Darshani Devi vs The Union Of India Through General ...
2021 Latest Caselaw 355 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
             (Civil Miscellaneous Appellate Jurisdiction)
                    M.A. No. 256 of 2014
                           ........

Darshani Devi                             ....      ..... Appellant
                               Versus
The Union of India through General Manager,
East Central Railway, Hajipur (Bihar) ....          ..... Respondent

CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
            (Through : Video Conferencing)
                                  ............
For the Appellant          : Mrs. Chaitali Chatterjee Sinha, Advocate.
For the Respondent         : Mr. Vijay Kumar Sinha, Advocate.
                                   ........
17/25.01.2021.

Heard, learned counsel of the appellant, Mr. Chaitali Chatterjee Sinha and learned counsel for the respondent - Railway, Mr. Vijay Kumar Sinha.

Learned counsel for the appellant has submitted that the appeal has been preferred by the appellant/claimant against the impugned judgment dated 25.06.2014 passed by learned Member (Technical), Railway Claims Tribunal, Ranchi Bench in Case No. OA(IIU) / RNC / 2007 / 0016 (Old Case No. OU-70016/07), whereby the claim application has been dismissed.

Learned counsel for the appellant has submitted that the learned Tribunal has passed the impugned judgment contrary to the evidence brought on record and hold that though the contention of the claimant is that Munsi Yadav, who had a valid ticket no.98177 of the train, was a bonafide passenger, but due to failure of the applicant to adduce any evidence, the claimant has not discharged the onus of proof of producing the ticket alleged to be in custody of Deputy Station Master / Parsabad in support of her contention.

Learned counsel for the appellant has further submitted that 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), such finding recorded by the learned Tribunal is erroneous and contrary to the ratio laid down by the Apex Court. 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 further submitted that while deciding Issue No.2 i.e. Whether any untoward incident as defined under Section 123(c)(2) of the Railways Act, 1989 occurred, while travelling by Gaya-Asansol Passenger Train No. 046 DN from Parsabad to Howrah on 21.3.2006?

The learned Tribunal has decided the same in favour of the applicant and as such, the finding recorded by the learned Tribunal with regard to Issue no.3 i.e. Whether the applicant is entitled for the compensation under Section 124-A of the Railways Act, 1989, has been wrongly decided by the learned Tribunal, as such, the impugned judgment may be set aside and the appeal may be allowed.

Learned counsel for the appellant has further submitted that this Court given adjournment to the Railway on 24.06.2020 to seek instruction with regard to the proceeding under Section 340 (1) (d) and (e) of the Cr.P.C. against the claimant as well as about the ticket number mentioned in the examination-in-chief i.e. Ticket No.98177 dated 21.03.2006, but nothing has been whispered in the counter affidavit filed by the Railway on 14.09.2020, as such, in view of the consistence evidence brought on record by the applicant, the learned Tribunal ought to have allowed the claim application and granted compensation to the claimant as no contrary evidence has been brought on record with regard to the bonafide passenger or with regard to the ticket and the finding which has been recorded by the learned Tribunal with regard to the untoward incident as defined under Section 123 (c) (2) of the Railways Act is in favour of applicant, as such, nothing left to adjudicate on this issue in favour of the applicant.

Learned counsel for the appellant has further submitted that in Railway Accidents and Untoward Incidents (Compensation) Rules, 1990, the amount of compensation was Rs. 4,00,000/-, which is enhanced to Rs. 8,00,000/- in view of amendment made in the Railway Accidents and Untoward Incidents (Compensation) Amendment Rules, 2016, which is applicable from 01.01.2017, as such, the compensation for death which has been enhanced from Rs. 4,00,000/- to Rs. 8,00,000/- may be granted to the claimant, 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, 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 submitted that detail counter affidavit has been filed by the respondent - Railway. Paragraph nos. 8 to 14 of the counter affidavit are re-produced hereunder:-

