Research › Search › Judgment

Rajasthan High Court · body

2021 DIGILAW 2353 (RAJ)

Union of India v. Sanjana Kanwar

2021-12-16

SANJEEV PRAKASH SHARMA

body2021
ORDER 1. This appeal has been preferred against the judgment dated 16.08.2021 passed by the Railway Claims Tribunal, Jaipur Bench whereby the claimants have been awarded compensation as mentioned therein individually on account of death of one Mr. Arvind @ Arun who was stated to have fallen accidentally from the running train bound for Jammu Tawi from Alwar. It was averred that on 02.09.2014 deceased Arvind @ Arun along with his two companions commenced his journey from Alwar to Jammu Tawi holding a valid second class railway journey ticket valid for three adults. As there was a lot of rush of passengers in the train, all three of them boarded different coaches. Deceased Arvind @ Arun hardly get a space to stand in the gallery near the door of the coach. As it has come to knowledge later on that on account of sudden jerk or result in loss of balance he fell down from the running train in between Kms.39/1 and 39/2 between Railway Station Gadhi Harsau and Gurgaon. He rolled down and died as a result of injuries. The body went into nearby bushes and could not be detected on 03.09.2014 and was later on detected on 04.09.2014 and the Railway Police completed the requisite formalities under Section 174 Cr.P.C. and as the identity of the deceased could not be disclosed post mortem was conducted and the dead body was cremated on 07.09.2014. The other two colleagues could not find Arvind @ Arun and one of them continued up to Jammu Tawi while the other returned to the village. Family members searched and later on located him and identified him by his clothes and photographs at Government Railway Police, Gurgaon. Affidavits have not been filed mentioning that the deceased possessed a valid journey ticket and lost the same during the course of incident and was a bona fide passenger of the train at the time of occurrence of incident. 2. Learned counsel for the Railways-Union of India submits that as the railway ticket was not found from his possession he cannot be treated as a bona fide passenger. He further submis that the findings arrived at by the Tribunal therefore, are based on presumption which cannot be drawn merely because the dead body was found next to the railway track. 3. He further submis that the findings arrived at by the Tribunal therefore, are based on presumption which cannot be drawn merely because the dead body was found next to the railway track. 3. Learned counsel submits that in the Fard Jama Talashi conducted by the Inspector, RPF, no ticket was found from the dead body of the person and therefore, as defined under Explanation to Section 124A the deceased cannot be said to be person who has purchased a valid ticket for travelling by train and would therefore, not be entitled to claim compensation in terms of Section 124A. 4. Learned counsel in support of his submissions also relies on a judgment passed by the Supreme Court in the case of Kamrunnissa v. Union of India reported in AIR 2017 SC 1436 to submit that if a person does not possess a valid ticket he would not be entitled to claim for compensation on account of his death. 5. Learned counsel further submits that if it cannot further be a case of untoward incident as untoward incident only occurs when an accident has occurred of the train. As there was no accident of the train therefore, there cannot be any untoward incident to have taken place. 6. I have thoughtfully considered his submissions. 7. In order to see whether a presumption can be drawn whether the deceased was a bona fide passenger of the train, this Court finds that learned Tribunal has noticed the statement of the witnesses of the Railway Administration. The witnesses Mr. Ram Phal though mentions that there was no ticket found but during cross-examination he has stated that he did not see the dead body and only made the search. He also states that he did not notice whether the clothes of the deceased were in torned condition which brings contradictions in his testimony. The second witness Mr. Manoj Kumar Bhardwaj also reports that no ticket was found and in cross-examination states that inquiry was entrusted to him after filing of the claim petition, therefore, both the written statements have not been relied upon by the Tribunal and in the opinion of this Court the Tribunal has rightly concluded that the statements cannot be relied upon. Manoj Kumar Bhardwaj also reports that no ticket was found and in cross-examination states that inquiry was entrusted to him after filing of the claim petition, therefore, both the written statements have not been relied upon by the Tribunal and in the opinion of this Court the Tribunal has rightly concluded that the statements cannot be relied upon. Even otherwise, it is a case where the dead body of the deceased remain unindentified which shows that the body was without having any other documentation and no purse or any belongings of the deceased were found. Thus, a reasonable presumption can be drawn that the ticket was lost, moreso, as there are two other witnesses who were co-passengers of the passenger. 8. In the case of Union of India v. Rina Devi reported in AIR 2018 SC 2362 the Supreme Court has considered the law as laid down in Kamrunnissa (supra) and defined the judgment of Kamrunnissa (supra) considering the fact that in Kamrunnissa (supra) case the dead body was found in two pieces and was lying on the road. Thus, each case has to be examined on its own facts. However, the Apex Court observed as under:- ' 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." 9. 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." 9. Thus, the law is settled, initial burden has to be on the claimants however, once they discharge the burden onus shifts on the Railways to disprove the claim of the claimants and in the opinion of this Court as the two witnesses who were examined on behalf of the Railways could not disprove the case of the claimants no error can be said to have been committed in drawing a presumption that the ticket might have been lost and the deceased was a bona fide passenger. 10. The next contention raised relating to the untoward incident has not occurred is wholly erroneous. So far as an accident is concerned claim is filed on the basis of provisions of Section 124. In such cases of accident the passenger is separately defined whereas untoward incident is defined under Section 123C and any passenger falling accidentally from train carrying passengers, would come within the ambit of untoward incident. The Railways have not been able to prove that there was a deliberate attempt to throw out the concerned deceased and thus it is established that there was an untoward incident. 11. In view thereof, no case for interference is made out. The appeal fails and is accordingly dismissed. 12. All pending applications, if any, stand disposed of.