Shri Deo Kumar Mishra vs The Union Of India Through General ...
2021 Latest Caselaw 365 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
             (Civil Miscellaneous Appellate Jurisdiction)
                    M.A. No. 28 of 2015
                           ........

1. Shri Deo Kumar Mishra

2. Smt. Muneshwari Devi .... ..... Appellants 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 Appellants : Mrs. Chaitali Chatterjee Sinha, Advocate. For the Respondent : Mr. Vijay Kumar Sinha, Advocate.

........

14/25.01.2021.

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

The appellants / claimants namely, Sri Deo Kumar Mishra and Smt. Muneshwari Devi, father and mother of the deceased Raju Mishra, have preferred this appeal against the impugned judgment dated 14.10.2014 passed by learned Railway Claims Tribunal, Ranchi Bench, Ranchi in Case No. OA(IIU)/RNC/2013/0015, whereby the claim application of the applicants have been dismissed on the ground that applicant could not establish that deceased died due to untoward incident and applicant has also failed to prove that deceased was a bonafide passenger in absence of production of the original ticket.

Learned counsel for the appellants, Mrs. Chaitali Chatterjee Sinha has submitted that son of the applicant /appellants, Raju Mishra had purchased a valid 2nd class ticket ex-Jasidih to Ara and after boarding train No.13049 UP Howrah - Amritsar Express train at Jasidih had fallen down from moving train due to heavy rush and jolt by the passengers at Dadpur Halt. The applicants have claimed compensation to the tune of Rs.4 lacs with interest @ 12% per annum and other relief. The learned Tribunal has framed issues on 23.01.2014, which are as follows:-

(1) Whether Raju Mishra was a bonafide passenger of Train No. 13049 UP Howrah-Amritsar Express on 16.10.2012?

(2) Whether untoward incident as specified in Section 123(c)(2) of the Railways Act, 1989 occurred to the deceased Raju Mishra while travelling by Train No. 13049 UP Howrah-Amritsar Express on 16.10.2012?

(3) Whether the applicant/applicants is/are entitled to compensation?

(4) Reliefs.

Learned counsel for the appellants has submitted that in support of his claim, the applicant has produced himself as witness A.W.(1) and furnished the original / certified copies of the following documents along with the claim petition, which were marked exhibits as:-

1. Application dated 17.10.12 to GRP/Jajha by Sri Deo Kumar Mishra has been marked as Exhibit-A1.

2. Inquest Report has been marked as Exhibit-A2.

3. FIR has been marked as Exhibit-A3.

4. PM Report in two sheets has been marked as Exhibit-A4.

5. Final Report in two sheets has been marked as Exhibit-A5.

6. Photo copy of Voter ID of Sri Raju Kumar Mishra.

7. Photo copy of Voter ID of Sri Dev Kumar Mishra.

8. Photo copy of Voter ID of Smt Muneshwari Devi

9. Photo copy of Dependency Certificate and

10. Photo copy of Bank Account particulars.

Later the applicant has furnished the photo copy of the following documents :-

1. Death Certificate.

2. Again Bank Account particulars.

The respondent has not adduced either oral or documentary evidence, but even then, in case of beneficial legislation, the learned Tribunal took a hyper technical views and dismissed the claim application on the ground that in the final report of the police, there is no mentioning that the deceased was a bonafide passenger.

Learned counsel for the appellants has placed reliance upon para-7 of the impugned judgment, where the learned Tribunal has mentioned that respondent has not filed DRM's report for which an adverse inference may be drawn, but because of non-recovery of said

ticket or non-mentioning of the same in the inquest report, the learned Tribunal has dismissed the claim application.

Learned counsel for the appellants has submitted that the judgments relied by the learned Tribunal of Hon'ble Patna High Court in Maghu Sah Vs. Union of India and High Court of Judicature at Delhi in Gita Vs. Union of India are not binding upon this Court, rather they are persuasive, but fact of those cases are different from the fact of the present case.

Learned counsel for the appellants has further submitted that the witness Deo Kumar Mishra as A.W.-1, in paragraph-3 of examination- in-chief, has categorically stated that on 16.10.2012 after purchasing and having a valid 2nd class express train ticket from Jasidih to Ara Junction my son (now deceased) boarded train no.13049 UP Howrah - Amritsar Express train at Jasidih for going to Ara.

