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2002 DIGILAW 1006 (AP)

Dasari Laxmi v. Union of India

2002-08-16

S.ANANDA REDDY

body2002
( 1 ) THIS is an appeal filed by the applicant against the award passed by the Railway Claims Tribunal, secunderabad Bench, Secunderabad in OAA no. 8 of 1977, dated 16-10-1997 dismissing the claim. ( 2 ) AS per the averments of the application, on 9-10-1996 while the deceased dasari Nageswara Rao was trying to Board secunderabad Palasa "visakha Express at yelamanchili Railway Station, he slipped and fell down the train accidentally and sustained injuries. Subsequently, he died in the government hospital, Visakhapatnam. The applicant being the wife, who is a dependent on the deceased , made a claim for compensation of Rs. 2 lakhs in respect of the death of her husband. No written statement was filed by the respondent Railways authorities. Thereafter, the Tribunal framed the issue whether the deceased was a bona fide passenger or not and thereafter recorded the evidence of both sides and decided the issue holding that the deceased was not a bona fide passenger as there is no evidence showing that he had purchased the ticket and therefore, dismissed the application of the claimant. Aggrieved by that, the applicant has come up in the present appeal. ( 3 ) THE learned counsel for the appellant contended that the Tribunal erred in rejecting the claim of the applicant. It is contended that the deceased was carrying on business in the sale of cigars at Visakhapatnam. On the date of the accident, he along with two others, carrying on the similar business, was proceeding to Visakhapatnam by visakha express and the evidence of the co-passenger (co-seller) clearly shows that the deceased purchased the ticket by borrowing rs. 20/- from the co-seller, as at the booking counter, it was informed that there is no change for Rs. 100 note which was offered for the purchase of the ticket and hence the deceased had borrowed Rs. 20. 00 from P. W. 2 and purchased the ticket, which was clearly deposed by P. W. 2. In the light of the said evidence and in the absence of any other contra evidence, the Tribunal :was not justified in rejecting the claim of the Applicant/ claimant. 20. 00 from P. W. 2 and purchased the ticket, which was clearly deposed by P. W. 2. In the light of the said evidence and in the absence of any other contra evidence, the Tribunal :was not justified in rejecting the claim of the Applicant/ claimant. The learned counsel also contended that the provisions which are intended to award compensation to the dependants of the deceased in an accident where it causes death of a passenger; the burden cannot be imposed on the dependants to prove that the deceased passenger was a bona fide passenger. The learned counsel also contended that the burden should be on the Railways to prove that the deceased was not a bona fide passenger in order to deny its liability to pay the compensation as provided under the provisions of the Railways Act. The learned counsel also relied upon a decision of the Madhya pradesh High Court in the case of Raj kumari v. Union of India, 1993 Acc CJ 846, where it was held that the burden to prove that the deceased was not a bona fide passenger is on the Railways. The learned counsel also relied upon a decision of the rajasthan High Court in the case of Union of India v. Soram Bai, 1998 (2) Accidents judicial Reporter 254, where a similar view was taken by the Rajasthan High Court, following the decision of the Madhya Pradesh high Court referred to above. The learned counsel also relied upon an unreported decision of this Court in the case of Gullipalli lakshmikanthamma v. G. M. South Central railway, Secunderabad, CMA 2097 of 1997, dated 26-4-2002 (reported in 2002 (4) Andh lt 344 ). The learned counsel therefore, contended that the view taken by the Tribunal is contrary to the above decisions, apart from the evidence on record and therefore, sought for setting aside the impugned order. ( 4 ) THE learned Standing Counsel for the respondent Railways on the other hand, supported the order of the Tribunal. The learned counsel contended that it is for the claimant to prove that the deceased was a bona fide passenger in which case alone the claimant is entitled for compensation; The learned counsel contended that there is a dispute both as to the accident as well as to the fact that the deceased was travelling with a valid ticket. The learned counsel contended that it is for the claimant to prove that the deceased was a bona fide passenger in which case alone the claimant is entitled for compensation; The learned counsel contended that there is a dispute both as to the accident as well as to the fact that the deceased was travelling with a valid ticket. Basing on the evidence adduced by both sides the Tribunal came, to the conclusion that the deceased was not a bona fide passenger and therefore, the claim was rightly rejected. The learned counsel also relied -upon two decisions of the allahabad High. Court in the case of Sundri v. Unions India, AIR 1984 All 277 (FB) and sudha v. Claims Cornmr. Northern Railway, air 1985 All 52 . The learned counsel therefore, sought for dismissal of the appeal. ( 5 ) HEARD both sides and considered the material on record. ( 6 ) THE dispute in this appeal is whether the claimant Appellant is entitled for any compensation under the provisions of the railways Act. 1989. ( 7 ) THOUGH it was disputed even as to the factum of accident, but the Tribunal on consideration of the material on record gave a finding that there is no controversy as to the untoward incident (accident) that had occurred on 9-10-1996 in which the deceased had received injuries and subsequently died in the hospital on 10-10-1996. Therefore, it is to be considered whether the