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2019 DIGILAW 409 (PNJ)

Jaipal Pradhan v. Union of India

2019-02-05

RAVI RANJAN

body2019
JUDGMENT : Dr. Ravi Ranjan, J. 1. This appeal has been preferred against the judgment and award dated 27.11.2012 passed by the Railway Claims Tribunal, Chandigarh Bench, Chandigarh in Case No. OA-II/39/2011, by which the claim application filed by the claimant-applicant has been dismissed after holding that the applicant has not been able to prove that deceased was a bona fide passenger. Brief facts of this case stand enumerated as under: In the claim application it is stated that on 2.6.2010 at about 12.45 p.m. the deceased boarded train No. 6 LF along with his other three companions from Moga Railway Station to Ludhiana. At about 1.45 p.m., the deceased accidentally fell down from the running train between Chowkiman Railway Station and Mulapur and sustained head injuries and died on the spot. It is further claimed that deceased was travelling as a bona fide passenger after purchasing ticket along with his other three companions but it was lost during the accident. 2. The respondent Railways filed written statement denying and disputing the averments made in the claim petition and raised an issue that since the deceased was not having railway ticket, he cannot be held to be a bona fide passenger. Further, the accident would not be covered under the provision of sections 123(c) and 124-A of the Railways Act, 1989. 3. The Tribunal, upon appreciation of rival pleadings, framed following issues: "(1) Whether the deceased was a bona fide passenger at the time of accident? (2) Whether the incident is covered within the ambit of section 123(c)(2) read with section 124-A of the Railways Act? (3) Whether the applicant(s) is/are the sole dependant(s) of the deceased? (4) Relief." 4. In order to establish his claim, the applicant filed affidavit of one Jaipal Pradhan, who is the father of the deceased and has been examined as AW 1. He has stated that his deceased son was staying at Moga, however, he was not accompanying him on the fateful day. He was informed telephonically regarding the occurrence. AW 2 is Jagar Nath Pradhan who has also affirmed the details of the accident. He has stated that he reached the railway station at about 1200 hours. He purchased ticket at about 1220 hours but he did not remember the train number which was coming from Ferozepur. He was informed telephonically regarding the occurrence. AW 2 is Jagar Nath Pradhan who has also affirmed the details of the accident. He has stated that he reached the railway station at about 1200 hours. He purchased ticket at about 1220 hours but he did not remember the train number which was coming from Ferozepur. He has further stated that he along with Jarakhu Pradhan, Suresh, Dayal and Bablu used to stay together and work together at Focal Point, Moga. It is further stated that ticket was purchased by Bablu only. After the train started, he came back, however, Dayal and Suresh came to him and informed that Jarakhu is not traceable and was not traceable even for 2-3 days. The deceased was the resident of a village in Bihar and was working at Moga for 1½ years. 5. The applicant filed certain documents such as death report dated 2.6.2010 by GRP, Ludhiana as Exh. Al, brief facts of the case as Exh. A2, fard jamatalashi by the GRP dated 2.6.2010 recovering a pocket diary as Exh. A3, statement of Naresh Kumar of Bihar before GRP dated 2.6.2010 as Exh. A4, statement of Surender Rai, Gateman, Gate No. C-23 made before the GRP and which has been brought on record as Exh. A5. Exh. A6 is the verification by the Station House Officer, GRP dated 13.12.2010, post-mortem record dated 5.6.2010, voter card of Jaipal Pradhan as Exh. A7 and ration card as Exh. A8. The respondent Railways filed DRM report as Exh. R1 to impress upon the Tribunal that as train ticket was not recovered from the person of the deceased in jamatalashi by the GRP, the deceased was not a bona fide passenger of the train at the time of incident. 6. The respondent contended that travelling on footsteps and door of the railway compartment is punishable offence under section 156 of the Railways Act, and further that the compartments are so designed and built that the passengers sitting in the train cannot fall from a moving train as per the certification by SSE/Carriage Wagon/Ludhiana. In the nutshell, the case of the Railways was that the railway administration would not be responsible for the occurrence. 7. In the nutshell, the case of the Railways was that the railway administration would not be responsible for the occurrence. 7. The Tribunal, after considering the rival contentions, has come to the conclusion that there is much variation in the statement made by the AWs coupled with the fact that none of the two passengers, who were accompanying the deceased, tried to pull the chain or informed either to the railway authorities or even to the father of the deceased who was staying at Moga, and finally, since the applicant has not been able to produce Naresh Kumar who is allegedly shown to have seen the deceased falling down from the moving train, came to the conclusion that the whole story seems to be unreliable. It has further been held that the applicant has failed to prove purchasing and possessing of ticket by the deceased. In the result, it had been held that the deceased was not a bona fide passenger and as such the claim petition was dismissed. Learned counsel appearing for the appellant has taken this court through the records of this case and various statements made by the witnesses to impress upon this court that the Tribunal has come to a wrong conclusion as in claim cases, the applicant was not required to prove everything beyond all reasonable doubt like a criminal trial. The affidavit filed on his behalf would be enough and once this is done the onus would shift upon the Railways to prove it otherwise. 8. Per contra, learned counsel appearing for the respondent Railways has submitted that since no ticket could be recovered from the possession of the deceased, he cannot be held to be a bona fide passenger as there is no eyewitness to the purchase of the ticket also. It is further contended that even if the concerned witness is taken to be the eyewitness there is contradiction as to who actually purchased the ticket, Bablu or the deceased. 9. On appreciation of rival contention this court finds force in the submissions made on behalf of the appellant. The appellant/applicant's case is that the deceased boarded the train from Moga to Ludhiana, train number has also been given as 6 LF and he boarded the train along with his other three companions. 