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2019 DIGILAW 180 (GAU)

PRANJIT ROY v. UNION OF INDIA

2019-02-07

SUMAN SHYAM

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JUDGMENT : SUMAN SHYAM, J. 1. Heard Mr. S. B. Rahman, learned counsel for the appellant. I have also heard Mr. B. Sarma, learned Standing Counsel, N. F. Railways, representing the respondent. 2. The judgment and order dated 31.10.2017 passed by the learned Member (Judicial), Railway Claims Tribunal, Guwahati Bench in Claim Application No.OA-II/136/2014 rejecting the claim for compensation made by the appellant/claimant has been assailed in the present appeal. 3. The core controversy in the instant appeal pertains to the question as to whether the appellant in this case has succeeded in leading evidence to discharge the initial burden to show the fact that his deceased father was a bonafide passenger? 4. The facts of the case, shorn of unnecessary details, are that the father of the appellant viz., late Anil Chandra Roy was travelling by the 15604 Down Inter City Express from Bhojo to Jagiroad when he had accidentally fallen down from the train and suffered grievous injuries. The appellant's father had became senseless then and there and was rushed to the hospital where he died. Alleging that the accidental death of his father had occurred in an untoward incident coming within the definition of Section 124A of the Railways Act, 1989, the appellant had lodged a claim seeking compensation for an amount of Rs. 4 Lakhs. 5. The respondent had contested the claim petition by filing written statement denying the averments made in the petition. It was the stand of the respondent that no Railway ticket had been recovered from the body of the deceased and therefore, the applicant was not a bonafide passenger. 6. Based on the pleadings of the parties the learned Tribunal had framed the following issues for trial :- "1. Whether the victim was a bonafide passenger? 2. Whether the victim died in an untoward incident? 3. Whether the applicant is entitled for compensation? If so, to what sum? 4. Relief & costs?" 7. During the course of trial the appellant had examined himself as the claimant's witness. He was also cross-examined by the respondents. However, the respondents have not adduced any evidence in support of their plea taken in the written statement. 8. After considering the materials available on record the learned Tribunal had decided the Issue Nos.1 & 2 against the appellant/claimant by holding that the claimant had failed to establish that the deceased was a bonafide passenger. However, the respondents have not adduced any evidence in support of their plea taken in the written statement. 8. After considering the materials available on record the learned Tribunal had decided the Issue Nos.1 & 2 against the appellant/claimant by holding that the claimant had failed to establish that the deceased was a bonafide passenger. Consequently, the Issue Nos.3 and 4 were also decided against the appellant and the claim petition was dismissed by the impugned judgment and order dated 31.10.2017. Aggrieved thereby, the present appeal has been filed. 9. By referring to the materials available on record, Mr. Rahman has argued that the deceased was holding a valid journey ticket but after falling down from the train, the injured passenger was handled by several agencies including the GRPF, police and the medical attendants. Therefore, it is possible that the journey ticket might have been lost in the said process. Mr. Rahman further submits that the claimant had filed his evidence on affidavit deposing that his father was travelling with a journey ticket which was lost along with his luggage and the said testimony has remained un-impeached during his cross-examination. That apart, submits Mr. Rahman, the Police Report dated 19.06.2014 also categorically mentions that the deceased was going to Jagiroad on a valid ticket and he boarded 15604 DN I/C Express Train and suddenly fell down from the train due to rush of passengers. According to Mr. Rahman, the appellant has produced sufficient evidence prima facie to show that his father was a bonafide passenger but since the respondent has failed to lead any evidence to disprove the said fact, the learned Tribunal had committed an error in deciding the Issue Nos.1 and 2 against the appellant and in favour of the Railways. 