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2018 DIGILAW 1726 (GAU)

Mala Sing W/o Lt. Bishnu Sing v. Union of India

2018-12-11

KALYAN RAI SURANA

body2018
JUDGMENT & ORDER : 1. None appears on call for the appellant today. However, this Court had heard Mr. J. Mollah, learned counsel for the appellant on 23.03.2018. also heard Mr. B. Sarma, learned standing counsel for the NF Railways. 2. As per order dated 23.03.2018, the hearing of both sides have otherwise concluded. However, owing to the nature of dispute, the Railway was directed to obtain instruction regarding relevant circulars in force between 29.01.2011 to 02.02.2011 relating to period of time for which an unreserved ticket would be valid and accordingly, the matter was heard on 11.04.2018. Thereafter, the matter was listed before this Court on 14.11.2018 and in view of the absence of the learned counsel for the appellant, the hearing was again deferred to 11.12.2018. 3. By this appeal under Section 23 of the Railway Claims Tribunal Act, 1987, the appellant has challenged the impugned judgment dated 06.03.2013, passed by the learned Railway Claims Tribunal, Guwahati Bench, Guwahati in Claim Application No. OA-II-46/2011 (old)/ Claim Application No.OA.(IIu)/GHY/2011/0045(New). 4. As per the claim petition, it was projected that the husband of the appellant, namely, Bishnu Sing fell down from KJ Express in the night of 31.01.2011 between Changsari and Agiatori Railway Station while travelling from Rampurhat to Badarpur Railway Station, with a valid ticket journey bearing No.5221241 dated 29.01.2011 and he had succumbed to his injuries. Accordingly, Rangia GRPS had registered UD Case No. 6/2011 and accordingly, the applicant had prayed for a compensation of Rs.10,00,000/- with interest thereon. The respondent railway had filed their written reply wherein apart from disputing the profession of the deceased, the railway had claimed that no information was furnished that while the deceased was travelling from Rampurhat to Badarpur Railway Station, how the deceased could have fallen from the alleged train on 31.01.2011. Referring to the report by the duty patrolmen, the stand of the Railways was that the deceased had not fallen down from the train and that as per the final report of the Investigating Officer of GRPS, Rangia, the railway relied on the information that only on 02.02.2011, the unidentified male person was found in a nearly death condition and therefore, a stand was taken that the deceased did not died till the time of information received by the Rangia GRPS on 02.02.2011. The railway did not accept the case projected by the appellant that as per the journey ticket the same was for travel between Rampurhat to Badarpur Railway Station because the home address of the deceased was at Bamunimaidan Railway Colony, Chandmari, Guwahati-21 and it was also the stand of the railway that the post mortem report did not prove that the deceased had died on 31.01.2011 for which the railway did not accept this case of an untoward incident as accidental falling down from the train. Moreover, the railway had claimed that no train named KJ Express (Kanchanjunga Exp.) runs from Rampurhat to Badarpur Railway Station over the NF Railway jurisdiction. Accordingly the railway claimed that no case was made out for compensating the appellant. 5. The learned Tribunal had framed the following issues for trial: 1. Was the death of the victim in an untoward incident? 2. Was the victim a bonafide passenger? 3. Whether the applicant is a defendant? 4. Whether the applicant is entitled for any compensation? If so, what is the sum? 5. Reliefs and costs? 6. The appellant gave evidence as AW-1 and had exhibited the following exhibits, viz., (i) Report (Ext.A1), (ii) Certified copy of FIR (Ext.A2), (iii) Certified copy of Inquest Report (Ext.A3), (iv) Certified copy of seizure list (Ext.A4), (v) Certified copy of final report (Ext.A5), (vi) Certified copy of Zimmanama (Ext.A6), (vii) Certified copy of post mortem report (Ext.A7) and (viii) Survivorship certificate (Ext.A8). The railway did not examine any witness, but a copy of DRM/RNY’s report was marked as Ext.R1. 7. In respect of issue No. 1 and 2, the learned Tribunal had held that the death of the victim was an untoward incident. As regards the evidence of AW-1, the learned Tribunal had opined that she had come to know about the accident after five days and, as such, it was held that AW-1 cannot give direct evidence as regards the question to be decided. The of the certificate given by the In-charge of Baihata GRP PP (Ext.A1) was held to be containing hearsay material to the effect that a person fell down from a train on 31.01.2011 having ticket No.52221241. The learned Tribunal took note of Ext.A2, the ejahar, which stated that the on-duty patrolmen had reported seeing an unidentified male person aged about 40 years, who seemed to be dead and lying near the track on 02.02.2011. The learned Tribunal took note of Ext.A2, the ejahar, which stated that the on-duty patrolmen had reported seeing an unidentified male person aged about 40 years, who seemed to be dead and lying near the track on 02.02.2011. From Ext.A3 (inquest report) and Ext.4 (seizure list), it was opined that the original ticket was recovered from the body of the deceased and it was assumed that the deceased had came by KJ Express. By relying on the time of the post-mortem examination at 1.15 pm (13.15 hrs) of 03.02.2011, containing opinion that the death had occurred 18 to 36 hours prior to the examination, as per the said P.M. Report (Ext.A7) the time of death was taken to be in the morning of 02.02.2011 and not before. Hence, the learned Tribunal opined that there was a possibility of the injured lying near the track from the night of 31.01.2011 till 02.02.2011 was a situation, which was difficult to comprehend. Relying on the railway ticket, which was issued on 29.01.2011, the learned Tribunal opined that the time of journey and the time of death does not go together and therefore, the learned Tribunal disbelieved that the deceased was a bonafide passenger on the date of accident on 31.01.2011 and the issues No.1 and 2 was decided accordingly. 