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Jharkhand High Court · body

2019 DIGILAW 322 (JHR)

Shamsher Bahadur v. Union of India

2019-01-31

S.N.PATHAK

body2019
ORDER : 1. This appeal arises out of Order dated 19.11.2015, passed by Railway Claim Tribunal, Ranchi Bench, Ranchi in Case No. OA(IIU)/ RNC/ 2011/ 0076 whereby and whereunder claim application filed by the appellants of Rs.4,00,000/- as compensation along with interest from the date of filing of the application on account of death of Shanti Devi who died in an untoward incident as defined in Section 123(C)(2) of the Railways Act, 1989, has been dismissed. 2. Claim application has been filed by applicants Shamsher Bahadur, Amrita Singh and Sumit Singh who are husband, daughter and son of the victim – deceased Shanti Devi claiming compensation of Rs.4 lacs. with interest. It has been alleged in the complaint petition that victim was going from Bodora Halt to Katrasgarh Station by Dhanbad – Chandrapur Passenger on 28.05.2011 with a 2nd Class Ticket. While detraining at Katrasgarh Station from a crowded compartment, she fell down. In the meantime train started to move and she was crushed under the wheels. The ticket was lost in the incident. The victim was brought to the railway hospital, Katrasgarh by a constable of GRPS/ Katrasgarh but she was declared dead. 3. The respondent – Railway filed written statement denying therein claim of the claimants on the ground that deceased did not die due to untoward incident as the Inquest Report indicates cause of death as run over. There is no eye witnesses to the occurrence and no co-passenger raised alarm to stop the train. Deceased was not a bona-fide passenger as no ticket was found from body of the deceased. Respondent-Railway further alleged that they cannot be held liable for the negligence and unlawful acts of the deceased. 4. The learned Tribunal, after hearing the parties, framed following issues. (1) Whether the deceased Shanti Devi, w/o Shamsher Bahadur was a bonafide passenger? (2) Whether any untoward incident as defined under Section 123(c)(2) of the Railways Act, 1989 occurred to the deceased Shanti Devi, w/o Shamsher Bahadur while travelling in Dhanbad-Chandrapur Passenger at Katrasgarh Railway Station? (3) Whether the applicants are entitled for the compensation as claimed and other relief, if any? 5. After framing of the issues, the applicants/appellants adduced evidences and furnished copies of documents. Respondent did not adduce any oral or documentary evidence. (3) Whether the applicants are entitled for the compensation as claimed and other relief, if any? 5. After framing of the issues, the applicants/appellants adduced evidences and furnished copies of documents. Respondent did not adduce any oral or documentary evidence. Further, DRM’s report based on enquiry to be done under “The Railway Passengers (Manners of Investigation of Untoward Incidents) Rules, 2003” has also not been filed. 6. After examining records of the case, learned Tribunal discussed the issues in details and held the applicants have failed to discharge their initial burden of proof to establish that deceased died due to accidental fall from the train. While deciding Issue No. (2) against the applicants, it has been held that deceased was not a victim of untoward incident as defined under Section 123(c)(2) of the Railways (Amendment) Act, 1994. Issue No. (1) has also been held against the applicants on the ground that Inquest Report does not show recovery of any tickets. The applicants could not establish their case that deceased died due to an untoward incident. Learned Tribunal clearly held that in the circumstances it cannot be presumed that victim was a bonafide passenger in absence of any evidence of a journey tickets. In view of fact that deceased was not victim of an untoward incident nor was a bonafide passenger, learned Tribunal has held that applicants are not entitled for any claim and as such Issue No. (3) has also been decided against them. Learned Tribunal, therefore, has dismissed Claim Application filed by the applicants. 7. While assailing Judgment of learned Tribunal, Mr. Rajesh Kumar Jha, learned counsel appearing on behalf of the claimants/appellants submits that deceased was a bonafide passenger and was going from Bodora Halt to Katrasgarh Station by Dhanbad-Chandrapur Passenger on 28.05.2011 with a 2nd Class Ticket. Train was overcrowded and while detraining at katrasgarh Station she slipped and fell down as fellow passengers pushed her and she came under the wheels. Soon thereafter train started and she was crushed under wheels of the train. Learned counsel submits that valid journey ticket was taken by the deceased before boarding train but due to incident same was lost somewhere and could not be recovered by the police at the time of preparing inquest report. Soon thereafter train started and she was crushed under wheels of the train. Learned counsel submits that valid journey ticket was taken by the deceased before boarding train but due to incident same was lost somewhere and could not be recovered by the police at the time of preparing inquest report. Learned counsel submits that it is a case of untoward incident as defined under Section 123(c)(2) of the Railways Act, 1989 and as such, dependents of the deceased are entitled for compensation under exceptional clause (b) of proviso to Section 124-A of the Act. It has emphatically submitted by learned counsel that learned Tribunal has erred in holding that the deceased was not a bona-fide passenger and incident does not come under the definition of untoward incident as defined under Section 123(c)(2) of the Railways Act, 1989. Learned Tribunal did not appreciate the fact that it is mandatory to file DRM’s report as per Railway Passengers (Manners of Investigation of Untoward Incidents) Rules, 2003, which