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2015 DIGILAW 1374 (GAU)

Rahema Bibi v. Union of India

2015-11-03

N.CHAUDHURY

body2015
JUDGMENT : These three appeals are preferred by three claimants in applications No. 68/2002, 460/2001 and 461/2001 of the Railway Claims Tribunal, Guwahati Bench thereby challenging the judgment and award dated 07.12.2006 of the said Tribunal. By this judgment and award, the learned Tribunal has dismissed the claims of the three claimants by a common judgment. 2. The necessary facts involved in these three appeals are simple. The three claimants, namely, Atifa Bibi, Rahema Bibi and Runuma Bibi, as claimants, stated that their respective husbands being bona fide passengers of down Kamrup Express fell from the train on 11.06.2001 at Nalbari railway station and were run over by a Security Special train being P/No. 16210 resulting in their death. Mustafa Ali, the deceased husband of Atifa Bibi, Rasid Ali, the deceased husband of Rahema Bibi and Bapzan Ali, the deceased husband of Runuma Bibi had proceeded to Nalbari railway station from their houses with a mission to travel Kokrajhar in search of job. They purchased reservation ticket but they are stated to have fallen from the train at Nalbari station resulting in registration of U.D. Case No. 22/2001 of Rangia G.R.P.S. The dead bodies were handed over to the family members after conducting post mortem examination and the railway reservation ticket being No. 10783065 dated 11.06.2001 was spotted near the place of incident which, according to the claimants of the cases, belonged to the deceased victims. The claimants, therefore, prayed that appropriate compensation be paid to them. 3. On being notified, the respondent railway authorities appeared and submitted written statement denying the liability. According to the N.F. Railway, no untoward incident as defined under Section 124-A of the Railways Act, 1989 had occurred on 11.06.2001 between Nalbari and Tihu. The claim made in the petition that the victims were bona fide passengers of Dn. Kamrup Express was specifically denied by the railways authorities. The case of the N.F. Railway was that of total denial and repudiation of the claim of the claimants for compensation. The learned Tribunal upon receipt of these rival contentions framed as many as 4 issues as follows:- i. Whether the applicant proves that the deceased accidently fell down from Kamrup Express on 11.06.2001 and succumbed to the injuries? ii. Whether the deceased was a bona fide passenger? iii. Whether the respondents prove that the alleged incident is not an untoward incident? iv. What reliefs? ii. Whether the deceased was a bona fide passenger? iii. Whether the respondents prove that the alleged incident is not an untoward incident? iv. What reliefs? The three claimants examined themselves and one Ashok Baishya as common witness for all the three cases. All the three witnesses were duly cross examined by the N.F. Railway. 4. The aforesaid railway reservation ticket was exhibited as Ext. 1 whereas the post mortem report was adduced as Ext. 2 in each of the cases. Thus, there are 3 post mortem reports on record in the three claim cases but one railway ticket for three persons was brought on record vide Ext. 1 in each of the three cases. The respondent railway authorities submitted evidence of one Swapan Kumar Guha who was the driver of the Special Security train which is alleged to have run over the victims. He produced the true copy of the intimation about running over three persons at Nalbari railway station and the same is available on record. This witness was thoroughly cross examined by the claimants. After consideration of the aforesaid evidence on record, the learned Tribunal passed the impugned judgment and award and held that the incident did not occur at the station as claimed by the applicants but it had occurred at Km 344/9-10. The learned Tribunal placed reliance on the evidence of DW 1 (Swapan Kumar Guha) and believed that the victims were walking by the side of the track and came on the track all on a sudden when the Special Security train was on full speed. According to the learned Tribunal, there is no reason to disbelieve the evidence of DW 1. Apart from that, it was also noticed that the claimants filed only Xerox copies of the ticket but no material was available to connect the ticket with the victims. There is no evidence that the ticket was handed over to the claimants by railway official. With these findings, the learned Tribunal held that the three claimants failed to prove both the requirements, namely, accidental falling from train and status of the deceased as bona fide passenger. Consequently, it was held that the victims were trespassers on the railway track and so the applications were dismissed. This judgment, passed on 07.12.2006, has been brought under challenge by three separate appeals. Consequently, it was held that the victims were trespassers on the railway track and so the applications were dismissed. This judgment, passed on 07.12.2006, has been brought under challenge by three separate appeals. Although name of learned Standing Counsel of the Railways have been duly projected in the cause list but no one has appeared when the matter was taken up for hearing. Under such circumstances, even in the absence of engaged Standing counsel of the Railways, the appeals have to be heard ex-parte. 5. I have heard Mr. DCK Hazarika, learned counsel for the appellant in all the three cases. As indicated above, no one has put up appearance on behalf of the railway authority. I have perused the lower court’s records including the pleadings of the parties and the evidence led by them. 6. The sole point for determination in this case is as follows:- Whether the learned Tribunal committed error in arriving at the finding that the claimants could not prove their case as to occurrence of untoward incident by falling from the train or that the victims were bona fide passengers of Dn. Kamrup Express on 11.06.2001? 