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2016 DIGILAW 254 (ORI)

Bibekananda Pattanaik v. Union of India

2016-03-31

BISWANATH RATH

body2016
JUDGMENT : Biswanath Rath, J. 1. This is an appeal at the instance of the claimants involved in O.A. No. 215 of 2007 against the judgment dated 13.8.2013 passed by the Railway Claims Tribunal, Bhubaneswar Bench. 2. Short facts involved in the case are that on 20.5.2003 while the deceased was in the Intercity Train No.8412, he fell down at Khalikote Railway Station due to push given by the co-passenger. The claimants i.e. legal heirs of the deceased claimed that the deceased was travelling on the strength of a journey ticket from Berhampur to Khalikote. However, due to accident the ticket was lost somewhere and the death of the deceased caused on account of sustaining severe injuries in a rail accident, the claimants having lost their bread earner, prayed for appropriate compensation from the railway authority. The railway authority on their appearance, filed written statement denying all allegations of the claimants more specifically, denying the journey of the deceased in the Intercity Express from Berhampur to Khalikote. Further, denying the fact that the death has not caused due to accidentally fall of the deceased on account of push given by a co-passenger. The railway authority also stated that the deceased was not a bona-fide passenger as he had no ticket with him. Looking to the pleadings of the respective e parties, the Tribunal framed following issues: ISSUES 1. Whether the applicants are the dependants of the deceased? 2. Whether the deceased was a bona-fide passenger? 3. Whether the incident is an untoward incident? 4. Whether the applicants are entitled to get compensation? 5. If so, what relief. 3. On the aforesaid pleadings, the claimants examined three witnesses as A.W.1 to A.W. 3. The railway authority examined one witness as C.W.1. Claimants filed as many as 11 documents whereas the respondents also filed one document marked as Ext.R/1. Considering the pleadings, oral evidence and material evidence, the Railway Claims Tribunal, Bhubaneswar Bench dismissed the appeal holding the issue nos.2 and 3 against the claimants observing therein that the cause of death of the deceased might be in an attempt to suicide and not by railway accident. 4. Considering the pleadings, oral evidence and material evidence, the Railway Claims Tribunal, Bhubaneswar Bench dismissed the appeal holding the issue nos.2 and 3 against the claimants observing therein that the cause of death of the deceased might be in an attempt to suicide and not by railway accident. 4. In assailing the dismissal of the claim, the claimants-appellants filed this appeal on the premises that in view of the specific evidence by A.W.3, the Tribunal coming to conclusion that the deceased was a ticket-less passenger and as such is not a bona-fide passenger in the train and thereby not entitled to any claim is wrong and erroneous. The finding of the Tribunal also runs contrary to the decision of different High Courts as well as the Hon’ble Apex Court in similar situation. The findings of the Tribunal holding that the burden of proving that the deceased was a ticket holder passenger lies on the claimants and not on the railway authority contrary to the decision of the several courts. The appellants also contended that the Tribunal failed in appreciating the provision contained in Sections 124(2), 124-A and further Section 123 and 123-A of the Railways Act, 1989 and thereby arrived at the wrong and erroneous judgment. In the premises, the appellants sought for reversion of the impugned judgment. 5. Learned counsel appearing for the Railways Department while seriously objecting to the contentions of the appellants contended that in view of the specific claim of the claimants that the deceased was a passenger in the train, the Tribunal holding liability of proving the same on the claimants is justified in absence of any cogent material establishing that the deceased was a passenger and he met with an untoward accident, Tribunal did not wrong in dismissing the claim and on these premises, the learned counsel appearing for the Railway authority claimed that there being no wrong, the findings of the Railway Claims Tribunal, there is no scope for interference in the same. 6. Heard learned counsel for the parties. In view of the rival contentions, this Court feels it appropriate to decide the findings of Railway Claims Tribunal on issue nos.2 and 3 at the first instance, before proceeding to decide all other issues. 