Dinesh Prasad Singh & Another vs Union Of India Through The General ...
2021 Latest Caselaw 1145 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
           (Civil Miscellaneous Appellate Jurisdiction)
                  M.A. No. 616 of 2018
                         ........

Dinesh Prasad Singh & Another .... ..... Appellants Versus Union of India through the General Manager, Eastern Railway, Kolkata .... ..... 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.

........

09/08.03.2021.

Heard, learned counsel for the appellants, Mr. Vijay Shanker Jha and learned counsel for the respondent-railway, Mr. Gautam Rakesh.

Learned counsel for the appellants has submitted that the appellants have preferred this Misc. Appeal against judgment of dismissal dated 13.02.2018, passed by learned Member (Technical) Railway Claims Tribunal, Ranchi Bench, in Case No.OA (IIU) /RNC/39/2016, primarily on two grounds that:

(1) the railway journey ticket of the deceased vide ticket No.15508454 dated 13.09.2015 from Ekchari to Nathnagar has not been recovered from the deceased, as the same is not mentioned in the inquest report as Exhibit-A7, final report as Exhibit-A4 and DRM's report as Exhibit -R2 are silent about the recovery of the journey ticket.

(2.) there is confusion / misunderstanding between the relationship of Sri Dinesh Prasad Singh aged about 48 years and Sri Sadanand Singh aged about 46 years with the deceased, Kabutari Devi.

Learned counsel for the appellants has submitted, that it is an error, which gets clarify from Exhibit - R4 filed by the Railway as deceased Kabutari Devi had two sons namely, Sri Dinesh Prasad Singh and Sri Sadanad Singh, who are the claimants.

Learned counsel for the appellants has submitted, that no third person has filed any claim case for the compensation amount, as such, on these frivolous ground, denying the fruitful benefits in a beneficial legislation by the railway is contrary to the spirit of the

Railway Accidents and Untoward Incidents (Compensation) Rules and Railway Act, 1989.

Learned counsel for the appellants has submitted that these things have been clarified by the claimants, however, they are ready to give an undertaking before the railway, that if any objection comes before the railway, by showing any person to be the husband or son of Kabutari Devi within three months, then they shall refund the amount to the railways.

Learned counsel for the appellants has submitted, that so far the bonafide passenger as defined under Section 2(29) of the Railways Act is concerned, evidence of A.W.1 (Dinesh Prasad Singh) at paras- 3, 4 & 5 and evidence of A.W.-2 (Digamber Kumar) at Paras-2, 3, 5, 6 & 7 are relevant.

Paras- 3, 4& 5 of evidence of A.W.1 (Dinesh Prasad Singh) are as under :-

3- ;g fd mi;qZDr ;k=k ds fy, esjh ek¡ us lk/kkj.k fVdV Hkh fy;k Fkk] ftldk ua0&15508454 gS tks Dyse vkosnu ds lkFk layXu gSA 4- ;g fd tSls gh ,dpkjh LVs'ku ls Vªsu [kqyh vkSj yxHkx 100 ehVj x;h gksxh] cksxh esa dkQh HkhM+ jgus ds dkj.k lokjh ls /kDdk [kkdj esjh ek¡ Vªsu ls fxj iM+h vkSj iVjh ds Åij vk x;h vkSj dV dj ?kVukLFky ij gh mldh e`R;q gks x;hA 5- ;g fd blds ckn jsyos inkf/kdkjh us jsy Fkkuk dks lqfpr fd;k vkSj jsy Fkkuk us bl ds'k dks ;w0Mh0 dkaM la0 [email protected] fucaf/kr fd;k vkSj vafre fjiksVZ Hkh lefiZr fd;kA ftlesa ;g ckr Li"V :i ls vk;h dh esjh ek¡ dcqrjh nsoh fd e`R;q Vªsu ls fxjdj ,oa dVdj gqbZ gSA Paras- 2, 3, 5, 6 & 7 of evidence of A.W.2 (Digamber Kumar) are as under :-

