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2009 DIGILAW 450 (CAL)

Dolly Banerjee v. UNION OF INDIA

2009-06-26

BHASKAR BHATTACHARYA, PRASENJIT MANDAL

body2009
Judgment : BHASKAR BHATTACHARYA, J. (1) This first appeal is at the instance of a claimant in a proceeding under Section 16 of the Railway Claims Tribunal Act and is directed against an award dated 30th June, 2003, passed by the Railway Claims Tribunal, Kolkata Bench, in Claim Application No. A/1372 of 2000, thereby rejecting the claim-petition on the ground that the victim was not a bona fide passenger of the train at the time of happening of the untoward incident and as such, was not entitled to claim any amount of compensation. (2) Being dissatisfied, the claimant, the widow of the victim, has come up with the present appeal. (3) The appellant before us filed an application under Section 16 of the Railway Claims Tribunal Act thereby claiming compensation for the death of her husband on the allegation that on 20th August, 1999 at about 16.50 hours the victim, namely, Sunil Banerjee, while returning back by 455 Up, a local train, to his home, fell down from the running train due to overcrowd in the compartment at Gobra Railway Station. As a result, he received injury on his head and was removed first to Chanditola Rural Hospital by the co-passengers of the train, and thereafter, was shifted to the Medical College and Hospital at Calcutta where he succumbed to his injuries on the same day at about 21.30 hours. According to the claimant, the victim had a valid monthly ticket being monthly ticket No. 5044 Ex : Gobra to Howrah. In support of the claim made in the said application, the medical certificate certifying death, the injury report, the post-mortem report, the monthly ticket held by the victim and the police reports were submitted. (4) The claim-application was contested by the Railway Authority first by filing written statement and, thereafter, by an additional written statement. (5) In the written statement, it was alleged that the incident was not an "untoward incident" within the meaning of Section 124A of Railways Act and it was not admitted that the deceased person accidentally fell down from Train No. 455 Up (local train) at Gobra station on 20th August, 1999. (6) It was asserted that the applicant was required to prove that the deceased was a bona fide passenger of the train having valid ticket. (6) It was asserted that the applicant was required to prove that the deceased was a bona fide passenger of the train having valid ticket. It was further contended that the appellant was required to prove that the cause of death was not due to conditions referred to in Sub-Sections (a) to (e) of the proviso to Section 124A of the Railways Amendment Act, 1994. (7) Subsequently, by filing the additional written statement the following additional points were taken : a) As mentioned by the claimant, 455 Up is a "Shramik Gari" running with the workmen of Liluah Workshop on their return trip to the station over Burdwan Chord line. The victim appeared to be a passenger holding monthly ticket as declared but was not a workman of Liluah Workshop. b) On 20th August, 1999 455 Up did not run being Friday. On 20th August, 1999 the Train No. 455A plied touching Gobra station at 14.06 hours. (8) In support of the claim-application, the widow of the victim affirmed affidavit thereby stating that her husband died arising out of the accident on 20th August, 1999 due to falling down from 455 Up train at Gobra railway station and that he was a bona fide passenger holding monthly ticket No. 5044 Ex : Gobrato Howrah. It was further asserted that her husband was removed to Chanditola Rural Hospital and then shifted to Medical College and Hospital at Calcutta where he died at about 21.30 hours. She thus prayed for compensation of Rs. 4,00,000/-and all those statements were true to her knowledge. It appears that the claimant was not even cross- examined by the Railway Authority. (9) On behalf of the Railway Authority, one Sri Dilip Kr. Biswas, a booking clerk of Gobra station, deposed. In his examination-in-chief, he stated that there was no mention regarding any accident of "Dolly Banerjee" in Gobra station and that Train No. 455 runs through the said station from Burdwan to Liluah and that the same was a special train meant for Liluah Workshop staff. It may not be out of place to mention that Dolly Banerjee was the widow of the victim and thus, it was not the case of the appellant that Dolly Banerjee met with any accident. (10) In cross-examination by the claimant, he, however, admitted that he did not know about the departure of the train from Howrah station. It may not be out of place to mention that Dolly