Smt. Kalavati Devi vs Union Of India
2021 Latest Caselaw 362 Jhar

             IN THE HIGH COURT OF JHARKHAND AT RANCHI
             (Civil Miscellaneous Appellate Jurisdiction)
                       M.A. No. 348 of 2013
                                ......

      Smt. Kalavati Devi                                .... .. ...         Appellant
                                     Versus

Union of India, through the General Manager, East Central Railway, Hazipur . ... ... Respondent ...........

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

For the Appellant : Mr. Krishna Mohan Murari, Advocate Mr. Ganesh Ram, Advocate For the Resp-Railway : Mr. Vijay Kumar Sinha, Advocate ..........

07/ 25.01.2021. Heard, learned counsel for the parties.

2. Appellant/claimant, Smt. Kalavati Devi has preferred the instant Miscellaneous Appeal against the judgment dated 20.08.2013 passed by learned Member/Technical, Railway Claims Tribunal, Ranchi Bench, Ranchi in Case No.OA(IIU)/RNC/2012/0010 whereby the claim application of the applicant has been dismissed, who lost her son (Rakesh Kumar Prajapati) on 14.06.2011 in an untoward accident, which took place while travelling from Nagar Utaari to Daltonganj Railway station by Chopan-Gomoh Passenger train.

3. Learned counsel for the appellant has submitted that deceased (Rakesh Kumar Prajapati) was a bona-fide passenger and that issue has been decided in favour of the appellant. However, issue no.2- "Whether any untoward incident as defined under Section 123(c)(2) of the Railways Act, 1989 occurred to Rajesh Kumar while travelling by Chopan Gomoh Passenger train on 14.06.2011?" has been decided against the applicant.

4. Learned Tribunal has decided the issue against the applicant on the reason mentioned, which is as follows:-

"A.W.-1 has stated that the deceased was going to give examination of Daroga on the date of incident but the papers filed by the applicant indicate the date of examination as 11.09.2012, so there is discrepancy in the dates.

It is indeed surprising that the incident is said to have taken place during day time but no passenger raised an alarm, nor informed the Guard or Driver of the train. There is no eye witness to the incident. The post-mortem report indicates "Head injury". This is only possible if the body is stretched out negligently of the bogie, to such an extent that head hits the pole. This is a dangerous act and comes under exceptions (a) to (e) of Section 124A of Railways Act, 1989.

Thus, I conclude that this incident is not covered under the definition of "Untoward Incident" as defined in Section 123 (c) (2) of Railways Act, 1989. The issue is answered against the applicants."

5. Learned counsel for the appellant has further submitted that even to support the presumption taken by the learned Tribunal no evidence has been

adduced on behalf of the Railway. Admittedly if a person is a bona-fide passenger as he is not going to commit suicide after purchasing a ticket. The presumption that it is only possible, if the deceased has stretched out in the bogie to such extent that head hits the pole, is not acceptable as there is no such evidence brought on record. The learned Tribunal has discarded the claim application only on the ground that occurrence took place during day time but no passenger raised alarm. Such presumption can be taken against the Railways, as in a benevolent legislation a claim application cannot be rejected on the basis of such presumption, which has been taken by the Railway Claims Tribunal in absence of any evidence brought on record by Railways.

6. Learned counsel for the appellant has further submitted that in the case of Union of India vs. Prabhakaran Vijaya Kumar, reported in 2008(9) SCC 527, the entire onus lies upon the Railway, if no contrary evidence has been brought on record by the Railway to disbelieve the case of the applicant.

7. Learned counsel for the appellant has further submitted that evidence of A.W.1 with regard to the examination of Daroga is not going to change the merit of the case, even if this witness is wrong in stating the purpose of journey, as the held by the learned Tribunal. But with regard to the bona-fide passenger, finding recorded by the learned Tribunal is not under challenge. Secondly, if a person dies by accidental fall from the running train then whether he hits a pole or he falls on the Railway track is not within the capacity of the person. As such, this Court may take serious view of the matter and grant compensation to the applicant/appellant by setting aside the judgment dated 20.08.2013 passed by learned Member/Technical, Railway Claims Tribunal, Ranchi Bench, Ranchi in Case No.OA(IIU)/RNC/2012/0010 to the tune of Rs. 4 lacs along with interest @ 7.5% from the date of filing of the claim application.

8. Further the amount of 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.

9. Learned counsel for the respondent-railway has submitted that since the statement of applicant witness, A.W.-1 has found to be unreliable, as such, the learned Tribunal has rightly taken view that in absence of any eye-witness it is only presumed that a person can meet with such accident only if he is negligent and stretched his body out of the bogie, as such, the impugned order does not require any interference from this Court.

10. Learned counsel for the respondent-railway has relied upon the counter- affidavit at paras 10 to 17 filed by the Railway on 19.09.2020 and submitted that this Court may dismiss the appeal.

Paras 10-17 of counter-affidavit filed by the Railway is profitably quoted hereunder:-

"10. That the learned court below in course of considering the Issue No.1, it is held that deceased was a bonafide passenger on the basis of finding that the original ticket No.90082667 from Nagar Untari to Daltonganj has been filed by the applicant. This has not been mentioned in the Inquest Report (Annexure-2), but it is mentioned in police final report (Annexure-3), the respondent has not disputed the ticket and the issue is answered in favour of the applicants.

