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2019 DIGILAW 792 (GAU)

Kaliram Konwar R/o Shantipur v. Union of India

2019-06-26

SUMAN SHYAM

body2019
JUDGMENT : Suman Shyam, J. Heard Mr. S.S.S. Rahman, learned counsel for the appellant. I have also heard Mr. Brijesh Sarma, learned Standing Counsel, N.F. Railways, appearing for the respondent. 2. Aggrieved by the judgment and order dated 30/01/2018 passed by the Member (Technical), Railway Claims Tribunal, Guwahati in connection with application No. OA.IIU-59/2015, dismissing the claim petition filed by the appellant, the present appeal has been preferred. 3. The appellant, who is the husband of the deceased, had filed a claim petition seeking compensation for the death of his wife late Lily Konwar, alleging that her death took place in an untoward incident on 28/12/2014 when the victim had fallen down from the train in which she was travelling from Tinsukia to Simaluguri. The basic case of the claimant is that due to the rush of passengers, the victim could not get down from the train when it had reached Simaluguri station. The victim, however, fell down from the train at KM 421/0 at a distance of 1.2 KM from the Simaluguri Railway Station and sustained grievous injuries leading to her death. 4. The respondent / Railways had contested the claim petition by filing written statement categorically denying that the victim had fallen down from the running train. According to the respondent, on the date of the incident, there was no rush at all in the passenger train by which the victim was allegedly travelling and therefore, the question of her falling down at the Simaluguri station due to rush of passengers did not arise at all. The respondent has, however, not denied or disputed the fact that the victim was holding a valid journey ticket but had contended that her body was recovered from the Railway track at a distance of more than 1 KM away from the Simaluguri Railway Station and, therefore, it cannot be said that the victim had died in an untoward incident.The respondent / N.F.Railways has further contended that the investigation conducted by the Police revealed that the victim was a patient of Epilepsy and had a history of unnatural behavior and therefore, it is possible that the death of the victim might have been caused due to her own negligence while walking on the railway track in the midst of a heavy fog in the wee hours of the day. 5. 5. Based on the pleadings of the parties, the learned Tribunal had framed the following issues :- "i. Whether the victim was a bonafide passenger? ii. Whether the victim died in an untoward incident? iii. Whether the applicant is entitled for compensation? If so, to what sum? (iv) Relief & costs?" 6. Taking note of the materials available on record and after hearing the arguments of both the parties, the learned Tribunal had dismissed the claim petition by holding that the victim was knocked down by a running train when trespassing the railway track and that the claimant had failed to establish that the victim had died in an untoward incident within the meaning of Section 123 (c) of the Railway Act, 1989. 7. Mr. Rahman submits that the respondent has not disputed the fact that the claimant had travelled from New Tinsukia to Simaluguri with a valid journey ticket which was recovered from her possession but the only dispute in this case is with regard to the circumstances under which she had suffered death. The learned counsel submits that since the deceased was a bonafide passenger and her body was recovered from the railway track, hence, the only conclusion that can be drawn in this case is to the effect that the victim has suffered death after having fallen down from the running train. 8. Placing reliance on an unreported decision of this Court rendered on 07/02/2019 in the case of Pranjit Roy Vs. Union of India (Re. MFA 68/2018), Mr. Rahman submits that the learned Tribunal has erred in law in dismissing the claim petition filed by the appellant merely on the ground that there was no witness to the incident by ignoring the circumstances under which the dead body of the victim was recovered from the railway track. 9. Responding to the above arguments, Mr. Brijesh Sarma, learned Standing Counsel, NF Railway has submitted that he is neither confirming nor disputing the fact that the victim had travelled from New Tinsukia to Simaluguri on 28/12/2014 on a valid journey ticket but it is the contention of the learned counsel for the respondent that even assuming that the victim was a bona-fide passenger, there is no evidence to show that she had suffered death in an untoward incident within the meaning of Section 123(c) of the Act of 1989. 10. 