Union Of India Through The General ... vs Champa Devi
2021 Latest Caselaw 3932 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    M.A. No. 269 of 2012
Union of India through the General Manager, South Eastern Railway, PO,
      PS and Dist. Kolkata                             ..... Appellant
                         Versus
 1. Champa Devi
 2. Amit Kumar
 3. Kabita Kumari
 4. Sarita Kumar'
 5. Navin Kumar
 6. Lakhpati Devi                         .... Respondents
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CORAM : HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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For the Appellants :Mr. Mahesh Tewari, Advocate For the respondents :Mr. Avinish Anand, Advocate

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12 / 21.10.2021 The instant appeal has been preferred against the judgment passed by the Railway Claims Tribunal, Ranchi Bench in Case No.OA(IIU)/RNC/2008/0044 whereby the claim preferred by appellant was allowed and the appellant was directed to pay a sum of Rs.2,00,000/- for the death of one Ramakant Sharma in the railway accident.

The award of compensation by the Tribunal has been assailed mainly on the ground that as per finding recorded in issue No.1 that the deceased was unauthorized vendor in the train without having any valid travelling ticket and while alighting from the train he fell down and come under the wheels and lost his life. In the teeth of this finding of fact recorded by the Tribunal in favour of the claimants, award of compensation is unsustainable because the basic condition for awarding compensation that the deceased was a bonafide passenger has not been complied with.

It is further submitted that Section 123(c)(2) and Section 124(A) of the Railway Act, 1989 has been wrongly interpreted in the impugned judgment.

Learned counsel on behalf of respondent has submitted that the spirit of Railway Claims Tribunal 1987 is that it is a beneficial piece of legislation and the bonafide claim of compensation cannot be rejected on technical grounds in favour of the widow and the daughter of the

deceased. It is not in dispute that deceased died in the untoward incidence when he was alighty from the passenger of the train.

It is further submitted that even if it is accepted that the deceased was a Hawker. It cannot be said that at the relevant time of accident he had not taken any valid railway ticket and the onus to produce the ticket cannot be shifted on a dead person. The claimants who are the heirs of deceased have no means to produce the railway tickets as they were not travelling alongwith the deceased and therefore an unconscionable burden cannot be cast on the claimants to prove that the deceased was having a railway ticket at the time of the accident.

I have carefully gone through the judgment of Tribunal which deals with the evidence led on behalf of the claimants.

It is undisputed that the deceased-Ramakant Sharma died while de-boarding the train from the finding of fact recorded on issue Nos.1 and 2 by the tribunal. It can also not be disputed that the deceased was Hawker who used to sell grams in the train.

The short question that falls for consideration is whether the deceased be treated as a bonafide passenger at the relevant time of incident?

According to the Railway Act for awarding compensation under Section 124(A) of the Railway Act which reads as under:

"When in the course of working a railway an untoward incident occurs, then whether or not there has been any wrongful act, neglect or default on the part of the railway administration such as would entitle a passenger who has been injured or the dependant of a passenger who has been killed to maintain an action and recover damages in respect thereof, the railway administration shall, notwithstanding anything contained in any other law, be liable to pay compensation to such extent as may be prescribed and to that extent only for loss occasioned by the death of, or injury to, a passenger as a result of such untoward incident\:"

Provided that no compensation shall be payable under this section by the railway administration if the passenger dies or suffers injury due to--

(a) suicide or attempted suicide by him;

(b) self-inflicted injury;

(c) his own criminal act;

(d) any act committed by him in a state of intoxication or insanity;

(e) any natural cause or disease or medical or surgical treatment unless such treatment becomes necessary due to injury caused by the said untoward incident.

Explanation.--For the purposes of this section, "passenger" includes--

(i) a railway servant on duty; and

(ii) a person who has purchased a valid ticket for travelling by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident.] The passenger has been defined under Section 2(29) of the Railway Act as a person travelling with valid ticket pass or ticket. The explanation to Section 124(A) clarifies that word "passenger" includes the railway servant on duty and a person who has purchased a valid ticket for travelling by the train or a valid platform ticket and becomes a victim of accident.

Section 124(c) of the Railway Act which includes a death or injury caused of the accidental fall from the train carrying. It has been held by Hon'ble Apex Court in the Union of India Vs. Prabhakaran Vijaya Kumar and Ors. reported in 2008 9 SCC 527 that Section 124 (A) lays down strict liability or no false liability in case of railway accident.

In the present case a definite finding of fact has been recorded by the Tribunal in issue no.1 that the deceased was not a bonafide passenger, has not been challenged by the claimants by filing any cross- objection. In this view of matter this question cannot be reopened in appeal in the light of ratio decided Biswajit Sukul v. Deo Chand Sarda, (2018) 10 SCC 584 where in it has been held that the first appellate court cannot re-examine the finding of fact which has not been challenged by either side. The Hon'ble Court observed, "14. The plaintiff in his first appeal did not challenge the finding of the trial court recorded on the first part of Issue 4 and rightly so because it was already answered by the trial court in his favour. The first appellate court, therefore, could not examine the legality and correctness of this finding in the plaintiff's

appeal unless it was challenged by the defendants by filing cross- objection under Order 41 Rule 22 of the Code in the appeal.

15. As mentioned above, the defendants though suffered the adverse finding on first part of Issue 4 but did not file any cross-objection questioning its legality. In the light of these admitted facts arising in the case, the first appellate court had no jurisdiction to examine the legality and correctness of the finding on first part of Issue 4 in the plaintiff's appeal and reverse it against the plaintiff."

In this view of matter it has to be accepted that the deceased was not a bonafide passenger at the time of the accident. Under the circumstance the main point for consideration is that whether the claim for compensation is maintainable under Section 124(A) of the Act. On the above stated admitted position of fact I am of the considered view that since the deceased will not come within the definition of passenger the claim for compensation for his unfortunate death will not be maintainable. Accordingly the award of compensation by the learned Tribunal is set-aside and the appeal is allowed.

(GAUTAM KUMAR CHOUDHARY, J.)

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