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2010 DIGILAW 2044 (ALL)

Union of India v. Ram Jhari Devi & Ors.

2010-07-13

DEVI PRASAD SINGH, SATISH CHANDRA

body2010
Devi Prasad Singh, J.:- 1. Heard learned counsel for the appellant and the learned counsel for the respondents. 2. The present appeal has been preferred under Section 123 of the Railways Act against the impugned award dated 27.2.2004 delivered by Railway Claims Tribunal Lucknow in Case No. OA 0000120. 3. The tribunal had awarded compensation to the tune of Rs. 4,00000/- (four lacs) to the claimant respondents. The husband of the claimant had boarded the train no. 4048 Dn. Abida Express on 27.5.2000 having second class ticket No. 42257911. When the train reached Fatehpur station he came down to purchase the water bottle. After purchasing the water bottle when petitioner tried to board the train, it came into motion. Later on he fell down from the train suffered grievous injuries and ultimately died in the hospital. Thereafter claimant approached the tribunal. Before the tribunal the claimant claimed compensation under section 123 (2) of the Act on the ground that falling from the train was an accident and amount to untoward incident. The appellant took a defence that the deceased suffered injuries for his own fault and placed reliance on the proviso of Section 124 A of the Railway Act, 1982. 4. However, defence was taken by the appellant that no compensation be awarded since deceased suffered from his own fault in view of proviso contained in Section 124 A of the Act seems to be not sustainable in the absence of evidence lead by the appellant. 5. The tribunal has relied upon the letter issued by Station Master which disclosed the fact that the deceased fell down from train and sustained injuries. No where in the memo prepared by the station master it has been stated that the deceased fell down from the moving train while boarding the same at the platform. In the inquest report also it has been stated that the deceased fell down from the train and sustained injuries. Inquiry officer had submitted final report stating therein that deceased fell down from train at Fatehpur station and sustained injuries. Accordingly, the tribunal observed that the case does not fall within the exception of section 124 A of the Act. In the inquest report also it has been stated that the deceased fell down from the train and sustained injuries. Inquiry officer had submitted final report stating therein that deceased fell down from train at Fatehpur station and sustained injuries. Accordingly, the tribunal observed that the case does not fall within the exception of section 124 A of the Act. While assailing the observation made by the Tribunal appellant's counsel vehemently argued that the deceased was at the platform for half an hour and he fell down while boarding the train, hence, the case is covered by exception provided under Section 124 A of the Act. Learned counsel for the appellant also disputes the factual observation made by the Tribunal. 6. So far as the bonafide of the deceased is concerned, nothing has been brought on record to establish that the deceased was not having ticket. Deceased was possessing ticket issued from the railway station Delhi for Raksol and accordingly it has rightly been held by the Tribunal that he was a bonafide passenger. 7. Now coming to next limb of argument of appellant counsel with regard to exception provided under Section 124 A of the Act. Apart from observation made by the tribunal there is one material evidence on the record which seems to have been overlook. The report of police station Fetehpur which is on record contains the averment that the accident occurred on 27.5.2000 near the railway station of tehsil Fatehpur where the deceased fell down from the train and brought to PHC Fatehpur. Thereafter shifted to district hospital where deceased succumb to injuries. In the present case, allegation of accident or the place where injured body was found by railway authority is material to establish that whether the deceased fell down from the moving train or he suffered casualty while boarding the train. There appears to be no evidence on record which may established that the injured body of the deceased was found down to platform, rather it appears that injured body was found when the train already left the platform almost at outer. Thus, place of occurrence seems to shift from platform to outer when deceased seems to fell down from the moving train. It appears that before deceased managed to reached his berth because of sudden jerk he fell down from the train and sustained injuries. 8. Thus, place of occurrence seems to shift from platform to outer when deceased seems to fell down from the moving train. It appears that before deceased managed to reached his berth because of sudden jerk he fell down from the train and sustained injuries. 8. Much emphasis has been given by the appellant's counsel that in the document, it has been mentioned that the deceased fell down from the train at railway station Fetehpur. Reference of railway station does not mean that accident occurred at the platform itself. The outer part of the railway station shall also come within the purview of railway station. Burden was on the appellant to establish that accident occurred at the platform attracting the proviso of Section 124 A of the Act. The using of word "railway station" covered wide area and range. In case, the injured body would have been found in between the station platform and railway track the deceased should have suffered more injury then what he sustained. The body or a organ could have been chopped up between the railway track and platform but the case seems to be based on different facts and circumstances. 