Orissa High Court
Surekha Biswal And Others vs Union Of India on 4 May, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
FAO No.61 of 2015
Surekha Biswal and others .... Appellants
Ms. D. Mohapatra, Advocate
-versus-
Union of India .... Respondent
Ms. S. Patra, C.G.C. for Union of India
CORAM:
JUSTICE B. P. ROUTRAY
ORDER
04.05.2023
Order No.
04. 1. Heard Ms. D. Mohapatra, learned counsel for the Appellants-
claimants and Ms. S. Patra, learned C.G.C. for Union of India-
Respondent.
2. Present appeal by the claimants, who are the wife and
daughters of the deceased namely Abhimanyu Biswal, is directed
against judgment dated 02.12.2014 of Railway Claims Tribunal,
Bhubaneswar Bench, Bhubaneswar, passed in Case No.OA/IIu/
BBS2008/0065, wherein learned Tribunal has refused to grant
any compensation by disbelieving the case of the claimants.
3. The sole point falls for determination is that, whether the
deceased was a bonafide passenger of Visakha Express at the
time of accident or he was a trespasser to the railway track ?
According to the claimants, the deceased was travelling from
Bhubaneswar to Berhampur in Visakha Express Train No.7015
and he fell at the level crossing due to sudden jerk one kilometer
before Berhampur Railway Station.
According to the Railways, the deceased trespassed to Up
railway track at the level crossing despite long whistle blow of
the train and this fact was reported by the loco pilot and train
guard to the Station Manager in writing.
4. The claimants examined one alleged eye-witness Viz. A.W.2,
who stated to have seen the deceased falling from running train at
the spot. Besides the evidence of A.W.2, the claimants also rely
on the investigation report of the Police submitted in
Baidyanathpur PS UD Case No.50/2007.
5. The Railways examined R.W.1, the Station Manager of
Berhampur Railway Station and produced the joint memo given
by the loco pilot and the train guard and also produced the
statutory enquiry report of the DRM. The Railways also relied on
the enquiry report of the RPF in support of their contention.
6. It is true that neither the enquiry report prepared by the local
Police in the UD case nor the enquiry report of the RPF are
admissible in evidence. But so far as the joint memo of the loco
pilot and train guard dated 17.3.2007 is concerned, the same has
been marked in evidence as Ext.R/1. R.W.1 is the Station
Manager before whom it was submitted by the loco pilot and train
guard, and he produced said document under Ext.R/1 before the
Tribunal. Section 191 of the Railways Act speaks admissibility of
such official records and documents, produced from proper
custody, in all proceedings by or against the Railways. In the
circumstances, Ext.R/1 - the written document dated 17.3.2007 is
found admissible in evidence. Said Ext.R/1 discloses that the
deceased was trespassing the Up railway track at the level
crossing without adhering to security measures and despite
approaching of the train with whistle blow. As seen from the
evidence of R.W.1, no question was asked from the side of the
claimants in his cross-examination suspecting authenticity of the
document under Ext.R/1 or the contents thereof. Therefore, the
content of Ext.R/1 is prima facie presumed to be true by operation
of provisions under Section 114 of the Indian Evidence Act.
7. On the other hand, the evidence of A.W.2, who stated him to
be the eye-witness of the occurrence, is found unbelievable for
many reasons. First, the alleged journey ticket of A.W.2 is
Monthly Seasonal Ticket (MST) which is valid from Khurda to
Berhampur only. But A.W.2 has stated that he moved along with
the deceased from Bhubaneswar Station to Berhampur though no
such journey ticket of A.W.2 from Bhubaneswar to Khurda has
been produced. Secondly, no journey ticket of the deceased from
Bhubaneswar to Berhampur has been produced. Thirdly, the
evidence of A.W.2 speaks that, said A.W.2 shouted while seeing
the deceased falling from the train at the level crossing, but when
the train stopped at Berhampur station, he neither reported the
same either to the Railway authorities or to Police or to anyone
else.
All such circumstances and the conduct of A.W.2 make his
version untrustworthy as an eye-witness to the incident.
8. So, upon analysis of the evidence of R.W.1 and the facts
mentioned in Ext.R/1 vis-à-vis the evidence of A.W.2 and other
relevant facts as discussed above, the balance of probabilities tits
in favour of Railways that the deceased was not a passenger of
Visakha Express Train No.7015 at the time of accident, but was a
trespasser at the level crossing. Accordingly, the findings of
learned Tribunal are confirmed.
9. Resultantly, I do not see any reason to interfere with the
impugned award and the appeal is dismissed.
10. The copies of the depositions and documents produced in
course of hearing by both the parties are kept on record.
( B.P. Routray)
Judge
BASANTA Digitally signed by
BASANTA KUMAR
KUMAR
B.K. Barik
BARIK
Date: 2023.05.05
BARIK 09:51:26 +05'30'
