Jharkhand High Court
Smt. Sabiha Khatoon vs Union Of India Through The General ... on 25 June, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
[Civil Miscellaneous Appellate Jurisdiction]
M.A. No. 262 of 2018
1.Smt. Sabiha Khatoon
2.Sri Abadul Rasid .... .. ... Appellant(s)
Versus
Union of India through the General Manager, South Eastern Railway, Kolkata
.. ... ... Respondent(s)
...........
CORAM :HON'BLE MR. JUSTICE KAILASH PRASAD DEO
(Through :-Video Conferencing)
.........
For the Appellant(s) : Mr. D. K. Malityar, Advocate.
For the Respondent(s) : Mr. Vijoy Kr. Sinha, Advocate
..........
07 / 25.06.2021. Heard, learned counsel for the parties.
2. Mr. D. K. Malityar, learned counsel for the appellants has submitted that the
claimants, 1.Smt. Sabiha Khatoon and 2.Sri Abadul Rasid have preferred this Misc.
Appeal against the order of dismissal dated 17.01.2018 passed in Case No.OA
(IIU)/RNC/150/2016 by Railway Claims Tribunal, Ranchi Bench, Ranchi whereby
the claim application has been dismissed on the ground that photocopy of the journey
ticket is highly doubtful. Under the aforesaid circumstances the deceased was not a
bona-fide passenger.
3. Learned counsel for the appellants has further submitted that Md. Jahid, son of
the appellants/claimants was travelling in a train on 28.06.2016 as a bona-fide
passenger having common journey ticket for three persons bearing No.M-01965205
from Barbil Railway Station to Tatanagar Junction along with co-passengers, Sahid
Ibrar Alam and other friends. When the train started from Adityapur Railway Station
with a heavy-jerk, the deceased could not hold his balance and grip and accidentally
fallen down from the running train near Adityapur Railway Station and received
grievous injuries. He was taken to Adityapur Government Hospital and thereafter he
was taken to MGM Hospital, Tatanagar for his better treatment, but during treatment
deceased (Md Jahid) died.
4. The claim application was filed and Md. Sahid (A.W.-2) was cross-examined
by the Railways on 25.04.2017 and in-reply to Question Nos.1, 2 and 12, he has
categorically stated the relevant fact which may kindly be reproduced herein :-
"1&iz'u& vki e`rd ds lkFk ;k=k dj jgs Fks\ fdrus yksx\
mÙkj& th gkWaA dqy rhu yksx lkFk esa ;k=k dj jgs FksA bcjkj vkye eSa vkSj
esjk e`rd HkkbZ eks- tkfgnA
2-&iz'u& vki yksx ,d fVdV dVk;s mlesa rhu O;fDr dk uke ,d lkFk Fkk\
mRkj& th gkWaA
12-&iz'u& rks blesa dgha fVdV dk ftØ D;ksa ugha gSa\
mRkj& eSa i<+uk ugha tkurk gWwA fVdV esjs ikl FkkA esjs HkkbZ us fVdV dVk dj
gesa fn;k FkkA"
5. Learned counsel for the appellants has submitted that the reason which has
been considered by the learned Tribunal for not considering the photocopy of the
Railway ticket to be valid as the same was not found mentioned in the inquest report
and the same has not been examined by the Investigating Officer is not substainable
in the eyes of law. Inquest report is a document prepared with regard to deadbody of
the person. So non-mentioning of the ticket in the inquest report is certainly not the
fact which damages the case of the claimants, as the ticket was not recovered from
the possession of the deceased, the same was not mentioned in the inquest report. So
far the case diary is concerned, if the Investigating officer has not mentioned the
same, it is not fault on the part of the claimants rather the Railway has not come up
with any case to establish that photocopy of the railway ticket mentioning the number
M-01965205 from Barbil Railway Station to Tatanagar Junction of the alleged date
i.e. 28.06.2016 is not a genuine ticket issued from Barbil Railway Station, as such,
the reason assigned by the Railway Claims Tribunal is not sustainable in the eyes of
law.
