Prabha Devi vs The Union Of India Through The ...
2023 Latest Caselaw 736 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                     Miscellaneous Appeal No.955 of 2016
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Prabha Devi, W/o Late Ganesh Pd. Singh, resident of village/mohalla-Bela, P.S. -Atari, District-Gaya (Bihar)

... ... Appellant Versus The Union of India Through The General Manager, East Central Railway, Hajipur.

... ... Respondent ====================================================== Appearance :

For the Appellant/s    :     Mr.Anant Kumar-1, Advocate
For the Respondent/s   :     Mr.

====================================================== CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD ORAL JUDGMENT Date : 10-02-2023 Heard learned counsel for the appellant. No one appears

on behalf of the Railways.

2. This appeal has been preferred for setting aside the

order dated 10.03.2016 passed in Claim Application No. M.A.

(OA) 0089 of 2010 by the Learned Member (Judicial), Railway

Claims Tribunal, Patna Bench (hereinafter referred to as the

'Tribunal') whereby and whereunder the claim application of the

appellant has been dismissed by the Tribunal on erroneous

grounds.

3. Learned counsel for the appellant submits that on

25.12.2008 her husband namely, Ganesh Prasad Singh who was

posted as constable at rail Thana Jamalpur had boarded the Up

Bhagalpur-Muzaffarpur Express Train at Jamalpur together with

Sunil Kumar Singh, Dharmendra Kumar and Jainendra Kumar Patna High Court MA No.955 of 2016 dt.10-02-2023

constables. Ganesh Prasad Singh and other three constables were

having one rifle each. When the train reached and halted at

Agampur, all the four Constables boarded in second bogie of the

back side of S.L.R. bogie. After some time fifty to sixty miscreants

aged about 15 to 25 and 20 to 25 ladies boarded in the same bogie.

As soon as the train crossed Ghoghi Bariyarpur halt, the train was

suddenly stopped. At this stage some people amongst the 60

people who boardeed at Agampur came near the escort party and

threw Mirchi Gundi on the faces of all the four Constables and

looted away their rifles and cartridges. In the said contest the

criminals fired some shots aiming at Ganesh Prasad Singh as a

result whereof he died on the spot. Another Police personnel

Ramakant Choudhary and some other passengers also got injuries.

After looting away all the rifles and cartridges those persons got

down from the train and raised slogans in support of maoists. They

also made firings while fleeing away. In this connection, Jamalpur

Rail P.S. Case No. 37/2008 under Section 396/397 of the Indian

Penal Code and Section 17 of the C.L.A. Act dated 25.12.2008

was registered. The inquest report was prepared on 25.12.2008 and

thereafter post-mortem of the dead body of the deceased was

conducted on 26.12.2008 at Sadar Hospital Munger. After Patna High Court MA No.955 of 2016 dt.10-02-2023

investigation, the I.O. submitted a final report on 27.06.2009 in

favour of this untoward incident.

4. Learned counsel for the appellant submits that

Ganesh Prasad Singh was married and the appellant being his wife

and dependent as defined under Section 123(b)(i) of the Railways

Act, 1989 (hereafter referred to as the "Act of 1989") filed a claim

case seeking compensation before the Tribunal, Patna Bench,

Patna. It is his submission that in support of her claim the

complainant produced herself as a witness (A.W.1) and sworn her

evidence on affidavit. She filed 11 documents which are marked as

Exhibit A-1 to A-11. It is submitted that all the documentary

evidences coupled with the evidence of AW-1 were sufficient to

take a view that an untoward incident had occurred on 25.03.2008

in which the husband of the claimant-appellant who was on duty in

the said train was shot dead. It is submitted that despite these

materials available on the record, the learned tribunal has

dismissed the claim petition. It is submitted that the order of the

learned tribunal suffers from non-consideration of the materials

available on the record.

5. This Court has heard learned counsel for the

appellant and perused the records as also the impugned order. The

appellant has placed on record the copy of the exhibits. It is Patna High Court MA No.955 of 2016 dt.10-02-2023

submitted that on perusal of A-5 which is the copy of the 'Kaman',

it would appear that Ganesh Prasad Singh, Sunil Kumar Singh,

Jainendra Kumar and Dharmendra Kumar had been given duty on

the said train on 25.12.2008.

6. The alleged occurrence was reported by constable

Jainendra Kumar. He has mentioned in his fardbeyan that on

25.12.2008 he along with constable 140 Ganesh Prasad Singh,

Constable 250 Sunil Kumar Siingh and Constable 275

Dharmendra Kumar had boarded the Train No. 3419 Up Bhagalpur

- Muzaffarpur Jan Seva Express as escort guards. He has narranted

the entire occurrence, the manner of occurrence and further stated

that on protest raised by Sepoy 140 Ganesh Prasad Singh, he was

assaulted on his head by a sharp cutting weapon and was shot at

his temporal region. He has further stated that Ganesh Prasad

Singh died as a result of the same in the bogie itself.

7. In the post-mortem report of the Sepoy 140 Ganesh

Prasad Singh three injuries have been shown on the vital part of

his body as a result of which he died. It further appears that after

investigation of the case police found the occurrence true against

the unnamed accused persons and submitted a charge-sheet against

whom sufficient materials were found in course of investigation. Patna High Court MA No.955 of 2016 dt.10-02-2023

8. In the abovementioned background of the facts

emerging from the materials available on the record, this Court

would briefly refer the relevant provisions of the 'Act of 1989'.