10. By referring to a decision of this Court in the case of Smt. Nridhaniya Devi vs. Union of India (UOI) reported in, AIR 2000 Gauhati 4 Mr. Rahman submits that a Division Bench of this Court in a similar situation has held that merely because a stand was taken by the appellant that the ticket was lost, that could not be a ground to decline compensation to the victim. Mr. Rahman submits that a Division Bench of this Court in a similar situation has held that merely because a stand was taken by the appellant that the ticket was lost, that could not be a ground to decline compensation to the victim. Mr. Rahman has also relied upon an unreported decision of the Calcutta High Court Bandana Mondal vs. Union of India (UOI) through the General Manager, rendered on 23.09.2009 in F.M.A.T. No.291 of 2008 to contend that in a situation where the passenger has died due to fall from the train, the duty to disprove the fact that the deceased was not a bonafide passenger would lie upon the Railways. The learned counsel for the appellant has therefore, prayed for setting aside the impugned judgment and order of the learned Tribunal and to issue a direction upon the respondent to pay compensation for a sum of Rs. 4 Lakhs to the appellant due to the death of his father in an untoward incident involving the Railways. 11. Resisting the aforesaid arguments, Mr. B. Sarma, learned Standing Counsel, N.F. Railways, has strenuously argued that in the present case there is no material on record to establish the relevant fact regarding purchase of journey ticket by the deceased. On the contrary, submits Mr. Sarma, the Station Memo issued by the Station Superintendent on 26.02.2014, immediately after the incident, clearly indicates that no journey ticket was found in possession of the injured person. That apart, submits Mr. Sarma, the claimant's witness i.e. the appellant has also clearly stated during his cross-examination that he had not seen his father boarding the train or purchasing the train ticket. If that be so, submits Mr. Sarma, there is no evidence on record to conclude that the deceased was a bonafide passenger holding a journey ticket. 12. Referring to the decision of the Hon'ble Supreme Court in the case of Union of India vs. Rina Devi reported in, AIR 2018 SC 2362 Mr. Sarma submits that the initial burden to prove the relevant fact that the deceased was a bonafide passenger would lie on the claimant and the said burden would only shift upon the Railways after the initial burden is discharged by the claimant by filing an affidavit. According to Mr. Sarma submits that the initial burden to prove the relevant fact that the deceased was a bonafide passenger would lie on the claimant and the said burden would only shift upon the Railways after the initial burden is discharged by the claimant by filing an affidavit. According to Mr. Sarma, in the present case the appellant has failed to discharge the initial burden and therefore, there is no infirmity in the judgment and order appealed against. 13. I have considered the submissions advanced by the learned counsel for both the parties and have also meticulously gone through the materials available on record. 14. The basic facts are not in dispute in this case. The Railways have not disputed the occurrence of the incident or the death of the father of the appellant on 26.02.2014 due to the grievous injury suffered by him after falling down from the 15604 Down Inter City Express at the Bhojo Railway Station. The only controversy, as noted above, is pertaining to the question as to whether the learned Tribunal had correctly decided the issue No.1 by opining that the deceased was not a bonafide passenger, which decision has been called in question by the appellant. So as to answer the said question, it would be necessary to briefly discuss the materials available on record. 15. It is no doubt correct that in the Station Memo issued on 26.02.2014 immediately after the incident, it has been mentioned that no journey ticket could be recovered from the possession of the injured person. However, it is also true that in the police report submitted on 19.06.2014 it has been clearly mentioned that the deceased was travelling in Train No.15604 DN I/C Express from Jagiroad with a valid journey ticket and that he fell down from the train due to the rush of passengers and received injuries in head and left leg. The aforesaid statement of injury appearing in the Police Report is consistent with the post mortem report of the deceased person. 16. While adducing evidence, the appellant has made a statement on oath that his father had purchased a ticket but the ticket was lost with his luggage. During cross-examination the respondents did not challenge the said statement of the witness. 