceased Isak Mian to be a bonafide passenger.

So far untoward incident is concerned, that was not in issue in view of fardbeyan of Ganesh Mahto. Accordingly, this Court is inclined to accept the same.

Accordingly, the instant appeal is allowed and the impugned judgment passed by learned Member (Technical), Railway Claims Tribunal, Ranchi Bench in Case No. TAU/RNC/2002/0018 (Old No. TTU-20018/02) is set aside.

So far compensation is concerned, in view of the amendment made in the Railway Accidents and Untoward Incidents

(Compensation) Rules, 1990 in the year 2016 w.e.f. 01.01.2017 i.e. the Railway Accidents and Untoward Incidents (Compensation) Amendment Rules, 2016, the compensation of Rs. 4,00,000/- has been enhanced to Rs. 8,00,000/- and the Apex Court has considered the same in the case of Radha Yadav (Supra) (Para-11), as such, the Respondent / Railway is directed to pay compensation of Rs. 8,00,000/- in favour of the appellant / claimant within a reasonable period as the occurrence is of dated 12.12.2000.

Let the LCR be sent down.

(Kailash Prasad Deo, J.) Sunil/-