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2013 DIGILAW 137 (ORI)

Sri Satya @ Atulya Tripathy v. Union of India

2013-05-06

M.M.DAS

body2013
JUDGMENT M.M. DAS, J. One Srikanta Tripathy (deceased), the son of the appellants along with his father appellant No.1 came to Berhampur Station and purchased second class tickets to undertake the journey by Visakha Express on 06.09.2004. Since the said train was running late on that date, they decided to avail Dn Tirupati Express train, which had arrived at the station. The general compartment of the said train being overcrowded with passengers, the deceased was advised by his father, the appellant No.1 to avail Visakha Express. As by that time, he has already entered into the general compartment of the Tirupati Express, while coming out of the compartment of the said train, he fell down on the tracks between the gap of the train and the platform. As the train had started running, the deceased sustained serious injuries under the wheels of the train and succumbed to the said injuries on the spot. 2. Alleging the above, the appellants filed Original Application No.133 of 2005 claiming compensation for the death of their son in the “untoward incident” before the learned Railway Claims Tribunal, Bhubaneswar. 3. The respondent – Union of India filed its written statement denying the averments made by the appellants and contending that there was no “untoward incident” and no accidental falling of any passenger from any train on the day in question and the deceased has neither entered the compartment nor was coming out of it as is alleged in the claim application. It was further pleaded that the deceased was not a bona fide passenger, as no ticket was found from his possession and the deceased was himself responsible for the incident. The presence of his father, the appellant No.1 at the spot was also denied. It was stated that the GRP conducted investigation in an improper manner without taking into consideration any testimony of the railway officials with regard to the incident. 4. The learned Tribunal, basing on the aforesaid pleadings, framed five issues, which are as follows:- I. “Whether the respondent proves that the case filed by the applicants is false and fabricated ? II. Whether the applicant proves that the deceased Srikanta accidentally fell down from Dn 7480 Tirupati – Howrah Express Train on 06.09.2004 and died on the spot ? III. II. Whether the applicant proves that the deceased Srikanta accidentally fell down from Dn 7480 Tirupati – Howrah Express Train on 06.09.2004 and died on the spot ? III. Whether the respondent proves that the alleged incident does not come under the purview of Section 124-A of the Railways Act ? IV. Whether the respondent proves that the investigation carried by the Police (GRP) is influenced by the applicant, and cannot be relied upon ? V. What order ? What relief ?” 5. After hearing the case, the learned Tribunal passed the impugned judgment coming to the conclusion that there are serious inconsistencies in the statements of the witnesses examined on behalf of the claimants, no inference can be drawn with regard to the existence of the tickets and its whereabouts. 6. The learned Tribunal, disbelieving the fact of purchase of the ticket by the son (deceased) and the story of the claimants, concluded that the claim of the appellant No.1 that he intended to travel with his son on a purchased ticket by Visakha Express to Bhubaneswar is contradicted by the GRP’s final report, which shows that the deceased was selling water bottles at Berhampur Station and inside the train and he accidentally fall down from the train, while he was getting down, after the train started running, i.e., the Dn Tirupati Express. Thus concluding, the learned Tribunal held that it is not established that the deceased was a bona fide passenger and rejected the claim application. Being aggrieved, the present appeal has been filed by the appellants. 7. Mr. R.P. Mohapatra, learned counsel for the appellants contended that the learned Tribunal has acted erroneously in disbelieving the evidence of the appellant No.1, even though his statement was not shaken in any manner during cross-examination. He further contended that the statement made by the appellant No.1 in his evidence that the deceased purchased an electronic ticket for himself and for the appellant no.1 to travel to Bhubaneswar has not been controverted in any manner and, therefore, the same should have been believed and the learned Tribunal should have held that the deceased was a bona fide passenger. He further submitted that in an accident of the present nature, it is not required that the ticket should be found from the possession of the deceased or produced before the learned Tribunal as oral evidence has been adduced in support of the fact that the deceased was a bona fide passenger and fell down from the running train and succumbed to the injury sustain. Such evidence being not controverted in any manner is believable and the learned Tribunal should have held that the deceased was a bona fide passenger. 