Jharkhand High Court
Sumeru vs The Union Of India on 3 January, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 282 of 2013
Sumeru, son of late Budai aged about 63 years, resident of village
Harrai, P.O. Samongra, P.S. Mirzapur (UP) at present Shukla Mistan
Bhandar, Azad Market, P.O. and P.S. Telco, Town Jamshedpur,
District-Singhbhum East (Jharkhand).
..... ... Appellant
Versus
1. The Union of India
2. The Chief Secretary, Ministry of Railway, Rail Bhawan, P.O. GPO
New Delhi P.S. New Delhi PIN-110001.
3. The General Manager of South Eastern Railway, P.O. G.P.O.
Garden Rich, P.S. Gardenrich, Kolkata, PIN 700024 (WB),
(Jharkhand).
4. Deputy Railway Manager, South Eastern Railway, P.O.
Chakradharpur, P.S. Chakradharpur, Chakradharpur, District W.
Singhbhum (Jharkhand)
5. Central Eastern Railway, Danapur, P.O. Danapur, P.S. Danapur,
Patna, Bihar
6. Deputy Railway Manager, Central Eastern Railway, Danapur, P.O.
Danapur, P.S. Danapur, Patna, Bihar.
7. Station Master, Tatanagar Railway Station, south Eastern Railway,
P.O. Tatanagar, P.S. Tatanagar, East Singhbhum, (Jharkhand).
..... ...Respondents
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CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Appellant : Mrs. Sunita Ojha, Advocate.
For the Respondents : Mr. Sunil Kumar, Advocate
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11/ 03.01.2023 Heard Mrs. Sunita Ojha, learned counsel for the appellant and
Mr. Sunil Kumar, learned counsel appearing for the respondents.
2. This appeal has been filed against the judgment dated
23.08.2013, passed by the Railway Claim Tribunal, Ranchi, Bench at
Ranchi, in OA Case No. (IIU)/RNC/2008/0072, whereby the claim of the
appellant has been rejected by the learned Tribunal.
3. Mrs. Sunita Ojha, learned counsel for the appellant submits
that the appellant-claimant namely, Sumeru on 20.05.1976 was travelling
in Train No. 2788, Patna to Tata Express. She further submits that the
appellant is a bonafide passenger of second class having ticket and
unfortunately he met with an accident on Tatanagar Railway Station
while he was travelling in the train. She submits that while crossing the
Railway line the appellant was hit by a locomotive engine. The appellant
became 100% disabled. She submits that the appellant produced
documents and the appellant filed the claim case for compensation of
Rs. 6,00,000/- however by the impugned award the said claim has been
rejected by the learned tribunal. She further submits that however there
was delay of 32 years, 6 months and 25 days however, the learned
tribunal has condoned the said delay by order dated 29.03.2010. She
further submits that the appellant was a bonafide passenger and was
having ticket but the learned Tribunal has not considered the documents
and the evidences on record and passed the award which is against the
mandate of law. She further submits that the Railway Act is beneficial
legislation for social welfare as the appellant met with the accident while
crossing the railway line, he is entitled for compensation. She submits that
the award is bad in law. On these grounds she submits that award passed
by the learned tribunal may be set aside.
4. On the other hand, Mr. Sunil Kumar, learned counsel for the
respondents submits that the appellant was not bonafide passenger in the
train and he was not having any ticket and he crossed the railway line on
his own risk without following the railway rules and regulations. He
further submits that the appellant has himself admitted that he was
crossing the railway line while a locomotive engine hit him and he
became injured. He submits that by taking all these aspects of the matter,
the learned tribunal has rightly rejected the claim of the appellant. He
relied in the case of Union of India Versus Rina Devi, reported in AIR
2018 SC 2362, wherein the Hon'ble Supreme Court in paras- 15, 15.4,
17.1 and 17.2 held as follows:-
"15. We now proceed to deal with the following
issues seriatim:-
(i) Whether the quantum of compensation should be
as per the prescribed rate of compensation as on the
date of application/incident or on the date of order
awarding compensation;
(ii) Whether principle of strict liability applies;
(iii) Whether presence of a body near the railway
track is enough to maintain a claim.
(iv) Rate of interest.
15.4 Accordingly, we conclude that compensation
will be payable as applicable on the date of the
accident with interest as may be considered
reasonable from time to time on the same pattern as
in accident claim cases. If the amount so calculated
is less than the amount prescribed as on the date of
the award of the Tribunal, the claimant will be
entitled to higher of the two amounts. This order will
not affect the awards which have already become
final and where limitation for challenging such
awards has expired, this order will not by itself be a
ground for condonation of delay. Seeming conflict in
Rathi Menon (supra) and Kalandi Charan Sahoo
(supra) stands explained accordingly. The 4-Judge
Bench judgment in Pratap Narain Singh Deo (supra)
holds the field on the subject and squarely applies to
the present situation. Compensation as applicable
on the date of the accident has to be given with
reasonable interest and to give effect to the mandate
of beneficial legislation, if compensation as provided
on the date of award of the Tribunal is higher than
unrevised amount with interest, the higher of the two
amounts has to be given.
