Smt. Ludurai Bobanga vs The Union Of India Through General ...
2021 Latest Caselaw 361 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
            (Civil Miscellaneous Appellate Jurisdiction)
                   M.A. No. 476 of 2014
                          ........

Smt. Ludurai Bobanga                     ....      ..... Appellant
                              Versus
The Union of India through 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. Vijay Kumar Sinha, Advocate.

........

06/25.01.2021.

Heard, learned counsel of the appellant, Mr. Krishna Mohan Murari 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 against the impugned judgment dated 15.09.2014 passed by learned Member (Technical), Railway Claims Tribunal, Ranchi Bench in Case No. TAU / RNC /2005 / 0022, whereby the claim application has been dismissed.

Learned counsel for the appellant has submitted that claimants namely, Sri Bonifas Bobanga and Smt. Ludurai Bobanga, lost their son Paulush Bobanga in an untoward incident while his son was travelling with valid ticket 2nd class ordinary ticket from Gua to Chaibasa by Gua Tata passenger train on 22.02.2004. The deceased fell down near "Moulsai" because of heavy rush in the train.

Learned counsel for the appellant has submitted that the learned Tribunal has framed four issues on 15.10.2012, which are as follows:-

(1) Whether Paulush Bobanga was a bonafide passenger of Train No. 302 Gua-Tata Passenger on 22.10.2004 from Gua to Chaibasa? (2) Whether any untoward incident has defined in Section 123 (c) (2) of the Railways Act, 1989 has occurred with the deceased person at Moulsai near Chaibasa railway station ?

(3) Whether applicants are entitled to claim ? (4) Relief, if any ?

Learned counsel for the appellant has submitted that the applicant Bonifas Bobanga has examined himself as A.W.-1 and

Junas Bobanga as A.W.-2 and has furnished following documents i.e.

(a) Fardbeyan of Sri Junas Bobanga, (b) FIR, (c) Dead body challan sending for post-mortem, (d) Inquest Report & (e) P.M. Report in two sheets.

Some of the documents have been brought on record and marked exhibits i.e. Fardbeyan of Sri Junas Bobanga has been marked as Exhibit-A1, F.I.R. has been marked as Exhibit-A2, Inquest Report has been marked as Exhibit-A3, P.M. Report in two sheets has been marked as Exhibit-A4, Dead body challan sending for post-mortem has been marked as Exhibit-A5, Final Report has been marked as Exhibit-A6, photocopy of Voter ID of Ludri Kui and photocopy of Voter ID of Bonifas Bobanga.

The respondent has not adduced any witness, but has furnished certain documents, which has been marked as Exhibits i.e. Letter dated 09.10.2006 of Sr. DCM/SER/CKP has been marked as Exhibit- R1, DRM's report in two sheets has been marked as Exhibit-R2, Letter dtd: 11.9.06 of DSC/RPF/SER/CKP has been marked as Exhibit-R3, Letter dtd:9/11.8.06 of SI/PF/DPS has been marked as Exhibit-R4, photocopy of Fardbeyan of Sri Junas Bobanga, photocopy of inquest report and photocopy of P.M. Report in two sheets.

Learned counsel for the appellant has submitted that though the learned Tribunal has considered that the respondent has filed DRM's report (Exhibit-R2), accepting that deceased has fallen down from the train no. 302 DN on 22.10.2004 near the level crossing, but refused the claim application on the ground that he was himself responsible.

Learned counsel for the appellant has relied upon the judgment passed by the Apex Court in the case of Union of India Vs. Prabhakaran Vijaya Kumar reported in (2008) 9 SCC 527 and has submitted that deceased was victim of untoward incident.

Learned counsel for the appellant has submitted that while adjudicating the Issue no.1 with regard to the bonafide passenger, though there was a clear cut evidence that deceased was travelling with valid ticket, the same has also been found mentioned in

fardbeyan and final report submitted by the police, but since the same was not mentioned in the inquest report as the same was not recovered during the inquest, the learned Tribunal has decided the issue against the applicant.

