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2017 DIGILAW 1205 (GAU)

PHULESWARI BORO v. UNION OF INDIA

2017-08-30

KALYAN RAI SURANA

body2017
JUDGMENT : Kalyan Rai Surana, J. Heard Mr. D.C. Kath Hazarika, the learned counsel for the appellant and Mr. U.K. Nair, the learned Senior Counsel assisted by Mr. M.P. Sharma, the learned counsel appearing for the Respondent-Railway. 2. This is an appeal under Section 23 of the Railway Claims Tribunal Act, 1987. The appeal is directed against the judgment and order dated 25.05.2009 passed by the learned Railway Claims Tribunal, Guwahati Bench, Guwahati, in O.A. 284/2004, thereby dismissing the claim application filed by the appellant. 3. The applicant is the wife of Late Laumura Boro. As per the claim petition, the husband of the appellant, who was aged about 40 years, suddenly fell down from M.G. Passenger train at midnight of 16.01.2004 while travelling from Rangia Railway Station with a valid 2nd Class journey ticket. It was claimed that the journey ticket was lost and that the deceased having received grievous injuries, died on spot. 4. The respondent contested the case by filing written statement. They denied that the deceased was a bona fide railway passenger. It was denied that he had fallen from the 759 UP Passenger Train and died. The respondent prayed for dismissal of the claim application. 5. On the basis of pleadings, the following issues were framed - "1. Whether the applicant proves that the deceased Laumura Boro accidentally fell down from train while travelling from Rangia and was killed? 2. Whether the deceased was a bonafide passenger? 3. What relief? What Order?" 6. In support of the claim, the appellant-claimant examined 3 witness including herself, one Rajib Boro and Anil Boro and proved the following documents - (1) Memo issued by SASM/ Rangia, (2) Post Mortem Report, (3) Death Certificate, (4) Certificate issued by Gaonburah, (5) Cover-page of Bank Pass Book, (6) Inquest Report, and (7) Final Report. The respondent submitted extract of Station Diary Report of GVR and RNY Division. 7. On issue No.1, the learned Railway Claims Tribunal, Guwahati, after discussing the evidence on record, held that the case was not of accidental fall from train and issue was decided against the appellant herein. On issue No.2, it was held that the appellant herein failed to prove that the deceased was a bona fide passenger of the said train and, as such, the said issue was also decided against the appellant herein. On issue No.2, it was held that the appellant herein failed to prove that the deceased was a bona fide passenger of the said train and, as such, the said issue was also decided against the appellant herein. Consequently, the issue No.3 was also decided against the appellant herein by holding that the appellant herein is not entitled to any claim under Section 124-A of the Railways Act, 1989. Thus, the claim petition was dismissed. 8. The learned counsel for the appellant has heavily relied on the evidence of Sri Rajib Boro (AW-2) and Sri Anil Boro (AW-3). As per the statement made in the Evidence - on-Affidavit filed by the AW-2, who is the son of the deceased, he went to the Rangia Station with his father at 4.00 p.m. and he saw his father boarding the 759 UP M.G. Passenger train at about 6.00 p.m. with a 2nd Class journey Ticket, which he had seen, to go to Rangapara, where his sister was married and that he had left after departure of the train. Smt. Phuleswari Boro, the AW-1 had also stated that her deceased husband had left home at about 4.00 p.m. to go to Rangapara to the house of his daughter. Sri Anil Boro (AW-3), in his Evidence - on - affidavit had stated that the deceased was a rickshaw puller and he had gone to Rangia Railway Station with his son Rajib Boro by a bicycle arranged by him. At about 8.00 p.m., he met Rajib Boro at home and he informed that his father had gone to Rangapara by train from Rangia. He also stated that as per Final Report in U/D Case No. 2/2004, his brother had committed suicide by jumping in front of the running train on 16.01.2004 by impleading him without any basis. 9. The learned counsel for the appellant has submitted that the learned Railway Claims Tribunal had misread and misconstrued the evidence on record and relied on extraneous materials and wrongly dismissed the claim petition. It is submitted that the evidence of all the three AWs were consistent with each other and duly proved the appellant's case by proving that the deceased was a bona fide passenger of the train in reference and that the AW-2 is the direct witness of having seen the 2nd Class train ticket on which the deceased was travelling from Rangia to Rangapara. 10. 10. The learned counsel for the appellant has relied on the following case citations in support of his argument, they are - a. Jameela & Ors. v. Union of India, (2010) 12 SCC 443 . In this case the deceased was travelling at open door and it was held that his falling down by train was accidental as there was no evidence to show that the passenger was travelling negligently. b. Union of India v. Prabhakaran Vijaya Kumar & Ors., (2008) 9 SCC 527 . In this case it has been held that the accidental falling down by a bona fide passenger travelling with a valid ticket or a pass while trying to board it was of no consequence and he was a bona fide passenger. It was also held that the provisions for compensation in the Railways Act is a beneficial piece of legislation, liberal and purposive interpretation and not literal or strict interpretation applied. c. Minu Mai Devi v. Union of India, 2000 (1) GLT 532 (DB). In this case it was held by the Hon'ble Division Bench of this Court that for interpretation of a beneficial legislation, liberal construction was required. In this case, it was held that the presence of a person on the train or the platform must be validly authorized and that as per the provisions Section 2(29) and Explanation to Section 124-A of the Railways Act, 1989, a passenger includes all those persons who has purchased a valid railway ticket for travelling, or a valid platform ticket, besides a railway servant on duty. d. Union of India v. Hem Lata Mudoi, 2002 (3) GLT 729 (DB). In this case the Hon'ble Division Bench of this Court had held that it was the burden of the Railways to prove the exceptions which may fall under the proviso to Section 124-A of the Railways Act, 1989 and that in the absence of any proof by the Railway Administration, it shall be presumed that the accident occurred on account of untoward accident. e. Union of India v. Sushila Devi & Ors., 2006 ACJ 806 (All.). This case was relied to show that the provisions of Section 123-A of the Railways Act, 1989, being a beneficial legislation, strict proof of matter is not required. e. Union of India v. Sushila Devi & Ors., 2006 ACJ 806 (All.). This case was relied to show that the provisions of Section 123-A of the Railways Act, 1989, being a beneficial legislation, strict proof of matter is not required. It is submitted that facts in the said case was somewhat similar to the facts of the case and the respondent in the said case was held to be squarely covered by the provisions of Section 123(c) of the Railways Act, 1989 and thus, entitled to compensation. 