9. On appreciation of rival contention this court finds force in the submissions made on behalf of the appellant. The appellant/applicant's case is that the deceased boarded the train from Moga to Ludhiana, train number has also been given as 6 LF and he boarded the train along with his other three companions. The witnesses have stated that he reached the Railway Station, Moga at about 1200 hours and purchased the ticket at about 1220 hours. The tickets were purchased by one Bablu only. However, in the train the deceased had gone missing and remained untraceable for 2-3 days and thereafter, information was received that he had died due to falling down from the train. Of course, there are some variations/contradictions, such as, actually who had purchased the ticket, Bablu or the deceased himself or why no information was given by them to the father of the deceased regarding the death for 2-3 days, but one documentary evidence which is on record of the case has completely been given a go-by by the Tribunal, i.e., the version of the Gateman. He has given the statement before the GRP. The document has been brought on record as Exh. A5. Admittedly, he is the employee of the Railways. He has stated that he was working as a Gateman on 2.6.2010 at Gate No. C-23. He had closed the gate so that train No. 6 LF could pass safely. He saw that a person who was standing at the door of one of the compartments of the aforesaid train fell down and died. He has further stated that he had given the aforesaid information to the Station-master, Chowkiman and in the meantime the GRP also came there and removed the body of the deceased. His statement was again recorded by the police under section 175 of the Criminal Procedure Code, and he had again repeated the same thing. The DRM report, which has also been brought on record by the respondent, has also noticed this statement of Surender Rai. 10. The inquiry officer of the Railways, i.e., one of the Inspectors Incharge of the RPF has noticed everything but has discarded the version only on the basis that no railway ticket was found in the possession of the deceased, therefore, the version of Surender Rai, Gateman, does not appear to be correct. 10. The inquiry officer of the Railways, i.e., one of the Inspectors Incharge of the RPF has noticed everything but has discarded the version only on the basis that no railway ticket was found in the possession of the deceased, therefore, the version of Surender Rai, Gateman, does not appear to be correct. In my view such statement cannot be discarded on the ground that no train ticket could be found in possession of the deceased. This is also not the case of the Railways that extensive search for finding out the belongings of the deceased was made at the spot of accident and nearby places so that the ticket could have been recovered. Of course, it would have been better if Gateman Surender Rai had been produced as a witness by the claimant-applicant, but the question would be, whether for that any adverse inference can be drawn against the claimant? Answer to this has to be in the negative for two reasons--first is that the statement made by Surender Rai has been brought on record without any objection raised by the Railways at the relevant point of time; secondly, being a Gateman, he was employee of the railway authorities, in such a situation it would be very difficult for the applicant to produce him as a witness. The question is, why the Railways did not produce him to contradict the stand taken by the claimant? Surender Rai was the employee of the Railways, he could well have been produced by the railway authorities. In such a situation, in my considered opinion, the Tribunal has made a serious error in discarding the claimant's version taking adverse inference for not producing Surender Rai, Gateman of the Railway Department, as a witness. 11. Once such statement on affidavit was made and evidence was led on behalf of the claimant-applicant along with the statement made by Surender Rai, the Gateman of the Railways, who has categorically stated that he has seen the deceased falling down from the moving train, the onus would definitely shift upon the shoulders of the Railways to prove it otherwise, which they have been unable to discharge. They do not have any answer to the statement made by their own Gateman Surender Rai. They do not have any answer to the statement made by their own Gateman Surender Rai. His version has only been discarded for the reason that the train ticket was not found from the possession of the deceased which could not have been done by the Tribunal. A reference is made in this regard to a decision of the Hon'ble Supreme Court rendered in Union of India v. Rina Devi, 2018 ACJ 1441 (SC). The Supreme Court in para 17.4 of the aforesaid decision has held that mere presence of a body in the railway premises will not be conclusive to hold that the 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 shift on the Railways and the issue can be decided on its own facts shown or the attending circumstances. 12. If the version or the stand of the Railways is taken to be correct that the deceased was not travelling on the train and that the death was not due to accidental fall from the train, then what is the explanation put up by the Railways regarding the occurrence? The death has admittedly occurred in the premises of the Railways. The railway authorities have not been able to explain as to why a person from Moga would travel 40 km and come to a place near a gate at Chowkiman, so that he could come under the impact of a running train while crossing a railway line? That apart, even if, for the time being, it is presumed that the deceased was crossing the railway line and he was run over by a train then whether the injuries found on the dead body supports it? If a person jumps before a running train or comes under impact of the running train at the time of crossing the railway line, then his body would get mutilated, whereas the post-mortem report shows that he died due to head injury and blood was oozing out from his ears and nose, etc., which clearly indicates an accidental fall from the train. This aspect has also not at all been considered by the Tribunal. 13. Thus, in my view, the claimant-applicant has been able to discharge his initial burden or onus by stating and producing evidence that the train ticket was purchased, the deceased boarded the train and he fell down from it. The burden, thereafter, shifted upon the Railways which could not be discharged by it as already discussed above. Thus, considering the attending circumstances, it has to be held that the deceased was a bona fide passenger and must have died accidentally due to fall from the moving train and, as such, the accident would come within the ambit of the definition of an untoward incident under section 123(c)(2) of the Railways Act and further, in the facts and circumstances of the case, the claimant would be entitled for compensation as per section 124-A which could be assessed as per Part-I of the Schedule to the Railways Act, 1989, which has been shown as Rs. 4,00,000. Apart from the above, the applicant-appellant would also be entitled for simple interest at the rate of 9 per cent per annum to be calculated from the date of filing of the claim case till the payment of the compensation amount. In the result, this appeal stands allowed, however, the parties would bear their own costs.