Shibani Garain & Others vs Union Of India Through The General ...
2021 Latest Caselaw 2242 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
             (Civil Miscellaneous Appellate Jurisdiction)
                    M.A. No. 102 of 2020
                           ........

Shibani Garain & Others .... ..... Appellants Versus Union of India through the General Manager, East Central Railway, Hajipur .... ..... Respondent

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

For the Appellants : Mr. Manish Kumar, Advocate. For the Respondent : Md. Jalisur Rahman, Advocate.

........

05/07.07.2021.

Heard, learned counsel for the appellants, Mr. Manish Kumar and learned counsel for the respondent, Md. Jalisur Rahman.

The claimants have preferred this appeal against the judgment dated 14.06.2019 passed by learned Member (Technical), Railway Claims Tribunal, Ranchi Bench, in Case No. OA (IIU) / RNC / 49 / 2018, whereby the claim application filed by the claimants namely,

(i) Shibani Garain, wife of Late Deepak Gorai @ Dipak Garain, (ii) Bibek Gorai, son of Late Deepak Gorai @ Dipak Garain & (iii) Rajesh Gorai, son of Late Deepak Gorai @ Dipak Garain (claimant no. 3 being minor is represented through his natural guardian and mother, claimant no. 1 namely, Shibani Garain), residents of Village/Mohalla: Jabarrah, P.O. : Jabarrah, P.S. - Hura Jabrra, Purulia

- 723101 (West Bengal), has been dismissed on the ground that no evidence has been led by the claimants to rebut the evidence of C.W.-1 namely, Suresh Prasad Sahu, Ex-Driver of Train No. 12365, as such, the incident is not covered under Section 123(c)(2) of the Railways Act and the claimants are not entitled for any compensation under Section 124-A of the Railway (Amendment) Act, 1994.

Learned counsel for the appellants has submitted that in the inquest report, which has been brought on record as Annexure-2, at Page-22, it has been mentioned in Column no. 8, that deceased fell down from the running Jan Shatabdi train and due to which, deceased sustained injuries and died.

Learned counsel for the appellants has relied upon the evidence of A.W.-1 namely, Shibani Garain, wherein at para-4 to 8, she has supported the case. Para-4 to 8 are re-produced below:-

(4) That on 02.07.2017 my husband in the morning travelling Ex-Chandrapura to Gomo and while returning my husband purchased one unreserved Railway journey ticket from Gomo to travel Chandrapura.

(5) That 12365 Janshatabdi Express arrived at Gomo which was overcrowded.

(6) At Gomo station Railway ticket of express train was checked up by Railway staff and allowed to enter platform.

(7) That my husband boarded 12365 train from Gomo station which was overcrowded with much difficulty.

(8) As soon as train took motion, my husband could not control himself due to overcrowded pressure coming inside the bogie and lost his balance he fell from the running train before Purb Cabin and run over by said train resulting head and right hand separate from his body and he succumbed to his injuries instantaneously. Money, Railway ticket or any personal belongings were not found due to incident.

Learned counsel for the appellants has submitted that in view of the evidence of claimant and 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 and he lost his life in an untoward incident. 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."

(emphasis supplied)

Learned counsel for the appellants has further submitted that there is delay of 162 days in preferring the appeal and for condonation of same, I.A. No. 6216/2020 has been preferred and as such, in a benevolent legislation, the delay in preferring the appeal may be condoned.

Learned counsel for the respondent-Railway, Md. Jalisur Rahman has filed counter affidavit and has submitted that this Court has called for lower court records.

Learned counsel for the respondent-Railway has further submitted that from perusal of the lower court records, it appears that evidence of C.W.-1 Suresh Prasad Sahu was recorded on 14.06.2019, where he has categorically stated at para-4 regarding the incident, which may profitably be quoted hereunder:-

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Learned counsel for the respondent-Railway has thus submitted that it is a case where deceased was found without ticket and the evidence of C.W.-1, who was eye-witness and also the driver of the train no. 12365 Jan Shatabdi Express, clearly signifies that the incident was not an untoward incident and as such, the incident does not comes under Section 123(c)(2) of the Railways Act, rather it is

self-inflicted injury, which comes under Exception (b) to Section 124-A of the Railways (Amendment) Act, as such the learned Tribunal has rightly dismissed the claim application.

Learned counsel for the respondent-Railway has further relied upon para-13 & 14 of the counter affidavit and has submitted that the appeal may be dismissed. Para-13 & 14 of the counter affidavit are re-produced below:-

13. That it is stated and submitted that the Ex-Driver of the train no. 12365 Jan Shatabdi Express namely, Suresh Prasad Sahu has appeared before the Tribunal as C.W.(1). He deposed on oath that on 02.07.2017, he was the driver of the said train no. 12365 Jan Shatabdi Express. He has further stated on oath that deceased Deepak Gorain @ Dipak Garain has prostrated himself in front of the train and consequently, was run over by the Jan Shatabdi Express Train. He stated that he immediately informed the on duty station master over walkie-talkie about the incident.

14. That it is stated and submitted that it is apparent from the deposition of the Ex-Driver of the train no. 12365 Jan Shatabdi Express that on 02.07.2017, the deceased Deepak Gorain @ Dipak Gorain himself has prostrated i.e. lying flat in front of the train and died due to run over by the Jan Shatabdi Express Train and just there after the driver intimated about the incident to the duty station master over his walkie-talkie about the incident.

Considering the rival submissions of the parties and looking into facts and circumstances of the case, it appears from perusal of the final form of F.I.R. No. 07/2017, which is annexed as Annexure- 2/1 at page-23, at column-3, where it has been mentioned that death was due to chopping by Jan Shatabdi Express, but nowhere it has been mentioned that death was because of fall. Apart from that, in absence of evidence of falling down, the incident could not be considered to be an untoward incident.

So far the evidence of eye-witness, driver C.W.-1 Suresh Prasad Sahu is concerned, it cannot be discarded without having any valid reason, as such, the incident was not an untoward incident as defined under Section 123(c)(2) of the Railways Act, rather it is a self-inflicted injury, which comes under Exception (b) to Section 124-A of the Railways (Amendment) Act.

Accordingly, this Court is not inclined to interfere with the findings recorded by the learned Tribunal, as such, the instant miscellaneous appeal is hereby dismissed.

I.A. No. 6216/2020 stands closed.

Let the L.C.R. be sent back to the court below.

(Kailash Prasad Deo, J.) Sunil/-