Union Of India Through General ... vs Najina Khatoon & Others
2021 Latest Caselaw 2116 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
            (Civil Miscellaneous Appellate Jurisdiction)
                   M.A. No. 442 of 2019
                          ........

Union of India through General Manager, South Eastern Railway, Kolkata (West Bengal) .... Appellant Versus Najina Khatoon & Others .... ..... Respondents

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

For the Appellant : Mr. Gautam Rakesh, Advocate.

For the Respondent        :
                                     ........
05/30.06.2021.

Heard, learned counsel for the appellant, Mr. Gautam Rakesh. The appellant-Railway has preferred this appeal against the judgment dated 17.12.2018 passed by Member (Technical), Railway Claims Tribunal, Ranchi Bench in Case No. OA(IIU)/RNC/56/2018, whereby applicants / claimants namely, (i) Najina Khatoon, wife of deceased Md. Chand Babu @ Md. Chand, (ii) Md. Sahid Miyan @ Md. Shahid, father of deceased Md. Chand Babu @ Md. Chand, (iii) Md. Afroj, minor son of deceased Md. Chand Babu @ Md. Chand and (iv) Md. Nawshad, minor son of deceased Md. Chand Babu @ Md. Chand, have been awarded compensation jointly to the tune of Rs. 8,00,000/- i.e. Rs. 2,00,000/- each along with interest @ 6% from the date of filing the claim petition i.e. 07.02.2018 till the date of judgment within a period of 90 days and, if the amount is not paid within 90 days, interest, thereafter, will be paid at the rate of 9% per annum simple till the date of actual payment.

Learned counsel for the appellant has submitted that the learned Tribunal while deciding the issue with respect to bonafide passenger has committed illegality as well as irregularity by not taking DRM's report into consideration. The learned Tribunal has erroneously mentioned a fact which is not on record that Dy. Station Manager, South Eastern Railway, Hatia in his memo issued to OC/GRP/Hatia has stated that as per TPX DE No. 289, one injured person namely, Md. Chand Babu, aged about 25 years, having general ticket bearing No. A96188586 dated 02.05.2017 from Secundrabad to Samstipur arrived by 18412 was attended to by Sr. DMO/Hatia and found dead.

Learned counsel for the appellant has further submitted that the inquest report never shows, the recovery of the ticket from deceased nor the same has been mentioned in the DRM's report, as such, claim application ought to have been dismissed as deceased was not a bonafide passenger, but the learned Tribunal on the basis of erroneous mentioning of facts has considered the deceased to be a bonafide passenger, as such, the impugned order may be set aside.

Learned counsel for the appellant has submitted that the DRM's report, which has been brought on record alongwith other documents as Ext.-R/1 to R/14, shows that on that date, train was not over-crowded as to have untoward incident as well as on that date and there was no jerk in the train at the relevant time, as such, impugned award may be set aside.

After hearing, learned counsel for the appellant as well as perusal of the LCR, which has been sent by learned counsel for the appellant, this Court has found that claimant, AW-1, has been cross- examined by Railway and question no. 4, which is at page no. 33 of the LCR, reads as under:-

"Q-4 - vkids ifr ftl fVdV ls ;k=k dj jgs Fks] mldk uEcj crk ldrh gS\ mÙkj& gkWA fVdV uEcj& 96138568"

Further from perusal of lower court record and on perusal of the letter dated 08.06.2018, the Chief Booking Supervisor, Secunderabad, S.C. Railway, which is at page no. 4 of the LCR, which is reproduced below:-

SOUTH CENTRAL RAILWAY Office of the Chief booking supervisor Secunderabad DT 08.06.2018 To Dy. CCM/Claims Secunderabad

Sub: Furnishing ticket issue particulars.....reg.

In connection with the above subject it is to inform you that UTS ticket vide no. 96188568 with journey particulars from Secunderabad to Samastipur Jn was issued at window no. 8 of booking office secunderabad on date 02.05.2017. This is for your kind information please.

Chief Booking Supervisor S.C. Rly., Secunderabad

This Court has found 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. 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) Considering the judgment passed by the Apex Court and on the basis of evidence which has been brought on record with regard to ticket number and the letter of the Chief Booking Supervisor, Secunderabad dated 08.06.2018, this Court concur with the finding of the learned Railway Claims Tribunal, that the deceased was a bonafide passenger, as no contrary evidence has been brought on record by the Railway. Since the ticket was from Secunderabad to Samastipur (Bihar), verified by Chief Booking Supervisor, Secunderabad dated 08.06.2018 and the said train crosses through Hatia Railway Station, this Court finds that the finding recorded by the learned Tribunal with regard to untoward incident at Hatia is based on proper appreciation. The finding of the learned Tribunal cannot be disturbed only on the ground that DRM's report suggests that there was no crowd and no jerk on the alleged date. Even if a person is in the train, it is the duty of the railway to facilitate such person from one railway station to its destination with all safety and security and if any laches is there on the part of the railway in which such untoward incident took place to its passenger, it is railway to indemnify the award. Moreover deceased was not a resident of Hatia

in the district of Ranchi, Jharkhand, rather deceased / claimants are resident of Samastipur, Bihar.

Accordingly, the miscellaneous appeal is hereby dismissed.

The impugned judgment dated 17.12.2018 passed by learned Railway Claims Tribunal in Case No. OA(IIU)/RNC/56/2018 is affirmed.

Railway is directed to indemnify the award within a reasonable period as the accident was of dated 04.05.2017.

So far I.A. No. 2023/2020 is concerned, it has been filed for condonation of delay of 165 days in preferring the appeal.

From perusal of the interlocutory application, it appears that without assigning any reason interlocutory application has been filed for condonation of delay of 165 days, as such, such delay cannot be condoned in a benevolent legislation.

Accordingly, I.A. No. 2023/2020 is also dismissed, as Appeal has been dismissed on merits.

(Kailash Prasad Deo, J.) Sunil/-