Smt. Nukalu Payikala And Others vs Union Of India
2023 Latest Caselaw 7565 Ori

                                          IN THE HIGH COURT OF ORISSA AT CUTTACK
                                                      FAO No.78 of 2022

                                 Smt. Nukalu Payikala and others          ....         Appellants
                                                                   Ms. D. Mohapatra, Advocate
                                                            -versus-
                                 Union of India                           ....        Respondent
                                                       Mr. A. Pradhan, C.G.C. for Union of India

                                             CORAM:
                                             JUSTICE B. P. ROUTRAY

                                                           ORDER

13.07.2023 Order No.

03. 1. Heard Ms. D. Mohapatra, learned counsel for the Appellants-

claimants and Mr. A. Pradhan, learned C.G.C. for Union of India- Respondent.

2. Present appeal by the claimants is directed against judgment dated 09.12.2021 passed in OA(IIU)/187/2018 by the Railway Claims Tribunal, Bhubaneswar Bench, Bhubaneswar, wherein learned Tribunal has refused to grant any compensation holding that the deceased was a trespasser in the railway track.

3. The case of the claimants is that the deceased was initially travelling in Falaknuma Super-fast Express Train on 9.5.2017 from Piduguralla to Ichchapuram and at Visakhapatnam Railway station he missed said train while got down for taking tea. His co-

passenger though left in the Falaknuma Express, but the deceased being missed the same came in Visakha Express on the following

Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 14-Jul-2023 17:39:12 day from Visakhapatnam towards Ichchapuram. While coming in Visakha Express, he accidentally fell down from the running train, rolled down to the nearby track and crushed under the wheels of a goods train that was passing on the track at that time.

4. Ms. Mohapatra, learned counsel for the Appellants-claimants submits that when the deceased was held as a bonafide passenger and his death by the goods train is established, the death concerning an untoward incident cannot be denied and thus, learned Tribunal has committed error to reject the claim by disbelieving the claimants.

5. It is seen from record that, the travelling Ticket No.29367749 dated 9.5.2017 of the deceased is in respect of Falaknuma Express and claimant's case is that the deceased having missed Falaknuma Express subsequently boarded in Visakha Express. Therefore, production of ticket in respect of Falaknuma Express to justify the deceased as a bonafide passenger is of no help to satisfy the contentions of claimants to treat the deceased as a bonafide passenger for Visakha Express.

6. A.W.1 is the widow of the deceased and examined on behalf of the claimants. In addition to the evidence of A.W.1, the claimants have also relied on the copies of FIR and other Police papers. On the other hand, R.W.1 is the Loco-pilot of the same goods train involved in the incident.

7. A.W.1 has no direct knowledge about the incident. She did not see the deceased travelling in Visakha Express and the incident

Signature Not Verified

Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 14-Jul-2023 17:39:12 took place on 10.5.2017 at 9.00 A.M. between Vizianagaram and Korukunda Section at KM No.819/27-29 on the up-track. It is the consistent evidence of R.W.1, the Locopilot of the goods train that he saw the deceased trespassing on the railway track at that particular point and came in contact with the goods train that was passing at that time. Such direct evidence of R.W.1 as the eye- witness of the occurrence is never rebutted. Said R.W.1 has also given same statement before the Railway authority for statutory investigation by the DRM. Thus analyzing the evidences adduced from both sides, it is seen that the direct evidence adduced by R.W.1 being remained unassailed, the contentions of the claimants to justify accidental nature of death of the deceased involving untoward incident is disproved. Accordingly, it is held that the claimants have failed to prove their case regarding death of the deceased in any untoward incident. Accordingly, the finding of the learned Tribunal is confirmed.

8. In the result, the appeal is dismissed.

( B.P. Routray) Judge

B.K. Barik

Signature Not Verified

Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 14-Jul-2023 17:39:12