"8. That in reply to the claim application, respondent, East Central Railway filed written statement on 16.06.2011 stating that the claim application is not maintainable and it is not admitted in the report dated 24.12.2007 of the Station Master / PSB / ECR that neither by any passenger nor by any official source, it has come to knowledge of Station Master / PSB about the above incident, till date no any complaint or information regarding incident has been received at this station till date and time. Moreover, the applicant himself in his claim application has admitted that the deceased was travelling by standing at the door of the compartment. The fard beyan also speaks

that the deceased could not enter into the compartment owing to overcrowd. It appears that the deceased might be travelling at the foot board of the train. Such act of the deceased amounts to self-

inflicted injury and comes within the proviso (b) of Section 124A of the Railways Act. Further, it is submitted in reply to para-11 of the claim application that the statement is false. As per the fard beyan of one Sri Jageshwar Yadav, the deceased was travelling with her relative, so it is not possible any luggage may be lost, while she (the relative) was inside of the compartment. It has prayed that the claim application be dismissed.

Further, the respondent has submitted the original / certified copies of the following documents which are marked as exhibits:

1)     Letter dated 23.11.2010 of Sr. DCM/ECR/DHN-Ext. R1
2)     DRM's Report - Ext. R2.
3)     Letter dated 11.10.2010 of Sr. DSC/RPF/DHN-Ext. R3
4)     Letter dated 05.10.2010 of Supdt. Incharge - Ext. R4
5)     Form 1 Report of 4 / Incident - Ext.5.
6)     Form 2 Brief particulars of U/Incident - Ext.6
7)     Letter dated 13.06.2008 of CTI / Koderma - Ext.R7
8)     Letter dated 15.02.2008 of SM/ECR/Parsabad-Ext.8.
9)     Letter dated 24.12.2007 of SM/ECR/Parsabad-Ext.R9.

It is further submitted that the respondent has not adduced any oral evidence.

9. That the Learned Court below called one Sri Chandrashekhar Yadav, Station Master / Parsabad on 12.06.2014 for his deposition and examined as witness CW(1).

10. That after hearing the pleading of respondent's counsel and on perusal of the records, the following issues were framed on 29.01.2013 by the Learned Court below:-

1. Whether Munsi Yadav was a bonafide passenger as alleged?

2. Whether any untoward incident as defined under Section 123(c)(2) of the Railways Act, 1989, occurred to him while travelling by Gaya-Asansol passenger Train No. 046 DN from Parsabad to Howrah on 21.03.2006?

3. Whether the applicant is entitled for the compensation as claimed and other relief, if any?

11. That on argument, the Learned Counsel of the applicant stated that the claimant is entitled to compensation under Section 124 of the Railways Act, 1989. The Learned Counsel of the

respondent objected that the claim is not maintainable as he died due to self-inflicted injury and applicant is put to strict proof that he was a bonafide passenger.

12. That the Learned Member / Technical, Railway Claims Tribunal decided the Issue No. 1 against the appellant by holding that in face of the available authentic evidence on record which is unchallenged testimony, rebutting the contention of the claimant that Sri Munsi Yadav and a valid Ticket No. 98177 and was a bonafide passenger of the train and due to failure of the appellant to adduce any other evidence on the contrary, the claimant has not discharged the onus of proof by producing the ticket alleged to be in the custody of Dr. SM / Parsabad in support of her application, her claim is, thus, disproved on the basis of findings which is as under:-

The claimant Smt. Darshani Devi in the claim petition as well as in the affidavit has asserted that Sri Munsi Yadav, her husband, since deceased, on 21.03.2006 was travelling by 046 DN Gaya-Asansol Passenger to Howrah from Parsabad Station with a 2nd class Ticket No. 98127 purchased from Prasabad Station. This was also deposed as witness by Smt. Darshani Devi and informant Sri Jageshwar Yadav and also mentioned during arguments.

