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2010 DIGILAW 1197 (ALL)

Union of India v. Ram Prasad Mishra

2010-04-13

DEVI PRASAD SINGH, S.C.CHAURASIA

body2010
Devi Prasad Singh, & S.C. Chaurasia,J. 1. Heard Shri Anil Srivastava learned counsel for the petitioner and Shri R.K.S.Chauhan learned counsel for the respondents. 2. One Shri Shirish Mishra was travelling from Aligarh to Kanpur on 27.4.2003 by 5622 North East Express with a second class journey ticket. It was stated before the Tribunal that Shri Shirish Mishra had gone to Aligarh from Kanpur to appear in the examination. After arrival to Aligarh deceased came to know that his examination has been cancelled by the authorities, hence he came to Aligarh Railway Station for the onward journey to Kanpur. It has been stated that the deceased purchased the ticket and then came to platform to board the North East Express. When he was boarding the train, because of sudden jerk fell down accidentally and died on the spot. Inquest report was prepared and postmortem was conducted. The father of the deceased approached the Tribunal for payment of compensation. Before the Tribunal one Shri Girish Babu appeared and stated that on 27.4.2003 the deceased purchased the ticket of second class for return journey from Aligarh to Kanpur Central and boarded the train no. 5622. It has been stated that Shri Girish Babu had gone to see of the deceased in whose presence he has purchased the ticket. From the inquest report it reveals that from the body of deceased an identity card with the name and photo, one titan watch, Rs. 300 and journey ticket no. B 5498293 was recovered along with other items. The ticket recovered from possession of the deceased was one for journey from Kanpur to Aligarh. However, ticket alleged to purchase by deceased for his return journey from Aligarh to Kanpur could not be recovered. It was pleaded that after falling down from the train the ticket must have been lost. Shri Girish Babu, the witness asserted that ticket was purchased by the deceased and stated that he has seen the deceased at the time of purchase of ticket. 3.On behalf of the appellant respondents defence taken is that the deceased was having no ticket and he has never boarded the train North Eastern Express. It has also been stated that the head of the deceased was separated from his body hence it is not a case of falling down from the train. 3.On behalf of the appellant respondents defence taken is that the deceased was having no ticket and he has never boarded the train North Eastern Express. It has also been stated that the head of the deceased was separated from his body hence it is not a case of falling down from the train. The deceased suffered injury while crossing the railway line in between the bogies just adjacent to break van. It has also been stated that the report of the Station Master is of at 08.45 am and departure time of the train is at 08.47 am. The report shows that the deceased died on the spot because he was crossing the railway line. One Shri R.K.Tewari CMI/NCR filed his personal affidavit along with annexure. On the perusal of the annexure it appears that Shri Prem Chand guard of the train has informed the Station Master that a person was run over by the brake van of the train in question. This witness of the respondents could be a material witness who has seen the occurrence but he was not produced by the appellant to narrate the incident with opportunity to cross examine. The Tribunal held that in case Shri Prem Chand guard was eye witness then he should have been produced by the appellant so that dependent of the family could have get opportunity to cross examine him. 4.During the course of trial before the Tribunal inquiry report was filed by the respondents which shows that police arrived to the conclusion that deceased fallen down due to slip of leg and his neck was separated and died at the spot. The police enquiry report has not been challenged by the appellant before the Tribunal. It has been observed by the Tribunal that a person cannot try to cross the railway line in between bogies during the motion of train as the break van was in rear and engine was in front of and train was having a minimum 18 coaches. 5.The Tribunal observed that the defence taken by the appellant railways with different story seems to be hypothetical and no presumption can be raised that deceased was crossing line from the break van more so when he was to board the train from Aligarh to arrive his native place at Kanpur. 5.The Tribunal observed that the defence taken by the appellant railways with different story seems to be hypothetical and no presumption can be raised that deceased was crossing line from the break van more so when he was to board the train from Aligarh to arrive his native place at Kanpur. 6.The Tribunal disbelieve the document filed on the ground that witnesses were not produced with liberty to cross examine. The memo issued by the station master is based on information received from the guard who was not produced as the witness. 7.Learned counsel for the appellant had relied upon Section 191 of the Railways Act, 1989 with submission that the documents are admissible being the entries made by the railway authorities or administration. For convenience Section 191 of the Railways Act is reproduced as under:- "Proof of entries in records and documents.