Jharkhand High Court
Sanjay Kohar vs Union Of India Through The General ... on 7 July, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
[Civil Miscellaneous Appellate Jurisdiction]
M.A. No. 445 of 2019
Sanjay Kohar, S/o Late Kameshwar Kohar .... .. ... Appellant(s)
Versus
Union of India through the General Manager, East Central Railway, Hajipur, Bihar
.. ... ... Respondent(s)
...........
CORAM :HON'BLE MR. JUSTICE KAILASH PRASAD DEO
(Through :-Video Conferencing)
.........
For the Appellant(s) : Mr. Manish Kumar, Advocate.
For the Resp.-Railway : Md. Jalisur Rahman, Advocate
..........
04 /07.07.2021. Heard, learned counsel for the parties.
2. Learned counsel for the appellant/claimant has submitted that the claim
application of the claimant, namely, Sanjay Kohar has been dismissed vide judgment
dated 22.07.2019 passed by Ld. Member (Technical) Railway Claims Tribunal,
Ranchi Bench in Case No.OA (IIU)/RNC/130/2017, wherein the learned Tribunal has
held that there is contradiction in claim application and deposition of Sanjay Kohar
examined as A.W.-1.
3. In the claim application at Para 6(b), it has been stated that on 24.01.2017 after
purchasing and having a valid 2 nd Class ticket from Koodra Railway Station to
Sasaram Junction, the deceased, namely, Kameshwar Kohar boarded into Train
No.63554 DN (Varanasi- Asansol Passenger), but while deposing as A.W.1 before the
Court, the claimant has submitted that he has purchased the ticket for his deceased
father and boarded him into the train.
4. Learned counsel for the appellant/claimant has further submitted, that the
finding recorded by the learned Tribunal is own interpretation of the Tribunal, which
was never a plea of the claimant. The same has been clarified in his deposition as
A.W.-1 and the Railway was given an opportunity to cross-examine the witness, but
the same has not been done and no contrary evidence has been brought on record by
the Railway, as such, 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, at Para-29, the
deceased was a bonafide passenger. Para 29 of the aforesaid judgment may
profitably be quoted hereunder:-
"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."
5. Learned counsel for the appellants/claimants has further submitted that
since the occurrence is of dated 24.01.2017, the claim application was filed on
09.10.2017, which was dismissed on 22.07.2019, as such, in view of the judgment
passed by the Apex Court in the case of Union of India vs. Radha Yadav, reported
in 2019(3) SCC 410, (Para 11), the claim application was fit to be allowed and the
compensation ought to have been awarded to the tune of Rs.8 Lacs with interest in
view of amendment in the Railway Accidents and untoward incidents (Compensation)
Rules, 1990 vide Railway Accident and Untoward Incidents (Compensation) Rules,
2016, which has been made applicable from 01.01.2017 wherein for death at part-I,
amount of Rs.4 Lacs has been enhanced to Rs.8 Lacs.
Para 11 of the aforesaid judgment may profitably be 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 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.,
6. To buttress his argument, learned counsel for the appellant/claimant has placed
reliance upon para 6(b) of the claim application, which has been brought on record as
Annexure-1 at Page No.25 to the memo of appeal and submitted that claimant has
been examined as A.W.-1, whose evidence has been brought on record as Annexure-2
at page No.42 to the memo of appeal, wherein A.W.-1 replied to the court question is
as under:-
"dksVZ iz'u& vkius firkth dk fVdV D;ksa dVk;k D;k vkids firkth fVdV ugha dVk
ldrs Fks\ mudk mez fdruk Fkk\
mÙkj& mudk mez 50 lky FkkA ysfdu eSaus Lo;a fVdV dVk dj mUgsa Vsªu esa cSBk fn;k
FkkA"
7. Md. Jalisur Rahman, learned counsel for the respondent-Railway while
opposing the prayer has submitted that inference drawn by the learned Tribunal with
regard to averment made in claim application at Para 6(b) and evidence of the
claimant as A.W.-1 are contradictory to each other, as such, the learned Tribunal has
rightly considered that claim application is not well-founded and dismissed the same.
As such, this Hon'ble Court may not interfere with the same.
8. Md. Jalisur Rahman, learned counsel for the respondent-Railway has further
submitted that counter-affidavit has been filed on 22.03.2021 and para-11 and 12 of
which may kindly be reproduced herein :-
"(11) That it is stated and submitted that the Ld. Tribunal has heard the
argument of both the sides and after examining the record of the case, came to
the finding that while deciding the issue no.1, it has been found that there are
contradiction in between claim application and deposition of the son of the
deceased namely Sanjay Kohar A.W.(1). In the claim application of Para 6(b), it
has been stated that on 24.01.2017 after purchasing and having a valid 2 nd Class
ticket from Koodra Railway Station to Sasaram Jn., the deceased, namely,
Kameshwar Kohar boarded into Train No.63554 DN (Varanasi -Asansol
Passenger) train at Koodra Railway Station for going to Sasaram Jn. It means,
the deceased himself purchased, the ticket and boarded the train. While, on the
other hand, Sanjay Kohar in this deposition as A.W.(1) before the Court stated
that he had purchased, the ticket for his deceased father and boarded him into
the train. It has been noticed by the learned Tribunal that nothing has been
mentioned about the son of the deceased Sanjay Kohar in the claim application.
It is an afterthought of the applicant. Therefore, the bonafide status of deceased
Kameshar Kohar could not be established, which is essentially required to get
compensation from the Railway Administration under the proviso to Section
2(29) of the Railways Act, 1989. As such the issue no.1 has been decided against
the appellant/claimant.
(12) That it is stated and submitted that so far issue no.2, 3 and 4 are the
concerned, since the appellant/claimant has failed to establish the bonafide
status of the deceased, Ld. Tribunal found it appropriate to not to discuss
remaining issues. The appellant/claimant is not entitled for any compensation
from Railway Administration in view of the provisions made Under Section 124-
A of the Railways Act, 1989. As a result the claim application of the
appellant/claimant has been dismissed."
9. After hearing learned counsel for the parties, looking into the facts and
circumstances of the case and after going through the materials available on record
including the impugned Award, since there is clear-cut averment in the deposition of
A.W.-1 (Sanjay Kohar) which has not been contradicted by the Railway and as such,
in view of the judgment passed by the Apex Court in the case of Rina Devi (supra) at
Para-29, deceased- Kameshwar Kohar was a bonafide passenger as no contrary
evidence has been brought on record by the Railway. Accordingly, the impugned
judgment dated 22.07.2019, passed by learned member (Technical) Railway Claim
Tribunal, Ranchi Bench in Case No.OA (IIU)/RNC/130/2017 is hereby set aside.
10. In the result, the instant Miscellaneous Appeal stands allowed.
11. The Respondent-Railway is directed to pay Rs.8 Lacs along with simple
interest @ 7.5% per annum from the date of filing claim application i.e.
09.10.2017 till the date of actual indemnifying the award to the claimants in view
of judgment passed by the Apex Court in case of Radha Yadav (Supra).
(Kailash Prasad Deo, J.)
Sandeep/