During argument, the Learned Counsel of the respondent contested the above claim by stating that the Ticket No. endorsed by SM / Parsabad on the application filed by the claimant is 98177 and not 98127 consistently maintained by the applicant during trial. The applicant thereafter moved an amendment petition to amend the Ticket No. 98127 to 98177 on the ground that it was inadvertent mistake without going into the merits of the case, the amendment was allowed by the Bench on contest considering that the claimant had annexed with his claim petition on 08.03.2007, the above application dated 21.03.2006 i.e. the alleged date of the accident made by one Dashrath Yadav which mentions that on 21.03.2006, his cousin Munsi Yadav had purchased Ticket No. 98177 from Parsabad to Howrah at Parsabad Station boarded the train and had fallen down from running Train No. 046 DN at a distance of 1 ½ KM from the above station. SM/Parsabad to take necessary action. On this application, the following endorsement was made by the Dy. Station Master / Parsabad dated 21.03.2006.

"Today dated 21.03.2006, Ticket No. 98177 from Parsabad to Howrah was sold as general ticket for Train No. 046 DN (Gaya- Asansol Passenger)."

While examining the records for passing judgment, it was observed by the Bench that during the proceedings, the claimant Darshani Devi and informant Sri Jageshwar Yadav separately had sworn under oath in affidavit that Sri Jageshwar Yadav had made the application to the Deputy Station Master, Parsabad. He had the Ticket No. 98177 and showed it to the Deputy Station Master along with the application and the Deputy Station Master had then made the above endorsement in the application and kept the ticket in the Deputy Station Master's custody. During cross-examination, he deposed that the ticket, diary, bag and cash of Rs. 400/- and Rs. 500/- was recovered from the dead body of the deceased at the hospital. After post-mortem, he took the above articles. He reiterated that he had given the ticket. The applicant Smt. Darshani Devi also gave the same statement under oath in her affidavit, she stated that the nephew of her husband Jageshwar Yadav had the ticket. She further added that she had gone to the Station to see off her husband, saw him purchase the ticket and board the train. However, in her cross-examination, she contradicted herself by stating that he had not seen him purchasing the ticket.

To give a just decision of the case, summons was issued by the Court to Sri C.S. Yadav, Deputy Station Master / Parsabad on 21.03.2006 i.e. on the alleged date of incident to appear as witness before the Tribunal. He appeared before the Tribunal on 12.06.2004. During examination by the Court, he stated that he was not shown the Ticket No. 98177 by any person and has not kept the said ticket in his custody. During examination by the Learned Counsel of the respondent, he confirmed that he made the endorsement on the application submitted to him on 21.03.2006. 2-3 persons who came to his officer told him that they are relatives of a person who had a train accident. They mentioned only about the Ticket No. 98177 and pressurized him to make the endorsement that the ticket was sold from the Station. He also stated that after verifying the Station Records (DTCS Book) maintained by him, he has given the endorsement to the effect that the said Ticket No. 98177 was issued from Parsabad Station. He testified that he neither has seen any ticket nor he has kept the ticket in his custody. The persons did not ask for any medical aid for the injured. No railway employee gave me any information about the alleged incident. There is no mention in Station Master's Diary. They came much later and pressurized me. He also asserted during cross-examination by the Learned

Counsel of the applicant that the said endorsement was for only confirmation that the said ticket bearing no. 98177 was issued from Parsabad Station on 21.03.2006. He did not know want to make any endorsement, but, was pressurized by the persons. They told him that it was not necessary to know anything about the person who had the accident. He only endorsed the ticket no. I have not concealed any information. The evidence tendered was not challenged in cross- examination. Even a suggestion was not given disputing the statement of Deputy Station Master / Parsabad.

