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2020 DIGILAW 197 (GAU)

Union Of India , v. Gauriprava Kalita

2020-02-13

KALYAN RAI SURANA

body2020
JUDGMENT Kalyan Rai Surana, J. - Heard Mr. G. Goswami, learned counsel for the appellant as well as Mr. J. Mollah, learned counsel for the respondent. 2. This appeal under section 23 of the Railway Claims Tribunal Act, 1987 is to challenge the order and award dated 18.12.2012 passed by the learned Railway Claims Tribunal, Guwahati Bench, Guwahati in OA-IIu-1170/2007 by which the respondent herein was awarded a sum of Rs.4,00,000/- on account of untoward accident leading to death of her son, namely, Anil Kalita, further providing that the respondent would be entitled to interest @ 7% per annum and in case of default in paying within 90 days, the respondent was held entitled to interest @ 9 % from the date of order till payment. 3. As per the claim petition it was projected that on 07.08.2007, the deceased fell down from Dn Amritsar Express train at Changsari Railway Station while traveling to Guwahati from North Bongaigaon with a valid ticket. It was projected that due to rush and commotion, the deceased had fallen down from the train. The Rangia/ GRPS registered UD Case No.36/2007. After inquest and post mortem was conducted, the dead body was handed over to the respondent. It was claimed that all materials of the deceased including journey ticket was lost and that the respondent, who was the mother, was the only dependent left by the deceased. 4. The appellant had filed its written statement, denying the incident and denying that the deceased was a bonafide passenger. Accordingly, the respondent was put to strict proof to justify her claim. 5. The appellant relied on the final report of the case wherein it was mentioned that the "IO had perused the case diary and all other relevant documents including the post mortem report and it appears that the cause of death of unidentified male person is accidental one due to his negligence by falling down from the running train". It was also contended that the respondent had failed to describe the exact reason as to how and when the deceased fell down from the train and, as such, prayed for dismissal of the claim. 6. In support of the case, the respondent had submitted her evidence-on-affidavit as AW-1 and she was cross-examined. It was also contended that the respondent had failed to describe the exact reason as to how and when the deceased fell down from the train and, as such, prayed for dismissal of the claim. 6. In support of the case, the respondent had submitted her evidence-on-affidavit as AW-1 and she was cross-examined. She had exhibited the following documents viz., (1) Police Report (Ext.A1), (2) Certified copies of Memo/FIR (Ext.A2 and A3), (3) Inquest Report (Ext.A4), (4) Final Report (Ext.A5), (5) Post Mortem Report (Ext.A6), (6) Certificate issued by Gaonburah (Ext.A7). On the other hand, the respondent had not examined any witness, however, the respondent had filed (1) Copy of Memo/FIR-R1 & R2, (2) SM''s Diary R3, (3) Final Report R4 in rebuttal. 7. On the basis of the pleadings the following 4(four) issues were framed by the learned trial Court: wxyz (1) Whether the deceased was a bonafide passenger of the train by which he travelled? zyxw wxyz (2) Whether the incident is covered under the Section 123/124A of the Railways Act, 1989? zyxw wxyz (3) Whether the applicant is entitled for the compensation, as applied for? zyxw wxyz (4) Relief & Order? zyxw 8. The learned Tribunal in respect of issue No.1 held that the deceased was a bonafide passenger and the issue was decided in favour of the respondent and in this regard, it was also held that although no ticket was proved but the appellant could not prove that the deceased was not a bonafide passenger. 9. In respect of the issue No.2, referring to the documents on record, it was held that except the time mentioned in the inquest report, the other time mentioned in all the records were co-related and there was a possibility that in the inquest report the time was wrongly mentioned as 2:30 p.m. instead of 2:30 am. Accordingly, based on the documents on record, it was held that the deceased died due to accidental fall from Dn Amritsar Express train and the issue was decided in favour of the respondent. In respect of issue No.3, relying on the relationship/ dependency certificate issued by the Government Gaonburha, the learned Tribunal held that in terms of section 123 (B)(i) of the Railway Act, 1989, the respondent herein being the mother of the deceased was the only dependent and entitled to compensation. In respect of issue No.3, relying on the relationship/ dependency certificate issued by the Government Gaonburha, the learned Tribunal held that in terms of section 123 (B)(i) of the Railway Act, 1989, the respondent herein being the mother of the deceased was the only dependent and entitled to compensation. In respect of the issue No.4, by holding that the accident did not occur because of any reason mentioned in Clauses (a) to Clause (e) of the proviso to section 124A, compensation on account of "untoward accident" was payable as per Part I of Rule 3 of the schedule of the Railway Accident and Untoward Incidents (Compensation) Rules, 1990, thereby awarding a sum of Rs.4.00 lakh as compensation with interest and default interest clause. 