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2014 DIGILAW 436 (ORI)

Amareswar Mallik v. Union of India

2014-07-23

RAGHUBIR DASH

body2014
JUDGMENT R. DASH, J. - Being aggrieved by order passed by the learned Member (Technical), Railway Claims Tribunal, Bhubaneswar dated 20.10.2011 dismissing the Case No. OA/91/2004, the appellant (applicant No. 1 before the learned Tribunal) has preferred this appeal under Section 23 of the Railway Claims Tribunal Act, 1987. 2. The present appellant and his deceased wife filed a claim application claiming that their son, namely, late Binod Kumar Mallik was a bona fide passenger of Puri-Okha Express train bearing No. 8402 starting his journey from Surat Railway Station. When the train was passing Sakhigopal Railway Station, due to a sudden jerk, he slipped down from the train and sustained, fatal injuries on 15.11.1996. On 16.11.1996 Sakhigopal GRP registered a case, held inquest over the dead body and submitted final report on 31.12.1996. It is claimed that the deceased at the time of his death was aged about 22. It is also claimed that he was a Truck driver and used to earn Rs. 4,000/- per month. They claimed a sum of Rs. 4,00,000/- as compensation. 3. Learned Tribunal framed the following issues: (1) Whether the applicants prove that the deceased fell down accidentally from 8402 Express on 15.11.96 after Sakhigopal station and died as a result of that accident? (2) Whether the deceased was a bona fide passenger? (3) Whether this is a fit case for condonation of the delay? (4) Whether the respondents prove that the alleged occurrence is not an untoward incident? (5) What reliefs? Learned Tribunal had already condoned the delay. On other issues, it is observed by the learned Tribunal that the deceased fell down accidentally from the train and died as a result of the accident. Furthermore, the incident was an untoward incident. However, coming to a conclusion that the deceased was not a bona fide passenger, the learned Tribunal refused to grant relief to the claimants by way of compensation. 4. It is argued by the learned counsel for the appellant that there is a sufficient evidence on record showing that the deceased was a bona fide passenger and that without proper appreciation of the evidence to that effect the learned Tribunal has answered Issue No.2 against the claimants. 4. It is argued by the learned counsel for the appellant that there is a sufficient evidence on record showing that the deceased was a bona fide passenger and that without proper appreciation of the evidence to that effect the learned Tribunal has answered Issue No.2 against the claimants. Though no cross-objection is filed, it is submitted by the learned counsel appearing on behalf of the respondent that there is no legal evidence on record to give a finding in favour of the appellant on any of the issues, much less the issue as to whether the deceased was a bona fide passenger. It is argued that whatever evidence the claimants have adduced before the learned Tribunal is all hearsay in nature and on such evidence the appellant's case cannot stand. 5. The rival submissions made on behalf of the parties need careful consideration. The appellant has examined himself and one Benudhar Mallik to support the claim for compensation. Though in his evidence the appellant has stated that on 15.11.1996 at about 4 P.M. his son, while travelling as a bona fide passenger by Okha-Puri Train No. 8402, met with an accident near Sakhigopal Station, he has stated in his cross-examination that he is not an eye-witness to the accident and some unknown person informed him that his son fell down from the train and died. The other witness has also stated in his cross-examination that he was not present at the spot at the time of the accident. However, as regard the passenger ticket he has claimed that one such ticket was seized by the Police in his presence at the time the Railway Police held inquest of the dead body. He has also claimed to have signed on the seizure list. No such seizure list is brought on record. Column No.7 of the application filed by the claimants before the learned Tribunal has been left blank and there is no mention about the class of travel and ticket number. Even there is no mention that any ticket was seized by the Railway Police in the connected U.D. Case. No such seizure list is brought on record. Column No.7 of the application filed by the claimants before the learned Tribunal has been left blank and there is no mention about the class of travel and ticket number. Even there is no mention that any ticket was seized by the Railway Police in the connected U.D. Case. The copy of the inquest report which is not marked as an exhibit but found tagged with the LCR does not disclose that any Railway ticket was found on or near the dead body of the deceased, though a list of other articles found on or near the body of the deceased has been made in column 8 of the Inquest Report Form. 6. It is argued on behalf of the appellant that even if the journey ticket is not available the deceased in the facts and circumstances of the case must be presumed to be a bona fide passenger. In this regard learned counsel for the appellant has relied on a decision of High Court of Kerala in Union of India v. Parameswaran Pillai and another, reported in 2013 ACJ 635, wherein after taking note of several decisions of the Supreme Court and different High Courts it is observed that the fact that a passenger has purchased a ticket and is a bona fide passenger is always to be presumed unless it is shown to be otherwise. But before such a presumption could be raised it must be proved by the applicant for compensation that the victim was a passenger of a train and while travelling by the train he sustained injuries or succumbed to the injuries sustained out of an untoward incident. Learned counsel for the respondent rightly submits that there is no material showing that the deceased was a passenger of Puri-Okha Express Train No. 8402 because both the . witnesses, who have been examined on behalf of the applicants do not claim that they were co-passengers of the deceased or that either of them had been seen the deceased travelling by that train. The person, who lodged the information in Sakhigopal GROP one day after the alleged incident has not been examined as a witness. witnesses, who have been examined on behalf of the applicants do not claim that they were co-passengers of the deceased or that either of them had been seen the deceased travelling by that train. The person, who lodged the information in Sakhigopal GROP one day after the alleged incident has not been examined as a witness. Neither the authenticated copy of the report has been brought on record nor the person who made the entry in the GROP Register regarding the report on the accident has been examined as a witness. Not a single document has been exhibited on behalf of the applicants. 7. Learned Tribunal has observed that taking into consideration the "eye-witness account" and the police report, one is inclined to believe that the incident did take place. Learned Tribunal claiming to have taken into consideration the "eye-witness account" seems to be a myth. As already stated there is no eye-witness to the accident examined before the Tribunal. Learned Tribunal has taken into consideration some documents which are not marked as exhibits. The documents are the copy of FIR, Inquest Report and Final Report allegedly connected with the alleged incident. The copy of the FIR reflects that the informant-Dinabandhu Das and one Tulu Mallick, a nephew of the deceased, were co-passengers of the Puri-Okha Express Train No. 8402. Neither of the two persons have examined by the applicants. It is not explained as to why they were not examined. In the absence of any evidence showing that the deceased was a passenger of Puri-Okha Express Train, the copy of the inquest report and the final report on the U.D.Case which is relied on by the learned Tribunal cannot establish that the deceased was actually a passenger of the train. Therefore, the learned counsel for the respondent has rightly submitted that there is no iota of evidence to establish the fact that the deceased was a passenger of the train and while travelling by train he fell down from the train accidentally resulting in his death. Learned Tribunal seems to have accepted the contents of the copy of the FIR as "eyewitness account" even though the maker of the FIR has not been examined as a witness. Learned Tribunal seems to have accepted the contents of the copy of the FIR as "eyewitness account" even though the maker of the FIR has not been examined as a witness. No explanation having offered by the applicants as to why the persons whose name appeared in the FIR as co-passengers have not been examined, the contents of the FIR cannot be taken into consideration equating it with the testimony of an eye-witness. 8. Thus, it is found that there is no material basing on which the learned Tribunal could have recorded his findings that the deceased was a passenger of the train and while travelling by the train an untoward incident resulting in his death. When it is not proved that the deceased was a passenger of the train, the question as to whether he was a bona fide passenger does not arise. 9. In view of the discussion made above, the appeal is found to be without merit. In the result, the appeal stands dismissed. Appeal dismissed.