6. Heard learned counsel for the parties. In view of the rival contentions, this Court feels it appropriate to decide the findings of Railway Claims Tribunal on issue nos.2 and 3 at the first instance, before proceeding to decide all other issues. Record discloses that the claimants have positive case that the deceased had been to Berhampur to see their ailing mother where he was accompanied by one of his friend Krushna Chandra Dhala and after both of them attending the ailing mother, the deceased with an intention to return back to his home at Khalikote proceeded to Berhampur Railway Station along with one Krushna Chandra Dhala and purchased a ticked at Berhampur Railway Station to board Intercity Train No.8412 and boarded the train accordingly. The claimants have also a specific claim that the deceased while proceeding in the Intercity Train as a bona-fide passenger fell down from train and died after sustaining serious bodily injuries. To establish their claim, the claimants also examined as many as 3 witnesses including Krushna Chandra Dhala who had accompanied the deceased to the ailing mother and accompanied him till the deceased boarded the Intercity Train with a ticket. This Court also has occasion to scan the evidence of the railway authority and on a whole scanning of the evidence of the railway authority, this Court finds their evidence is totally silent on the aspect of ticket. The evidence only highlights the receipt of information by a competent authority and with regard to diary entry on the particular accident Scrutiny of the findings on issue nos.2 and 3 , the Railway Claims Tribunal not only shifted burden of proving on the claimants but wholly relying on a wrong inquest report prepared by police in U.D. Case No.20 of 2003 came to a conclusion that the deceased had not fell down from the train, on the other hand claimed that it is a case of train running over the deceased may be on account of an attempt to commit suicide. This Court finds the observation of the Railway Claims Tribunal not only contrary to the pleadings and evidence of the parties but also based on extraneous circumstances. The finding of the Railway Claims Tribunal appears to be based on surmises, conjectures and probabilities, which process of assessment is unknown to law. 7. This Court finds the observation of the Railway Claims Tribunal not only contrary to the pleadings and evidence of the parties but also based on extraneous circumstances. The finding of the Railway Claims Tribunal appears to be based on surmises, conjectures and probabilities, which process of assessment is unknown to law. 7. Now coming to the decision rendered by different courts including that of our High Court in similar situation, in the cases of Gullipalli Lakshmikanthamma v. General Manager, South Central Railway, 2003 ACJ 1582 , a judgment rendered by High Court of Andhra Pradesh at Hyderabad, Sakhia Naik & Another v. Union of India, 2005 (2) CLR 455 decided by this Court, Union of India v. Hari Narayan Gupta and another, 2008 ACJ 822 , Union of India owning Southern Railway by its General Manager, Chennai v. G. Jayalakshmi and others, 2012 (3) T.A.C. 852 (Mad.), Union of India through G.M., Northern Railway v. Balak Ram Joshi, 2012 (3) T.A.C. 436, Allahabad High Court (Lucknow Bench), it is seen that all the above Courts considering the case of exact nature have the common view that passenger being dead, dead body might be dealt in several manners till handing over to the relatives. Absence of ticket on making claim on account of death involving railway accident, burden of proving that the passenger was a ticket-less passenger lies on the railway. Even the Courts have gone to the extent of expressing the railway authority having mechanism to take ticket-less passenger, burden strictly lies on the railway to establish that the deceased was a ticket-less passenger. In a case between Jameela and others v. Union of India, 2010 ACJ 2453 even after observing accepting that there was no eye witness to the incident and the claim of railway that deceased suffered on account of his own negligence, the Hon’ble Apex Court observes assuming that the deceased fell from the train due to his own negligence, it is not a criminal act so as to attract clause (c) of proviso to Section 124-A and consequently held that the railway is liable to make compensation. 8. 8. In view of the observations of this Court on the finding of the trial court and evidence of respective parties, keeping in view further the decision of different High Courts including our own High Court referred to supra and the decision of the Hon’ble Apex Court, this Court observes the finding of the Railway Claims Tribunal on issue nos.2 and 3 as wholly erroneous. Accordingly, this Court while reversing the finding of the Railway Claims Tribunal on issue nos.2, 3 and consequently also issue nos.4 and 5, holds the issue nos. 2 and 3 in favour of appellant-claimants by observing that the accident as an untoward incident and the applicants are entitled to get compensation. However, since the Tribunal has not made any endeavour on issue no.5, for his wrong finding on issue nos.2, 3 and 4, this Court feels it appropriate to remit the matter back to the Railway Claims Tribunal only to decide the quantum of compensation taking into consideration the pleadings and the materials available on record. The exercise be concluded within a period of one month from the date of production of a copy of this judgment. 9. The F.A.O. stands allowed to the extent indicated hereinabove. However, there is no order as to cost.