Smt. Sakra Khatoon vs The Union Of India Through The ...
2021 Latest Caselaw 366 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
             (Civil Miscellaneous Appellate Jurisdiction)
                    M.A. No. 46 of 2015
                           ........

Smt. Sakra Khatoon                      ....        ..... Appellant
                               Versus

The Union of India through the General Manager, East Central Railway, Hajipur (Bihar) .... ..... Respondent .......

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

For the Appellant : Mr. Ashok Kumar Singh, Advocate. For the Respondent : Mr. Vijay Kumar Sinha, Advocate.

........

04/25.01.2021.

Heard, learned counsel for the appellant, Mr. Ashok Kumar Singh 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 judgment dated 28.10.2014 passed by Member (Technical), Railway Claims Tribunal, Ranchi Bench in Case No. TAU/RNC/2003/0011, whereby the claim application of the applicant / appellant has been dismissed on the ground that the deceased was not holding a valid ticket on the date of incident and was not a bonafide passenger.

Learned counsel for the appellant has submitted, that Md. Allauddin, son of the appellant was holding a 2 nd class ticket ex- Dhanbad to Howrah on 21.02.2003, but accidentally fell down from the running train 4447 DN Shaktipunj Express on Platform No. 5 of Dhanbad Station and died on spot. One of the friend of deceased, Md. Ashik, on whose fardbeyan, F.I.R. has been drawn, which is brought on record as Exhibit-A1, has categorically stated that while attempting to board in a moving train, the deceased fell down and died because of accident.

Learned counsel for the appellant has submitted that the learned Tribunal has altogether framed three issues on 04.03.2013, which are as follows:-

(1) Whether Md. Allauddin 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

Shaktipunj Express No. 4447 DN on 21.2.2003 or whether the deceased attempted to board the moving train ?

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

Learned counsel for the appellant has submitted that the applicant - Smt. Sakra Khatoon (mother of the deceased) has examined herself as A.W.-1 and Md. Ziauddin, elder brother of the deceased as A.W.-2. The F.I.R., fardbeyan of Md. Ashique, final report, inquest report and post-mortem report have been brought on record. Certain documents have been brought on record i.e. F.I.R. Fardbeyan of Md. Ashique has been marked as Exhibit-A1, Final Report in two pages has been marked as Exhibit-A2, Memo dated 22.02.2003 to OC/GRP/DHN has been marked as Exhibit-A3, Journey ticket has been marked as Exhibit-A4, Inquest Report has been marked as Exhibit-A5 and Post-mortem Report has been marked as Exhibit-A6, but even then the learned Tribunal has not considered these documents and judgment cited by the appellant.

Learned counsel for the appellant has submitted that no contrary evidence has been brought on record by the respondent / Railways.

Learned counsel for the appellant has submitted that the learned Tribunal has rejected the claim application on the ground that the applicant did not file any ticket with the claim application. Later on 07.10.2014, she filed one adult original 2nd class Mail Express ticket No. 34001266 dated 21.02.2003 ex-Dhanbad to Howrah after delay of 11 years and 7 months. There is no mention in the inquest report regarding recovery of any ticket, as such, the learned Tribunal hold that the deceased was not holding any valid ticket on 21.02.2003.

Learned counsel for the appellant has submitted that in the application filed by the claimant, she has categorically stated that the deceased was holding 2nd class ticket ex-Dhanbad to Howrah on 21.02.2003. She has also stated the same fact in her evidence, while she was examined as A.W.-1 and explained that police officer handed over the Ticket of my deceased son to my elder son Md. Ziauddin.

During cross-examination, she has corroborated this fact by saying that the ticket is filed or not with the claim application, I do not know. (Later she said) ticket is having with my elder son. Deceased was not married. The incident was disclosed to her by the friend of deceased, Ashique. The Railway has not brought anything on record to controvert such evidence.

Learned counsel for the appellant has submitted that nothing has been brought on record to controvert the same 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) as such, the deceased was bonafide passenger, as there is consistent evidence adduced by A.W.-2, Md. Ziauddin.

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 so far Issue No. 2 with regard to untoward incident is concerned, the same has been held in favour of the appellant by the learned Tribunal, as such, this Court may allow the appeal by setting aside the impugned judgment.

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 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 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 credential of the witnesses seems to be doubtful on two counts : firstly, that why a minor has purchased a ticket of major and secondly, that why ticket has been produced before the learned Tribunal after such a long period of 11 years, as such this Court may not interfere with the same.

Learned counsel for the respondent-Railway has relied upon para-13 to 18 of the counter affidavit dated 19.09.2020, which is profitably quoted hereunder:

13. That it is further stated and submitted that the Issue Nos. 1 and 3 are decided against the appellant by the Learned Presiding Officer, Railway Claims Tribunal by holding that Md. Allaudin, since deceased, was not holding a valid ticket on 21.02.2003 and was not a bonafide passenger. On the basis of finding that the applicant did not file any ticket with the claim petition. Later on 07.10.2014, 11 years, 7 months after the application was filed on 25.03.2003, she filed one adult original 2nd class Mail Express Ticket No. 34001266 dated 21.02.2003 Ex- Dhanbad to Howrah.

The following facts need special attention:-

(a) The applicant in her petition stated that the deceased was holding a 2nd class ticket. She added that she will file the original ticket later on. No details of the ticket was submitted.

(b) There is no mention of the recovery of any ticket in the inquest report.