7. The three claimants examined themselves as witnesses in their respective claim cases in addition to one Ashok Baishya as an independent witness for all the three claimants. None of the three PWs/claimants were present at the time of the accident and so they have to rely on the information received from other persons. It is disclosed in the examination in chief in the form of affidavit by one Rahema Bibi, claimant in application No. 460/2001 that she is a resident of village Dipta (Suradi) under Boroma P.S. of Nalbari district. According to her, deceased Rashid Ali was her husband who had started from her residence on 11.06.2001 at 6.30 am. He proceeded to Nalbari railway station for journey to Kokrajhar in search of job. But she received information that her deceased husband along with two others fell down from train and she immediately rushed to the station. She came to know in the railway platform that the accident had taken place all on a sudden when the deceased had slipped and fell down from the train which was on halt at railway station. But they fell on the nearby track only. She came to know in the railway platform that the accident had taken place all on a sudden when the deceased had slipped and fell down from the train which was on halt at railway station. But they fell on the nearby track only. A UD Case No. 22/2001 was registered with respect to the incident by the G.R.P.S. and post mortem was held on the body of the deceased Mustafa Ali. According to her, the three accused persons had purchased journey/reservation ticket bearing No. 10783065 dated 11.06.2001 and PNR No. 6117494917 for Nalbari to Kokrajhar by Dn. Kamrup Express. She claimed Rs. 4,00,000/- as compensation from the railway authorities. The certificate issued by Officer In-Charge of Rangia G.R.P.S. was also produced as Ext. 3. This witness was cross examined by the railway when she disclosed that two other deceased persons, namely, Mustafa Ali and Bapzan Ali also hailed from Dipta village and that they were daily wage labourers. They came separately from their residences at 7 am in the morning. She admitted that she did not see the occurrence and did not come to the railway station. She denied to have seen even the railway ticket. She could not remember who had given her the ticket which was exhibited as Ext. 1. Thus, it is apparent that although the claimant had asserted in her examination in chief that she had visited the railway station, gathered the information thereafter and found the ticket near the place of accident but in course of her cross examination she admitted that she did not go to the place of occurrence or to the railway station and even she could not say from where she had got the ticket. 8. The photocopy of railway reservation ticket that was brought on record was for three persons but who were these three persons that have not been disclosed by adducing any evidence. Since it was a reservation ticket, it was possible to prove by calling for document as to who had placed the orders and in whose favour the ticket was purchased. The claimants could have filed application before the Tribunal for calling these documents from custody of the railway authority. Since the claimants did not take any step for calling of the documents, they cannot be given benefit for their own lapse. The claimants could have filed application before the Tribunal for calling these documents from custody of the railway authority. Since the claimants did not take any step for calling of the documents, they cannot be given benefit for their own lapse. Apart from that, the claimants did not lead any evidence as to who had handed over the ticket to them and as to how the tickets were handed over. If the ticket was in possession of some of the victims in that event, when their mutilated bodies were recovered by the police from the place of incident, the ticket could not have been in such clean position as it is produced. Even the claimants have not led any evidence to show that the tickets were recovered from the dead body of any deceased. The learned Tribunal noticed the unrebutted examination in chief of Swapan Kumar Guha, the sole witness of the N.F. Rly who stated that he being the driver of the Special Security train he could see that three persons were walking by the side of the track. All on a sudden, they came over the track but since the train was in full speed, it ran over them and the train could only be stopped at the next station. Immediately thereafter the driver gave an information in writing to the station informing about the running over incident. A copy of this information has been brought on record and so it is difficult to hold that such a stand taken by the witness was a afterthought. Considering all these aspects of the matter, the learned Tribunal relied on the version of the witness of the respondent who was an eye witness to the incident. On the other hand, none of the witnesses of the complainants had any occasion to witness the incident. Claimants admitted that they came to know about the incident only after they were informed by the persons. The independent witness, namely, Ashok Baishya did not claim that he was present when the incident had taken place. He came to see his friend and then he heard some passengers shouting that someone had fallen from train. If anybody has seen this incident, it would have been those persons who were shouting. They were not examined or their identity was not disclosed. He came to see his friend and then he heard some passengers shouting that someone had fallen from train. If anybody has seen this incident, it would have been those persons who were shouting. They were not examined or their identity was not disclosed. The claimants thus, did not lead any primary evidence at all to prove that the victims had fallen from the train. The learned Tribunal found that there was no causal action between the railway reservation ticket and the victims. He also found that falling of the victims from the train could not be proved by preponderance of probability on the basis of the materials available on record. This being the position, I do not find that learned Tribunal has committed any error in arriving at the finding of the fact as referred to above. The sole point for determination, therefore, is decided in favour of the appellant herein and against the claimants respondents. Consequently, the appeals are dismissed and the impugned common judgment and award referred to above is hereby upheld. 9. Send down the records. No order as to costs.