Learned counsel for the appellants has submitted that paragraph nos. 1 to 5 of evidence of A.W.(1) may be considered, which are re-produced hereunder:-

1. That I am the applicant No. 1 and applicant No. 2 is my wife Muneshwari Devi (mother of the deceased) in the claim case cited above. The deceased Raju Mishra who also known as Raju Kumar Mishra was my unmarried son.

2. That my deceased son went Deoghar for Puja and after Puja he was returning his home.

3. That on 16.10.2012 after purchasing and having a valid 2 nd class express train ticket for Jasidih to Ara Jn. my deceased son boarded in train No. 13049 UP, Howrah-Amritsar Express train at Jasidih for going to Ara Jn.

4. That there was heavy rush in the general compartment due to festival of Durga Puja, which compelled my deceased son to stand near the gate inside the compartment. The passengers were jostling one another for space near the gate of the compartment.

5. That due to heavy rush and jostling amongst the passengers my deceased son accidentally fell down from the said train near Dadpur Halt near K.M. 368/22 and as a result of which he sustained serious injuries and died on the spot.

Learned counsel for the appellant has submitted that during cross-examination made by the Railway, nothing has been brought

by the Railway to disbelieve the evidence of A.W.-1, rather on account of non- production of the DRM's report in view of Section 13 of Railway Passengers (Manner of Investigation of Untoward Incidents) Rules, 2003, adverse inference may be drawn against the Railway, as such, the appeal may be allowed.

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), it was sufficient for the Railway claims Tribunal to accept that 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 appellants has further submitted that in view of judgment passed by the Apex Court in the case of Union of India Vs. Prabhakaran Vijaya Kumar reported in (2008) 9 SCC 527, the deceased was victim of untoward incident as defined under Section 123 (c) (2) of the Railways Act, as no contrary evidence has been brought on record nor the statutory investigation made by the Railway, which will be apparent from the DRM's report, brought on record, as such, the claim was fit to be allowed by the learned Tribunal, but the same has been dismissed.

Learned counsel for the appellants 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 Vide 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 claimants, 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 the impugned judgment is reasoned judgment and as such, this court may not interfere with the same.

Learned counsel for the respondent - Railway has submitted that in view of paragraph nos. 10 to 14 of the counter affidavit which was filed by the Railway on 14.09.2020, this appeal is fit to be dismissed. Paragraph nos. 10 to 14 of the counter affidavit are re- produced hereunder:-

10. That the Learned Member / Technical, Railway Claims Tribunal has first taken into consideration decided the case Issue No.2 instead of taking issues in seriatim and the Issue No.2 decided against the appellant by holding that the applicant has failed to establish that Raju Mishra, since deceased, had an accidental fall from the running train, and as such, this is not a untoward incident within Section 123(C) (2) of the Railways Act, 1989. On the basis of findings, which is as under:-

The applicant appeared as witness (AW1). During cross- examination, he stated that he did not saw the incident with his own eyes and he does not know by which train his son travelled, from where to where he was travelling and how he was travelling.

He has informed about the incident by the Rail Police. He had gone to Jhajha Rail Thana and identified the dead body of his son. The Voter ID and company ID Card was handed over by the Police to him. The Police did not give him any ticket.

In absence of any eyewitness, the Bench examined the documentary evidence available on record. The Police records i.e. FIR (Ext.A3) and inquest report (Ext. A2) mentioned that the victim died due to run over by falling down from train. The head and left hand were not found in scattered condition. The postmortem report (Ext. A/4) reads the cause of death was due to injuries caused by hard and cutting incurred during Rail Traffic Accident. The final report (Ext. A/5), however, mentions that it appears that the victim died due to run over by falling down from train. In addition, as per the statement of the witnesses, the deceased die due to rail accident, which is reiterated in the last para of the report. The Bench observed that the final police report (Ext. A/5) mentions that it appears that the deceased have died due to falling from train, which is not conclusive finding and is not good enough to be established before the Court that the Railways are liable to pay compensation to the applicant what is required in law to be proved is that he had actually fallen from the train and suffered injuries. On the account, the applicant's case falls short.

