Lilmuni Murmu @ Lilimuni Murmu vs Union Of India Through The General ...
2021 Latest Caselaw 2059 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
            (Civil Miscellaneous Appellate Jurisdiction)
                   M.A. No. 550 of 2018
                          ........

Lilmuni Murmu @ Lilimuni Murmu .... ..... Appellant Versus Union of India through the General Manager West Central Railway, Jabalpur .... ..... Respondent

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

For the Appellant : Mr. Vijay Shanker Jha, Advocate. For the Respondent : Mr. Gautam Rakesh, Advocate.

........

06/25.06.2021.

Heard, learned counsel for the appellant, Mr. Vijay Shanker Jha and learned counsel for the Railway, Mr. Gautam Rakesh.

Learned counsel for the appellant, Mr. Vijay Shanker Jha has preferred this appeal against dismissal of the claim application vide judgment dated 20.06.2018 passed by learned Member (Technical), Railway Claims Tribunal, Ranchi Bench, in Case No. OA (IIU)/RNC/72/2017, whereby the learned Tribunal has held the victim not to be a bonafide passenger in absence of any evidence of railway journey ticket.

Learned counsel for the appellant, Mr. Vijay Shanker Jha has submitted that claimant is a poor tribal lady, who does not understand Hindi or English, she has been examined as A.W.-1 and the Railway has also accepted in its report i.e. in DRM's report, the chance of availability of ticket, which was lost during fall, which has been brought on record as Annexure-2 at Page no.39, which may profitably be quoted hereunder:-

Note No. DRM/JBP/N/14/6 dt.03.01.18 Sub: DRM's report under Railway Passengers (manner of investigation of untoward incidents) Rules, 2003 further amended by Railway Passengers (manner of investigation f untoward incidents) Rules, 2007.

Ref: Case of deceased person Sufal Haasda on whose behalf Smt. Lilimuni Murmu has lodged claim in RCT vide OA- II/BPL/72/2017.

I accept the report of inquiry officer Shri Dharmendra Kumra Patel, SI/RPF/STA, but do not accept the recommendation that the case is not

admissible under Section 123(c) of Railways Act, 1989. In my view , this incident is covered under Section 123(c) of the Railways Act, 1989. No ticket was found on the body of the deceased person but it is possible that the ticket may have been lost during the course of falling off from the train. Hence, this is is an eligible case under Section 123(c) of Railways Act, 1989.

(Dr. Manoj Singh) DRM/JBP Sr. DCM/JBP C/-DSC/RPF/JBP

Learned counsel for the appellant has further submitted that DRM/JBP has submitted its report stating therein in last two lines that it is possible that the ticket may have been lost during the course of falling off from the train. Hence, this is is an eligible case under Section 123(c) of Railways Act, 1989.

Learned counsel for the appellant has further submitted that the witness has been cross-examined by the Railway on 23.08.2017 and in the last two line of cross-examination, the witness has said that "The journey ticket of my husband had lost after the incident. My husband was going from Barharwa to Allahabad. My husband was doing labour work." The statement of Lilmuni Murmu is reproduced hereunder:-

Statement of Lilmuni Murmu On Oath I tender my affidavit as ext. Aw1/A and various other odoc. Filed with OA in my evidence.

Cross-Examined by Sri R. K. Sahay, counsel for the opposite party

Since this witness do not know Hindi or English and she only understands tribal language, so, she is being examined with the help of p.o.

The Deceased was my husband named Sukul Hansdah. I have not seen my husband while taking ticket or while boarding the train and while falling down from the train. It is correct to sugest that the information was given in the OA as well as in my affidavit is based on the basis of information received by me. I have no child at all . I do not have my father-in-law or mother-in-law. My husband did not have any younger brother or sister. It is wrong to sugest that a false claim has been filed by me. The journey ticket of my husband had lost after the incident. My husband was going from Barharwa to Allahabad. My husband was doing labour work.

RO & AC Lilmuni Murmu (Dipankar Lahiri) (R. K. Mittal) Member (Technical) Member (Judicial)

Learned counsel for the appellant has submitted that however, in column no.7 of the claim application there is categorical averment that IInd class, General Ticket lost in accident.

Learned counsel for the appellant has thus submitted that in view of the judgment of the Apex Court passed in the case of Union of India vs. Rina Devi, reported in (2019) 3 SCC 572, even if the appellant has not stated this fact in her examination-in-chief, but this fact has been elucidated by the Railway in her cross-examination. The same will prove that this fact was stated before the court. Apart from that, DRM/JBP has categorically stated that it is a case under Section 123(c) 2 of the Railways Act, as such, the claim application may be allowed.