6. 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 but the learned Tribunal has not considered the same though
Railway has not brought any contrary evidence on record. 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)
7. Learned counsel for the appellants/claimants has thus, submitted that 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 at 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."
8. As such, the claimants are entitled for Rs.8 Lacs, as the accident is of dated
28.06.2016, claim application was filed on 14.12.2016 and the appeal was filed on
11.05.2018 and the same remained pending before this Court, as such, the instant
Appeal may be allowed.
9. Learned counsel for the respondent- Railways has opposed the prayer and
submitted that Railway Claims Tribunal, Ranchi Bench has rightly considered the
ticket not proper evidence for granting relief to the claimants.
10. Learned counsel for the respondent- Railways has relied upon the counter-
affidavit at Paras 10 to 15 filed by the Railways on 23.11.2020 and the same may
profitably be quoted hereunder :-
10.That the Learned Division Bench of the Railway Claims Tribunal, Issue No.1
is decided against the appellant by holding that the deceased was not a bonafide
passenger on the basis of findings which reads as under, they have filed a photo
copy of the joint journey ticket (Ext. A5), but it is pertinent to mention here that
the original journey ticket have not been filed by the applicants in this case, only
the enlarged photo copy has been filed. It is also pertinent to mention here that
the recovery of journey ticket is neither mentioned in the inquest prepared by the
Investigating Officer nor in the final report. Moreover, co-passenger and brother
of of the deceased, at the time of giving his fardbeyan had also not produced the
joint journey ticket of the deceased to the Police, when a doubt had arisen in the
mind of the Court, at the time of appreciation of the evidence, so, investigating
officer was summoned with the original record and the police case diary. Sri
Bimlesh Kumar, ASI of Rail Thana /Tatanagar was examined as RW(1) in this
case on 08.01.2018, who has stated that during his cross-examination that while
receiving the journey ticket from Md. Sahid, he did not ask him that whey he had
caused such a delay in production of the journey ticket. He has also deposed that
when he had received his ticket, he did not enquire from Md. Sahid, that whose
journey ticket it was? No doubt the investigating officer has produced the
original journey ticket dated 28.06.2016, but, the fact remains that this evidence
is not much believable, because when Md. Sahid, co-passenger and brother of
deceased had not produced the aforesaid journey ticket of three persons to the
Police, for such a long period with effect from 28.06.2016 upto month October,
2016. Ext. A-5 may the photocopy of the ticket, but, it looks that it is a magnified
copy of the original ticket, which has been done with the help of the computer or
photo machine etc., when since nothing is mentioned about recovery of the
journey ticket of the deceased either in the fardbeyan or in the inquest report or
in the final report prepared by the Police Investigating officer after the
investigation of U.D. Case No.27 of 2016, so it looks that the photocopy of
journey ticket is a procured ticket. This ticket is highly doubtful under the
aforesaid circumstances.
11. That the issue No.2 has been decided in favour of the appellants by holding
that the deceased had fallen down from the running train and was a victim of
alleged occurrence that the Tribunal has decided the issue No.2 in the following
manner :-
The applicant No.1, Smt. Sahiba Khatoon has filed her alleged affidavit which is
without date. The date has been left blank, but, identified Smt. Jashoda Kumari
on 25.04.2017. During her cross-examination on 25.04.2017, while appearing as
A.W.1, she has stated that her evidence is based on hearsay. She is not the eye-
witness of the alleged occurrence, so her statement is not of much help, for
proving her case against the opposite party regarding the alleged occurrence.
On the other hand, Md. Sahid (the brother of the deceased) who has claimed to
be a co-passenger of deceased, has also filed his affidavit without date. The date
column has been left blank at the end of alleged affidavit which was identified by
Smt. Jasoda Kumari on 25.04.2017. Md. Sahid on 18.07.2017, while appearing
as A.W.2 during his cross-examination in this case, has tried to support the case
of the applicants, but, A.W.2 in his cross-examination, in question No.11 has
stated that the Police had seen the journey ticket at the time of preparation of
inquest report. The applicant No.2, Sri. Abdul Rasid has also filed his affidavit
dated 13.06.2017 and has stepped into the witness box. From the statement of
A.W.2 and other documents filed by the applicants.