17.1 Conflict of decisions has been pointed out on
the subject. As noticed from the statutory provision,
compensation is payable for death or injury of a
'passenger'. In Raj Kumari (supra) referring to the
scheme of Railways Act, 1890, it was observed that
since travelling without ticket was punishable, the
burden was on the railway administration to prove
that passenger was not a bonafide passenger. The
Railway Administration has special knowledge
whether ticket was issued or not. 1989 Act also has
similar provisions being Sections 55 and 137. This
view has led to an inference that any person dead or
injured found on the railway premises has to be
presumed to be a bona fide passenger so as to
maintain a claim for compensation. However, Delhi
High Court in Gurcharan Singh (supra) held that
initial onus to prove death or injury to a bona fide
passenger is always on the claimant. However, such
onus can shift on Railways if an affidavit of relevant
facts is filed by the claimant. A negative onus cannot
be placed on the Railways. Onus to prove that the
deceased or injured was a bona fide passenger can
be discharged even in absence of a ticket if relevant
facts are shown that ticket was purchased but it was
lost. The Delhi High Court observed as follows :
"3(ii) In my opinion, the contention of the learned
counsel for the appellants/claimants is totally
misconceived. The initial onus in my opinion always
lies with the appellants/claimants to show that there
is a death due to untoward incident of a bona fide
passenger. Of course, by filing of the affidavit and
depending on the facts of a particular case that
initial onus can be a light onus which can shift on
the Railways, however, it is not the law that even the
initial onus of proof which has to be discharged is
always on the railways and not on the claimants.
17.2 In Jetty Naga Lakshmi Parvathi (supra) same
view was taken by a single Judge of Andhra Pradesh
after referring to the provisions of the Evidence
Act as follows :-
"22. So, from Section 101 of the Indian Evidence
Act, 1872, it is clear that the applicants, having
come to the court asserting some facts, must prove
that the death of the deceased had taken place in an
untoward incident and that the death occurred while
the deceased was travelling in a train carrying
passengers as a passenger with valid ticket.
Therefore, having asserted that the deceased died in
an untoward incident and he was having a valid
ticket at the time of his death, the initial burden lies
on the applicants to establish the same. The initial
burden of the applicants never shifts unless the
respondent admits the assertions made by the
applicants. Such evidence is lacking in this case.
Except the oral assertion of A.W.1, no evidence is
forthcoming on behalf of the applicants. The court
may presume that the evidence which could be, and
is not produced, would, if produced, be unfavourable
to the person who withholds it. The best evidence
rule, which governs the production of evidence in
courts, requires that the best evidence of which the
case in its nature is susceptible should always be
produced. Section 114(g) of the Indian Evidence Act,
1872 enables the court to draw an adverse
presumption against a person who can make
available to the court, but obstructs the availability
of such an evidence. The Claims Tribunal, upon
considering the material on record, rightly dismissed
the claim of the applicants and there are no grounds
in this appeal to interfere with the order of the
Tribunal."
5. In view of the above submission of the learned counsel for
the parties, the Court has gone through the material on record including
award dated 23.08.2013 passed by the learned tribunal. On perusal of
impugned award it transpires that vide order dated 29.03.2010 the delay
of 32 years, 6 months and 25 days was condoned by the learned tribunal.
Memo of Claim application itself was taken care of by the learned
Tribunal while passing the said award wherein it has been disclosed that
the appellant himself has stated that on 20.05.1976 when he was
crossing Railway line, he was hit by a locomotive and got injured.
6. Provisio of Section 124A Railway Act, 1989 speaks of not
any award/compensation if there is fault on the part of injured. The case
of the appellant is not coming within the main portion of Section 124A
of the Railway Act, 1989. In the light of provision of Section 123(C) of
the Railways Act the case of the appellant is not coming under the
untoward accident. There are parameters for quashing of order under the
Railways Act. The ticket was not marked before the learned Tribunal. The
appellant himself has stated that when he was crossing Railway line, he
was hit by a locomotive and got injured.
7. In view of the above facts and considering that even ticket
was not produced before the learned tribunal which suggests that the
appellant was not a bona fide passenger and he has himself admitted that
he was crossing the railway line. In that view of that matter there is no
illegality in the impugned award. No relief can be extended to the
appellant. Accordingly, this appeal is dismissed.
(Sanjay Kumar Dwivedi, J.)
Satyarthi-
