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Madhya Pradesh High Court · body

2008 DIGILAW 638 (MP)

Shyamlal Sahu v. Union of India

2008-04-29

U.C.MAHESHWARI

body2008
ORDER 1. The appellant-claimant has preferred this appeal under section 23 of the Railway Claims Tribunal Act (In short 'the Act') being aggrieved by the order dated 21.1.1998 passed by the Railway Claims Tribunal, Bhopal in O.A. No. 789/96 dismissing his claim regarding death of his son in untoward incident. 2. The facts giving rise to this appeal in short are that the appellant filed his claim under section 16 of the Act contending that on 23.4.1996 his son Santosh Kumar Sahu, aged about 22 years was travelling in the Kurla Exp. (Holiday) from Bhopal to Bina with valid travelling ticket No. 30699, he fell down from the aforesaid running train and sustained the injuries. He was taken to hospital where during treatment he succumbed to such injuries. In such premises he preferred the claim for the sum of Rs.2,00,000/-. 3. In reply of the respondent, it is stated that the alleged incident is not untoward incident as defined under section 123 (c) of the Railway Act, 1994. It is also pleaded that the deceased being Tea Vendor while selling the tea in such train fell down and came inside the track, resultantly he sustained the injuries and died. The deceased being without ticket was not the bona fide passenger. Thus, it is not liable to pay any compensation. To such premises, the prayer for dismissal of the claim is made. 4. In view of the pleadings of the parties as many as three issued framed. In support of the claim petition the affidavits of the as Badri Prasad and Ramgopal were filed. On consideration by holds the deceased being without ticket was not the bona fide passenger the claim was dismissed. On which the appellant has preferred this appeal. 5. Shri Paresh Pareek, learned counsel for the appellant by referring the pleadings of the claim petition and affidavits placed on record argued that the deceased was travelling in the aforesaid train with valid ticket, the number of such ticket is mentioned in the claim petition and also in the affidavits filed in support of the claim. Although during merg inquiry such ticket could not be seized by the police but mere on that ground it could not be assumed that the deceased was not the bonafide passenger in such train. Although during merg inquiry such ticket could not be seized by the police but mere on that ground it could not be assumed that the deceased was not the bonafide passenger in such train. By referring the decision of this Court in the matter of Union of India v. Satish Patidar and another reported in 2003 (2) JLJ 203 = 2003 (4) MPLJ 306 . he said that the Tribunal was bound to draw the presumption that the deceased was travelling in such train as bona fide passenger. It was not the burden of the appellant to prove that the deceased had valid ticket during such journey. on the contrary the respondent was duty bound to prove that the deceased was not the bona fide passenger. In such background he said that except the papers of inquest inquiry no other evidence has been led on behalf of the respondent. In view of un-rebutted evidence of the appellant adduced by the affidavits the Tribunal ought to have awarded his claim but the same has been dismissed under the wrong premises. It is settled proposition of law that the civil case is decided on probabilities considering the evidence recorded by the Court in such case and not contrary to it. Although the papers of the criminal case may be taken into consideration for proper appreciation of the available evidence but the same could not be a ground for dismissal of the claim. In such premises, he prayed for setting aside the impugned order by awarding his claim in this appeal. 6. Responding the aforesaid argument Shri S.P. Sinha learned counsel for the respondent by justifying the impugned order said that in the absence of valid ticket the deceased could not be treated to be a bonafide passenger and in such premises his death is not covered under the definition of untoward incident. In any case the appellant was bound to prove that the deceased was travelling in such train as bona fide passenger with valid and effective ticket. in which he failed. Hence. the Tribunal has not committed any error in dismissing the claim. In such premises the impugned order does not require any interference at this stage and prayed for dismissal of this appeal. 7. Having heard the counsel. in which he failed. Hence. the Tribunal has not committed any error in dismissing the claim. In such premises the impugned order does not require any interference at this stage and prayed for dismissal of this appeal. 7. Having heard the counsel. after examining the record and also this the impugned order; I am of the considered view that the Tribunal submitted grave error in dismissing the claim of the appellant. 