10. Assailing the impugned order and award, it is submitted that in the final report, the IO had recorded his satisfaction that the deceased had died because of his own negligence and on the said count, liability of compensation is disputed. It is also submitted that the respondent-claimant was not travelling with the deceased and therefore, she was not an eyewitness to the incident. It is further submitted that the respondent did not examine any eyewitness who had either seen the untoward incident or who had seen the deceased taking a travelling ticket before boarding the train. It is also submitted that it was burden of proof that the deceased was a bonafide passenger was on the respondent and the learned tribunal could not have allowed the claim because the railway could not prove by any documents that the deceased was travelling without a valid ticket. It is also submitted that the award of interest @7% with escalation of interest to 9% for non-payment within 90 days was not envisaged under the Railways Act or under the Railway Claims Tribunal Act, 1987 and that the increase of interest to 9% was a coercive step of the learned tribunal so as to dissuade the appellant from pursuing their remedy of filing an appeal. It is submitted that as per the Station Master''s Diary it was a case of the deceased being run over by a train for which award of compensation was not sustainable. It is submitted that as per the Station Master''s Diary it was a case of the deceased being run over by a train for which award of compensation was not sustainable. It is also submitted that there was no proof that the deceased was a bonafide passenger within the meaning of section 2(29) and under the explanation (ii) of section 124(A) of the Railway Act, 1989. In support of his submissions, the learned counsel for the appellant has relied on the case of Kaliram Konwar Vs. Union of India, MFA 11/2018 decided on 26.06.2019. 11. Per contra, the learned counsel for the respondent has made his statement in support of the impugned order and award by claiming that the respondent had duly proved the accident and the untoward incident for which the award of compensation as well as interest was just and proper. 12. Before appreciating the submissions made by the learned counsel for both sides, it would be relevant to mention herein that on admission of this appeal, the record from the learned tribunal was called for and it was found that a reconstructed file was sent to the Court. On a query being made pursuant to the previous order of this Court, certain further direction was issued. Finally, the reconstructed records were submitted before the Registry and was accepted on record. It would be appropriate to mention herein that the reconstructed record does not contain the cross-examination of witness and documents exhibited by both sides and there is no certificate from the competent official from the learned Railway Claims Tribunal that the records have been properly reconstructed. The reconstructed records so produced only contain the true copy of the judgment, claim petition, police report, extract of FIR, post mortem report, written reply by the appellant, the affidavit of evidence filed by the respondent, inquest report and final report dated 07.08.2007, which contains further endorsement dated 30.08.2007 and notice of the claim petition (23 pages). 13. In the absence of the cross-examination of the respondent as AW-1, there is no way to arrive at a finding that in the course of cross-examination of AW-1, the appellant was able to demolish the evidence rendered to the effect that the son of the respondent was bonafide passenger who had died due to untoward incident. 13. In the absence of the cross-examination of the respondent as AW-1, there is no way to arrive at a finding that in the course of cross-examination of AW-1, the appellant was able to demolish the evidence rendered to the effect that the son of the respondent was bonafide passenger who had died due to untoward incident. Therefore, the Court has only to rely on the impugned order and award wherein the learned Tribunal had recorded that in her cross-examination, the respondent had stated that her son was going to Bongaigaon from Guwahati Railway Station. Therefore, if the deceased died near Changsari Railway Station, when the deceased was commuting in the train from Guwahati, it cannot be said that the deceased was not travelling on the train as the dead body was recovered from the Railway track. While discussing issue No.1, the learned Tribunal had recorded that the document submitted by the respondent as well as the appellant herein confirmed the incident and in this regard, the learned Tribunal had referred to the police report and the memo of UD Case No.36/2007 (Ext.A-1), wherein it has been mentioned that "....During investigation it is transpire that on 08.08.07 at about 10 AM the deceased unidentified one. After investigation of deceased Fell-down by Dn Amritsar Exp. Train and died at P.O...". Moreover, the final report (Ext.A-5) also disclosed that the deceased had died due to accidental fall from the running train and the cause of death was attributed to untoward incident. 14. It is seen that the learned appellant has taken a specific stand that the respondent''s son (deceased) had died due to his negligence. That stand itself is an admission that the deceased was on a train, but he was negligent. Under such circumstances, when the deceased had admittedly boarded the train, it is only to be seen as to whether "negligence" is the ground for rejecting the claim of the respondent. 15. On a perusal of the provision of section 123, 124 and 124A of the Railway Act nothing could be shown that the said provision contains a provision to the effect that if a passenger falls from a train due to his negligence, he would be not entitled to compensation. To exclude the compensation on account of certain acts are enumerated under provision to section 124A of the Railway Act which provides as follows:- wxyz 124A. To exclude the compensation on account of certain acts are enumerated under provision to section 124A of the Railway Act which provides as follows:- wxyz 124A. Compensation on account of untoward incident.