The Tribunal has, in it's concluding paragraph taken a view that

the claim preferred by the claimant in this case would not come

within the scope and ambit of section 123(c) of the Act of 1989,

therefore, no relief may be granted under Section 124-A of the said

Act. Section 123 falls under Chapter XIII whereunder the

provisions relating to liability of railway administration for death

and injury to passengers due to accidents have been dealt with.

Section 123 to Section 129 are contained in Chapter XIII of the

Act of 1989. Section 123 is the definitions which are being

reproduced hereunder:

"123. Definitions.- In this Chapter, unless the context otherwise requires, -

(a) "accident" means an accident of the nature described in section 124;

(b) "dependant" means any of the following relatives of a deceased passenger, namely:-

(i) the wife, husband, son and daughter, and in case the deceased passenger is unmarried or is a minor, his parent;

(ii) the parent, minor brother or unmarried sister, widowed sister, widowed daughter-in-law and a minor child of a pre-deceased son, if dependant wholly or partly on the deceased passenger;

(iii) a minor child of a pre-deceased daughter, if wholly dependant on the deceased passenger;

(iv) the paternal grandparent wholly dependant on the deceased passenger;

2c[(c) "untoward incident" means -

(1)(i) the commission of a terrorist act within the meaning of sub-

section (1) of section 3 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 1987); or

(ii) the making of a violent attack or the commission of robbery or dacoity; or

(iii) the indulging in rioting, shoot-out or arson, by any person in or on any train carrying passengers, or in a waiting hall, cloak room or reservation or booking office or on Patna High Court MA No.955 of 2016 dt.10-02-2023

any platform or in any other place within the precincts of a railway station; or (2) the accidental falling of any passenger from a train carrying passengers.]"

9. Section 124 provides for the extent of liability. It is

quoted hereunder for a ready reference:

"124. Extent of liability. - when in the course of working a railway, an accident occurs, being either a collision between trains of which one is a train carrying passengers or the derailment of or other accident to a train or any part of a train carrying passengers, then whether or any there has been any wrongful act, neglect or default on the part of the railway administration such as would entitle a passenger who has been injured or has suffered a loss to maintain an action and recover damages in respect thereof, the railway administration shall, notwithstanding anything contained in any other law, be liable to pay compensation to such extent as may be prescribed and to that extent only for loss occasioned by the death of a passenger dying as a result of such accident, and for personal injury and loss, destruction, damage or deterioration of goods owned by the passenger and accompanying him in his compartment or on the train, sustained as a result of such accident.

Explanation. - For the purpose of this section "passenger" includes a railway servant on duty."

10. A reading of clause 123(c) which is the definition of

the word "untoward incident" it would appear that making of a

violent attack or the commission of robbery or dacoity by any

person in or on any train carrying passengers, or in a waiting hall,

cloak room or reservation or booking office or on any platform or

in any other place within the precincts of the railway station would

come within the meaning of the word "untoward incident".

11. This Court is unable to understand as to on what

reasoning the learned tribunal has concluded in one line that the

present claim would not come within the scope and ambit of

section 123(c) of the Act of 1989. It is evident from the impugned Patna High Court MA No.955 of 2016 dt.10-02-2023

order that the Tribunal has not at all looked into the documentary

evidences produced on behalf of the claimants, save and except to

take note of the kind of document and marking the same as the

exhibits. The Tribunal has not taken pain to go through the

contents of those exhibits and no discussion at all has been made

in the impugned order as to the contents of those documents and

any judicious application of mind thereto by the tribunal. In

identically vague manner the tribunal has observed that no relief

may be granted under section 124A of the Act of 1989. There is no

discussion as to why and what has prevailed in the mind of the

tribunal so as to take this view.

12. This Court would remind itself that the relevance

and reasons are the heart and soul of any adjudicatory process and

the tribunal was obliged to follow this in it's terms and spirit. To

say that the claimant has not produced any evidence that her case

may be proved under section 123(c) of the Act of 1989 clearly

depicts that it is a case of non-application of a judicious approach

on the part of the tribunal. There are ample materials showing that

the "untoward incident" as envisaged under section 123(c) of the

Act of 1989 had taken place. The impugned order itself shows that

the railways (opposite parties) had not produced any evidence or

document against the claim of the claimant. In such circumstance, Patna High Court MA No.955 of 2016 dt.10-02-2023

it is all the more unreasonable on the part of the tribunal in

rejecting the claim petition on abstract consideration.

13. This appeal, therefore, succeeds. The impugned

order is hereby set-aside. The Railway Claims Tribunal, Patna

Bench, Patna is directed to consider the claim of the claimant on

merit in the light of the discussions made hereinabove. More than

one decade has gone in this litigation, therefore the Tribunal shall

make all endeavours to adjudicate this claim and pass an

appropriate order within a period of six months from the date of

receipt/communication of a copy of this order. The date of hearing

shall be pre-notified to the parties.

14. This appeal is allowed.

(Rajeev Ranjan Prasad, J) vats/Rajeev-

AFR/NAFR
CAV DATE
Uploading Date              14.02.2023
Transmission Date           14.02.2023