8. In respect of issue No.3, it was held that the appellant was sole dependent on the deceased and in respect of the issue No.4, it was held that there were no reasons to hold that the victim was a bonafide passenger and it was held that the appellant was not entitled for any compensation. Hence, the claim application was dismissed. 9. The learned counsel for the appellant has submitted that the learned Tribunal had passed the judgment in this claim case only on the basis of surmises and conjunctures and it was submitted the undeniable facts was that the deceased was found lying injured near the track and as he was holding a valid journey ticket issued on 29.01.2011. Therefore, it must be held that the deceased was a bonafide passenger and therefore, it was the burden of the Railway to disprove that the deceased was a bonafide passenger. Therefore, it must be held that the deceased was a bonafide passenger and therefore, it was the burden of the Railway to disprove that the deceased was a bonafide passenger. Heavily relying on the report by the GRP (Ext.A1), it is submitted that the I.O., who had investigated the accident had admitted that the deceased had fallen down from the KJ Express in the night of 31.01.2011 and, as such, the appellant was not required to prove anything more. It is submitted that the police upon investigation, had recovered the journey ticket from the body of the deceased and therefore, this is not a case where any evidence was planted, moreso, because the learned Tribunal had arrived at a finding that the appellant became aware of the death of her husband only after five days of the accident. 10. By relying on the final report, it was submitted that the investigation had revealed that the deceased had travelled by KJ Express and that as per post mortem report, the death was due to comma as a result of head injury which were anti mortem and caused by blunt force impact to show that the deceased had died by falling down from the train. Hence, it is submitted that the appellant was entitled to compensation from the Railways for untoward incident resulting in the death of the husband of the appellant by falling from the train. 11. The learned counsel for the railway has submitted that the ticket discloses an entry of “JCO 29.01.2011”, which according to him is short form of “journey commenced on 29.01.2011”. He also submits that KJ Express could be “Kanchanjunga Express” which originated from Sealdah and terminates on 30.01.2011 at Guwahati at the said relevant time and it is submitted that the said train would have reached Agiathori Railway Station at around 3.30 AM on 30.01.2011 and therefore, it is impossible that the deceased would not be recovered till 02.02.2018. On the query of this Court by order dated 23.03.2018, it is submitted that an unreserved ticket that is issued three days prior to the date of commenced of journey, but, in the present case in hand, the contents of the ticket shows that it was purchased on 29.01.2011 and the date of journey had commenced on 29.01.2011, as such, the journey of KJ Express would have terminated on 30.01.2011. Hence, it is submitted that if the deceased had fallen from a train on 31.01.2011, the accident would have occurred prior to 02.02.2011 and that because as per post-mortem report, the estimated time of death was 02.02.2011 in the morning, at that time, the deceased would not have been bonafide passenger of KJ Express. 12. The learned standing counsel for the NF Railway further submits that the nature of injury report revealed in the post-mortem does not indicate falling down from a train it could only be a blunt force impact. 13. In connection with the submissions made by the learned standing counsel for the NF Railway is that the nature of injury reflected in the post-mortem report does not establish falling down from a train, this Court would not be able to give any definite opinion thereon because no duly accepted scientific report has been placed before this Court to show that when a person falls down from a train, what nature of injury he would suffer and what nature of injury would never be considered to be a injury resulting from blunt force impact by falling down from a running train. Therefore, in the opinion of this Court, if the deceased is held to be a bonafide passenger and that he had fallen down from a train, the nature of injury suffered would not be material for discarding the evidence of the claimant that the deceased had died in an untoward incident within the meaning of Section 124 of the Railway Act, 1989. 14. In the present case in hand, this Court finds force in the statement made by the learned counsel for the Railway that the time of falling down from the train as alleged in the claim petition to be 31.01.2011 is found to be contrary to the entries made in the post mortem repot which reflects that the post mortem was conducted at 1.15 pm (13.15 hrs) on 03.02.2011 and the time of death was estimated between 18 to 36 hours, which would bring the possibility of time of death to be morning of 02.02.2011 and, as such, the said evidence, being documentary in nature would prevail over the oral evidence to the effect that the deceased had fallen down on 31.01.2011 from KJ Express. Even otherwise, this Court finds the submissions made by the learned counsel for the Railways to be acceptable that even assuming that the deceased had fallen down from the train on 31.01.2011, the journey covered by the train ticket No. 52221241 dated 29.01.2011 would terminate on 30.01.2011 and, as such, that would lead to an inference that thereafter on 31.01.2011, the deceased was not a bonafide passenger of KJ Express. 15. Under such circumstances, the only question which arise for determination in the appeal is whether the finding recorded by the learned Tribunal was sustainable on facts and in law and in view of the discussion above, this Court does not find any reason to disagree with the findings recorded by the learned Tribunal in holding that the victim was not a bonafide passenger and that the appellant was not entitled to a compensation. Accordingly, this appeal fails and the same is dismissed. 16. Send back the LCR expeditiously.