Learned counsel for the appellant has 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), the deceased was a bonafide passenger. 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 apart from above, as per the final report of the Railways, which has been brought on record as Exhibit-R2, the deceased was a bonafide passenger, as such, the appellant is entitled for compensation to the tune of Rs.4 lacs along with interest @ 7.5% per annum from the date of filing of the claim application i.e. 12.09.2005 till the date of actual payment or Rs.8 lacs, whichever is higher in favour of the applicant in view of subsequent amendment made in the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990, which has been amended in the year 2016 w.e.f. 01.01.2017 i.e. the Railway Accidents and Untoward Incidents (Compensation) Amendment Rules, 2016, by enhancing the amount of compensation from Rs. 4,00,000/- to Rs. 8,00,000/-, 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 opposed the prayer and has submitted that the impugned judgment has been passed by the learned Tribunal after perusing the record as the evidence of the witnesses were not found to be reliable and decided the claim, as such, this court may not interfere with the same.

Learned counsel for the respondent Railway has referred the counter affidavit filed on 12.11.2020 and referred paragraphs-10 to 13, which are profitably quoted hereunder:-

10. That the Learned Presiding Officer of the Railway Claim Tribunal at first taking Issue No.2 for consideration and decision, and the issue is decided in favour of the applicant and it is held that in absence of witness, the preponderance of probability suggests that Sri Poulush Bobanga, since deceased, had an accidental fall from the running Train No.302 DN and was a victim of an untoward incident within the meaning of Section 123(C) (2) of the Railways Act. The issue is decided in favour of the applicant, the finding of the Tribunal on the point of Issue No.2 is read as under:-

To prove his case, the applicant appeared as witness AW(1), it is seen from the affidavit dated 02.04.2013 that he has not seen the incident and, therefore, his evidence would not be relevant in deciding the case on this issue on behalf of the applicant, one Sri Junas Bobanga, elder brother of the deceased appeared as

witness(AW2) and submitted evidence by affidavit. During cross-

examination, he stated that he was not travelling with his brother, but, was informed about the incident by his friend whom he does not know. Since, he has not personal knowledge of the incident, his evidence would not be of use in deciding the case on this issue.

In the absence of any eyewitness, the Bench examined the documentary evidence available on record. The fardbeyan (Ext. A1) was given by Sri Junas Bobanga before GRPS / Dongapasi at 09.30 hours on 23.10.2004 at Sadar Hospital, Chaibasa. A U/D Case No.09 of 2004 dated 23.10.2004 was registered. The formal FIR (Ext.A2) was prepared on the basis of the fardbeyan of Sri Junas Bobanga which shows the cause of death was falling down from Gua - Tata Passenger Train. The inquest report (Ext. A3) prepared over the dead body at 08.45 hours on 23.10.2004, besides listing the injuries and in presence of the witnesses, informant Sri Junas Bobanga and Sri Jiten Pingua says that death was due to falling down from the above said train. The final report (Ext.A6) dated 03.01.2005 is based on the fardbeyan of the informant and concludes after investigation, statement of witnesses and an inspection of site that the deceased died due to falling down from the above said train. The postmortem report Ext. A4 prepared by Dr. S.C. (ineligible) Sadar Hospital, Chaibasa, at 01:30 PM on 23.10.2004 opines that death occurred due to head injuries by hard and blunt substance. The injuries are anti-mortem, and time, since death is 12:00 hours to 24:00 hours which is more or less matches with the time of the accident. The respondent has filed the DRM's report (Ext.R2), wherein it has accepted that the deceased had fallen down from the Train No.302 DN on 22.10.2004, near the level crossing. However, he was responsible for his death, as he was trying to get down from the running train and there is no fault of the Railway Administration.