9. The Division Bench judgement of Smt. Akhtari Vs. Union of India through G.M. NER. Gorakhpur reported in 2009 (27) LCD 240 : (2009 (4) ALJ 131) where after considering the identical circumstances and after interpreting Section 123 (c) (2) read with Section 124-A of the Railways Act, 1989 relying upon Apex Court judgement reported in 2008 (2) T.A.C. 777 : (2008 AIR SCW 4165)(S.C.) Union of India vs. Prabhakaran Vijaya Kumar and others it has been settled that burden to prove that a person suffered in the accident occurred for the fault of passenger lies on the shoulder of railways. Otherwise also we are of the view that in case a plea is taken that a person died in the accident while traveling in train and prima facie material is put forth by the claimant before tribunal then burden shall shift on the railways to establish that the case falls under the exception provided under section 124 A of the Act. The exception provided under Section 124 A of the Act deals with special circumstances. Burden to prove exception shall lie on the person who claims the benefit of exception. The exception provided under Section 124 A of the Act deals with special circumstances. Burden to prove exception shall lie on the person who claims the benefit of exception. It is not for the claimant to establish that his case is not covered by the exception. It is for the appellant and railways to establish that incident is covered by exception provided under Section 124 A of the Railways Act. For convenience, Section 124 A of the Act is reproduced as under:- "124.A. Compensation on account of untoward incidents. - When in the course of working a railway an untoward incident occurs, then whether or not there has been any wrongful act, neglect or default on the part of the railway administration such as would entitle a passenger who has been injured or ;the dependant of a passenger who has been killed to maintain an action and recover damages in respect thereof, the railway administration shall, not withstanding anything contained in any other law, be liable to pay compensation to such extent as may be prescribed and to that extent only for loss occasioned by the death of, or injury to, a passenger as a result of such untoward incident: Provided that no compensation shall be payable under this section by the railway administration if the passenger dies or suffers injury due to -(a) suicide or attempted suicide by him: (b) self-inflicted injury:(c) his own criminal act: (d) any act committed by him in a state of intoxication or insanity; (e) any natural cause or disease or medical or surgical treatment unless such treatment becomes necessary due to injury caused by the said untoward incident. Explanation. - For the purposes of this section, "passenger" includes - (i)a railway servant on duty : and (ii)a person who has purchased a valid ticket for traveling, by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident.) 10. Section 103 of the Evidence Act provides that burden of proof of any particular fact lies on the person who wishes the court to believe in its existence. Section 103 of the Evidence Act provides that burden of proof of any particular fact lies on the person who wishes the court to believe in its existence. For convenience Section 103 of the Evidence Act is reproduce as under:- "The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. Illustration [(a)] prosecuted B for theft and wishes the Court to believe that B admitted the theft to C.A must prove the admission. B wishes the Court to believe that, at the time in question, he was elsewhere. He must prove it." 11. In the present case since it is the appellant who claims defence under the exception of Section 124 A with submission with regard to existence of the related fact, burden lies on the appellant to establish with cogent and trustworthy evidence. Appellant had not discharged its burden under Section 103 of the Evidence Act, hence plea with regard to exception seems to be not available. 12. The railway act is a beneficial provision and it is settled law that while dealing with the beneficial provision when two views are possible the one of which favours the beneficiary should be adopted vide 2004 (10) SCC 201 : ( AIR 2005 SC 1646 ) State of West Bengal Vs. Kesoram Industries Ltd; AIR 2000 SC 109 Mathuram Agarwal Vs. State of M.P.; 1999 (7) SCC 106 : ( AIR 1999 SC 3185 ) Mysore Minerals limited M.G. Road, Bangalore Vs. CIT Karnataka Banglore. Thus, the burden to prove that the accidental case falls within the exception of 124 A of the Act rest on the shoulder of railways. 13. In the present case, there appears to be no evidence on record which may establish that the body of the injured was recovered from a place between the railway track and the platform itself. 14. In view of above, submission of appellant's counsel claiming benefit of the proviso contained in section 124 A of the Act seems to be not sustainable. The appellant has been failed to prove that the case in hand shall fall within the proviso contained in Section 124 A of the Act. 14. In view of above, submission of appellant's counsel claiming benefit of the proviso contained in section 124 A of the Act seems to be not sustainable. The appellant has been failed to prove that the case in hand shall fall within the proviso contained in Section 124 A of the Act. In the absence of any evidence led by the appellant to avail the benefit of exception provided under Section 124 A of the Act, can not be made available. 15. In view of above, appeal is devoid of merit. Dismissed. Let entire amount, in case already not deposited be deposited before the Tribunal forthwith, say within a period of two months from the date of receipt of a certified copy of this order. Amount deposited in this court shall be remitted to the tribunal by the registry forthwith. Tribunal shall proceed in terms of award,. Cost made easy. Appeal dismissed.