8. Mr. Mishra, learned counsel for the Union of India, on the other hand, vehemently urged that during hearing of the case, no ticket having been produced nor such ticket having been recovered by the GRP from the possession of the deceased, it cannot be concluded by any stretch of imagination that the deceased was a bona fide passenger and the incident cannot be said to be an “untoward incident” as defined in the Act, and, therefore, the learned Tribunal is right in rejecting the claim application. 9. Appreciation of evidence in a claim case for award of compensation on account of death or bodily injury under the Railways Act should be on the basis of preponderance of probability and proof beyond reasonable doubt like a criminal case should not be insisted upon. In this back-drop, the question as to whether in absence of the ticket, if evidence on record is available to show that a ticket was purchased by the deceased for travelling in the train, it should be held that the deceased was a bona fide passenger and the claimants should be held to be entitled to compensation. This question is no more res integra, as by now, it is well settled by various High Courts that even in absence of any ticket, the question as to whether or not the deceased was a bona fide passenger, can be proved by oral evidence. This question is no more res integra, as by now, it is well settled by various High Courts that even in absence of any ticket, the question as to whether or not the deceased was a bona fide passenger, can be proved by oral evidence. This Court, in the cases of Sakhia Naik and another v. Union of India, 2005 (II) OLR 321 , 2005 (II) CLR 445 relying upon an earlier decision in the case of Union of India, represented by General Manager, Eastern Railway v. Jshna Kanhar, 2001 ACJ 871 as well as agreeing with the view of the Andhra Pradesh High Court in the case of Union of India, Secunderabad v. B. Kaddekar and others, 2002 (3) TAC 320 (AP) held that in the absence of a ticket, the question as to whether the deceased was a bona fide passenger can be proved by oral evidence. The Hon’ble Supreme Court, in the case of Union of India v. Prabhakaran Vijaya Kumar and others, 2008 ACJ 1895 analyzing the facts of the said case, took note of the well settled position of law that if the words used in a beneficial or welfare legislation are capable of two constructions, the one, which is more in consonance with the object of the legislation and for the benefit of the person, for whom it was made, should be preferred. 10. Taking note of the aforesaid decision, this Court also in the judgment dated 27.10.2011 passed in F.A.O. NO.138 of 2009 (Sri A. Chain Patra v. Union of India), in a similar case, came to the conclusion that the learned Tribunal was wrong in holding that the deceased was not a bona fide passenger and the incident was not an “untoward incident” and allowed the appeal by directing payment of compensation. 11. Considering the above facts and law on the question raised in the present case, this Court is of a similar view that the appellants should have been held to be entitled to compensation on account of death of their son in an “untoward incident” as defined in the Railway Act. The above conclusion is also fortified from the fact that the respondent – Union of India has not adduced any evidence rebutting the evidence adduced on behalf of the claimants. 12. The above conclusion is also fortified from the fact that the respondent – Union of India has not adduced any evidence rebutting the evidence adduced on behalf of the claimants. 12. In view of the above, this Court finds that the impugned judgment is unsustainable and, accordingly, the same is set aside. As a result, it is directed that the appellants are entitled to a compensation of Rs.4,00,000/-(Rupees four lakhs) as specified in schedule of the Railway Accident (Compensation) Rules, 1990 along with 6% interest per annum from the date of filing of the claim application before the learned Railway Claims Tribunal, Bhubaneswar, being, O.A. No.133 of 2005, i.e., from 11.08.2005 till the date of deposit. The amount of compensation of Rs.4,00,000/-along with interest as directed above, shall be deposited by the respondent before the learned Railway Claims Tribunal, Bhubaneswar within a period of eight weeks from today and on such deposit being made, the same shall be disbursed in favour of the appellants claimants. 13. The FAO is accordingly allowed, but in the circumstances there shall be no order as to cost. FAO allowed.