16. While adducing evidence, the appellant has made a statement on oath that his father had purchased a ticket but the ticket was lost with his luggage. During cross-examination the respondents did not challenge the said statement of the witness. It is no doubt correct that the witness had stated during his cross-examination that he had personally not seen his father boarding the train or purchasing the ticket but the said statement by itself would not be sufficient to conclude that the deceased person did not have a journey ticket. What is to be noted herein is that the claimant's witness has merely stated that he has not himself seen his father purchasing ticket or boarding the train. But there are sufficient materials on record which clearly indicates that the deceased had not only boarded the train but had also fallenl down from the train and had received grievous injuries which had led to his death. As such, the mere fact that the witness has himself not seen his father buying ticket or boarding the train would not disprove the claim of the fact on such count. 17. From a reading of the impugned judgment and order dated 31.07.2017 I also find that the learned Tribunal, while deciding the Issue Nos.1 and 2, has placed heavy reliance on the police report and has treated the same as a proof of the fact that the incident had occurred in the manner as claimed by the appellant. The entries made in the said Police Report are wholly consistent with the admitted facts and circumstances of the case. The police report has also been relied upon by the learned Tribunal to record a finding of fact regarding occurrence of the incident which has not been assailed by the respondent. Hence, this Court would have to presume that the respondent did not have any objection as to the correctness of fact mentioned in the Police Report. That apart, whether the deceased has purchased a valid ticket or not was a matter which could be easily ascertained by the Railway authorities and an appropriate stand based on material evidence could have been taken in the matter which has not been done by the respondent in this case. Therefore, it is apparent that the respondent was not serious about its claim that the deceased did not possess a valid journey ticket. 18. Therefore, it is apparent that the respondent was not serious about its claim that the deceased did not possess a valid journey ticket. 18. In the case of Rina Devi (supra) the Hon'ble Supreme Court, after considering various other decisions covering the aforesaid subject, has held that the mere absence of a ticket with the injured or deceased will not negative the claim that he was a bonafide passenger. It has been held that the initial burden will be on the claimant which can be discharged by filing an affidavit of the relevant facts and the burden will then shift on the Railways and the issue can be decided on the facts shown and the attending circumstances. In the present case, as noted above, not only in the testimony of the claimant's witness in his evidence filed on affidavit, but even the police report had clearly mentioned that the deceased passenger was travelling on a journey ticket. Such evidence brought on record by the appellant went unchallenged by the respondent. That being so, I am unable to agree with the submission of Mr. Sharma that the appellant/claimant has failed to adduce any evidence to discharge his initial burden to show that his deceased father was travelling with a valid journey ticket. On the contrary, I am of the view that applying the ratio of the decision in the case of Rina Devi (supra) the appellant has succeeded in bringing sufficient materials on record to prima facie establish his claim that the deceased was holding a valid journey ticket but the learned Tribunal has committed an error by failing to correctly appreciate the said material available on record. 19. For the aforesaid reasons, I am of the view that the decision and conclusion of the learned Tribunal on Issue Nos.1 and 2 is clearly erroneous and is liable to be set aside by this Court. Since, the only controversy in this appeal is pertaining to the issue Nos.1 and 2, in view of the determination made above, the Issue Nos.3 and 4 would stand answered in favour of the claimant/appellant and against the respondent. The appeal, therefore, stands allowed. The appellant/claimant is held to be entitled to compensation as prayed. 20. Since the learned court below had not decided the Issue Nos.3 and 4 on merit, hence, having regard to the fact that as per the existing Schedule, Rs. The appeal, therefore, stands allowed. The appellant/claimant is held to be entitled to compensation as prayed. 20. Since the learned court below had not decided the Issue Nos.3 and 4 on merit, hence, having regard to the fact that as per the existing Schedule, Rs. 4,00,000/- (Rupees Four Lakhs) is the minimum compensation payable to a victim who has suffered death in an untoward incident, I dispose of the appeal with a direction upon the respondent to pay a sum of Rs. 4,00,000/- to the appellant. The amount be paid within a period of 60 (sixty) days from the date of receipt of a certified copy of this order, failing which, the same shall carry interest at the rate of 9% per annum from the date of this judgment till realisation. Send back the LCR. No order as to cost.