10. By referring to the inquest report dated 29/12/2014, Mr. Sarma submits that the body was recovered from the railway track at 7-30 a.m. in the morning of 29/12/2014 and at that stage, the body was found having temperature. Since the arrival time of the train at the Simaluguri station was 9-15 pm in the previous night i.e. 28/12/2014, hence, submits Mr. Sarma, even assuming that there was some delay in arrival of the train on that day, even then, considering the distance between New Tinsukia and Simaluguri Stations, such delay could not have been for more than 1 or 2 hours. Therefore, the dead body which was recovered in the next morning could not have remained warm for such a long time in a cold wintry night. Mr. Sarma has further argued that there are enough materials to show that the body was found inside the track, which is not possible if the victim had fallen down from the running train. 11. By referring to the decision of the Hon'ble Supreme Court in the case of Union of India Vs. Rina Devi, (2018) AIR SC 2362, Mr. Sarma submits that the claimant in this case has failed to discharge the initial burden of proof casts upon him under the law and therefore, the learned Tribunal has rightly rejected the claim petition holding the same to be devoid of merit. 12. I have considered the submissions advanced by the learned counsel for both the parties and have gone through the materials available on record. 13. As noted above, the learned Tribunal had framed as many as four issues for trial. Although no issue had been framed on this point, yet, it appears that the respondent had taken a plea before the learned Tribunal that the deceased was a patient of epilepsy and she had died while walking on the track in the wee hours of a cold wintry morning covered by thick fog and that the railway ticket was subsequently planted in her body. 14. I find from the record that the journey ticket, which was admittedly recovered from the dead body of the victim, had clearly mentioned the date and time of travel as well as the stations in between which the travel was to take place. It appears that the distance between New Tinsukia and Simaluguri station is about 102 Kms. 14. I find from the record that the journey ticket, which was admittedly recovered from the dead body of the victim, had clearly mentioned the date and time of travel as well as the stations in between which the travel was to take place. It appears that the distance between New Tinsukia and Simaluguri station is about 102 Kms. In the journey ticket bearing No. E20645235, the time of purchase of the ticket has been mentioned as 18:24 hrs on 28/12/2014 and as per the departmental record submitted by the learned Standing Counsel, NF Railway, it appears that the last train which had left New Tinsukia station for onward journey to Simaluguri junction on the night of 28/12/2014 was at 19-30 hrs.As per the departmental record, that was the last train leaving Tinsukia Station on 28/12/2014 which had arrived at Simaluguri junction at 21-30 hours. 15. The learned Tribunal had taken up issues No. 1 to 4 together and held that the accident happened due to the carelessness and negligence of the victim for which the railway administration cannot be held responsible. The learned Tribunal was also of the view that the victim was knocked down by a train while trespassing upon the railway track and thereafter, the journey ticket was planted in her dead body. The said finding of fact had been recorded by the learned tribunal by taking note of the materials available on record. 16. Since the learned Counsel for the Railways has not disputed the fact that the deceased was travelling from New Tinsukia to Simaluguri junction on 28/12/2014 based on a valid journey ticket, the question as to whether the deceased was a bonafide passenger or not need not detain this court. The core question arising for consideration of this court in the present case, therefore, is as to whether, the appellant/claimant had succeeded in leading evidence to prima facie establish his claim that the deceased had died in a "untoward accident" as defined in Section 123(c) of the Act of 1989. 17. Section 123(a) of the Railway Act, 1989 defines accident, which means an accident of the nature described in Section 124. Section 123(c) of the Act of 1989 defines an untoward incident, which reads as follows :- "123. 17. Section 123(a) of the Railway Act, 1989 defines accident, which means an accident of the nature described in Section 124. Section 123(c) of the Act of 1989 defines an untoward incident, which reads as follows :- "123. (c) "untoward incident" means (1) (i) the commission of a terrorist act within the meaning of sub-section (1) of Section 3 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 1987) ; or (ii) the making of a violent attack or the commission of robbery of dacoity; or (iii) the indulging in rioting, shoot-out or arson, By any person in or on any train carrying passengers, or in a waiting hall, cloakroom or reservation or booking office or any platform or in any other place within the precincts of a railway station; or (2) The accidental falling of any passenger from a train carrying passengers." 