2- ;g fd mi;qZDr ;k=k ds fy, esjh nknh us lk/kkj.k fVdV Hkh fy;k Fkk ftldk ua0 15508454 gS tks fd Dyse vkosnu ds lkFk layXu gSA 3- ;g fd tSls gh Vªsu ,dpkjh LVs'ku ls Vªsu [kqyh dqN gh nqj vkxs c<+us ij vR;kf/kd HkhM++ jgus ds dkj.k esjh nknh Vªsu ls fxj iM+h vkSj iVjh ds Åij vk x;h vkSj dVdj ?kVukLFky ij gh mldh e`R;q gks x;hA 5- ;g fd igpku djus ds ckn equs'oj flag us eq>s xkao esa vkdj lwpuk fn;k fd rqegkjh nknh dh Vªsu ls fxjus ds ckn dVdj e`R;q gks x;h gSA ftldh lwpuk ij eSa vkSj dqN xzkeh.k ,dpkjh LVs'ku ij igq¡ps vkSj e`rd dk igpku fd;s fd ;g esjh nknh dcqrjh nsoh gh gS tks ?kj ls vius csVh ds ikl ukFkuxj tk jgh FkhA 6- ;g fd rc eSaus Fkkuk/;{k jsy Fkkuk] Hkkxyiqj dks bl nq?kZVuk dh fyf[kr vkosnu fn;k] tks fd Dyse vifyds'ku ds lkFk layXu gSA

7- ;g fd blds ckn jsy Fkkuk] Hkkxyiqj us ,d ;w0 Mh0 dkaM la[;k [email protected] fucaf/kr fd;k vkSj iqjh rgdhdkr ds ckn vafre fjiksVZ Hkh lefiZr fd;k] ftlesa ;g ckr Li"V :i ls vk;h dh esjh nknh dcqrjh nsoh dh e`R;q Vªsu ls fxjdj ,oa dVdj gqbZ gSA Learned counsel for the appellants has thus submitted, that even in absence of the mentioning of recovery of railway ticket in the inquest report or in the DRM's report, 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, which may be profitably 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.

Learned counsel for the appellants has further submitted, that claimants have produced photocopy of the railway journey ticket bearing No.15508454 dated 13.09.2015 from Ekchari to Nathnagar, but no contrary evidence has been brought on record by the railway, as such, in view of the judgment passed by the Apex Court in the case of Rina Devi (Supra), the deceased was a bonafide passenger.

Learned counsel for the appellants has submitted, that the claim application may be allowed by directing the railway to pay Rs.8,00,000/- along with interest @ 7.5% per annum from the date of filing of the claim application i.e. 02.03.202016 to the actual date of indemnifying the award.

Learned counsel for the respondent-railway, Mr. Gautam Rakesh has opposed the prayer and has submitted that so far the

consideration of bonafide passenger is concerned, the DRM's report (Exhibit-R2) is silent about the recovery of the journey ticket and inquest report (Exhibit-A7) and final report (Exhibit-A4) do not show the recovery of any journey ticket, as such, this Court may not interfere with the finding recorded by the learned Tribunal.

Learned counsel for the respondent - railway has further submitted that so far the contention assailed by the appellants regarding the relationship of deceased with the claimants is concerned, the age gap of the claimants, who are 48 years and 46 years and the deceased being a lady of 55 years is about 7 to 9 years at the time of incident and the relationship between them is not proper and acceptable to the Court.

Learned counsel for the respondent- railway has submitted that if the appeal is allowed, this Court may take proper protection of the awarded amount so that the compensation may not go in the hand of wrong claimants, but has fairly admitted, that no claim application has been filed except by these two claimants till date for compensation on death of Kabutari Devi of the incident.

Considering the rival submission of the parties, looking into the fact and circumstances of the case, this Court shall decide that whether deceased was a bonafide passenger or not as defined under Section 2(29) of the Railways Act and in view of the judgment passed by the Apex Court in the case of Rina Devi (Supra).

