Shila Devi vs Union Of India Through General ...
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
            (Civil Miscellaneous Appellate Jurisdiction)
                   M.A. No. 215 of 2019
                          ........

1.Shila Devi

2.Ragni Devi

3. Rohit Razak

4. Amit Razak .... ..... Appellants Versus Union of India through General Manager, Eastern Railway, Kolkata .... ..... Respondent

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

For the Appellants : Mr. Swami Nath Prasad Rai, Advocate.

For the Respondent            : Mr. Gautam Rakesh, Advocate.
                   ........
05/25.06.2021.

1. Heard, learned counsel for the appellants, Mr. Swami Nath Prasad Rai and learned counsel for the Railway, Mr. Gautam Rakesh.

2. Learned counsel for the appellants has submitted that claimants namely, (1) Shila Devi (2) Ragni Devi (3) Rohit Razak and (4) Amit Razak have preferred this appeal against the judgment dated 03.08.2018 passed by learned Member (Technical), Railway Claims Tribunal, Ranchi Bench in Case No. OA (IIU) / RNC /2015 /0015, whereby the claim application of the claimants / appellants has been dismissed on the ground that there is no mentioning of recovery of journey ticket from the body of the deceased either in the Inquest Report or in the Final Report. DRM's report also do not show the recovery of journey ticket, but the claimant no. 1 has mentioned the journey Ticket No. 63335 of her husband in her affidavit dated 02.05.2016 from Sakrigali to Sahibganj claiming that original ticket has been lost.

3. Learned counsel for the appellants has thus 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), 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)

4. Learned counsel for the appellants has further submitted that since the deceased was a bonafide passenger and there is no dispute that deceased Shiv Rajak, who was travelling in Train No. 53415 UP on 31.10.2013 holding second class journey Ticket No. 63335 from Sakrigali to Sahibganj has lost his life in an untoward incident as defined under Section 123(c)(2) of the Railways Act, 1989 in absence of any contrary evidence brought on record by the Railway.

5. Learned counsel for the respondent has supported the impugned order and submitted that the learned Tribunal has rightly held while deciding issue no.1 that wife Shila Devi has stated that ticket of her husband, Shiv Rajak undertaking journey from Sakrigali to Sahibganj has been lost. She however mentioned the Ticket No.63335 of her husband in her affidavit dated 02.05.2016, which is self- contradictory. Further, a photo copy of the same ticket attested by Sri M.A. Khan, Ld. Counsel for the applicant has been enclosed with the claim application. If the ticket of the deceased- Shiv Rajak has been lost, as stated by his wife Shila Devi in her affidavit dated 02.05.2016, how could she know the no. of the ticket of her husband supposedly purchased and how could a photo copy of this ticket could be enclosed with the claim application form? There is no mention of recovery of journey ticket from the body of the deceased either in the inquest report or in the final report. DRM's report also do not show the recovery of journey ticket and as such, learned Tribunal has rightly refused to entertain the same.

6. Learned counsel for the respondent has further submitted that counter- affidavit has been filed on 26.03.2021 of which at paras 6 to 16 are relevant which are reproduced hereunder:-

"6. That the case of the appellants as claimed before the Ld Tribunal below is that the husband of the claimant namely Shiv Rajak left his home for going from Sakri Gali to Sahebganj. After purchasing 2nd Class Journey tkcket bearing No.63335 as he was boarding the Train No.53415 UP on 03.08.2018, he slipped and fell down. His left leg was totally separated from body. After 2-3 hr of treatment he died.

7. That written statement was filed by the Respondent before the Ld Railway Claims Tribunal. It was denied that the death of the deceased as claimed was due to fall from a train. It was contested that in the post mortem report it has nowhere been suggested that the injury sustained to the deceased was in any manner may be due to fall from a train or due to railway accident.

It was contested that there was no heavy rush in the train owing to which a passenger may fall from a moving train.

The respondent denied the story due to which the alleged death claimed to have occurred.

It was denied that there it was an untoward incident causing death of the deceased.

It was also denied that the deceased was a bonafide passenger.

8. That at best, the deceased may had died due to run over by a train. In that

event it ought to have a case of self inflicted injury.

9. That the learned tribunal observed that the wife of the deceased has stated that the ticket was lost. She however mentioned in her affidavit the ticket no.63335 of her husband. Later a photocopy of said journey ticket was produced.

There was no mention of any journey ticket in the inquest report. Under such circumstances the Ld. Tribunal had rightly disbelieved that the deceased was a bonafide passenger having any journey ticket.

10.That before the Learned tribunal there was no material on record in support of the claimed story of the deceased.

Further the material which came in the DRM report also did not supported the claimed story of the applicant/appellant about the death by fall from a train.

As said above the post mortem report also was not in support of claimed injury due to fall from a train.

11. That it is stated that even if the claim of the applicant that the deceased fell down while boarding train, an act of trying to board a running is certainly a reckless, imprudent violating all safety norms demanded during train traveling with imminent possibility of endangering both life and limbs of a passenger. Such material was also before the Ld tribunal to be observed.

12. That the conclusion of the Ld tribunal resulted in dismissal of claim was based upon the overall material available on record.

13. That the DRM report was submitted by the respondent before the Ld Tribunal. It was also available to the claimant. But the Claimant did not brought any material on record to controvert the material in DRM report.

14. That it is stated that the claimant did not have taken care to call the investigating officer and examine him in order to controvert the conclusion of the investigation brought on record.

15. That the proceedings before the Ld tribunal below is a summary proceedings. The Ld. Tribunal has rightly based its judgment upon the material available on record.

16. That it stated that barring mere statement on the side of the claimant party there was nothing on record to controvert the material in the DRM report.

7. After hearing, learned counsel for the parties, looking into the facts and circumstances of the case, since the claimants have pleaded the ticket number in the affidavit and subsequently photocopy of the same, attested by the learned counsel has been brought on record, it was incumbent upon the Railway to verify the genuineness, authenticity and correctness of the ticket as it has been held by the Hon'ble Apex Court in the case of Union of India vs. Rina Devi, reported in (2019) 3 SCC 572 at para 29, which is quoted hereunder:-

"29. 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.". (emphasis supplied)

8. Under the aforesaid circumstances, this Court has no reason to disbelieve the pleading of the appellants in view of the judgment passed by the Apex Court in the case of Rina Devi (Supra).

9. 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."

10. Thus the impugned judgment is set aside, as Railway has not discharged its duty, by bringing anything on record challenging the validity, authenticity and genuineness of the Railway ticket, whose no.63335 has already been mentioned by the claimants in the claim application.

11. Accordingly, the instant Miscellaneous Appeal stands allowed.

12. 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. 08.01.2015 or Rs.8 Lacs in view of Railway Accidents and Untoward Incidents (Compensation) Rules, 2016, whichever is higher in favour of the claimants in view of the judgment passed in the case of Radha Yadav (supra) at para 11.

(Kailash Prasad Deo, J.) R.S.