In view of the above, the Bench is of the opinion that the contention of the applicant that Sri Munsi Yadav was travelling with the authority of the valid Ticket No. 98177 and the statement made by the information under affidavit that he had the ticket which was shown to Station Master / Parsabad, who had kept in his custody is not sustainable on evidence of Station Master / Parsabad firmly rebutting the same. In view of the fact that his testimony was not shown shaken nor demolished during cross-examination and he firmly maintained his stand, the Bench gives credence to his deposition considering, it trustworthy. Further, there is no reason to believe under the circumstances that a public official would give a false statement in discharge and performance of his official duties to defend a probable future claim.

On examination, the application stated by the informant Sri Jageshwar Yadav during cross-examination to have been given to SM/Parsabad, it is seen that the name of the person who had written the application is not Jageshwar Yadva, but, one Sri Dasrath Yadav. Thus, the informant has given the application under a false name. Further, the Court observes that the claimant has not annexed a copy of the ticket bearing Ticket No. 98177 with the claim petition, though, it was with the informant as stated by him in the application made to the Deputy Station Master on the date of accident, as affirmed in the affidavit. There is no mention of the Ticket No. 98177 in the Final Police Report and Postmortem Report. The court has observes that the applicant has not submitted a copy of the inquest report and, thus, an adverse inference can be drawn against the applicant. I am of the opinion that it was a clear attempt by the claimant to suppress the fact that the said ticket was not in possession of the deceased as the fact of non-recovery would be invariably recorded in the inquest report. She has, thus, failed to prove that the victim was travelling with the said specific valid ticket

bearing no. 98177 which is alleged to have been recovered from the body of the deceased after postmortem and handed over to Deputy Station Master / Parsabad Station as demanded by him and kept in his custody, a statement sworn by the claimant and informant in their affidavit and reiterated by the informant in cross-examination. Thus, the evidence of the claimant as well as the informant who appears to be an interested witness does not stand the test of credit worthiness and her claim is, thus, disproved and the issue is decided against the applicant.

13. That it is further stated and submitted that the Issue No. 2 is decided in favour of the applicant by the Learned Presiding Officer, Railway Claims Tribunal by holding that in view of the fact, circumstances evidence on record, the preponderance of probability suggests that Sri Munsi Yadav, since deceased, had died due to accidental fall from a train which is an untoward incident under Section 123 (c)(2) of the Railways Act, 1989, on the basis of finding that the claimant Smt. Darshani Devi has stated in the claim petition that Late Munshi Yadav had accidentally fallen down due to sudden jerk from running Train No. 046 DN on 21.03.2006 near Gargigaon Village. He was severely injured and the local people had shifted him to Parwati Clinic at about 09:00 AM, where he succumbed to his injuries on 21.03.2006 at about 02:00 PM. Though, the respondent in the written objection has stated that there is no report of the incident to the Station Master on duty about the alleged incident and no entry made in the station diary, the final report of the police shows that information was received from Parwati Clinic that one Sri Munsi Yadav has been admitted for treatment, whereby the police went to the clinic and was informed that the above person has died. The inquest report was prepared in the clinic and the body was sent to Sadar Hospital, Koderma. The FIR prepared by OC/GRP/Koderma at 13:10 hours on 21.03.2006 and the final report prepared by the ASI, Bajju Baraik on 22.03.2006 mention clearly that Sri Munsi Yadav had died during treatment, as a result of injury sustained due to falling down from EMU Train No. 046 DN. The DRM's report (EtXt. R2) also accepts that at about 07:30 hours, the victim had fallen down from Train No. 046 DN at Kms 364 / 24-26 near Parsabad Station. The Form Nos. 1 and 2 annexed to the DRM's report (Ext. R5 and R6) shows that the nature of the untoward as accidental falling. There are no eye-witnesses to the incident. However, a plea has been taken by the respondent that the

deceased might be travelling on the foot board of the train which amounts to self-inflicted injury and that no railway staff is responsible for this incident. However, in the absence of any evidence adduced by the respondent, the above contention is purely based on speculation and, thus, the issue is decided in favour of the applicant.

