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2017 DIGILAW 163 (CAL)

KUMKUM ROY v. UNION OF INDIA

2017-02-10

DIPANKAR DATTA, SAHIDULLAH MUNSHI

body2017
JUDGMENT : Dipankar Datta, J. Aggrieved by rejection of her claim application under Section 124-A of the Railways Act, 1989 (hereafter the 1989 Act) registered as Claim Application No. U/722/2005 by the Railway Claims Tribunal, Kolkata vide judgment and order dated April 24, 2012, the claimant as appellant has preferred this appeal under section 23 of the Railway Claims Tribunal Act, 1987. 2. It was pleaded in the claim application that the husband of the claimant/appellant (hereafter the victim) while travelling in a local train accidentally fell down, suffered multiple injuries and died instantaneously. As such, she claimed Rs. 4 lakh on account of compensation. 3. At the trial, the claimant/appellant and one Samir Mukherjee, alleged co-passenger of the victim, adduced evidence as PWs 1 and 2 respectively. None adduced evidence on behalf of the railway, the respondent in the claim application. Upon consideration of the evidence led in course of the trial, the tribunal doubted that the victim was a passenger. The reason was no railway ticket was found on his person. Disbelieving the version of the claimant/appellant, it proceeded to return a finding that the victim did not die as a result of any accidental fall from a moving train but may have been run over. It was finally held that the claim not being covered by 'untoward incident' as defined in section 123(c) of the 1989 Act, the claimant/appellant was not entitled to any compensation. 4. We have heard Mr. Banerjee, learned advocate appearing for the claimant/appellant and Mr. Dutta, learned Advocate for the respondent with patience, having regard to the claim of unnatural death of the victim in circumstances beyond his control not succeeding before the tribunal. However, despite the sympathy we have for the claimant/appellant and her children, we are unable to grant her any relief based on the evidence led before the tribunal and have no option but to dismiss the appeal for the reasons that follow. 5. It appears from the impugned judgment and order that the inquest report prepared under Section 174, Code of Criminal Procedure by the concerned police officer was before the tribunal and it had considered the same. The said report is a contemporaneous document which surfaced immediately after the dead body of the victim was located. 5. It appears from the impugned judgment and order that the inquest report prepared under Section 174, Code of Criminal Procedure by the concerned police officer was before the tribunal and it had considered the same. The said report is a contemporaneous document which surfaced immediately after the dead body of the victim was located. On a reading of such report, we find that it was signed, inter alia, by the claimant/appellant and one Prabir Mukherjee, brother of PW-2. In course of cross-examination, PW-2 deposed that he had informed the said Prabir Mukherjee about the incident leading to death of the victim but that he (Prabir) would not adduce evidence in course of the trial. The said Prabir Mukherjee ultimately did not turn up as a witness to say that neither he nor the claimant/appellant was present at the time of inquest or that they did not sign the relevant report. Be that as it may, the claimant/appellant having signed the inquest report it would not be unreasonable to proceed on the premise that she had so signed upon looking into its contents and being aware of what she was acknowledging. The contents reveal that the police officer conducting the inquest had filled up the relevant form, more particularly Sl. no.3 thereof, inter alia, by mentioning that the body of the victim had been severed into two pieces as a result of a train running over the waist. Despite such severance of the body having been noted in the inquest report, and signed/acknowledged by the claimant/appellant, she did not plead so in her examination-in-chief on affidavit; instead, she pleaded that the victim died as a result of a head injury and other injuries suffered because of an accidental fall from the train. The reason why the claimant/appellant did not at all refer to severance of the body of the victim is shrouded in mystery. Lodging of the claim as an afterthought cannot, thus, be ruled out. 6. That apart, the fact of the victim suffering from neuro problems had also been admitted by the claimant/appellant at the trial. We find from particulars entered by the police officer against sl. no.8 of the form for conducting inquest referring to his derivation of knowledge from the witnesses, who had signed it, that the victim was a patient of neurological problems. We find from particulars entered by the police officer against sl. no.8 of the form for conducting inquest referring to his derivation of knowledge from the witnesses, who had signed it, that the victim was a patient of neurological problems. Who else other than the claimant/appellant could have given information to the police officer of the victim's ailment at the time the inquest report was drawn? This circumstance is sufficient to prove the presence of the claimant/appellant at the time of inquest. 