11. The learned counsel for the appellant prays for allowing compensation under the provisions of the Railway Act, 1989 by setting aside the impugned judgment. 12. Per contra, the learned Senior Counsel for the respondent has submitted that there was no infirmity in the judgment and order impugned herein. He had heavily relied on the cross examination of all three AWs. It is submitted that AW-1 and AW-3 had admitted that they were not an eye witness. It was pointed out that the AW-2 in his cross examination had stated that he had not seen whether his deceased father had boarded the train or not. It is submitted that unless any witness accounts for the person holding a valid ticket and had actually seen him in the train, it must be held that the applicant/claimant could not prove that a bona fide passenger had fallen down from the train. 13. By relying on the Inquest report, it is submitted that as per entries made therein, the deceased had committed suicide by jumping in front of the train. The learned Senior Counsel for the respondent has also relied on the Station Diary of Rangia Railway Station and Goreswar Railway Station, where no such incident is recorded. It is submitted that the cases cited by the learned counsel for the appellant were distinguishable because in the said cases, it was proved that the deceased therein were bona fide passengers, which is not the fact proved in this case and, as such, the appeal be dismissed. 14. Having heard the arguments advanced by the learned Counsel for both sides, the trial record of the learned Railway Claims Tribunal has been perused. 14. Having heard the arguments advanced by the learned Counsel for both sides, the trial record of the learned Railway Claims Tribunal has been perused. It is deemed fit to formulate the following points of determination - Whether the decision by the learned Railway Claims Tribunal, Guwahati is vitiated by improper appreciation of the pleadings and evidence on record and whether the impugned judgment and order is sustainable on facts and in law? 15. It is seen that the AW-2 in his cross examination had specifically stated that he had seen that his father had purchased the ticket, but did not see whether he boarded the train or not. AW-3 had stated that he returned back at 6.00 p.m. and did not see when the deceased had travelled by train or not. It was stated that the dead body was found in between Rangia and Khandikar Railway Station. But he denied the suggestion that it was not true that his father had not boarded the train and fall down from the running train. 16. In none of the cases cited by the learned Counsel for the appellant there was any dispute that the deceased was not a bona fide passenger. In the case of Sushila Devi (supra), the Railways did not dispute that the deceased was travelling by Train No. 3010 Dn., Doon Express and the question therein was whether the deceased had endangered his safety. In all other cases, the deceased was a Railway Servant/Govt. Railway personnel, whose presence in Railway Station/Tract was not in dispute. In the present case in hand, the only witness to last see the deceased in Rangia Railway Station was his son i.e. AW-2, who did not see his father actually boarding the train, which is contradictory to his statement in his Evidence-on-affidavit that he saw his father boarding the train and he left the station after the train had left. The railway ticket, which the AW-2 saw his father purchasing was never recovered during Inquest. The final report shows that the death was suicidal. Therefore, in the opinion of this Court there are no materials on record to show that the finding on issue No.1 as recorded by the learned Railway Claims Tribunal, Guwahati is incorrect and any other view can be taken. The final report shows that the death was suicidal. Therefore, in the opinion of this Court there are no materials on record to show that the finding on issue No.1 as recorded by the learned Railway Claims Tribunal, Guwahati is incorrect and any other view can be taken. This court is also constrained to hold that the appellant had failed to prove that the deceased died after accidentally falling from the 759 Up M.G. Passenger Train on 16.01.2004 between Rangia and Goreswar Railway Station. 17. Similarly, in view of the statements made by the AW-2 in his cross examination, which appear to be contradictory to the statements made in the Evidence-On-Affidavit sworn on 05.02.2009, the appellant has not been able to establish that the deceased was a bona fide railway passenger and, as such, no infirmity is found with the finding in respect of Issue No.2. In so far as the concept of liberal interpretation of beneficial legislation as propounded by the various judgments on which the appellant has relied, this court respectfully agrees with the said ratio. However, in none of the cases cited by the learned Counsel for the appellant said principle of liberal interpretation of beneficial legislation has been extended to mean that one must hold that the deceased to be a bona fide passenger, even when he is not proved to be one like the present case in hand. Therefore, the 5 (five) cases cited by the learned Counsel for the appellant does not appear to help the appellant in any way. 18. Resultantly, the appellant is not entitled to any relief in the case, and there is no infirmity in the finding in respect of Issue No.3 by the learned Railway Claims Tribunal, Guwahati. 19. Therefore, the point of determination as framed by this Court is answered in the negative and against the appellant by holding that the decision by the learned Railway Claims Tribunal, Guwahati is not at all vitiated by improper appreciation of the pleadings and evidence on record and that the impugned judgment and order is found to be sustainable on facts and in law. 20. This appeal is accordingly, dismissed. The parties are left to bear their own cost. 21. Let the LCR be returned back.