Damayanti Dhurua And Another vs General Manager
2023 Latest Caselaw 1571 Ori

                        IN THE HIGH COURT OF ORISSA AT CUTTACK

                                     FAO No.51 of 2022
                 Damayanti Dhurua and Another            ....            Appellants
                                              Ms. Deepali Mahapatra, Advocate
                                           -versus-
                 General Manager, East Coast Railway,
                 Chandrasekharpur, Bhubaneswar and
                 Another                                 ....           Respondents
                                     Ms. B. Sahu, Central Government Counsel

                           CORAM:
                           SHRI JUSTICE B. P. ROUTRAY
                                         ORDER

20.2.2023 Order No.

03. 1. The matter is taken up through hybrid mode.

2. Heard Ms. D. Mahapatra, learned counsel for the claimant - Appellants and Ms. B. Sahu, learned Central Government Counsel for Respondent - Union of India.

3. Present appeal by the claimants is directed against impugned judgment dated 11th January, 2022 of learned Member (Technical), Railway Claims Tribunal, Bhubaneswar Bench, Bhubaneswar passed in OA(IIU)/288/2017, wherein the tribunal has refused to grant any compensation by disbelieving the case of the claimants.

4. The case of the claimants is that the deceased namely, Rahasa Dhurua while travelling from Sambalpur to Bargarh in Sambalpur- Rayagada Express Train No.18301 on 29th July, 2017 died by falling from running train between Sambalpur - Hirakud Station.

5. The claimants examined two witnesses viz. A.W.1 and A.W.2 on their behalf and the Railways examined one witness viz. R.W.1. Besides the oral evidence, the parties also relied on several documents including the inquest report, post mortem examination report, police report etc. Additionally, the Railways filed DRM's enquiry report in support of their stand.

6. The undisputed fact remains that the dead body of the deceased was first noticed by the on duty crews of train No.12872 (Ispat Express) at 8.45 hours on 29th July, 2017 laying inside the railway track at KM No.565/8-9 in between Hirakud - Sambalpur railway station. The inquest over the dead body was held and the same was sent for post mortem examination. The post mortem was conducted at VSS Medical College and Hospital, Burla on 29th July 2017 at 4 pm. As per opinion of the autopsy doctor recorded in said post mortem examination report, the time of death is within 12 hours to 18 hours from the time of autopsy. It is also admitted on record that Sambalpur

- Rayagada Express train No.18301 departed Sambalpur station at 6.33 hours towards Hirakud. As per the evidence of A.W.1, she has no direct knowledge about travelling of the deceased in Sambalpur - Rayagada express. According to A.W.2, who is the son-in-law of the deceased, he accompanied the deceased to Sambalpur station and saw the deceased entrained at Sambalpur station in Sambalpur - Rayagada express after purchasing the journey ticket. It is further stated by A.W.2 that he departed the platform after the train departed from Sambalpur station.

7. Admittedly, no journey ticket of the deceased could be recovered from possession of the dead body of the deceased and the

claimants also failed to produce the same or to explain anything on the same, though it is their contention that the journey ticket has been lost during incident.

8. If the opinion of the autopsy doctor recorded in the post mortem examination report, which is no less than an expert opinion, is accepted then the statement of A.W.2 made in his evidence affidavit is seen unworthy of credit because according to the post mortem examination report the death of the deceased must be prior to 4 am on 29th July, 2017. Neither any authority like platform ticket in favour of A.W.2 is produced nor could any journey ticket of the deceased was brought on record by the claimants. In such circumstance, the opinion of the autopsy doctor recorded in the post mortem examination report could not be brushed aside. If that would remain and it is accepted that the death of the deceased is prior to 4 am in the morning, then the conclusion would be that the deceased was no way concerned with the train in question and he cannot be treated as a bona fide passenger of Sambalpur - Rayagada Express train No.18301, because the train started its journey from Sambalpur at 6.33 am. As such, the claimants have failed to establish the death of the deceased in any untoward incident.

9. Accordingly the appeal is dismissed and the finding of the learned tribunal in the impugned judgment is confirmed.

10. The documents including the evidence of witnesses as produced by Ms. Mahapatra in course of hearing are kept on record.

( B.P. Routray) Judge M.K.Panda