12. That in cross of deciding the Issue No.3, the Learned Court below held that
the applicants are the deponent of the deceased, the deceased was unmarried
and the family member certificate dated 28.04.2017 issued by Lalita Mahanta,
the counsellor of Ward No.8 of Barbil Muncipality which shows the applicant to
be the parents of the deceased.
13. That the Division Bench of learned Railway Claims Tribunal, Ranchi, has
decided issue No.4 against the applicants/appellants, it is admitted fact that the
deceased had fallen down from the running train on 28.06.2016, but since both
the applicants failed to fully prove, on this the deceased was bonafide passenger
at the time of aforesaid occurrence, hence, it is held that the appellants are not
entitled to get any relief /compensation, accordingly, the claim application is
dismissed on contest, but without cost.
14. That it is stated that this memo of appeal is hopelessly barred by law of
limitation and liable to be dismissed on the ground alone.
15. That on behalf of the Railway Investigating Officer, Shree Bimlesh Kumar,
ASI of Railway Thana, Tata Nagar, was examined as RW.1 on 08.01.2018 who
disposed during the cross examination that while receiving the journey ticket
from Md. Sahid, he died not asking him that while he had caused such delay in
production of journey ticket who also deposed that he did not enquire from Md.
Sahid the ticket produced by Md. Sahid after four months of the occurrence is not
believable, thus, it creates doubt, therefore, the appellants completely failed to
prove that the deceased was a bonafide passenger.
11. After hearing learned counsel for the parties and on the basis of the material
available on record, it appears that non-mentioning of the ticket in the inquest report
is not a serious issue in the present case. So non-mentioning of the ticket in the
inquest report is certainly not the fact which damages the case of the claimants, as the
ticket was not recovered from the possession of the deceased, the same was not
mentioned in the inquest report. So far the case diary is concerned, if the
Investigating officer has not mentioned the same, it is not fault on the part of the
claimants rather the Railway has not come up with any case to establish that
photocopy of the railway ticket mentioning the number M-01965205 from Barbil
Railway Station to Tatanagar Junction of the alleged date i.e. 28.06.2016 is not a
genuine ticket issued from Barbil Railway Station. The claimants have stated that
there was a joint ticket in the name of three passengers bearing No.M-01965205
issued from Barbil Railway Station for Tatanagar Junction on 28.06.2016. The
Railways have not come up with a case that such ticket was never issued from the
Barbil Railway Station for Tatanagar and only on the ground of production of
photocopy of the ticket after a long delay is not a ground for rejection of claim of the
claimants in a benevolent legislation. That too when the Railway is not able to
discharge its burden in view of the judgment passed by the Apex Court in the case of
Rina Devi (supra) at Para-29.
12. It appears that initial burden has been proved by the claimants by fling
affidavit with proper number of railway ticket from Barbil Railway Station to
Tatanagar Junction. No contrary evidence has been brought on record with regard to
non-issuance of such number, i.e. M-01965205 issued from Barbil Railway Station
for Tatanagar Junction on 28.06.2016. Thus, this Court has reason to believe that
claim application has been erroneously dismissed by the learned Tribunal.
13. Accordingly, the impugned judgment is set aside.
14. The respondent- Railway is directed to pay compensation to the tune of
Rs.4 Lac with interest @7.5 from the date of filing of the claim application i.e.
14.12.2009 or Rs.8 Lacs, whichever is higher in favour of the claimants in view of
Railway Accidents and Untoward Incidents (Compensation) Rules, 2016 and in
the judgment passed by the Apex Court in the case of Radha Yadav (supra) at
para 11.
15. Accordingly, the instant Miscellaneous Appeal stands allowed.
16. So far apportionment of share is concerned, the same shall be apportioned
in equal share to both the claimants.
17. Let the LCR be sent down forthwith.
(Kailash Prasad Deo, J.)
Sandeep/