18. As per section 124 (a) of the Act of 1989, the railways would be under an obligation to make payment of compensation on account of death or injury suffered by a passenger in an "untoward incident" provided that no such compensation shall be payable by the Railway administration if the passenger dies or suffers injury due to (a) an attempt of suicide by him, (b) self inflicted injury, (c) his own criminal act and (d) any act committed by him in a state of intoxication or insanity. Going by the scheme of the Act of 1989, it is clear that the Railway Administration would be under an obligation to pay compensation only if the death or injury had occurred to a "bonafide passenger" in an "untoward incident" within the meaning of Section 123(c) of the Act of 1989. 19. Coming to the facts of the present case, the appellant has claimed that his deceased wife could not get down from the train at Simaluguri junction due to heavy rush of passengers and later on accidentally fell down from the running train while trying to get down and was run over by the train. If the version of the claimant is found to be correct than his case would fall under Section 123(c) (2) of the Act of 1989. But in this case, no one had witnessed the incident and there is no other evidence to establish the circumstances under which the wife of the claimant had died. 20. If the version of the claimant is found to be correct than his case would fall under Section 123(c) (2) of the Act of 1989. But in this case, no one had witnessed the incident and there is no other evidence to establish the circumstances under which the wife of the claimant had died. 20. There is no dispute in this case about the fact that the body of the victim was recovered from the railway track in the morning hours of 29/12/2014. A perusal of the post-mortem report goes to show that the death of the victim had occurred due to coma as a result of the injuries sustained. The post mortem report further reveals that there is crush injury in the occipital part of the head involving soft tissues, bone and brain matters. On dissection, other internal organs were found healthy. It was opined by the doctor that the injuries were anti-mortem in nature. The post -mortem report, however, does not indicate that the body was dismembered in any manner. Therefore, from the nature of injuries reflected in the post mortem report, it is apparent that the victim did not come under the wheels of the train but was knocked down by a running train. 21. From the Inquest Report dated 29-12-2014, it is seen that the body of the victim was found lying in between two railway lines facing the earth and brain matters and pieces of the skull were found lying scattered in the railway track. If the victim had actually fallen down from a running train as claimed by the appellant, it is not clear as to how the body could have been found lying inside the two railway lines. It is highly improbable that a person accidently falling down from a running train would come under the wheels of the same train. Likewise, after falling down from the running train the victim could not have suffered the nature of injuries indicated in the post mortem report. The learned counsel for the appellant also could not give any satisfactory answers to the queries made by the court on the above points. 22. It is the admitted position of fact that there is no eye witness to the incident. The learned counsel for the appellant also could not give any satisfactory answers to the queries made by the court on the above points. 22. It is the admitted position of fact that there is no eye witness to the incident. From the testimony of the claimant's witness AW-1 Kaliram Konwar i.e. the husband of the victim, it found that he also did not have any personal knowledge as regards the death of his wife. As a matter of fact, the witness AW-1 had deposed that he had come to know about the death of his wife from the daily newspaper "Janambhumi", wherein it was reported that an unclaimed female body was lying at the Police Station at Simaluguri. It is surprising that the appellant did not make any enquiry about the whereabouts of his wife even when she did not reach home several hours after the schedule time of arrival of the train at the Simaluguri. 23. From a careful analysis of the materials available on record, it is evident that the story projected by the claimant regarding the accidental death of the victim is entirely speculative, nothing but guess work which is not supported by an iota of evidence. The materials on record raises more question than giving answers to the queries as to the circumstances under which the victim had died. In the absence of any witnesses account, it is not known as to how the claimant could know that there was rush in the train and the victim fell down while trying to get down from the train. The said aspect of the matter assumes great significance since the claimant himself has claims to have learnt about the death of his wife from the morning newspaper. 