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2015 DIGILAW 1455 (GAU)

Roma Dey v. Union of India

2015-11-23

N.CHAUDHURY

body2015
JUDGMENT : This is an appeal under Section 23 of the Railway Claims Tribunal Act, 1987 challenging the judgment and order dated 28.5.2008 passed by the Railway Claims Tribunal, Guwahati Bench in OA No. 500 of 2001 thereby rejecting the claim petition of the appellant herein. 2. In the claim petition filed before the Tribunal, claimant stated that while discharging his official duty, the husband of the claimant fell down from Dn 5604 Train on 21.12.2000 at about 1.50 hrs. at Dimapur Railway Station and he succumbed to grievous injury received from the said untoward incident. Post mortem was held and one U/D case was registered vide Dimapur GRP U/D Case No.37 of 2000 on the basis of the claim petition and notices were issued to the Union of India represented by the General Manager, NF Railway, Maligaon. The claimant also filed an additional affidavit before the tribunal stating that in discharge of his duty cast on him by the Command Certificate, the deceased who was a constable of Nagaland Armed Police came to Dimapur Railway Station on the fateful day. The Command Certificate has been placed on record as Exhibit-20 which shows that deceased Dilip Kumar Dey was directed to proceed to Dimapur Railway Station at 1 pm on 21.12.2000. It is stated in the affidavit sworn by the claimant on 14.6.2005 that her husband was a member of Nagaland Police Service and was regularized w.e.f. 14.12.1984 as Constable No.2218 . He rendered his service as a driver under the Commandant, 1st NAP Bn., Chumukedima, Nagaland. On the strength of the movement command certificate No. 1410 dated 21.12.2000 issued by the concerned authority, Dilip Kumar Dey discharged his official duty at Dimapur Police Station on 21.12.2000 and while performing checking duty in 5604 Dn passenger Train at Dimapur Railway Station, he accidentally fell down from the said train in question on 21.12.2000 at about 2 hrs and was run over by the train. Due to such incident, he was injured seriously and died then and there. As a result of such occurrence, GRP Railway station sent the body of the victim for post mortem examination and UD Case No.37 of 2000 was registered. Along with this affidavit, as many as 19 documents were placed on record and by subsequent additional affidavit one more document being Exhibit-20 was placed on record. 3. As a result of such occurrence, GRP Railway station sent the body of the victim for post mortem examination and UD Case No.37 of 2000 was registered. Along with this affidavit, as many as 19 documents were placed on record and by subsequent additional affidavit one more document being Exhibit-20 was placed on record. 3. NF Railway submitted a written statement as against original claim petition denying the case of the claimant in entirety. But even after two subsequent affidavits were filed by the claimant, the railway authority did not file any rejoinder either in the form of affidavit or in the form of evidence and thus the aforesaid averments made in two affidavits by claimant went unrebutted. Be that as it may, the learned tribunal framed the following five issues which are quoted below : i. Whether the claim application is maintainable ? ii. Whether the deceased was a bona fide passenger of the 5604 Dn. Train on 21.12.2000 and whether there is any witness thereof? iii. Whether the deceased accidentally fell down from the running train in question on 21.12.2000 and succumbed to his injuries? iv. Whether the respondent railway is liable for payment of compensation, as claimed? v. To what other relief, if any, are the applicant entitled? 4. Having considered the evidence adduced by the claimant, the learned tribunal passed the impugned judgment and award holding that the deceased was not a bonafide passenger and consequently dismissed the claim. 5. Claimant has preferred this appeal challenging the impugned judgment and order dated 28.5.2008, inter alia, on the grounds that the victim having died in an untoward incident within the meaning of Section-123 of the Railway Act, 1989, the dismissal of the claim petition is liable to be set aside. According to the claimant, victim was a passenger within the meaning of Section 2(29) of the Railways Act, 1989 and so claim petition ought to have been allowed under Section- 124 A of the Railways Act by taking into consideration the Explanation appended to the Section. It is highlighted that the railway did not lead any evidence rebutting the claim and or to prove the case within the bounds of explanation mentioned in Section 124-A of the Railway Act. It is highlighted that the railway did not lead any evidence rebutting the claim and or to prove the case within the bounds of explanation mentioned in Section 124-A of the Railway Act. On totality of circumstances, it being clear from perusal of the LCR that there was a Command Certificate directing the deceased to give duty at Dimapur railway Station and it is being claimed that he was doing checking duty, his death by falling from the train should be considered to be a case of untoward incident within the meaning of Section 123 of the Railway Act 1989 and consequently the claimant is entitled to compensation under Section - 124 A of the Railway Act. 6. Despite service of notice, no one has put up appearance on behalf of the respondent railway authority although name of the learned counsel for the respondent has been