Learned counsel, Mr. Gautam Rakesh appearing for the Railway has opposed the prayer and has submitted that since the claimant has not pleaded in her examination-in-chief that the deceased has purchased ticket, the case is squarely not covered by the judgment passed by Apex Court in the case of Rina Devi (Supra). So far the letter issued by DRM/JBP is concerned, the same was internal communication between the Railway, as such, the railway claim Tribunal has not committed any error in dismissing the appeal.

Learned counsel for the Railway has further submitted that counter-affidavit has already been filed in this case and paras-7 to 15 may be recorded hereunder:-

"7. That the Respondent filed Written Statement and denied the claim of the appellant and pleaded that the deceased was not a bonafide passenger.

8. That it is stated that in support of story as alleged by the claimant in claim application, there no material was presented to believe that the deceased was a passenger of any train and he was injured by falling from such train carrying passenger.

It is also stated that there no material was presented to believe that the incident was an untoward incident within the meaning of Section 123(c) (2) nor that it was an accident under Section 124 A of the Railway Act.

Hence this incident was neither an untoward incident within the meaning of Section 123(c) (2) nor an accident under Section 124 A of Railway Act.

It is stated that the claim application of the petitioner was rightly dismissed.

9. That in the DRM Report it has been opined that the ticket may have been lost in course of falling from train.

But it is stated that there was no material in support of such opinion that the injury was caused (due to which the death occurred) due to fall from a train.

Further there was no material in support of the above opinion that the deceased was with valid journey ticket and that ticket was list while falling from train.

Hence all such conclusion in DRM Report was without any evidence either direct or circumstantial. It was based merely on an unfounded assumption.

10. That it is stated the onus to prove that the deceased or injured got injury due to fall from a running train is on the claimant.

11. That it is also that the onus to prove that the deceased or the injured person was a bonafide passenger can be discharged even in absence of a ticket if relevant fact are shown that the ticket was purchased but was lost.

But the applicant lacks it.

12. That it is stated that as per section 101 of Indian Evidence Act 1872, it is clear that the applicant who comes to Court asserting a fact must prove that fact, i.e. if the applicant asserted that the death was an untoward incident, he has to prove it.

But here it is lacked by the applicant.

13. That it is humbly stated that the learned Tribunal had rightly dismissed the claim application.

In absence of any material to prove that it was an untoward incidence, it can not be denied that this might had been result of an intentional, deliberate and imprudent act on the part of the victim resulting in serious risk with every possibility of injury endangering the life.

14. That it is stated that admittedly the journey Ticket was not produced and is said to have been lost.

15. That neither any eye witness to the incident was presented or any other proof was produced to prove the incidence. There was no prove that the deceased had any journey ticket. Neither any cogent material came to believe that the deceased had a valid journey ticket for the claimed journey and was lost."

Learned counsel for the Railway has thus submitted that impugned order does not require any interference by this Court and appeal may be dismissed.

Considering the rival submissions of the parties, looking into the fact and circumstances of the case, if the DRM's report dated 03.01.2018 is brought before the learned Tribunal and during cross- examination the witness has said that journey ticket of her husband has lost after the incident, this court has no reason to disbelieve in a benevolent legislation, that there was sufficient material for considering the deceased to be a bonafide passenger and once the senior Railway Authority has himself admitted in letter No. DRM/JBP/N/14/6 dated 03.01.2018, that it is possible that the ticket may have been lost during the course of falling off from the train. Hence, this is an eligible case under Section 123(c) of Railways Act, 1989, this Court has no confusion in mind that in a benevolent legislation, the claimant is entitled for such benefit.

Accordingly, the impugned judgment dated 20.06.2018 passed by learned Member (Technical), Railway Claims Tribunal, Ranchi Bench, in Case No. OA (IIU)/RNC/72/2017 is set aside and the instant miscellaneous appeal is allowed.

Since the occurrence is of dated 18.09.2016 and the claim application has been filed on 18.05.2017, as such, the Railway is directed to pay sum of Rs.4,00,000/- compensation for death in view of scheduled part-I relevant at that time along with interest @ 7.5% simple per annum from the date of filing of the claim application, till the date of indemnifying the award.

However, if the figure comes to less than Rs. 8,00,000/- the same shall be given as Rs.8,00,000/- in view of Railway Accidents

and Untoward Incidents (Compensation) Rules, 2016, which is applicable from 01.01.2017 and in view of the judgment passed by 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."

As such, impugned judgment dated 20.06.2018 passed by learned Member (Technical), Railway Claims Tribunal, Ranchi Bench, in Case No. OA (IIU)/RNC/72/2017 is set aside and Railway is directed to indemnify the Award as the untoward incident is dated 18.09.2016.

Let the LCR be sent down.

(Kailash Prasad Deo, J.) Sunil-Jay/-