8. It is undisputed fact on record that the deceased Santosh Kumar Sahu aged 22 years had died in the alleged untoward accident as he was run over by the train. According to the case of the appellant the deceased was travelling in such train with valid and effective ticket bearing No. 30699 while the same is disputed by the respondent. It is apparent fact that during inquest inquiry the ticket was not seized or recovered from the spot or dead body of the deceased. It appears from the post mortem report and other papers of inquest report. that in the aforesaid accident the right hand of the deceased was chopped off. Besides this. he also sustained the grievous injuries in his head with hemorrhage. immediately he was shifted to hospital where he died due to aforesaid injuries and hemorrhage. In such situation the possibility of losing the ticket while shifting him to hospital or subsequent to it either on the spot or in the hospital could not be ruled out. Thus, mere on this account, it could not be assumed or inferred that the deceased was travelling in such train without ticket or was not the bona fide passenger. So far the defence of the respondent that the deceased was selling the tea on the railway platform is concerned, I have not found any evidence in support of such defence led by the respondent. Thus, in the lack of any supporting evidence such defence could not be considered to be true mere on the basis of inquest inquiry report or papers of such case diary. It is settled proposition that every civil case is decided on the basis of the evidence recorded in it and in such premises the available evidence adduced by the appellant could not be discarded mere on the basis of papers of criminal case or the inquest inquiry. It was positive case of the appellant that his son was travelling with the valid ticket. It was positive case of the appellant that his son was travelling with the valid ticket. The same is deposed by the Badri Prasad in his affidavit. The same has not been controverted by the respondent in any manner. The other witness of the appellant Ramgopal the brother of the deceased who was accompanying with the deceased being eyewitness of the said incident categorically deposed in his affidavit that his brother Santosh Kumar accidentally fell down from the Kurla Exp. (Holiday) and was run over by it, on which he took him to hospital. They also stated about having the ticket by the deceased. Therefore, it has been proved on record with all probability that the deceased was travelling with the valid ticket but due to aforesaid reasons the same could not be traced out. Besides this, it could not be expected from the dependent of the deceased that they will prove that deceased was travelling as bona fide passenger with proper ticket. The provision of compensation under the Railway Act has been enacted for the welfare of the sufferer of untoward accident. Therefore, in the alleged accident, it could not be expected from the dependent that they should prove the deceased had the valid ticket at the time of accident. In such circumstance the T is bound to draw the presumption in favour of the claimant, deceased was travelling in such train as bonafide passenger. Such question is answered by the Division Bench of this Court in the matter of union of India v. Satish Patidar and another (supra), in which it was held as under: "27. This brings us to point No.4. Learned counsel for the appellants contended that the deceased was not a bona fide passenger, as the claimants could not establish that he purchased the ticket. The burden to prove that the deceased had a valid ticket during his journey, which he proceeded, cannot be placed on dependents. 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 the valid ticket. It is likely that such a deceased passenger had a valid ticket. It is likely that such a deceased passenger had a valid ticket but the same was lost in accident. It is likely that such a deceased passenger had a valid ticket. It is likely that such a deceased passenger had a valid ticket but the same was lost in accident. To place the onus of proof on the dependents would amount to denial of the benefit of legislation to them for reasons beyond their control. In the case before us, the presumption has to be drawn that the deceased was a bona fide passenger. Therefore, we affirm the finding of the Tribunal that the deceased was a bona fide passenger." 9. In view of the aforesaid discussion, considering the un-rebutted evidence of claimant by drawing the presumption in favour of the claimant it is held that deceased was travelling as bona fide passenger in the aforesaid train with proper ticket and died in untoward accident. In such premises by setting aside the findings of the Tribunal in this regard the appellant is held to be entitled for awarding his claim. 10. Coming to determine the quantum of compensation, the deceased was the age of 22 years. Although in the aforesaid affidavits it is stated that the deceased was earning Rs. 100/- per day but such averments are not supported by any other admissible documents. In such situation considering the overall circumstances, keeping in view the profession of the deceased, I deem fit to allow the claim of the appellant for the sum of Rs. 2,00,000/- as prayed in the claim petition and the same is awarded. 11. Under the aforesaid premises this appeal is allowed and by setting aside the award of the Tribunal the claim of appellant is awarded for the sum of Rs. 2,00,000/-, it shall carry interest @ 6% p.a. from the date of filing the claim petition. Besides this the respondent shall also pay Rs.2,000/- as cost of this appeal. 12. Appeal is allowed as indicated above.