It is further stated that the Issue Nos.2 and 3 is decided against the applicants by the Learned P.O. of the Railway Claims Tribunal by concluding that this incident is not covered under definition of "Untoward Incident" as defined in Section 123(C)(2) of the Railways Act, 1989, on the basis of finding that it is stated in the claim application that deceased Rakesh Kumar Prajapati was a labourer, but during cross-examination, father Jattu Prajapati states that his son was a student and on that day, he was going to appear for Daroga's Examination. He also stated that his son was B.A. Pass and he did not disclose this information to his counsel. However, an amendment petition was filed by father, Jattu Prajapati on 29.07.2013, stating that his son was student of B.A. And he had to appear in the examination to be held on 11.09.2011. Some documents, indicating the educational qualification have been filed by the applicant. This amendment petition could not be heard because applicant's counsel on 29.07.2013 after presenting evidence AW-2, Sheo Lal Prajapati, started creating disturbance in the court room. Thus, amendment has not been heard and not carried out. AW-2 Sheo Lal Prajapati in his cross-examination stated that ticket of deceased was given to him after the postmortem. AW-1 has stated that the deceased was going to give examination of Daroga on the date of incident, but the papers filed by the applicant indicates the date of examination as 11.09.2012, so there is discrepancy in the dates.

It is indeed surprising that the incident is said to have taken place during day time, but, no passenger raised an alarm, nor informed the Guard or Driver of the train. There is no eyewitness to the incident. The postmortem

report indicates "head injury". This is only possible if the body is stretched out negligently of the bogie, to such an extent that head hits the pole. This is a dangerous act and comes under exception (a) to (e) of Section 124A of Railways Act, 1989 and resultantly dismissed the claim application.

11.That the judgment and order dated 20.08.2013 is proper, justified and as per rules. Hence, the present memo of appeal is liable to be dismissed by this Hon'ble Court at this stage.

12.That the deceased died due to head injury, this is only possible when body is negligently stretched out of the compartment of the train and hit by electric pole, in the instant case deceased died in the same manner.

13.That in case of Maghu Sao Vs. Union of India through General Manager, Eastern Railway, decided on 01.05.2012 by the Hon'ble High Court of Judicature at Patna, whereby Hon'ble Court held that the inquest report was sufficient to come to the conclusion that the deceased was not having any railway ticket at subsequent stage, in Police report, it has been mentioned regarding recovery of railway ticket, the court's opinion is that serious doubt the conduct of the police officer. Moreover, if the inquest report, there was not mentioning of the recovery of ticket in Column 7 at subsequent stage mentioning recovery of ticket creates serious doubt, therefore, in the present case, the learned Claims Tribunal committed error in deciding the Issue No.1.

14. That in the claim application, it is mentioned that the deceased was a labourer, but, during the cross-examination AW1 Jattu Prajapati states that his son was a student and on that day, he was going to appear for Daroga Examination. Moreover, AW2 Sheo Lal Prajapati in his cross-examination stated that ticket of deceased was given to him after the postmortem. It is not possible that the same is seized by the I.O. Of the case and kept with case record.

15.That both the witnesses were examined on behalf of the claimant not seen the incident, therefore, his evidence is not admissible as an evidence for concluding the case.

16.That the ground made in this memo of appeal is not tenable in the eye of law and the instant appeal is liable to be dismissed by this Hon'ble Court.

17. That the claimant completely failed, his son died in an untoward incident as defined under Section 123(C)(2) of the Railways Act, 1989 or his son was fell down from any running passenger train."

11. After hearing learned counsel for the parties and on the basis of materials brought on record, admittedly, the deceased (Rakesh Kumar Prajapati) was traveling by train from Nagar Utaari to Daltonganj Railway Station by Chopan- Gomoh passenger train on 14.06.2011. His dead body was found near the East Cabin of Garhwa Road on 14.06.2011 and has suffered fatal injury.

The issue no.1 with regard to the bona-fide passenger has already been decided by the learned Tribunal in favour of the appellant. But presumption has been drawn by the Railway Claims Tribunal that such as accident can only be caused, if the person has stretched his body out of bogie and hits by the pole. Since no contrary evidence has been brought on record, as such, in view of the judgment passed by the Apex Court in the case of Prabhakaran Vijaya Kumar (supra), this Court is inclined to accept the contention of the appellant. So far the discrepancies in the evidence of A.W.1 is concerned, that whether the examination for the post of Daroga was on 14.06.2011 or 11.09.2012 this is not going to change the merit of the case, as such, this part of the evidence ought to

have been discarded by the learned Tribunal by adjudicating the issues with regard to untoward incident as defined under Section 123(c)(2) of the Railways Act, 1989. Railway has not brought any evidence to establish that the case comes under the exceptions (a) to (e) of Section 124 A of the Railways Act, 1989, as such, in view of the reasoning as stated above, this Court is inclined to allow the appeal by setting aside the impugned judgment.

12. Accordingly, the judgment dated 20.08.2013 passed by learned Member/Technical, Railway Claims Tribunal, Ranchi Bench, Ranchi in Case No.OA(IIU)/RNC/2012/0010 is hereby set aside.

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 in view of judgment rendered in the case of Radha Yadav (supra).

14. Accordingly, the instant Miscellaneous Appeal is allowed.

(Kailash Prasad Deo, J.) Sandeep/R.S.