24. In the case of Rina Devi (Supra), the Hon'ble Supreme Court has held that initial burden to establish the plea of bonafide status of the passenger or the injury of the deceased in a claim for compensation would be upon the claimant. By taking note of the decisions of different Courts on the aforesaid subject, the Hon'ble Supreme Court has interpreted the proviso to Section 124(a) and held as follows :- "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 negate 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." That was also a case where the wife of the victim had filed a claim petition claiming that her husband had died in an untoward incident when he fell down from the train due to rush of passenger and died on the spot. The Railways had opposed the claim on the ground that the deceased was not a bona fide passenger but was wandering in the Railway track since he was suffering from mental disorder. 25. In the present case, save and except recovery of the body from the railway track, there is no other material for holding that the death of the victim had happened in an "untoward incident". There is also no evidence to show that there was rush of passenger in the train in which the victim was travelling on the date of the incident. Therefore, the circumstances under which the wife of the appellant had died is completely unknown. The case projected by the claimant is not only found to be un-reliable but even the necessary material facts to make out a prima facie case is missing. As such, in the absence of any cogent material to indicate the circumstance under which the accident had occurred, mere presence of a body in the railway track would not justify an inference that the victim had died in an "untoward incident". 26. In order to succeed in a claim for compensation in an "untoward incident", the initial burden would always be upon the claimant to show that the death of the victim has resulted from an "untoward incident", within the meaning of Section 123(c) of the Act of 1989, which burden the appellant / claimant has failed to discharge in this case. In order to succeed in a claim for compensation in an "untoward incident", the initial burden would always be upon the claimant to show that the death of the victim has resulted from an "untoward incident", within the meaning of Section 123(c) of the Act of 1989, which burden the appellant / claimant has failed to discharge in this case. It is no doubt correct that there was no cogent material available on record permitting the learned Claims Tribunal to record a finding of fact that the victim had died due to her own carelessness and negligence and to such extent, the conclusions drawn by the learned tribunal cannot receive the approval of this court. But such erroneous conclusion of the learned Tribunal alone would not be sufficient for this Court to allow the claim petition filed by the appellant on merit. 27. The decision in the case of Pranjit Roy (Supra), relied upon by Mr. Rahman, was rendered in a case where the Railways had taken a plea that the victim was not a bona fide passenger since no journey ticket was recovered from the victim. In that case, the claimant had taken a plea that the deceased had purchased a ticket but the same was lost. According to the claimant, the deceased had boarded the train but had accidentally fallen down from the train and suffered grievous injuries leading to his death. The claim petition was rejected by the learned tribunal only on the ground that the victim was not a bonafide passenger. Reversing the decision of the Tribunal in an appeal filed by the claimant, it was held by this Court that mere absence of journey ticket would not entirely disprove the claim of the claimant. The decision in the case of Pranjit Roy (Supra), was rendered in a different fact situation and therefore, the ratio of the said decision would not have any relevant bearing in the facts of the present case. 28. It is to be borne in mind that compensation under section 124(a) of the Act of 1989 is a relief provided under the statute and therefore, unless the conditions prescribed by the statute is met, no direction for payment of compensation can be issued by the court. In the present case, as noted above, the claimant has failed to establish that the death of the victim had occurred in an "untoward incident". In the present case, as noted above, the claimant has failed to establish that the death of the victim had occurred in an "untoward incident". As a matter of fact, there is no clarity as to the circumstances under which the victim had suffered death. As such, having regard to the facts and circumstances of the case, I am of the opinion that the learned Tribunal has rightly dismissed the claim petition. 29. For the reasons stated above this appeal is found to be devoid of any merit. The appeal is accordingly dismissed. There would be no order as to costs. Send back the LCR.