has not been filed. Learned counsel submits that it is well settled law that once it is established that person was injured or died on account of an untoward incident over Railways, a presumption can be certainly drawn considering him or her as a bonafide passenger. Learned counsel draws attention of this Court towards Fardbayan and the enquest report and submits that admittedly deceased died in an accident caused by Railways. Merely because ticket was not found or recovered from possession of the deceased, it cannot be said that deceased though admittedly died by way of an accident, was not a bonafide passenger. Learned counsel submits that whenever bonafide passenger dies due to injuries sustained in any manner on account of falling from the train, the dependant is entitled to compensation. Neither any negligence on part of the victim nor on part of the railway administration will be looked into as it is piece of beneficial legislation. Learned Tribunal should have adopted liberal approach instead of going through the technical approach and narrow consideration. Learned counsel has further drawn attention of this Court towards the Judgment passed in the case of Union of India Vs. Learned Tribunal should have adopted liberal approach instead of going through the technical approach and narrow consideration. Learned counsel has further drawn attention of this Court towards the Judgment passed in the case of Union of India Vs. Rina Devi reported in AIR 2018 SC 2362 and submits that the Hon’ble Supreme Court has held that compensation will be payable as applicable on the date of accident but if the amount prescribed on the date of the award is higher than the amount payable on the date of the accident, then the claimant would be entitled to the higher of the two amounts. In the instant case, incident has taken place much prior to the amended Act came into force on 01.01.2017. As per the amended Act, the compensation in case of death has been enhanced from Rs.4 Lac. to Rs.8 lac. and as such, appellants are entitled for compensation to the tune of Rs.8 Lac.. 8. Mr. Vijay Kumar Sinha and Mr. Rohit Ranjan Sinha, learned counsel appearing for the respondent – Railway vehemently oppose prayer and submission of the appellants and submits that claimants are not entitled for a single farthing as deceased was neither a bonafide passenger nor it was a case of untoward incident. Claimants have failed to prove their case for grant of compensation. Justifying impugned Award it has been argued that there is no illegality or infirmity in passing impugned Award. No interference is called for and instant appeal is fit to be dismissed. In the facts and circumstances of the case, appellants cannot be held to be entitled for any compensation under exceptional clause (b) of proviso to Section 124-A of the Act. Deceased was not a victim of an untoward incident as defined under Section 124-A of the Railways (Amendment) Act, 1994 and as such appellants are not entitled for any claim. Learned counsel submits that claim application filed by the applicants/ appellants has rightly been dismissed. 9. I have heard both sides and perused the records and find force in submission of learned counsel for the appellants. It is a fit case where Judgment of the Tribunal is fit to be interfered. This Court is not satisfied with the view taken by the learned Tribunal that applicants are not entitled for any compensation under exceptional clause (b) of proviso to Section 124-A of the Act. It is a fit case where Judgment of the Tribunal is fit to be interfered. This Court is not satisfied with the view taken by the learned Tribunal that applicants are not entitled for any compensation under exceptional clause (b) of proviso to Section 124-A of the Act. From perusal of lower court record, inquest report, post-mortem report, fardbayan it appears that deceased died due to accident while detraining at Katrasgarh Station. The same has not been disputed rather it has been disputed that it is not a case of untoward incident and claim petition has been rejected on the ground that deceased was not having a valid ticket. While arriving at the conclusion, learned Tribunal has not at all appreciated facts and circumstances of the case nor evidences adduced by the claimants. Merely on the ground of technicalities, the family members of the deceased cannot be allowed to suffer in a welfare legislation. 10. The question of deceased being a bonafide passenger and incident coming under the untoward incident has been questioned and claim petition has been rejected on these grounds. Appellants have tried to make out a case of victim of an untoward incident as defined under Section 124-A of the Railways (Amendment) Act, 1994. The issue fell for consideration before the Hon’ble Apex Court in the case of Union of India Vs. Rina Devi reported in 2018(2) JBCJ 478 (SC) It has been held at para-17(1) and 17(4) as under: “17.1 Conflict of decisions has been pointed out on the subject. As noticed from the statutory provision, compensation is payable for death or injury of a ‘passenger’. In Raj Kumari (Supra) referring to the scheme of Railways Act, 1890, it was observed that since travelling without ticket was punishable, the burden was on the railway administration to prove that passenger was not a bonafide passenger. The Railway Administration has special knowledge whether ticket was issued or not. 1989 Act also has similar provisions being Sections 55 and 137. This view has led to an inference that any person dead or injured found on the railway premises has to be presumed to be a bona fide passenger so as to maintain a claim for compensation. However, Delhi High Court in Gurcharan Singh (Supra) held that initial onus to prove death or injury to a bona fide passenger is always on the claimant. However, Delhi High Court in Gurcharan Singh (Supra) held that