11. That it is stated and submitted that the Issue Nos.1, 3 and 4 are decided against the appellant / claimant, Learned Presiding Officer of the Railway Claim Tribunal held that the applicant has failed to prove that the victim was travelling with the authority valid journey ticket and was, thus, not a bonafide passenger, hence, consequently the applicant is not entitled for compensation, accordingly case be dismissed. The finding of the Tribunal reads as

under:-

It has been stated in the application that the deceased Poulush Bobanga was having a 2nd class ordinary ticket from Gua to Chaibasa while travelling by Gua - Tata Passenger on 22.10.2004, which was lost no. particulars of the ticket have been mentioned. Inquest report does not mention about the recovery of any ticket. The respondent repudiated that he has a bonafide passenger as no ticket was recovered during inquest.

However, the informant Junas Bobanga, elder brother of the deceased in his fardbeyan before GRPS / Dongaposi stated that a ticket ex-Gua to Chaibasa was recovered from his brother's pocket while referring to the fardbeyan, this finds mention in the final form. No cognizance can be taken of this remark in the police report, as it simply reiterates of the statement made by the informant. However, Sri Junas Bobanga (AW2) during cross- examination stated that the ticket is with the GRP and he did not receive the ticket and luggage from the GRP. He never tried to get the same from the GRP and cannot file the ticket by giving application to the Police. When confronted that his brother was a bonafide passenger, he did not answer. His assertion that a ticket was recovered from the victim is not borne out by fact as the same was not recovered during inquest. It is clear that the said ticket is not with the Railway Police. His testimony does not appear reliable and trustworthy and cannot be given credence.

The Bench observes that given the circumstances of the case, non-mentioning of the recovery of ticket in the inquest report is sufficient to come to the conclusion that the deceased was not having any railway ticket. Moreover, at subsequent stage mentioning anything about the ticket in the police report creates serious doubt on the case of the claimant. Since, the original ticket alleged to be recovered from the victim's pocket has not been filed by the applicant.

12. That the Learned Presiding Officer of the Railway Claims Tribunal properly considered the case of the appellant and never committed any error for pronouncing the judgment and order dated 15.09.2014, hence, the judgment is fully justified and it requires no interference by this Hon'ble Court and the present memo of appeal is liable to be dismissed on merit.

13. That the grounds made in the memo of appeal is not tenable in the eye of law as well as facts. The appellant completely failed to prove that the deceased victim was a bonafide passenger of Train No.302 Gua - Tata Passenger and possess a valid journey ticket from Gua to Chaibasa on 22.10.20004, therefore, it is a fit case for dismissed by this Hon'ble Court.

Learned counsel for the respondent Railway has thus submitted that miscellaneous appeal may be dismissed.

After hearing learned counsel for the parties and on the basis of materials available on record including the Lower Court Records, it appears that learned Tribunal has decided the Issue no. 2 with regard to untoward incident in favour of the applicant in para-9 of the impugned judgment.

So far Issue no.1 with regard to bonafide passenger is concerned, this Court has considered the evidence adduced by A.W-1, Bonifas Bobanga in paragraphs-2 to 4, which are as follows:-

2. That this untoward incident occurred on 22.10.2004 at place Mahulasai near Chaibasa railway station.

3. That 22.10.2004, the deceased unmarried son Paulus Bobonga of the present deponent alongwith his friend was travelling from Gua railway station to Chaibasa railway station by Gua-Tata passenger train on a proper and valid train journey ticket recovered from the person of the deceased as would evidence from the statement of informant Junas Bobonga being the elder brother of the deceased.

4. That while the alleged train was approaching Chaibasa railway station, the deceased who was standing near the door of the compartment, on account of sudden intense jostling of the passenger, lost his balance and accidentally fell down from the alleged running train and sustained grievous injuries. When the injured was being brought to Sadar Hospital, Chaibasa for the treatment, on the way, he succumbed to the injuries sustained in this untoward incident.

Accordingly, this Court is of the opinion that in view of the judgment passed by the Apex Court in the case of Rina Devi (Supra), the deceased was a bonafide passenger.

Accordingly, the Miscellaneous Appeal is hereby allowed and the impugned judgment dated 15.09.2014 passed by learned Member (Technical), Railway Claims Tribunal, Ranchi Bench in Case No. TAU/RNC/2005/0022 is hereby set aside.

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. 12.09.2005 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/-