14. That the Learned Court below decided the Issue No. 3 against the appellant by holding that Sri Munsi Yadav was not a bonafide passenger in terms of note in the proviso under Section 124-A of the Railways Act, 1989, and also hold that the applicant is not entitled to compensation under Section 124-A of the Railways Act, 1989."

The Learned Court below pointed out that there is no doubt that the information Jageshwar Yadav were not in possession of the ticket and had fraudulently tried to shift the burden of proof by fabricating a concocted story about the ticket being shown to the Dy. SM/Parsabad who had kept it in his custody and filing false affidavits and leading false evidence before the Railway Claims Tribunal, thereby misusing the process of law deliberately to defraud the Railways. Initially in the claim petition, nothing of this sort is mentioned. A reference to Sec. 195(1)(b) shows it includes the offences of perjury, giving false affidavits etc. and which are punishable under Sections 193, 199, 200 and 209 of the Indian Penal Code. Prima facie, a case exists for a complaint to be registered by the ADR of this Tribunal under Section 340 of the Cr.P.C. against both claimant Smt. Darshani Devi and informat Jageshwar Yadav for committing the offences of perjury, giving false evidence, false declaration and making false claim. Thus, while dismissing the claim, I direct the ADR / RCT / Ranchi to make a complaint the concerned Magistrate having jurisdiction and also take steps required by law under Section 340(1)(d) and (e) of Cr.P.C."

Learned counsel for the respondent - Railway has thus submitted that learned Tribunal has rightly rejected the claim application.

Considering the submissions on behalf of the parties and looking into fact and circumstances of the case as well as Lower Court Records, it appears that so far Issue no. 2 with regard to untoward incident, there is no difficulty in relying upon the finding

recorded by the learned Tribunal as Railway has not preferred any appeal against the said finding of the learned Tribunal.

From perusal of the cross-examination of C.W.-1 Chandrashekhar Yadav, the Deputy Station Master, it appears that he has not brought any contrary evidence on record, rather he has admitted that he has made entry in DTCS Book that ticket no. 98177 has been sold from his counter, though he has tried to say that such entry has been made because of pressure made by the claimant.

This Court has perused the same and has found that being a public servant he has not discharged duty, rather has tried to give a contrary evidence. No legal step was taken by C.W.-1 Chandrashekhar Yadav, the Deputy Station Master, if he has written same on DTCS Book under duress or pressure by informing supervisor officer or GRP.

This Court on the basis of evidence adduced by C.W.-1 Chandrashekhar Yadav, is of the opinion that Railway has not brought any evidence on record contrary to sell of ticket no.98177 nor any complaint was lodged before the GRP that such entry was made under the pressure, once a railway employee has made such entry and no contrary evidence has been brought on record, this Court is inclined to accept that deceased was a bonafide passenger. The Railway has not brought any material on record with regard to the enquiry made under Section 340(1)(d) and (e) of the Cr.P.C. to strengthen their case.

Under the aforesaid circumstances, considering it to be a benevolent legislation, the instant miscellaneous appeal is allowed and the impugned judgment dated 25.06.2014 passed by learned Member (Technical), Railway Claims Tribunal, Ranchi Bench, in Case No. OA(IIU)/RNC/2007/0016 is set aside.

The appellant / applicant is entitled for compensation to the tune of Rs. 4,00,000/- with interest @ 7.5% simple interest per annum from the date of filing of the claim application i.e. 08.03.2007 till the date of actual payment or Rs. 8,00,000/-, whichever is higher.

Accordingly, the Railway is directed to indemnify the compensation to the tune of Rs. 4,00,000/- with interest @ 7.5%

from the date of filing of the claim case i.e. 08.03.2007 till the date of actual payment or Rs. 8,00,000/-, whichever is higher in favour of the appellant.

Let the LCR be sent down.

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