-Entries made in the records or other documents of a railway administration shall be admitted in evidence in all proceedings by or against the railway administration, and all such entries may be proved either by the production of the records or other documents of the railway administration containing such entries or by the production of a copy of the entries certified by the officer having custody of the records or other documents under his signature and stating that is is a true copy of the original entries and that such original entries are contained in the records or other documents of the railways administration in his possession." 8.A plain reading of Section 191 of the Railways Act shows that entries made in the records or other documents of a railway administration shall be admitted in evidence in all proceedings by or against the railway administration, and all such entries may be proved either by the production of the records or other documents of the railway administration containing such entries. There appears to be no doubt that entries made in the documents of the railways during the course of administrative work shall be admissible evidence but in case question with regard to genuineness of entries raised then in such situation it shall be obligatory on the part of railways to prove the same by producing the person who made the entries to proof its contents so that the person who is raising doubt over the entries may may have got opportunity to cross examine the witnesses. In the present case, documents filed by the appellant contain the information said by the guard but once the respondents had taken a defence that the deceased died while boarding the train and it is being affirmed by the police then in such situation it was incumbent upon the appellant railway to proof the contents of the documents by producing the witness so that opportunity could have been availed by the dependant of the deceased to cross examine the witness. 9.Burden to prove the contents of document lies on person who rely upon such documents. In case genuineness of the contents of documents is disputed then in such situation it shall be necessary for the railways to produce such witness. 10.Learned counsel for the appellant had relied upon the judgement reported in 2002 ACJ 833 , Union of India Vs. Kaushalya Devi and others where Single Judge of Patna High Court observed that a person fell down from a train due to rush and push in the compartment while the train was within the precincts of railway station shall not make out a case for payment of compensation. However, the judgement of Patna High Court does not lay down the correct law in view of Division Bench (of which one of us Hon'ble Justice Devi Prasad Singh was a member) judgement of this Court reported in Smt. Akhtari Vs. Union of India through G.M. NER. Gorakhpur reported in 2009 (27) LCD 240. The judgement of Smt. Akhtari (supra) is based upon the judgement of Hon'ble Supreme Court in a case reported in 2008 (2) T.A.C. 777 (S.C.); Union of India vs. Prabhakaran Vijaya Kumar and others. The other judgements relied upon by the appellant counsel is reported in 2009 ACJ 2146 , Gyatri Devi and others Vs. Baijnath Sahu and another where Division Bench of the Jharkhand High Court observed that the Tribunal has to follow a summary proceeding and documents filed in such proceeding may be taken into account to decide an issue. However, in the case of Gyatri Devi (supra) the genuineness of document was not disputed, hence the High court observed that the contents of document could be relied upon to decide the issue involved. 11.The present case seems to be based on different material and pleading. However, in the case of Gyatri Devi (supra) the genuineness of document was not disputed, hence the High court observed that the contents of document could be relied upon to decide the issue involved. 11.The present case seems to be based on different material and pleading. In the present case, after due enquiry the police has submitted a report with the finding that the deceased fell down from the train resulting in death at the spot. Police enquiry report as observed by the Tribunal was neither challenged nor controverted by the appellant. In the absence of any rebuttal on the part of appellant the Tribunal had relied upon the enquiry report. 12.One of the argument advanced by the appellant's counsel is that the deceased was not having ticket for the train in question since it was not recovered. The argument advanced by the appellant counsel is not sustainable. In such situation, a Division Bench of this Court in the case of Smt. Akhtari has observed that where a deceased fell down from the train the loss of ticket is not uncommon unless disproved by cogent and material evidence. There shall be presumption that person travelling in the train was bonafide passenger and having ticket. So far as the documents are concerned, it has been stated by the appellants counsel that documents were filed by the claimant himself. In the present case, it is not a question of documents alone the question is whether the report submitted by guard to the Station Master contained the correct fact or not. On account of conflicting opinion of the guard who was not produced as eye witness and the police report, the Tribunal took a view that the deceased fell down from the train while boarding at junction Aligharh. Otherwise also even if from the evidence on record two views are possible one which favours the claimant should be adopted by the Court being a beneficial legislation. 13.In view of above the finding recorded by the learned Tribunal does not seem to suffer from any impropriety or illegality. Appeal is devoid of merit, hence, dismissed.