-When in the course of working a railway an untoward incident occurs, then whether or not there has been any wrongful act, neglect or default on the part of the railway administration such as would entitle a passenger who has been injured or the dependant of a passenger who has been killed to maintain an action and recover damages in respect thereof, the railway administration shall, notwithstanding anything contained in any other law, be liable to pay compensation to such extent as may be prescribed and to that extent only for loss occasioned by the death of, or injury to, a passenger as a result of such untoward incident: Provided that no compensation shall be payable under this section by the railway administration if the passenger dies or suffers injury due to- zyxw wxyz (a) suicide or attempted suicide by him; zyxw wxyz (b) self-inflicted injury; zyxw wxyz (c) his own criminal act; zyxw wxyz (d) any act committed by him in a state of intoxication or insanity; zyxw wxyz (e) any natural cause or disease or medical or surgical treatment unless such treatment becomes necessary due to injury caused by the said untoward incident. Explanation.-For the purposes of this section, "passenger" includes- zyxw wxyz (i) a railway servant on duty; and zyxw wxyz (ii)a person who has purchased a valid ticket for travelling by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident. zyxw 16. Hence, the said provision does not include exclusion on account of negligent of a passenger. 17. While the learned Tribunal had relied on the case of Dev Kabi Vs. Union of India, (2006) AIR M.P. 201 and Rajkumari and another Vs. Union of India, (1993) ACJ 846 , to hold that in the case of death of a passenger was due to accidental fall from the train, the fact that the deceased was not a bonafide passenger of a train, is a fact to be proved by the Railways and not by the claimant. Union of India, (1993) ACJ 846 , to hold that in the case of death of a passenger was due to accidental fall from the train, the fact that the deceased was not a bonafide passenger of a train, is a fact to be proved by the Railways and not by the claimant. In the present case in hand, the respondent as AW-1 has stated in evidence-on-affidavit that the deceased was travelling on the Dn Amritsar train and that he was a bonafide passenger. Whether in cross-examination of AW-1, the veracity of such statement could be demolished or not is not known due to lack of the record. However, in the impugned judgment as there is no mention that such evidence was successfully demolished, as such, this Court would presume that the appellant has not been able to successfully demolish that part of the evidence wherein the respondent had stated that the deceased was a bonafide passenger. 18. It has already been categorically mentioned in the claim petition that the luggage and other belongings of the deceased was not recovered. The Court is unable to find any fault with the finding given by the learned tribunal that there was a possibility that the ticket was in the luggage or the ticket could be in the hand of the deceased which was lost when the deceased accidently fell down from the train. The learned counsel for the appellant had relied on the case of Kaliram Konwar (supra), but on facts, the said case is distinguishable from the facts of the present case. It appears from the cited case that a dead body was found within two railway track with brain material scattered outside. The accident is claimed to have occurred around 9:15 p.m. on the previous night and the dead body was recovered at 7:30 a.m. on the next morning and accordingly, it was disbelieved that accident could have occurred in the cold night of 28th December, when the body was still warm at 7:30 in the morning. Moreover, in the absence of any evidence to the effect that the victim had fallen down from the train, the Court disbelieved that the deceased in the cited case was a bonafide passenger. However, in the present case, not only the respondent had proved the police report, inquest report, final report, etc. Moreover, in the absence of any evidence to the effect that the victim had fallen down from the train, the Court disbelieved that the deceased in the cited case was a bonafide passenger. However, in the present case, not only the respondent had proved the police report, inquest report, final report, etc. but even the appellant had relied on the same FIR and the final report, wherein the IO had mentioned that the deceased had fallen down from the train due to his own negligence. Thus, merely because the train ticket was not recovered, it cannot be said that the respondent could not prove that the appellant was not a bonafide passenger. 19. It may also be stated that in the said case in hand, the Railway did not lead any evidence and in the absence of any examination of any witness whether the document filed by the appellant would form an evidence is a question left open to be decided in an appropriate case. However, in the absence of evidence by the respondent, this Court does not find any infirmity in the impugned judgment and award dated 18.12.2012 passed by the learned Railway Claims Tribunal, Guwahati Bench, Guwahati in OA No.IIu-1170/2007 and accordingly, the said order is affirmed and the present appeal stands dismissed. 20. Before parting with the records, it would be pertinent to mention that the only question which arose in the appeal is whether the award by the learned Tribunal is sustainable? The said question is answered in the affirmative by holding that the impugned order and award is sustainable both on facts and in law. 21. However, taking into consideration the prevailing lending rates of the bank, the Court is inclined to scale down the interest from 9% as awarded by the learned Tribunal to 8% per annum from the date of filing of the claim petition i.e. 17.10.2007 till clear 30 (thirty) days from today. 22. It is also made clear that if the compensation amount is not released/ paid to the respondent within clear 30 days time from today, the award shall carry interest @ 9% in terms of the award. 23. This appeal is allowed. 24. Return back the reconstructed record.