deceased was a passenger as referred to in clause (2) of the explanation under Section 124-A, which reads as under. "section 124-A. Compensation on account of untoward incidents. . . . . . . . . . . . . . . . Explanation : for the purpose of this section, "passenger" includes (i ). . . . . . . . . . (ii) a person who has purchased a valid ticket for travelling, by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident. " ( 8 ) IN order to decide the above, it is to be considered on whom the burden lies. Is it on the claimant or on the Respondent authorities, who wants to deny the liability ? " ( 8 ) IN order to decide the above, it is to be considered on whom the burden lies. Is it on the claimant or on the Respondent authorities, who wants to deny the liability ? in order to prove that the burden lies on the railways, the Appellant relied upon the judgment of the Madhya Pradesh High Court in the case of Raj Kumari v. Union of India (1993 Acc CJ 846) (supra ). In that case, a division Bench of the Madhya Pradesh High court had an occasion to consider similar issue with reference to a claim under Section 82a of the Old Act, which corresponds to Section 124. Of course, Section 124-A was inserted for the first time in the year 1994 under which the compensation payable on account of untoward incident was specifically incorporated. Similarly, under Section 123, the term untoward incident was also defined so as to include even the accidental falling of any passenger under a train carrying passengers. The Division Bench after considering the rival contentions and also referring to some of the relevant provisions of the Railways Act, which specifically prohibits travelling without pass or ticket, which would in fact result in imposing of punishment of imprisonment or fine and concluded that the burden is on the Railways to prove that the deceased was not a bona fide passenger. The relevant portion of the judgment reads as under :--"the main question that arises in this case is on whom the onus of proof lies in such claim cases and whether any presumption under the Evidence Act can be raised. Normally under Sections 101 and 102 of the evidence Act, the burden to prove such facts, on which the legal right or liability, depends, is on such person who asserts existence of these facts. But the question before us is whether the burden of proof that the deceased held a valid ticket, pass or permission during his journey, in which he died in accident, can be placed, on his dependants. Obviously, such burden of proof is impossible to be discharged by the dependants, who can have no means of knowledge, whether the deceased before, boarding the train, had purchased a valid ticket, pass or permission from the railway authorities. Obviously, such burden of proof is impossible to be discharged by the dependants, who can have no means of knowledge, whether the deceased before, boarding the train, had purchased a valid ticket, pass or permission from the railway authorities. It is likely that such a deceased passenger held a valid ticket, pass or permission, but the same is lost in the accident with the death of person and loss df his belongings, if any. "thereafter, the Court referred to the provisions of Section 114 of the Evidence Act and held that when there is a prohibition to board the train and travel without a ticket or pass, it should be presumed that the passengers travelling in the train are the passengers with ticket. Holding so, the appeal was allowed granting compensatory to which the claimants are entitled. ( 9 ) SIMILAR view was taken, by the rajasthan High Court in the case of Soram bai (l998 Acc JR. 254) (supra), A;learned single Judge of this Court had. also an occasion to consider a similar issue, in the case of Gullipalli Lakshmikanthamma (2002 (4) andh LT 344} (supra) where the claimant s appeal was allowed hold as under :"after considering the same, I am of the opinion, that, an inference can be drawn to the effect that the deceased is a bona fide passenger having regard to the; realities and realistic arid pragmatic approach of the question involved. It cannot invariably be conceived or cornprehended, that, always, ticket should be traced. One has to imagine the circumstances, that will prevail at the" relevant time and whether keeping of the ticket should be given that much of importance at the crucial time, when the deceased was suffering from fatal injuries died. the ticket could have been missing. So, from the material, on record, it must be found, that, the deceased is a bona fide passenger. " ( class=pno> 10> ) ON the other hand, the learned counsel for the respondent relied upon a decision of the Allahabad High Court in the base of Sundri v. Union of India ( AIR 1984 All 277 ) (supra ). So, from the material, on record, it must be found, that, the deceased is a bona fide passenger. " ( class=pno> 10> ) ON the other hand, the learned counsel for the respondent relied upon a decision of the Allahabad High Court in the base of Sundri v. Union of India ( AIR 1984 All 277 ) (supra ). Where a Full bench of the allahabad High Court had considered the expression passenger and held that it does not include trespasser or p erson travelling without ticket, pass or authority and therefore , the compensation is not payable for the death of such trespasser in a train accident. The said decision does riot deal with the burden on whom it lies to prove whether the deceased was a bona fide passenger or not. Similarly, in the case of Sudha v. Claims commr. Northern Railway ( AIR 1985 All 52 ) (supra) a division Bench of the Allahabad high Court had considered the scope of Sections 82-A and S2f of the Railways Act. Though in that case it was held that the burden of proof lies on the claimant, in fact the dispute in that case was whether