Fula Devi & Others vs Union Of India Through The General ...
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
             (Civil Miscellaneous Appellate Jurisdiction)
                    M.A. No. 438 of 2019
                           ........

Fula Devi & 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. Vijay Shanker Jha, Advocate. For the Respondent : Mr. Gautam Rakesh, Advocate.

........

07/25.06.2021.

Heard, learned counsel for the parties.

Learned counsel for the appellants has submitted that learned Railway Claims Tribunal, Ranchi Bench vide judgment dated 19.06.2019 passed in case No.OA(IIU)/RNC/124/2017 has dismissed the claim application on both grounds i.e. bona-fide passenger and untoward accident as defined under Section 123(c)(2) of the Railways Act, but without discussing the material with regard to untoward incident.

Learned counsel for the appellants has further submitted that Anup Kumar (A.W.1), son of the deceased (Govind Ram @ Govind Paswan) has submitted that deceased was travelling in Deekshabhoomi Express vide Train No.11045, but he fell down between Bhabhua Road Rly. Station to Dehri-on-Son.

Learned counsel for the appellants has submitted that lower court record has been called for to verify Annexure-2 at page-45, wherein during cross-examination of A.W.-1, Sri Anup Kumar by the counsel for the Railway on 08.03.2018, he has categorically stated in his reply to the last question that :- "I am entitle. My father had taken ticket. His shirt was torn. Without ticket he never go anywhere."

Learned counsel for the appellants has further submitted that A.W.1 (Anup Kumar) has categorically stated in his reply to the suggestion that his father had taken ticket, but no contrary evidence has been brought on record by the Railway, as such, in view of the judgment passed by Apex Court in the case of Union of India vs.

Rina Devi, reported in (2019) 3 SCC 572 at para 29, which is profitably 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."

As such, the deceased was a bona-fide passenger and the learned Tribunal has not considered the deceased to be a bona-fide passenger and thus, the wrong appreciation has been done by the learned Tribunal. The issue has also not been decided with regard to untoward incident and dismissed the claim application.

Learned counsel for the Railway, Mr. Gautam Rakesh has submitted that lower court record has been called for and the railway has also filed counter-affidavit relying upon paras-10 to 15, which may be quoted hereunder:-

"10. That as claimed there is no material on record to show that the alleged incidence was an untoward incident and the Ld tribunal has rightly dismissed the claim applicant. The appellant is not liable for compensation as claimed in the instant appeal.

11. That it is humbly submitted that there is nothing substantial material on the record as to show, in what manner or how the respondent can be held liable for any delay in disposal of the case. The Railway can not be held responsible for any fault on the part of the deceased.

12. That it is stated that there is no provision under the Railway Claims Tribunal Act for award of interest.

13. That it is stated that in view of the above stated fact and circumstances of the case it is clear case where the process of the court is being misused, without showing any cogent reason.

14. That in view of fact and circumstances as detailed above the prayer of the petitioner for interest is mis-conceived and is not fit to be entertainable.

15. That in the above detailed fact and circumstances of the case the petitioner is not entitled for any relief as is prayed in the instant memo of appeal as the case of the petitioner is devoid of any merit and liable to be dismissed."

Learned counsel for the Railway has further submitted that there is no illegality in the impugned order of dismissal of claim application, as such, the appeal may be dismissed.

After hearing the learned counsel for the parties, perused the impugned order along with annexures to the memo of appeal particularly Annexure-2 at page-45. It appears that the claimants have discharged initial burden by filing an affidavit of the relevant facts. The railway has not brought anything contrary to the judgment passed by the Apex Court in the case of Rina Devi (Supra).

Accordingly, the Miscellaneous Appeal is hereby allowed.

The claimants are entitled for compensation to the tune of Rs. 8,00,000/- in view of Railway Accidents and Untoward Incidents (Compensation) Rules, 2016, which is applicable from 01.01.2017 along with interest @ 7.5% simple per annum from the date of filing of the claim application, till the date of indemnifying the award.

Let the LCR be sent down.

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