initial onus to prove death or injury to a bona fide passenger is always on the claimant. However, such onus can shift on Railways if an affidavit of relevant facts is filed by the claimant. A negative onus cannot be placed on the Railways. Onus to prove that the deceased or injured was a bona fide passenger can be discharged even in absence of a ticket if relevant facts are shown that ticket was purchased but it was lost. The Delhi High Court observed as follows:- “3(ii) In my opinion, the contention of the learned counsel for the appellants/ claimants is totally misconceived. The initial onus in my opinion always lies with the appellants/ claimants to show that there is a death due to untoward incident of a bona fide passenger. Of course, by filing of the affidavit and depending on the facts of a particular case that initial onus can be a light onus, which can shift on the Railways, however, it is not the law that even the initial onus of proof which has to be discharged is always on the railways and not on the claimants. I cannot agree to this proposition of law that the Railways have the onus to prove that a deceased was not a bonafide passenger because no such negative onus is placed upon the Railways either under the Railways Act or the Railway Claims Tribunal Act & Rules or as per any judgment of the Supreme Court. No doubt, in the facts of the particular case, onus can be easily discharged such as in a case where deceased may have died at a place where he could not have otherwise been unless he was travelling in the train and in such circumstances depending on the facts of a particular case it may not be necessary to prove the factum of the deceased having a ticket because ticket as per the type of incident of death can easily be lost in an accident. I at this stage take note of a judgment of a learned Single Judge of this Court in the case reported as Pyar Singh Vs. Union of India 2007(8) AD Del. 262 which holds that it is the claimant upon whom the initial onus lies to prove his case. I at this stage take note of a judgment of a learned Single Judge of this Court in the case reported as Pyar Singh Vs. Union of India 2007(8) AD Del. 262 which holds that it is the claimant upon whom the initial onus lies to prove his case. I agree to this view and I am bound by this Judgment and not by the ratio of the case of Leelamma (Supra).” 17.4 We thus hold that mere presence of a body on the Railway premises will not be conclusive to hold that injured or deceased was a bona fide passenger for which claim for compensation could be maintained. However, mere absence of ticket with such injured or deceased will not negative the claim that he was a bona fide passenger. Initial burden will be on the claimant which can be discharged by filing an affidavit of the relevant facts and burden will then shift on the Railways and the issue can be decided on the facts shown or the attending circumstances. This will have to be dealt with from case to case on the basis of facts found. The legal position, in this regard will stand explained accordingly.” Hon’ble Supreme Court has clearly held that mere absence of tickets with such injured or deceased will not negate claim that he or she was not a bonafide passenger. Railways has chosen not to file any affidavit nor has disputed claim as advanced by learned counsel by way of affidavit. 11. In view of facts and circumstances of the case as discussed hereinabove, I find that this case is squarely covered by the principles laid down by the Hon’ble Supreme Court in the case of Rina Devi (Supra). Applying the said principles, this Court holds the incident in question to be an untoward incident and the claimants are entitled to the compensation from Railways. With respect to quantum of compensation, the Hon’ble Supreme Court, in the case of Rina Devi (Supra) has held that compensation will be payable as applicable on the date of accident but if the amount prescribed on the date of the award is higher than the amount payable on the date of the accident, then the claimant would be entitled to the higher of the two amounts. It is relevant to quote para-15.4 of the said Judgment. “15.4. It is relevant to quote para-15.4 of the said Judgment. “15.4. Accordingly, we conclude that compensation will be payable as applicable on the date of the accident with interest as may be considered reasonable from time to time on the same pattern as in accident claim cases. If the amount so calculated is less than the amount prescribed as on the date of the award of the Tribunal, the claimant will be entitled to higher of the two amounts. This order will not affect the awards, which have already become final and where limitation for challenging such awards has expired, this order will not by itself be a ground for condonation of delay. Seeming conflict in Rathi Menon Vs. Union of India, (2001) 3 SCC 714 and Kalandi Charan Sahoo Vs. General Manager, South East Central Railway, Bilaspur (Civil Appeal No. 5608 of 2017, decided on 25th April, 2017] stands explained accordingly. It is well settled that appeal is the continuation of the Claim Petition and power of the Appellate Court is co-extensive with that of the Claims Tribunal. Similar view has been taken in the case of Sardar Tajender Singh Gambhir Vs. Sardar Gurpreet Singh reported in 2014(10) SCC 702 . Applying the principles laid down in the case of Rina Devi (Supra) in present case, the claimant are held entitled to Rs.8,00,000/- in case of death with effect from 01.01.2017. 13. As a sequel of aforesaid fact and circumstances, judicial pronouncements, this appeal is hereby allowed. The claimants are held entitled to compensation of Rs.8,00,000/-. Needless to say the amount of compensation shall be paid within a period of three months from today. 14. Let the lower court record be returned to the court concerned. Appeal Allowed.