shown in the Cause List. I have perused the LCR. In the affidavit filed on 24.6.2005, the deponent/claimant stated that her husband while performing checking duty in 5604 Dn passenger Train at Dimapur Railway Station, he accidentally fell down from the said train in question on 21.12.2000 at about 2 hrs and was run over by the train resulting in his instantaneous death. This averment has nowhere been rebutted or denied by the railway authorities. However, since in a subsequent affidavit filed on 7.4.2006, while annexing a copy of the Movement Command Certificate No. 1410 (Exhibit-20), the claimant appears to have stated that the victim while discharging his official duty fell down from the train. On 22.8.2006, another additional affidavit appears to have been filed on behalf of the claimant and here in para-4, it was stated that the deceased had gone to Dimapur Railway station to see off his friend where he met with an accident. This averment is verified to be true to the knowledge of the deponent as has been done in the earlier two affidavits wherein it was claimed that the deceased had been on official duty and was checking tickets when he had fallen from the train. The learned tribunal noticed this contradiction and dismissed the claim petition on the sole ground that the claimant did not stick to the original stand taken by her about official duty discharged by the victim. The learned tribunal noticed this contradiction and dismissed the claim petition on the sole ground that the claimant did not stick to the original stand taken by her about official duty discharged by the victim. Fact remains that the deponent was not an eye witness to the incident and she relied on documents like Movement Command Certificate to show that the deceased constable was under official order to visit the railway station at Dimapur alongwith another constable. The claimant also made a prayer in her initial affidavit filed on 14.6.2005 to call for records from the GRPS, Dimapur Railway Station as well as from the office of the Commandent, 1st NAP, Bn, Chumukedima, Nagaland and from the office of the SS Dimapur Railway station to verify her submissions made in the said affidavit. It does not appears that this prayer of the claimant received any consideration whatsoever from the end of the tribunal. Had these documents been called, it would have been clear as to whether the claim of discharging official duty by deceased constable was correct or not. The railway authority was also at liberty to show that the deceased constable was not giving any duty in the train Dn 5604 on the fateful day. Having failed to discharge that liability, the railway authority cannot get the benefit of their own mistake. From what has been stated above, it appears that there is a Command Certificate being No. 1410 whereby constable No. 2218, Dilip Kumar Dey was directed to proceed to Dimapur Railway station on 21.12.2000 at 1.00 hrs. Had he gone there merely for seeing off his friend in that event no official command certificate would have been necessary. Issuance of Movement Command Certificate itself pre-supposes that the victim constable was on official duty along with another constable being No. 2596. This shows that the deceased constable was on duty at the relevant time when he had fallen from the train. Obviously the duty given in the train was for benefit of the railway and so there is scope to hold that he was a passenger within the meaning of Explanation- to Section 124 A of the Act. That being the position, the learned tribunal committed error in not granting compensation to the claimant for death of the constable who died while discharging duty at Dimapur Railway Station under Section-124 A of the Railways Act. That being the position, the learned tribunal committed error in not granting compensation to the claimant for death of the constable who died while discharging duty at Dimapur Railway Station under Section-124 A of the Railways Act. This aspect of the matter did not appear to have received consideration of the learned tribunal at the time of passing the impugned order. 7. It cannot be lost sight that in the case in hand apart from the evidence brought on record by the claimant in the form of affidavit no other piece of evidence has been adduced by the contesting NF Railway. Even no application appears to have been filed before the tribunal for cross-examination of the deponent regarding correctness or otherwise of the deposition made by way of affidavit. Railway authorities were in possession of the documents to show as to whether the two constable under certificate No.1410 were under official duty for the benefit of railway or not. The documents being in custody of the railway were withheld and were not produced for examination by tribunal and so presumption under Section-114 of the Evidence Act shall be applicable in the case in hand. Considering all these matters in entirety, it appears that the claimant has succeeded to make out a prima facie case to show that her husband was on official duty and that he had fallen from the train at Dimapur Railway station resulting in his instantaneous death. Accordingly, appeal stands allowed. Impugned judgment and order is set aside. The claimant shall be entitled to compensation under Railways Accident Untoward (Compensation) Act, 1999. Since it is a case of death, the claimant shall be entitled to compensation under Part-I of the Schedule to the aforesaid rules. 8. Appeal stands allowed. No order as to cost.