Kishori Kumar @ Kishori Ram vs Union Of India Through The General ...
2023 Latest Caselaw 227 Jhar

                                                                  M.A.No.69 of 2019




     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                          M.A. No.69 of 2019
                                      ------

(Against the Judgment dated 17.12.2018 passed by Hon'ble Member (Technical), Railway Claims Tribunal, Ranchi Bench, passed in Case No.OA(IIU)/RNC/108/2018)

------

1. Kishori Kumar @ Kishori Ram, aged about- 32 years, son of Deonath Ram, husband of deceased Sima Devi.

2. Suraj Kumar, aged about 12 years, son of Kishori Kumar @ Kishori Ram; minor son of deceased Sima Devi.

3. Chanda Kumari, aged about 10 years, daughter of Kishori Kumar @ Kishori Ram; minor daughter of deceased Sima Devi.

4. Sitara Kumari, aged about 8 years, daughter of Kishori Kumar @ Kishori Ram; minor daughter of deceased Sima Devi.

5. Khushi Kumari, aged about 4 years, daughter of Kishori Kumar @ Kishori Ram; minor daughter of deceased Sima Devi.

6. Shalu Kumar, aged about 2 years, son of Kishori Kumar @ Kishori Ram; minor son of deceased Sima Devi.

Sl. No. 2 to 6 are minor and represented through their natural guardian/father i.e. Appellant No.- 1.

All are Resident of: C/o Dhaneshwar Das, village/Mohalla- Tetariya, P.O. & P.S. Tisri, District- Giridih, 815317 (Jharkhand) .... .... Applicants/ Appellants Versus Union of India through the General Manager, East Central Railway, Hajipur (Bihar); P.O. & P.S. Hajipur, Dist.- Hajipur .... .... Respondent / Respondent

------

              For the Appellants         : Mr. Vijay Shanker Jha, Advocate
              For the Respondent         : Ms. Nalini Jha, Advocate
                                           PRESENT
                  HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
                                               ------
By the Court: -   Heard the parties.


                                                  M.A.No.69 of 2019

2. This Miscellaneous Appeal has been preferred against the Judgment dated 17.12.2018 passed by the Railway Claims Tribunal, Ranchi Bench, passed in Case No. OA(IIU)/RNC/108/2018 by which the Railway Claims Tribunal dismissed the claim application on contest without costs.

3. The brief facts of the case is that the wife of the claimant/appellant No.1 who is the mother of the rest of the claimants being claimants/appellants Nos.2 to 6 died in an untoward incident occurred by accidentally falling down from train being Bhabua-Patna via Gaya Intercity Express running train No.3244 DN and after sustaining serious injuries at East of Kudra Railway Station between Pole No.97/22 and 20. It is the case of the claimants that on 27.05.2017, the deceased- Sima Devi after purchasing valid Second Class ticket from Bhabua Railway Station to Sasaram Junction, boarded the said train No.3244 DN Bhabua-Patna via Gaya Intercity Express at Bhabua Railway Station. There was heavy rush in the train. Sima Devi was standing near the gate inside the compartment. Due to heavy rush and jostling among the passengers, Sima Devi accidentally fell down from the running train at East of Kudra Railway Station between Pole No.97/22 and 20; as a result of which she sustained serious injuries and died at the spot. Getting information from the villagers, the appellant-claimant No.1 who is the husband of the deceased, reached the spot. The Deputy Station Master of Sasaram Railway Station reported the matter to police and on such information police reached the place of occurrence. Police prepared the inquest report and sent the dead body for postmortem. U.D. Case No.19/17 was registered at Rail P.S., Sasaram. The appellant No.1 received the dead body of Sima Devi after postmortem for cremation. Police investigated the matter and found that Sima Devi fell down from the said running train, hence, died of the injuries sustained by the said untoward incident.

