The Union Of India vs Smt. Birola Bourin
2021 Latest Caselaw 1138 Jhar

             IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   (Civil Miscellaneous Appellate Jurisdiction)
                          M.A. No. 202 of 2018
                                ......

The Union of India, through General Manager, Eastern Railway, Kolkata ...... Appellant Versus

1.Smt. Birola Bourin

2.Sri Rabin Bouri

3. Sri Amar Bauri ......Respondents

CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO (Through : Video Conferencing) For the Appellant : Mr. Gautam Rakesh, Advocate For the Respondents :

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06/Dated: 08/03/2021.

Heard, learned counsel for the appellant, Mr. Gautam Rakesh. Learned counsel for the appellant has assailed the impugned award dated 12.12.2017 passed by learned Member (Technical), Railway Claims Tribunal, Ranchi Bench, Ranchi in Case No. OA (IIU) / RNC / 64 / 2017, whereby the claimants namely, 1. Smt. Birola Bourin, 2. Sri Rabin Bour and 3. Sri Amar Bouri have been awarded compensation to the tune of Rs.8,00,000/- along with interest @ 6% per annum from the date of admission of condonation petition i.e. 05.05.2017 till the date of judgment and if the amount is not paid within 90 days, interest thereafter will be paid @ 9% simple interest per annum till the date of actual payment, in the ratio of Rs.6 lacs to the claimant no.1 (Birola Bourin), Rs.1 lac to the claimant no.2 (Sri Rabin Bouri) and Rs.1 lacs to the claimant no.3 (Sri Amar Bouri) along with interest.

Learned counsel for the appellant has submitted, that there was delay in preferring the claim application before the learned Tribunal which the learned Tribunal has condoned illegally, as such, the impugned award may be set aside.

The deceased died in front of his village for which UD Case No.08/2015 has been registered by the GRPS/Dhanbad (Kumardhubi), as such, in absence of evidence with regard to the bonafide passenger, the claim application ought to have been dismissed by the learned Tribunal, as it is not a case of untoward incident as defined under Section 123(c)(2) of the Railways Act, 1989. The deceased died on 30.01.2015, the claim

application was filed in the year, 2017 with a delay which has erroneously been condoned by the claim tribunal, as the learned Tribunal ought to have considered such delay while granting interest upon the compensation amount. The compensation amount as per the amendment made in the Railway Accidents and untoward incidents (Compensation) Rules, 1990 vide Railway Accident and Untoward Incidents (Compensation) Amendment Rules, 2016 has been fixed as Rs.8 lacs but prior to that the said amount was Rs.4 lacs, as such, the learned Tribunal ought to have considered the same.

Learned counsel for the appellant has further submitted that Railway has preferred this appeal after delay of 27 days and for condonation of the same, I.A. No.1064 of 2020 has been preferred.

After hearing, the learned counsel for the appellant/Railway, this Court has examined the impugned order. It appears that claim case is of the year, 2017, but wrongly at the first page of the impugned order date of filing has been recorded as 11.07.2011, which ought to have been 2017 as admittedly the occurrence is of 31.01.2015. Considering that application has been filed in July, 2017, there is provision for condonation of delay and the learned Tribunal has condoned the delay in a benevolent legislation, as such, there is no illegality in condoning the delay.

So far merit of the case is concerned, this Court has examined the impugned order. It appears that deceased (Kartik Bouri) was travelling from Thaparnagar to Asansol with a second class journey ticket dated 30.01.2015 by Gaya-Asansol EMU Passenger (DN) train No.63550 and in support of the same, the claimants have filed original journey ticket from Thaparnagar to Asansol though in the inquest report (Ext.A5) and DRM report (Ext.R1), the journey ticket has not been mentioned, but A.W.2 (Sri Amar Bouri) during cross-examination has deposed that he had purchased the ticket and had kept in the pocket of his father. The learned Tribunal has considered that respondent/Railway has not adduced any evidence in rebuttal.

Considering the same, the deceased was a bonafide passenger, 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 of the same may be

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."

This Court considered the finding recorded by the learned Tribunal to be appropriate and in consonance with the judgment passed by the Apex Court.

So far the untoward incident is concerned, the learned Tribunal has considered that UD Case No.08/2015 was registered, the formal FIR (Ext.A2) and the inquest report (Ext.A5) mentions that the victim died due to injury sustained as a result of fall from the train. Postmortem report (Ext.A4) reveals that the death of the deceased was instantaneous as a result of hard, blunt and crushing force injuries, consistent with run over by wheels of train. The Investigating Officer in its inquiry concluded, that when the deceased reached near PO, [which is front of his village as per statement of Birola Bouri (claimant)] then he saw train started from TNW station and passing slowly than he might have tried to catch the train, in this sequence he had fallen down and got hit by train and died. The Deputy Station Manager/Kumardhubi's memo dated 30.01.2015 (Ext.R6) supports the claim of applicants wherein it is mentioned that one dead body M lying, aged about 34 years, inside the DN GC train at KM 240/18-240/16 between Thaparnagar-Mugma.

Considering the same, the learned Tribunal has held that deceased died because of accidental fall from Gaya-Asansol EMU Passenger (DN) train No.63550 DN and was a victim of an untoward incident within the meaning of Section 123(c)(2) of the Railways (Amendment) Act, 1994 as deceased was having valid ticket.

Since no contrary evidence has been brought on record by the Railway to disbelieve such evidence, considering the same, this Court affirms the finding recorded by the learned Tribunal which does not require any interference.

So far the compensation is concerned, learned counsel for the appellant is right in submitting that at the time of incident the compensation as per Rule 1990 was Rs.4 lacs for death, but in this case, claim application was filed

in the year, 2017 when compensation rule was amended in the year, 2016 with effect from 01.01.2017 and Rs.8 lacs with interest has been awarded in that view of the matter. This Court has examined the same and found to be correct, 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. Para 11 of which may be profitably 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 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."

Considering the ratio laid down by the Apex Court in the aforesaid judgment, since the claim application was filed in the year, 2017 and after condoning the delay the award has been passed on the point which has been raised by the appellant/Railway, is not sustainable in the eyes of law.

Accordingly, this Court does not interfere with the findings with regard to the interest and compensation passed by the learned Tribunal.

Accordingly, the appeal is dismissed on merits. Since the appeal has been dismissed, as such, I.A. No. 1064 of 2020 filed for condonation of delay is closed.

Let the LCR be sent down at once.

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