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2023 DIGILAW 212 (KAR)

Sangita v. Union of India

2023-02-02

H.T.NARENDRA PRASAD

body2023
JUDGMENT 1. This appeal is filed by the appellants/applicants under Sec. 23(1) of the Railway Claims Tribunal Act, 1987 (for short 'the Act') challenging the judgment dtd. 28/4/2016 passed by the Railway Claims Tribunal, Bangalore in O.A.II-U-No.042/2012, whereby the Tribunal has dismissed the application filed by the applicants. 2. Brief facts of the case of the applicants: On 11/12/2011, when Mr.Thukaram Gadeppanavar (deceased) went to Gadag from Hubli by train to see his relatives and while returning on the same day night by train, accidentally he fell down from the moving train, sustained injuries and succumbed to the injuries on the spot. Thereafter, the applicants, who are the wife, 3 minor children and mother of the deceased filed application before the Tribunal seeking compensation. On service of summons, the respondent appeared through counsel and filed written statement and denied the averments made in the application. On behalf of the applicants, applicant No.1 was examined as AW-1 and produced 10 documents as Ex.A-1 to 10. On behalf of the respondent-railways, no witness was examined, but only DRM's report was produced and marked as Ex.R-1. On appreciation of oral and documentary evidence on record, the Tribunal dismissed the application on the ground that the applicants have failed to discharge the burden on the railway. Being aggrieved by the same, the present appeal is filed by the applicants. 3. The learned counsel for the applicants has contended that the wife of the deceased has been examined as AW-1. She has categorically stated that when her husband was traveling in the train, he fell down from the moving train and sustained injuries and succumbed to the injuries. Police registered FIR and after thorough investigation have filed charge sheet stating that the deceased fell down from the moving train and sustained injuries and succumbed to the injuries. The applicants have discharged their burden and the burden is shifted on the railway authorities. To disprove the case of the applicants, the respondent except producing the DRM report, they have not examined any witness nor produced any other documents. In support of his contention, he has relied upon the judgment of Apex Court in the case of RINA DEVI vs. UNION OF INDIA reported in (2019) 3 SCC 572 . Hence, he sought for allowing the appeal. 4. None appears for the respondent. 5. Heard the learned counsel for the appellants. In support of his contention, he has relied upon the judgment of Apex Court in the case of RINA DEVI vs. UNION OF INDIA reported in (2019) 3 SCC 572 . Hence, he sought for allowing the appeal. 4. None appears for the respondent. 5. Heard the learned counsel for the appellants. Perused the judgment of the Tribunal and original records. 6. The case of the applicants is that On 11/12/2011, Mr.Thukaram Gadeppanavar (deceased) went to Gadag from Hubli by train to see his relatives and while returning on the same day night by train, accidentally he fell down from the moving train, sustained injuries and succumbed to the injuries on the spot. To prove the case, applicant No.1 was examined as AW-1 and produced 10 documents as Ex.A-1 to 10. On the basis of the complaint lodged by the Station Master, police registered FIR and filed charge sheet. In the charge sheet, there is a mention regarding the opinion of the doctor that the cause of death is due to shock as a result of injuries by a moving train. By examining AW-1 and producing the documents, the applicants have discharged their burden and the onus has been shifted on the railway authority. But the Tribunal has erred in holding that the applicants have failed to discharge their burden. The Apex Court in the case of 'RINA DEVI' (supra) has held as follows: "Re: (iii) Burden of proof when body found on railway premises-definition of passenger- 26. 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 Ss. 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 bonafide 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 bonafide 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 bonafide 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 : "4......(ii) In my opinion, the contention of the learned counsel for the Appellant claimants is totally misconceived. The initial onus in my opinion always lies with the appellant 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 and 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 leaned Single Judge of this Court in the case reported as Pyar Singh v. Union of India 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 leaned Single Judge of this Court in the case reported as Pyar Singh v. Union of India 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)." 7. In view of the above judgment of the Apex Court, I am of the opinion that the finding given by the Tribunal that the applicants have failed to discharge the burden, is perverse and is contrary to the materials available on record. Hence, the appeal deserves to be allowed and matter has to be remanded to the Tribunal for fresh consideration. 8. In the result, the appeal is allowed. The judgment and award dtd. 28/4/2016 passed by the Railway Claims Tribunal, Bangalore in O.A.II-U- No.042/2012, is set-aside. The matter is remanded to the Tribunal for fresh consideration. The parties are at liberty to adduce additional evidence and produce additional documents to establish their case. The Tribunal after giving opportunities to the parties shall decide the matter in accordance with law.