7. Besides the inquest report, it appears from the post-mortem examination report that the wounds noted therein were found to be "consistent with rail track injury". This finding also supports the finding of the tribunal that the victim must have died as a result of being run over by a moving train. 8. We are thus inclined to the view that omission on the part of the claimant/appellant to refer to severance of the dead body into two pieces is a vital circumstance rendering her claim doubtful and weighed on the scale of preponderance of probability does not commend acceptance. The proved circumstances belie the claim of the claimant/appellant that the victim, being the passenger of a moving train, had an accidental fall therefrom resulting in his tragic end. We, thus, have no reason to hold that the tribunal erred in rejecting the claim application. 9. In course of hearing Mr. Banerjee invited our attention to the Railway Passengers (Manner of Investigation of Untoward Incidents) Rules, 2003. Referring to rule 4, he contended that it was the duty of the guard or the driver of the train, who was on duty at the time of occurrence of the untoward incident, to immediately arrange for medical assistance and to report the occurrence of such incident to the supervisor in Form 1. According to him, no such report is on record. 10. We have failed to comprehend as to how the Rules advance the cause of the claimant/appellant. Rule 4 would have application in respect of an occurrence of 'untoward incident'. The term 'untoward incident' in terms of rule 2(o) of the Rules would have the same meaning as in section 123(c) of the 1989 Act. The incident that led to the tragic death of the victim, we repeat, is not covered by such definition and, therefore, the Rules do not lend any assistance to the claimant/appellant. 11. The term 'untoward incident' in terms of rule 2(o) of the Rules would have the same meaning as in section 123(c) of the 1989 Act. The incident that led to the tragic death of the victim, we repeat, is not covered by such definition and, therefore, the Rules do not lend any assistance to the claimant/appellant. 11. Reliance placed by Mr. Banerjee on the decisions of the Supreme Court reported in 2008 (2) T.A.C. 777 [Union of India v. Prabhakaran Vijaya Kumar & ors.], 2011 (1) T.A.C. 10 [Jameela & ors. v. Union of India] and 2001 AIR SCW 1074 (Rathi Menon v. Union of India), and the decision of the Kerala High Court reported in AIR 2008 Kerala 153 (K.V. Thomas v. Union of India) are also of no relevance having regard to the facts and circumstances of the present appeal. 12. In Prabhakaran Vijaya Kumar (supra) the Court was considering as to whether a passenger trying to get into a train and falling down accidentally could be regarded as a passenger or not. It was held that although the case was not covered by clauses (a) to (e) of the proviso to section 124-A of the 1989 Act but it was clearly covered by the main body of section 124-A. Here, the victim was rightly held by the tribunal not to be a passenger and, therefore, invocation of section 124-A of the Act seeking compensation was misplaced. 13. In Jameela (supra), it was proved that death occurred due to an 'untoward incident' defined in section 123(c) of the 1989 Act. This decision is, therefore, distinguishable. 14. In Rathi Menon (supra) and K.V. Thomas (supra), the Courts were considering the amount of compensation to be paid by the railway administration in respect of accidental fall of a passenger from the train. Since we have already recorded a finding that the victim did not die as a result of accidental fall, the decisions in Rathi Menon and K.V. Thomas (supra) have no application. 15. For the reasons aforesaid, we find no reason to interfere. The appeal fails and, accordingly, stands dismissed. There shall be no order as to costs. 16. Office is directed to return the records of the claim application to the tribunal at once. 17. Urgent photostat certified copy of this judgment and order, if applied, may be furnished to the applicant at an early date. The appeal fails and, accordingly, stands dismissed. There shall be no order as to costs. 16. Office is directed to return the records of the claim application to the tribunal at once. 17. Urgent photostat certified copy of this judgment and order, if applied, may be furnished to the applicant at an early date. Sahidullah Munshi, J.—I agree.