4. In their written show-cause, the respondent- Opposite Party challenged the maintainability of the claim application on various technical grounds. The respondent denied of any untoward incident having occurred on 27.05.2017 at East of Kudra Railway Station near Sasaram Railway Station while the deceased- Sima Devi was travelling from Bhabua to Sasaram by the said train. The respondent- Opposite

M.A.No.69 of 2019

Party, however, admitted that as per the Inquest Report, the deceased- Sima Devi fell down from the running train. Though the respondent admitted that the body of Sima Devi was found East of Kudra Railway Station but pleaded that no journey ticket was found from the possession of the deceased and there was no eye-witness of this untoward incident. The respondent- Opposite Party further pleaded that to establish untoward incident, the claimant has to prove accidental fall from the passenger carrying train, hence, pleaded that the instant case does not come under the purview of untoward incident as defined in Section 123 (C) (2) read with Section 124 (a) of the Railway Act. The respondent- Opposite Party further pleaded that the deceased was not a bonafide passenger and the claim that the journey ticket was lost, was a concocted story. Hence, the respondent- Opposite Party claimed that the claimants shall not be entitled for any compensation.

5. On the basis of the rival pleadings of the parties, the learned tribunal framed the following four issues:-

1. Whether the deceased was a bonafide passenger as alleged?

2. Whether the deceased had died, due to alleged untoward incident?

3. Whether the Applicant or other dependants of the deceased are entitled to get compensation?

4. Relief?

6. From the side of the claimants, the appellant No.1 was examined as the A.W.1 and Dhaneshwar Das was examined as A.W.2. The appellant also produced relevant documents which were marked as Ext. A1 to A10. The respondent produced Poonam Kumari, S.I./R.P.F, Sasaram as R.W.1 as the sole witness and the report of the DRM and other documents were marked as R1 to R5. The tribunal after considering the materials in the record observed that no journey ticket could be recovered from the possession of the deceased and there is no eye-witness who has seen the deceased purchasing any ticket nor was any co-passenger with her and the applicant did not adduce any evidence by filing any proof of journey ticket and by relying upon the judgment of Hon'ble Supreme Court of India in the case of Union of India vs. Rina Devi reported in (2019) 3 SCC 572 para-29 of which reads as under:-

M.A.No.69 of 2019

"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)

The tribunal came to the conclusion that the applicants failed to prove the bonafide of the deceased passenger- Sima Devi and decided the issue No.1 against the appellant. It did not discuss the remaining three issues and held that the applicants are not entitled to any compensation or relief from the Railway Administration and dismissed the claim application.

7. It is submitted by the learned counsel for the appellants that the impugned judgment and award passed by the Railway Claims Tribunal is not sustainable in law as it failed to consider the affidavit filed in shape of examination-in-chief by both A.W.1 and A.W.2 as well as their cross- examination and erroneously observed that the applicants did not adduce any evidence by filing affidavit in proof of journey ticket. It is next submitted by the learned counsel for the appellants that the R.W.1 in paragraph-8 of her cross-examination, has categorically stated that on the basis of facts furnished by the G.R.P, she concluded that the deceased- Sima Devi died of the injuries sustained by falling down from the train. It is then submitted that Annexure-8 of the lower court record which is the final report submitted by the Railway Police Station, Sasaram in which it has categorically been mentioned that the deceased died by falling down from the train No.3244 DN Bhabua-Patna via Gaya Intercity Express by which she sustained grievous injuries and died of the same. It is next submitted that the both the A.W.1 and A.W.2 have categorically stated about the deceased purchasing ticket for her journey from Bhabua to Sasaram Junction and merely because the railway ticket was lost which is common when a person falls down from a running train, the tribunal erred by coming to a conclusion that the applicant has failed to prove the

M.A.No.69 of 2019

bonafide of the deceased passenger- Sima Devi. Hence, it is submitted that the findings of issue No.1 of the impugned judgment and award be set aside and the matter be remanded to the tribunal to decide the issue Nos.2 to 4 after holding that the deceased was a bonafide passenger of the train No.3244 DN Bhabua-Patna via Gaya Intercity Express as claimed.

