Smt. Rafiqunisha vs Union Of India
2023 Latest Caselaw 3125 MP

                                                                       1
                                            IN THE HIGH COURT OF MADHYA PRADESH
                                                         AT JABALPUR
                                                                  BEFORE
                                                    HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                                         ON THE 21 st OF FEBRUARY, 2023
                                                          MISC. APPEAL No. 5866 of 2018

                                       BETWEEN:-
                                       1.    SMT. RAFIQUNISHA W/O LATE SHRI NIYAZ
                                             AHMED, AGED ABOUT 55 YEARS, GRAM TENDUA
                                             TAKIYA THANA UTHRAULA, DISTT. BALRAMPUR
                                             (UTTAR PRADESH)

                                       2.    SMT. SHAHARBANO, W/O LATE SHRI ASFAQ
                                             AHMED, AGED ABOUT 24 YEARS, R/O GRAM
                                             TENDUA TAKIYA THANA UTHRAULA, DISTT.
                                             BALRAMPUR (UTTAR PRADESH)

                                       3.    SAHED ASLAM S/O LATE SHRI ASFAQ AHMED,
                                             AGED ABOUT 11 YEARS, R/O GRAM TENDUA
                                             TAKIYA THANA UTHRAULA, DISTT. BALRAMPUR
                                             (UTTAR PRADESH)

                                                                                                 .....PETITIONERS
                                       (BY SHRI ASHOK SHRIVASTAVA AND SMT. APARNA SINGH -
                                       ADVOCATES)

                                       AND
                                       UNION OF INDIA THROUGH GENERAL MANAGER,
                                       WEST CENTRAL RAILWAY, JABALPUR (MADHYA
                                       PRADESH)

                                                                                                .....RESPONDENT
                                       (BY SHRI ASEEM DIXIT - ADVOCATE)

                                             This appeal coming on for admission this day, th e court passed the
                                       following:
                                                                        ORDER

Signature Not Verified This appeal is filed by the claimants being aggrieved of the judgment SAN

Digitally signed by MONIKA CHOURASIA dated 12/10/2018 passed by learned Railway Claims Tribunal Bhopal, Bench Date: 2023.02.22 10:32:34 IST

Bhopal in Application no.O.A./IIu/BPL/2016/209 whereby learned Claims

Tribunal has rejected the claim on a singular ground that ticket which was recovered from the deceased is dated 27/7/2015 to travel from Lucknow to Mumbai. Pushpak Express departs from Lucknow at 19.45 hours date on the journey ticket is 27/7/2015 at the place of the incident i.e. Bhirangi Pushpak Express scheduled time is 9.05 hours in the morning, therefore, death should have occurred on 28/7/2015 but intimation was given on 29/7/2015 and postmortem was conducted thereafter. Thus, learned Claims Tribunal has held that discovery of dead body after two days is a mysterious circumstance and going back from the date of the postmortem wherein it is mentioned that death had occurred 3-4 days prior, it is held that deceased had yet not started his

journey on 27/7/2015 and postmortem report is a basic report and authentic document and on such premise rejected the claim petition.

2. It is submitted that this order is arbitrary and illegal, timing of death is approximate and is 3-4 days and is mentioned in the postmortem report, Exhibit A/5. Postmortem was conducted on 30/7/2015 at about 10.45 a.m. 3-4 days will mean that it could have been on 28 or 27. Thus, this hyper technical approach of the tribunal in rejecting the claim is not just and proper specially when admittedly journey ticket was recovered from the body of the deceased in a Panchnama prepared by the railway authority.

3. Shri Aseem Dixit supports the award or judgment.

4. After hearing learned counsel for the parties and going through the record, it is evident that in the Shinakhti Patrak, it is mentioned that Asfaq Ahmed died in a train accident. In seizure memo (Ex.A/6), it is mentioned that a Signature Not Verified SAN broken mobile and a ticket from Lucknow bearing no.28523158 dated Digitally signed by MONIKA CHOURASIA Date: 2023.02.22 10:32:34 IST 27/7/2015 which was torn was recovered from the deceased. There is no

dispute to this recovery memo, it is only mentioned that destination station is not mentioned. Railway authorities were in the best position to enquire and place on record whether destination was short of the place of the incidence or was upto Mumbai on the basis of the given railway ticket number but no such evidence was produced before the tribunal to show that ticket was not upto Mumbai.

5. In the postmortem report, there is a mention of death occurring 3-4 days prior to postmortem. Doctor of the postmortem was not examined by the railway authorities to dispute that death could not have taken place on 28/7/2015. Thus, it is evident that tribunal has passed impugned judgment on surmises and conjunctures without going through the evidence available on record. Specially, when there is no dispute to recovery of the ticket from the body of the deceased, it can not be said that deceased was not a bonafide passenger. Once a ticket was recovered onus was on the railway authorities to prove that deceased was not a bonafide passenger and ticket was planted but this onus was not discharged by the railway administration, and therefore, the impugned judgment being cryptic and having being passed on the surmises and conjuncture is not liable to be sustained, it is hereby quashed. Claim petition is allowed. Let admissible amount be paid to the claimants within 60 days of the receipt of the certified copy of the order being passed today along with 6%

interest from the date of filing of the claim petition till the date of actual payment.

6. In above terms, this miscellaneous appeal is allowed.

Signature Not Verified SAN

Digitally signed by MONIKA CHOURASIA Date: 2023.02.22 10:32:34 IST (VIVEK AGARWAL) JUDGE

m/-

Signature Not Verified SAN

Digitally signed by MONIKA CHOURASIA Date: 2023.02.22 10:32:34 IST