the deceased died in consequence of the train accident and the Court gave a finding that there was no reliable evidence to show that the deceased purchsed a ticket and boarded the train in that case the finding was that there is no evidence as to the travelling of the decided in the train, which (net with the accident Therefore, it could not be an authority to support the contention of the respondent authorities that the burden lies on the claimant to prove that the deceased was a passenger in terms of explanation to Section 124-A of the Act. ( 11 ) IN the light of the above decisions, if we examine the evidence which was considered by the Tribunal for recording a finding on behalf of the claimant, the claimant her s self was examining as PW 1 and got examined PW 2, who is said to be an eye witness to the accident as well as to the purchase of the ticket. In fact, the evidence of pw. 1 cannot be of much relevance as to the purchase of ticket as she was not present either at the time of the purchase of ticket or at the time of the apccident. In fact, the evidence of pw. 1 cannot be of much relevance as to the purchase of ticket as she was not present either at the time of the purchase of ticket or at the time of the apccident. P. W. 2 categorically stated the me deceased tendered rs. 100 note at the Railway Booking counter and as the booking clerk informed the deceased that he does not have the change, the deceased borrowed Rs. 20. 00 from PW 2 and purchased the ticket. In fact, in the cross-examination of the said witness not even a suggestion was made disputing his version that he advanced Rs. 20. 00 to the deceased far purchasing the ticket and the purchase of ticket by the deceased. On behalf of the Railway authorities, no counter or written statement was filed but examined rw 1. who is a guard of the train, Visakha express, under which the deceased came under and was ran over. His evidence is that there was no accident at all. He must have been examined to prove that there was no such accident at all. But as the Tribunal gave a categorical finding as to the factum of acpldent,, his evidence is not at all relevant for the present appeal. Coming to the evidence of RW 2, who was the Assistant station Master at the relevant point of time, his evidence shows that was informed by some people that a man had fallen down accidentally from the train and was lying injured on the platform. According to this witness, he went to the spot and came back to his office to make arrangements for sending the injured to the Government hospital. His further version was a part of the crowd told him that they had arranged a rickshaw and would undertake to carry the injured to the hospital and they only wanted a Memo from RW 2 addressing the hospital authoriti for forwarding the injured According to this witness, the crowd told him that the injured was having season ticket and when he wanted to see the said season ticket the crowd had pressurised him to issue Memo informing that the injured was having profusen bleeding. Therefore, this witness has issued a Memo incorporating the said fact. Therefore, this witness has issued a Memo incorporating the said fact. In the cross-examination, however, his version was recorded as "he denies the sugestion that he mentioned about the season ticket on the ground of pressurizing him to do so. " He has even deposed in the cross- examination that he could not recollect any particular face in the crowd and cannot identify any one. The (witness also admitted that there was no rowdy behaviour of the mob immediately after the accident. ( 12 ) THE Tribunal based on the above version of RW 2; rejected the claim of the claimant on the ground that the claimant failed to prove that the deceased was a Passenger as defined in the Act. The conclusion arrived at by the Tribunal is not proper and just even going by the evidence. PW 2 categorically stated that he advanced Rs. 20. 00 to the deceased as he could not purchase with his own money as he was having rs. 100/- note for which there was no change in the booking counter. When his version was not even doubted by giving any suggestions in the cross-examination, there is absolutely no justification in not accepting, his version. In fact, the evidence of RW- 2 is in a way of shaky. He was not very clear, who has pressurized him to note that the deceased was having a season ticket. According to his own version, when he was informed by the mob, he went to the spot and came to his office for preparing a Memo. Therefore, under the above circumstances, the Tribunal is not justified in giving much importance to the evidence of RW-2 rather than the evidence of PW-2. The Tribunal showed the reason for not accepting the evience of PW-2 that though he was along with the deceased when he was lying injured, he did not inform RW-2 that he had purchased a ticket and he was not having a season ticket. RW-2 did not state that PW-2 was aware of the preparation of the Memo and whether he was present in the crowd, who pressurised him to issue the Memo stating that the deceased was having the season ticket. RW-2 did not state that PW-2 was aware of the preparation of the Memo and whether he was present in the crowd, who pressurised him to issue the Memo stating that the deceased was having the season ticket. In the light of the above evidence as well as in the light of the decisions cited earlier, the conclusion arrived at by the Tribunal is not just and proper and accordngly the said findings are liable to be set aside. Therefore, the impugned order is set aside and the claimant is therefore, entitled for compemsation as claimed in accordance with Part-I of Schedule to the Railways Accidents (Compensation) Rules, 1990. ( 13 ) IN the result, the appeal, is allowed. NO costs Appeal allowed.