8. Ms. Nalini Jha- learned counsel for the respondent on the other hand defends the impugned judgment and award passed by the Railway Claims Tribunal. Drawing attention of this Court towards the report of Chief Office Superintendent of East Central Railway, learned counsel for the respondent submits that the cause of death of the deceased could not be ascertained. Hence, it is submitted that this appeal, being without any merit, be dismissed.

9. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, the only point which crop up for determination in this appeal is:-

"Whether the Railway Claims Tribunal has committed an error by arriving at the conclusion that the applicants have failed to prove the bonafide of the deceased passenger- Sima Devi?"

10. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that as has been held by the Hon'ble Supreme Court of India in the case of Union of India vs. Rina Devi (supra), that it is a settled principle of law that mere absence of ticket with the deceased will not negate the claim that she was a bonafide passenger and the 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.

11. After going through the examination-in-chief filed in shape of affidavit, by the A.W.1 and A.W.2 wherein they have categorically stated that the deceased- Sima Devi purchased ticket for her journey from Bhabua to Sasaram Junction. Such testimony made in examination-in- chief filed in shape of affidavit has not been demolished in any manner in their respective cross-examination. In the considered opinion of this Court, the evidence in the record to the aforesaid extent is sufficient to discharge the initial burden on the claimants of the relevant facts, and to

M.A.No.69 of 2019

shift the burden to the Railways which the Railways has failed to discharge. Moreover, this contention of the appellants is supported by the final report submitted by the Rail Police, Sasaram as also the deposition of the R.W.1 which goes to show that Sima Devi fell down from the running train No.3244 DN Bhabua-Patna via Gaya Intercity Express. True it is that the Chief Office Superintendent has mentioned in his report that the cause of death is not clear. But in the considered opinion of this Court, the same is not sufficient to discharge the burden which was shifted to the Railways by the testimonies of A.W.1 and A.W.2 which was supported by the testimony of the R.W.1 and the final report as well as the inquest report which also shows that the deceased fell down from the running train No.3244 DN Bhabua-Patna via Gaya Intercity Express and died of such injuries.

12. Under such circumstances, this Court is of the considered view that the learned Railway Claims Tribunal erred by coming to the conclusion that the applicants have failed to prove the bonafide of the deceased passenger- Sima Devi. Accordingly, the finding of the issue No.1 arrived at by the Railway Claims Tribunal is set aside and the said issue No.1 being 'Whether the deceased was a bonafide passenger as alleged' is answered in the affirmative as in the considered opinion of this Court, the evidence in the record, as already discussed above, is sufficient to establish that the deceased was a bonafide passenger of running train No.3244 DN Bhabua- Patna via Gaya Intercity Express as claimed, by the applicants. The sole point for determination is answered in the affirmative.

13. Since the Railway Claims Tribunal has not answered the issue Nos.2 to 4, the impugned judgment and award is set aside and the case is remanded to the Railway Claims Tribunal to render its finding on issue Nos.2 to 4 framed by it, and to pass a fresh award, in accordance with law.

14. Both the parties are directed to appear before the Railway Claims Tribunal on 13.02.2023 to take further instructions in the matter from the Railway Claims Tribunal.

15. Keeping in view the fact that the case is an old one, the Railway Claims Tribunal is directed to render a fresh judgment and award within three months from the date of receipt of this judgment and lower court

M.A.No.69 of 2019

records.

16. It is made clear that henceforth, the Railway Claims Tribunal is directed to give its findings on all the issues framed by it in each and every case and not to dispose of the claim application on the basis of the finding of one of the issues, which unnecessarily lingers the proceeding in case the finding of the tribunal is set aside by the appellate court.

17. In the result, this appeal is allowed on contest but under the circumstances without any costs.

18. Let a copy of this judgment along with the lower court records be sent to the tribunal concerned forthwith.

(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 16th of January, 2023 AFR/ Animesh