11. That it is humbly stated and submitted that Issue Nos.1,3 and 4 also decided against the appellant / claimant by the Railway Claims Tribunal, by holding that I am unable to presume that victim was a bonafide passenger. In absence of any evidence of a journey ticket and on the basis of Issue Nos. 1 and 2, the applicant is not entitled to compensation under Section 124A of the Railway Act, 1989, hence, the case is dismissed on contest with no costs.

The findings of the Court below on the point of Issue No.1 is that the applicant has mentioned in the claim application that the deceased was travelling with a valid 2 nd class ticket which was found in ruined condition in the possession of the deceased. During cross-examination, he stated that the Voter ID and Company ID Card were handed over by the Police to him. The Police did not give him any ticket. This is corroborated during inquest, as no journey ticket was recovered from the body of the deceased. However, in the final form (Ext. A/5), the Investigation

Officer mentioned about recovery of tickets without indicating any specific ticket number. In this connection, the Learned Counsel of the applicant filed the citation of the Hon'ble High Court, Patna, in Magh Sah Vs. Union of India, which is applicable to the facts of the instance case. The Hon'ble Court has held that non-mentioning of the recovery of ticket in the inquest report was sufficient to come into conclusion that the deceased was not having any railway journey ticket. Moreover, at subsequent stage mentioning the ticket no. creates serious doubt about the conduct of the police officer and on the case of the claimant. Thus, I hold that the applicant has failed to prove that the deceased was a bonafide passenger in the absence of production of the original ticket.

The Court further observes that the natural corollary of the decision of the various High Courts is that once it is established that the person was injured or died on account of an untoward incident over Railways, a presumption can be convincingly drawn concerning his bonafide as a passenger. But, in the instant case, the applicant could not establish that the deceased died due to an untoward incident. Therefore, I am unable to presume that the victim was a bonafide passenger, in absence of any evidence of a journey ticket.

12. That the cause of action of this case has not arisen within the territorial jurisdiction of the Hon'ble High Court of Jharkhand at Ranchi because the appellant resided at District Bhojpur (Bihar) and the office of the respondent is also situated at Hajipur (Bihar) and incident occurred in Dadpur with Jhajha Rail P.S., which is also situated within the State of Bihar, hence, the territorial jurisdiction of this appeal is Hon'ble High Court of Judicature at Patna.

13. That it is humbly stated that the judgment / order dated 14.10.2014 passed by Railway Claims Tribunal, Ranchi Bench, is fully justified because as per case records, the deceased was neither a bonafide passenger of the Train No.13049 UP Howrah - Amritsar Express nor he died to an untoward incident as defined under Section 123 (C) (2) of the Railway Act, 1989, it would be evident from the deposition of the appellant who was examined as A.W.-1, moreover, there is no eyewitness in this case, who saw the incident.

14. That non-mentioning of the recovery of journey ticket in the inquest report was sufficient to come to the conclusion that the deceased was not having any Railway ticket.

Considering rival submissions of the parties, looking into fact and circumstances of the case, there is ample evidence brought on record by the applicant apart from his examination-in-chief in this case and in absence of any contrary evidence brought on record by the Railway, coupled with the fact that the railway has not filed the DRM's report, this Court takes an adverse inference against the Railway and in view of the judgment passed by the Apex Court in the case of Rina Devi (Supra), the deceased was a bonafide passenger in view of the evidence brought on record by A.W.-1 and in view of the judgment passed by the Apex Court in the case of Prabhakaran Vijaya Kumar (Supra), the deceased was victim of untoward incident as defined under Section 123(c) (2) of the Railways Act.

Accordingly, the Miscellaneous Appeal is allowed and the impugned judgment dated 14.10.2014 passed by Member (Technical), Railway Claims Tribunal, Ranchi Bench, Ranchi in Case No. OA(IIU)/RNC/2013/0015 is set aside.

The Railway is directed to pay Rs.4 lacs along with interest @ 7.5 % per annum from the date of filing of the claim application i.e. 24.12.2012 till the date of actual indemnifying the award or Rs.8 lacs, whichever is higher to the appellants / claimants.

Let the compensation be paid in equal proportion to both the appellants.

Let the LCR be sent down.

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