It appears that claimants have produced photocopy of the railway journey ticket bearing No.15508454 dated 13.09.2015 from Ekchari to Nathnagar, but no contrary evidence has been brought on record by the railway, as such, in view of the judgment passed by the Apex Court in the case of Rina Devi (Supra), this Court is inclined to accept the deceased to be a bonafide passenger, as the railway has not brought any evidence that this ticket bearing no.15508454 has not been sold by the railway on 13.09.2015 at Ekchari Railway Station or the railway has not come up with a proof that the railway ticket is forged, rather in view of the judgment passed by the Apex Court in the case of Rina Devi (Supra) the initial burden has been

discharged by the claimants, then onus shift upon the railway, which railway has miserably failed to establish by bringing any contrary evidence on record.

Accordingly, this Court is inclined to accept that deceased was a bonafide passenger.

So far the age and the relationship of the deceased with claimants are concerned, Exhibit- R4 and the rejoinder filed by the appellants before the learned Tribunal are self speaking, if an officer of the railway committed an error, then claim application cannot be denied on the ground that documents show otherwise. The dependent has been defined under Section 123(b) of the Railways Act, "dependent" means any of the following relatives of a deceased passenger, namely:- the wife, husband, son and daughter, and in case the deceased passenger is unmarried or is a minor, his parent.

The railway has not brought any materials on record to establish, claimants are not sons of the deceased. Whether a person is sons or husbands because of a typographical mistake, son or the husband will be considered as dependent as defined under Section 123(b) (i) of the Railways Act.

So far the contention of the railway, with regard to age difference is concerned, from the age difference, it does not appear that deceased was not mother and claimants are not son, as there is age gap. This Court in a benevolent legislation considers that the assessment of the age in the post-mortem report is an assessment on the basis of observation, which is not a correct age, as no radiological examination or scientific examination with regard to the age has been conducted by the doctor nor anything has been brought on record by the railway to strengthen the argument, that deceased was 55 years of age and her age is correctly assessed by the doctor.

Under the aforesaid circumstances, in view of the definition of Section 123(b) (i) of the Railways Act, this Court considers both the claimants to be dependents. However, to protect the money this Court grants three months time from the date of indemnifying the award by the Railway. The money shall be deposited in the bank account of the claimants, which shall not be withdrawn by the claimants for three months from the date of indemnifying the award,

so as to see that whether any compensation case has been filed by any other claimants with regard to death of the deceased of the present case Kabutari Devi or not? So that the Railway shall verify the same from the record. If till today no compensation application has been filed by any other persons except these two claimants for death of Kabutri Devi, then the claimants shall withdraw the same from the bank, which has been deposited by the railway. If any claim application has already been filed by other claimant then the awarded amount shall not be withdrawn, till conclusion of that claim application.

Accordingly, the instant appeal is allowed with aforesaid direction.

The Railway is directed to indemnify the claimants to the tune of Rs.8,00,000/- by apportioning the same as Rs.4,00,000/-each along with interest @ 7.5% per annum from the date of filing of the claim application i.e. 02.03.2016 to date of indemnifying the award by depositing the same in the account(s) of the claimants at any nationalized bank.

The claimants are directed to serve the proof of bank account by filing an affidavit with an undertaking that they shall not withdraw the amount for three months from the date of indemnifying the award, so that railway can verify, whether any other compensation case has been filed by any other claimants or not and on such affidavit the railway shall indemnify the award with a letter to the Bank Manager that for three months the amount shall not be allowed to withdraw by the claimants, awaiting any letter from railway that other claim application is pending or filed, till date. Otherwise, after three months, the Bank Manager shall allow the claimants to withdraw the same. The amount is being deposited in the bank as none of the parties should suffer financial loss because of the pendency of verification by the Railway for next three months.

Let L.C.R. be sent down to the court below.

(Kailash Prasad Deo, J.) Jay/-