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2014 DIGILAW 1244 (MP)

Hariram v. Union of India

2014-09-29

SANJAY YADAV

body2014
JUDGMENT : Sanjay Yadav, J.:- With consent of learned Counsel for the parties, the matter is finally heard. 2. Appeal under Section 23 of the Railway Claims Tribunal Act, 1987 (hereinafter referred to as 'the 1987 Act') is directed against the order dated 13.03.2014 passed by Railway Claims Tribunal in Claim Case No. OA/IIU/2010/0001; whereby, claim application filed by the appellants/claimants under Section 16 of the 1987 Act for compensation in lieu of death of their son Nirbhay Singh has been rejected. 3. Facts adverted to before the Tribunal, as borne out from impugned order, are that Nirbhay Singh, son of appellants on 05.09.2009 while traveling ex-Bina to Janshi by Dakshin Express died in an untoward incident as he fell down from the general coach of the train which was over-crowded and was compelled to stand near the door of the coach. The dead body was found between Agasaud and Karonda stations. General Railway Police, Bhangarh registered a case vide Merg No. 28/2009 and conducted Naksha Panchayatnama and the post-mortem was done at District Civil Hospital, Bina. 4. Appellants/claimants filed a claim for compensation in lieu of death of Nirbhay Singh which as per them was due to untoward incident. In support of claim, appellants had filed the following documents namely : Merg Intimation-Exhibit A/1, Naksha Panchayatnama-Exhibit A/2, Application for Post Mortem-Exhibit A/3, Post Mortem Report-Exhibit A/4, Ration Card-Exhibit A/6), Voter ID card of the deceased-Exhibit A/7 and Mark Sheet of the deceased-Exhibit A/8. 5. Respondent-Railways in the written statement, while not disputing that the deceased was travelling in an unknown train and by standing at the gate of the coach had fallen down resulting in his death, however, stated that it was due to his own negligence that he died by standing at the door of the coach and that due to his own negligence, the Railway cannot be held liable for compensation. 6. On the basis of rival contentions Tribunal framed following issues : 1. Whether the applicant proves that the deceased was traveling as bonafide passenger of the train at the time of occurrence of the untoward incident? 2. Whether the applicant proves that the death of the deceased was caused due to accidental fall as defined under Sec. 123(c)(2) of the Railways Act, 1989? 3. Whether the applicant are the only dependants of the deceased to receive the compensation as claimed? 4. 2. Whether the applicant proves that the death of the deceased was caused due to accidental fall as defined under Sec. 123(c)(2) of the Railways Act, 1989? 3. Whether the applicant are the only dependants of the deceased to receive the compensation as claimed? 4. Whether the respondent Railway is protected under the exemption clause to Sec. 124A of the Railways Act and is not liable to pay any compensation to the applicants? 5. Relief & Costs? 7. The Tribunal on a finding that there being no direct evidence of the deceased having traveling in the train declined to accept the plea that the death of Nirbhay Singh was due to untoward incident. Instead the Tribunal drew a presumption that the deceased was run over by a train while crossing railway track. 8. These findings have been questioned by the appellants. It is urged that it is clear from the written statement filed by the respondent-Railways that they have admitted that the deceased having travelled in an unknown train had fallen down which resulted in his death. Referring to Exhibit Annexure A/2-Naksha Panchayatnama conducted at the place of incident, it is contended that there is clear mention that the deceased had fallen down from the running train. It is urged that the Tribunal grossly erred in drawing a presumption that he was run over by a train while crossing railway track. It is urged that Railways having failed to establish that the deceased was a resident of a place where the accident occurred, the finding arrived at by the Tribunal is a piece of fiction that he was run over by a train while crossing railway track. 9. Naksha Panchayatnama-Exhibit A/2 records: 10. Furthermore, a communication dated 29.03.2010 entered into between the Authorities also reveals that death of Nirbhay Singh was due to accidental falling from the train. It records : 11. The said report has been verified and certified by the Additional Divisional Railway Manager, Jhansi. It is further borne out from record that respondent-Railways in paragraph 3 of the written statement has clearly admitted-"It is submitted that the deceased was travelling an unknown train by standing at the gate of the coach and fallen down because of his own negligent act and died on the spot." 12. It is further borne out from record that respondent-Railways in paragraph 3 of the written statement has clearly admitted-"It is submitted that the deceased was travelling an unknown train by standing at the gate of the coach and fallen down because of his own negligent act and died on the spot." 12. These facts on record thus goes a long way to belie the findings arrived at by the Tribunal that the death of Nirbhay Singh was due to crossing of railway track, and being perverse is not sustainable. 13. The question, however, remains to be answered is as to whether Nirbhay Singh while travelling was a bonafide passenger with a valid ticket. Though no direct evidence has been led by the appellants/claimants nor the ticket has been recovered from the dead body, the fact remains that the deceased was travelling in a train when he fell down between Agasaud and Karonda stations which resulted in his death. 14. The Railway has failed to examine any of its witnesses to establish the fact that the deceased was travelling without ticket. And since the deceased had boarded the train, the presumption would be that he had valid authority to travel. The Tribunal, therefore, was not justified in holding that the deceased was not a bonafide passenger. 15. In this context reference can be had of a decision rendered by a Division Bench of this Court in Union of India vs. Satish Patidar 2003 (4) M.P.L.J. 306 ; wherein it is held : "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 dependents 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 but the same was lost in accident. To place the onus of proof 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. To place the onus of proof 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." 16. In the case at hand, situation is not different than that of Satish Patidar (supra), infact, is better in the present case; wherein, the respondent-Railways in the written statement has admitted that the deceased was travelling in an unknown train. 17. In view whereof, it is held that the deceased was a bonafide passenger and died due to accidental falling from the train which being an untoward incident under Section 123(2) read with Section 124 of the Railways Act, 1989. Therefore, the Tribunal grossly erred in non-suiting the appellants. 18. Consequently, the impugned order passed by the Railway Claims Tribunal is set aside. Application for compensation preferred by the appellants/claimants is allowed. The claimants are therefore entitled for compensation of Rs. 4,00,000/- as provided in schedule appended with the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990. The claimants shall also entitled for 7.5% interest from the date of filing of application for compensation till its final payment. 19. Appeal is allowed to the extent above.