(c) The appellant in cross-examination stated that the ticket filed was with his elder son Md. Ziauddin AW(2), the brother of the deceased.

(d) AW(2) has affirmed in affidavit that the original ticket was given to him by the GRP on 22.02.2003 i.e. next day after the incident, it he is true, the said ticket would definitely have been recovered from the body of the deceased and the details reflected in the inquest report, which is not borne out by the facts. Secondly, there is no reason why the applicant did not file the original ticket with the application, when it was allegedly in his possession to prove his case. Thirdly, the deposition of AW(2) in cross-examination that he was aware that the ticket has to be filed is untenable and totally unacceptable. This serious contradicts the applicant's assertion in the petition that the original ticket will be filed later. Fourthly, AW(2) was a witness in the inquest report which further corroborates that the ticket was not recovered from the dead body in his presence.

The respondent had seriously reservation about the source of ticket and during cross-examination challenged AW(2) that he had adjusted the ticket from somewhere else which though was denied by the witness in my opinion raises serious suspicion on the evidence of AW(2) and, thus, credence cannot be given to his unreliable testimony.

Thus, the above facts reveal that the original ticket was not recovered from the body of the deceased and, therefore, the alleged handing over of the said original ticket to AW(2) by the GRP the next day which was in the custody of AW(2), as deposed by AW(1) and AW(2), does not arise and this is ruled out, being an afterthought the inordinate delay in filing the said ticket and the failure of the applicant to submit a cogent and justifiable reason for the same raises serious doubts on the conduct of the applicant and is indicative that ticket in question is a procured ticket.

Further, hold that the appellant is not entitled for any compensation.

14. That this memo of appeal is not maintainable in fact due to journey ticket not recovered at the time of preparing the inquest report (it would be evident from the Exhibits A5 to A6). In case of Maghu Sao v.

Union of India through the General Manager, Eastern Railway, Kolkata, decided on 01.05.2012 by the Hon'ble High Court of Judicature at Patna, whereby law laid down that the inquest report is the substantive piece of evidence of the recovery of train ticket from the dead body of passengers, if in Column 7 of the inquest report, it is not mentioned it can raised serious doubts of the conduct of the police officer, but, in this case, journey ticket placed or filed by the appellant after 11 years, 7 months from the date of filing claim application i.e. 25.03.2003. Thus, if this Hon'ble Court followed the judgment of Maghu Sao rendered by Hon'ble Patna High Court, this appeal is liable to be dismissed.

15. That it is stated and submitted that if it is true that the original ticket give by GRP on 22.02.2003 to the AW2 Md. Ziauddin why he had kept it more than 11 years not filed with the claim application.

16. That during the cross-examination, AW2 is deposed that he was not aware that the ticket has to be filed is untenable and totally unacceptable. He also admitted that he was a witness in the inquest report which further corroborates that the ticket was not recovered from the dead body in his presence. Thus, the Learned Court below rightly comes to the conclusion that it is a procured ticket and it is hold that deceased was not holding a valid ticket on 21.02.2003 and he was not a bonafide passenger.

17. That the judgment dated 28.10.2014 under challenge is just and proper and it requires no interference by this Hon'ble Court and further required to be confirmed by this Hon'ble Court.

18. That the grounds made in memo of appeal has lost the force of statute and fit for dismissal at this stage.

Learned counsel for the respondent-Railway has thus submitted that this Court may not interfere with the impugned judgment.

After hearing learned counsel for the parties and on the basis of material brought on record including the L.C.R., it appears that there is consistent evidence brought on record by the applicant, that the deceased Md. Allauddin had 2nd class ticket ex-Dhanbad to Howrah on 21.02.2003, but fallen down from the running train no. 4447 DN Shaktipunj Express on Platform No. 5 of Dhanbad station and died on the spot. Since, the incident has been considered by learned Tribunal to be an untoward incident as defined under Section 123 (c)(2) of the Railway Act, no appeal has been preferred by the Railway, this Court is only deciding the issue with regard to bonafide passenger.

Considering the evidence of A.W.-1 in para-5 i.e. That the police officer handed over the Ticket of my deceased son to my elder son Md. Ziauddin coupled with her cross-examination as well as the evidence of A.W.-2 in para-8 i.e. That police officer of GRPS Dhanbad gave me the journey ticket of deceased brother on 22.02.2003. The said ticket, I will file before Court., coupled with his cross-examination that he received ticket from GRP after one day of the incident and no contrary evidence has been brought on record, nor the Railway has denied the ticket to be forged, this Court is inclined to accept the ticket as valid and hold that the deceased was a bonafide passenger, in view of the judgment passed by the Apex Court in the case of Rina Devi (Supra).

Accordingly, the instant miscellaneous appeal is allowed and the impugned judgment dated 28.10.2014 passed by learned Member (Technical), Railway Claims Tribunal, Ranchi Bench, in Case No. TAU/RNC/2003/0011 is set aside.

The appellant / applicant is entitled for compensation to the tune of Rs. 4,00,000/- with interest @ 7.5% simple per annum from the date of filing of ticket i.e. 07.10.2014 or Rs. 8,00,000/-, whichever is higher, as the matter remained pending before the learned Tribunal because of laches on the part of the applicant since 25.03.2003 i.e. from the date of filing of the claim application till 07.10.2014, when the ticket was filed before the Tribunal by applicant.

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 ticket i.e. 07.10.2014 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/-