Banerjee was the widow of the victim and thus, it was not the case of the appellant that Dolly Banerjee met with any accident. (10) In cross-examination by the claimant, he, however, admitted that he did not know about the departure of the train from Howrah station. He further stated that the train did not run on "Saturday". According to him, it was wrong to say that the train was meant for daily passengers. However, he admitted that he did not know as to whether if any general passenger traveled by that train, that act would be punishable. He further admitted that he was a booking clerk and he did not know whether any general passenger was entitled to travel by the said train or not and he had no paper to show whether the train was meant for workshop staff. He admitted that the accident occurred on 20th August, 1999. It may be mentioned here that 20th August, 1999 was a Friday and not a Saturday. (11) After going through the aforesaid deposition, we find that the said sole witness for the railway was merely a Booking clerk and had no idea as to whether general passenger could travel by the said train or that such traveling would be punishable one. He could not exhibit any paper to show whether the train was meant for workshop-staff only as alleged in the written statement although such fact could be easily proved by production of relevant document which was within special knowledge of the Railway Authority. (12) In such circumstances, in our view, the Tribunal below erred in law in refusing compensation on the ground that the holder of the monthly ticket could not avail of lewful journey by the said train. It appears that 20th August, 1999 was a Friday. Although in written statement it was pleaded that on Friday 455 Up did not run, no such evidence was adduced in the evidence given by the said witness whereas in evidence it was stated that on Saturdays, the said train did not run. It appears that 20th August, 1999 was a Friday. Although in written statement it was pleaded that on Friday 455 Up did not run, no such evidence was adduced in the evidence given by the said witness whereas in evidence it was stated that on Saturdays, the said train did not run. (13) We, thus, find that the death of the victim due to falling from the compartment of 455 Up having been proved and the claimant not having been cross-examined by the Railway Authority on any of the assertions made in the deposition, such fact cannot be disputed. Similarly, no material was placed indicating that on the date of accident which was a Friday, 455 Up did not run. Similarly, the fact that 455 Up was a special train meant for only railway staff could not be proved by production of any document. The onus was upon the Railway to show that the holders of the monthly tickets were not entitled to board 455 Up. (14) We, therefore, hold that the victim being holder of valid monthly ticket must be held to be bona fide passenger of 455 Up in the facts of the present case. It was for the railway authority to prove that a monthly ticket holder could not avail of the said train being 455 Up or 455A Up as pleaded in the written statement but no evidence was adduced in support of such claim. The Railway Authority also could not place any material to show that the case comes within the instances (a) to (e) of the Proviso to Section 124A of the Railways Act so as to disentitle to the appellant to get any compensation. In this type of a case, once the ingredients of main part of Section 124A are established and the case, at the same time, does not come within the instances mentioned in the proviso to the said section, it is inconsequential whether the victim was in fault. [See : Union of India v. Probhakaran Vijaya Kumar reported in (2008)9 SCC 527 : (2009)1 WBLR (SC) 652]. (15) We, thus, hold that the victim died due to untoward incident arising out of his lawful journey with the aid of valid ticket by falling down from the compartment due to overcrowd and thus, the appellant was entitled to the compensation of Rs. (15) We, thus, hold that the victim died due to untoward incident arising out of his lawful journey with the aid of valid ticket by falling down from the compartment due to overcrowd and thus, the appellant was entitled to the compensation of Rs. 4,00,000/-as provided in the Rules with interest @ 8% p.a. from the date of filing of the application till actual payment. (16) Let such amount be paid within a month from today. (17) The appeal is thus, allowed. The award passed by the Tribunal is set aside and we pass an award of Rs. 4,00,000/-with interest @ 8% p.a. from the date of filing of the application till actual deposit. (18) In the facts and circumstances, there will be, however, no order as to costs.