Rajasthan High Court

Union Of India Through The General ... vs Smt. Sanjana Kanwar W/O Late Shri ... on 16 December, 2021

Bench: Sanjeev Prakash Sharma

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

          S.B. Civil Miscellaneous Appeal No.2034/2021

Union Of India Through The General Manager, Northern Railway
Baorda House, New Delhi.
                                                                   ----Appellant
                                   Versus
1.     Smt. Sanjana Kanwar W/o Late Shri Arvind Alias Arun,
       Aged About 22 Years, R/o Village Baleta, Police Station
       Malakheda, District Alwar (Raj.)
2.     Baby Ankita Minor D/o Late Shri Arvind Alias Arun, Aged
       About 2 Years, Minor Through Their Natural Guardian And
       Mother Smt Sanjana Kanwar W/o Late Shri Arvind Alias
       Arun R/o Village Baleta, Police Station Malakheda, District
       Alwar (Raj.)
3.     Master Hitesh Minor Son Of Late Shri Arvind Alias Arun,
       Aged   About     1    Years,      Minor      Through      Their   Natural
       Guardian And Mother Smt Sanjana Kanwar W/o Late Shri
       Arvind Alias Arun R/o Village Baleta, Police Station
       Malakheda, District Alwar (Raj.)
4.     Smt Sunita Kanwar W/o Late Shri Hira Singh, Aged About
       54 Years, R/o Village Baleta, Police Station Malakheda,
       District Alwar (Raj.)
5.     Hira Singh S/o Shri Narain Singh, Aged About 56 Years,
       (Died During The Pendency Of Claims Application)
                                                                ----Respondents

For Appellant(s)         :     Mr. Dhoop Singh Poonia
For Respondent(s)        :

HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA

Order

16/12/2021

1. This appeal has been preferred against the judgment dated

16.08.2021 passed by the Railway Claims Tribunal, Jaipur Bench

whereby the claimants have been awarded compensation as

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mentioned therein individually on account of death of one Mr.

Arvind @ Arun who was stated to have fallen accidentally from the

running train bound for Jammu Tawi from Alwar. It was averred

that on 02.09.2014 deceased Arvind @ Arun along with his two

companions commenced his journey from Alwar to Jammu Tawi

holding a valid second class railway journey ticket valid for three

adults. As there was a lot of rush of passengers in the train, all

three of them boarded different coaches. Deceased Arvind @ Arun

hardly get a space to stand in the gallery near the door of the

coach. As it has come to knowledge later on that on account of

sudden jerk or result in loss of balance he fell down from the

running train in between Kms.39/1 and 39/2 between Railway

Station Gadhi Harsau and Gurgaon. He rolled down and died as a

result of injuries. The body went into nearby bushes and could not

be detected on 03.09.2014 and was later on detected on

04.09.2014 and the Railway Police completed the requisite

formalities under Section 174 Cr.P.C. and as the identity of the

deceased could not be disclosed post mortem was conducted and

the dead body was cremated on 07.09.2014. The other two

colleagues could not find Arvind @ Arun and one of them

continued up to Jammu Tawi while the other returned to the

village. Family members searched and later on located him and

identified him by his clothes and photographs at Government

Railway Police, Gurgaon. Affidavits have not been filed mentioning

that the deceased possessed a valid journey ticket and lost the

same during the course of incident and was a bona fide passenger

of the train at the time of occurrence of incident.

2. Learned counsel for the Railways-Union of India submits that

as the railway ticket was not found from his possession he cannot

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be treated as a bona fide passenger. He further submis that the

findings arrived at by the Tribunal therefore, are based on

presumption which cannot be drawn merely because the dead

body was found next to the railway track.

3. Learned counsel submits that in the Fard Jama Talashi

conducted by the Inspector, RPF, no ticket was found from the

dead body of the person and therefore, as defined under

Explanation to Section 124A the deceased cannot be said to be

person who has purchased a valid ticket for travelling by train and

would therefore, not be entitled to claim compensation in terms of

Section 124A.

4. Learned counsel in support of his submissions also relies on

a judgment passed by the Supreme Court in the case of

Kamrunnissa v. Union of India reported in AIR 2017 SC

1436 to submit that if a person does not possess a valid ticket he

would not be entitled to claim for compensation on account of his

death.

5. Learned counsel further submits that if it cannot further be a

case of untoward incident as untoward incident only occurs when

an accident has occurred of the train. As there was no accident of

the train therefore, there cannot be any untoward incident to have

taken place.

6. I have thoughtfully considered his submissions.

7. In order to see whether a presumption can be drawn

whether the deceased was a bona fide passenger of the train, this

Court finds that learned Tribunal has noticed the statement of the

witnesses of the Railway Administration. The witnesses Mr. Ram

Phal though mentions that there was no ticket found but during

cross-examination he has stated that he did not see the dead

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body and only made the search. He also states that he did not

notice whether the clothes of the deceased were in torned

condition which brings contradictions in his testimony. The second

witness Mr. Manoj Kumar Bhardwaj also reports that no ticket was

found and in cross-examination states that inquiry was entrusted

to him after filing of the claim petition, therefore, both the written

statements have not been relied upon by the Tribunal and in the

opinion of this Court the Tribunal has rightly concluded that the

statements cannot be relied upon. Even otherwise, it is a case

where the dead body of the deceased remain unindentified which

shows that the body was without having any other documentation

and no purse or any belongings of the deceased were found. Thus,

a reasonable presumption can be drawn that the ticket was lost,

moreso, as there are two other witnesses who were co-passengers

of the passenger.

8. In the case of Union of India v. Rina Devi reported in

AIR 2018 SC 2362 the Supreme Court has considered the law as

laid down in Kamrunnissa (supra) and defined the judgment of

Kamrunnissa (supra) considering the fact that in Kamrunnissa

(supra) case the dead body was found in two pieces and was lying

on the road. Thus, each case has to be examined on its own facts.

However, the Apex Court observed as under:-

"17.4 We thus hold that mere presence of a body on the Railway premises will not be conclusive to hold that injured or deceased was a bona fide passenger for which claim for compensation could be maintained. However, mere absence of ticket with such injured or deceased will not negative the claim that he was a bona fide passenger. Initial burden will be on the claimant which can be discharged by filing an affidavit of the relevant facts and burden will then shift on the Railways and the issue can be decided on the facts shown or the attending circumstances. This will have to be dealt with from case to

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case on the basis of facts found. The legal position in this regard will stand explained accordingly."

9. Thus, the law is settled, initial burden has to be on the

claimants however, once they discharge the burden onus shifts on

the Railways to disprove the claim of the claimants and in the

opinion of this Court as the two witnesses who were examined on

behalf of the Railways could not disprove the case of the claimants

no error can be said to have been committed in drawing a

presumption that the ticket might have been lost and the

deceased was a bona fide passenger.

10. The next contention raised relating to the untoward incident

has not occurred is wholly erroneous. So far as an accident is