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2024 DIGILAW 38 (MP)

DINESH KUMAR DUBEY v. UNION OF INDIA

2024-01-08

DUPPALA VENKATA RAMANA

body2024
JUDGMENT : (Duppala Venkata Ramana, J.) : The present appeal is filed by appellants, being aggrieved by the rejection of their claim application by the Railway Claims Tribunal, Bhopal Bench vide judgment dated 6-1-2022. The claim being filed under section 16(1) read with section 13(1-A) of Railways Claims Tribunal Act, 1987 and section 124-A of Railways Act, 1989 sought compensation to the tune of Rs. 8,00,000/- with interest @ 12% from the respondent-Railways on account of death of their son in an untoward incident alleged to have been occurred in the intervening night of 12/13-12-2018. 2. For the sake of convenience, the parties are referred to as they arrayed before the RCT. 3. The facts of the case, as summarized in the impugned judgment as extracted below. 4. The present claim application that Shubham Dubey was travelling by unknown train Express from Harda to Khandwa on the strength of valid journey ticket during the course of journey in the intervening night of 12/13-12-2018, he accidentally fell down from the running train as a result died on the spot. That, his clothes were badly torn and all his belongings including journey ticket were lost in the alleged incident. When the deceased was not return to home the applicants enquired from his brother Vinod Kumar Dubey who had informed them that Shubham Dubey had already gone to Khandwa by train in the night and when they tried to search him at Khandwa station, from there, he came to know that some one had fallen from the running train during night hours between Mathela-Khandwa section near Ganeshtalai and had died and on further inquiry it was informed that his dead body was at Khandwa hospital and immediately the claimants reached Khandwa Hospital and identified their son (deceased). 5. On 13-12-2018, station master of Mathela, Railway Station received information from the track man Sanjay Pal that unknown dead body lying in the track between Mathela-Khandwa section 569/2017 up and, in turn, station master of Mathela railway station sent a written memo to the City Police Station, Kotwali Khandwa through Sanjay Pal. On receipt of a memo, the City Kotwali registered a merg No. 78/2018 and shifted the dead body where the claimants/appellants identified the dead body of the deceased who is their son and after completing the formalities, handed over the dead body to them for last rites. 6. On receipt of a memo, the City Kotwali registered a merg No. 78/2018 and shifted the dead body where the claimants/appellants identified the dead body of the deceased who is their son and after completing the formalities, handed over the dead body to them for last rites. 6. The claimants who are the parents of the deceased filed a claim petition claiming compensation of Rs. 8,00,000/- (Rupees Eight Lakhs) before the RCT on account of the death of their son in an “untoward incident” occurred in the intervening night of 12/13-12-2018 as defined under section 123(c)(2) of the Indian Railways Act, 1989. 7. The respondent- Railway filed the written statement through the General Manager, Western Central Railway, Jabalpur and denied all the averments which were pleaded in the claim petition, further averred that the incident as described in the claim petition is not an untoward incident as defined under section 123(c)(2) of the Railways Act, 1989. Further denied that the deceased is not a bona fide passenger on the date of alleged incident, further averred that the applicants have strict to prove that the deceased was travelling as a bona fide passenger on the date of alleged incident. Further contended that the deceased was not a bona fide passenger of the train and no travel ticket was recovered either at the scene of occurrence or from the possession of the deceased and railway cannot be held liable to pay compensation and prays to dismiss the petition. 8. In view of pleadings of the parties, the Tribunal framed the following issues : 1. Whether the deceased was a bona fide passenger in the train in question at the time of accident? 2. Whether the deceased had died in an untoward incident, while travelling in the train within meaning of section 123(c)(2) of the Railways Act? 3. Whether the respondent is protected under the exemption clause of section 124-A of Railways Act and is not liable to pay compensation? 4. Whether the applicants are the legal dependents of the deceased to claim/receive the compensation, if any, granted ? who else are the dependents. 5. Relief and cost ? 9. 3. Whether the respondent is protected under the exemption clause of section 124-A of Railways Act and is not liable to pay compensation? 4. Whether the applicants are the legal dependents of the deceased to claim/receive the compensation, if any, granted ? who else are the dependents. 5. Relief and cost ? 9. In order to establish the claim of the applicants at the time of inquiry, Shri Dinesh Kumar Duby (AW-1) and Smt. Sunita Dubey (AW-2), who are the parents of the deceased, appeared before the learned Claims Tribunal and filed their respective affidavits and cross-examined by the respondent counsel and exhibits A-1 to A-15 were got marked on behalf of applicants. No evidence led by the respondent/Railways and except DRM report marked exhibit R-1 on behalf of the respondent/Railways. 10. On appreciation of evidence of AW-1 and AW-2 and placing reliance on Ex. A-1 to A-15 and the DRM’s report Ex.R-1 dated 27-3-2020, the learned Tribunal in the instant case came to the conclusion that the deceased was not a bona fide passenger of the train and the alleged incident is not covered under the definition of an untoward incident and dismissed the claim petition filed by the applicants/claimants. 11. Aggrieved by and dissatisfied with the judgment passed by the learned RCT, the appellants/claimants have preferred the present appeal seeking to set aside the judgment dated 6-1-2022 passed by the learned Claims Tribunal, Bhopal in O. A. No. IIu/BPL/007/2020 and pray to allow the appeal and award adequate compensation to the appellants/claimants. 12. Heard the learned counsel appearing for the appellants/claimants and learned counsel appearing for the respondent/Railways and perused the material available on record. 13. The learned counsel appearing for the appellants would submit that the learned Claims Tribunal ought to have awarded compensation but committed error while dismissing the claim petition holding that the deceased was not a bona fide passenger in the train and not covered under the definition of an untoward incident, further would submit that the respondent has not taken plea in the written statement that the deceased had inflicted self inflicted injury or criminal act proviso under 124-A of the Railways Act and the opinion drawn by the learned Claims Tribunal is misconstrued on the entire facts on record. Further would submit that mere absence of ticket with such injured or deceased will not negative the claim that he was a bona fide passenger in view of Rina Devi’ case and further would submit that taking into consideration the legal position and on the basis of pleadings and material placed on record before the learned Claims Tribunal it is required to be analysed whether the finding of the learned Claims Tribunal are just or perverse and further would submit that the cause of death is proved due to an outcome of an untoward incident of the deceased under section 123(c)(2) read with section 124-A of the Act being a bona fide passenger, the adequate amount of compensation may be awarded and, they pray to allow the appeal. 14. Per contra, the learned counsel for the respondent/Railways submit that the claim taking defence that the deceased was not a bona fide passenger and the finding recorded by the learned Claims Tribunal is justified and rightly rejected the appeal. Further contended that the allegations of death of deceased due to untoward incident was denied and the finding recorded by learned Claims Tribunal in accordance with law and, therefore, the present may be dismissed. 15. In the light of the above arguments, the points for determination is :— “Whether there was any merit in the petition to set aside the order dated 6-1-2022 passed by the Claims Tribunal and to award adequate compensation?” 16. Considered the submissions of the respective counsel representing the parties, perused and assessed the entire evidence including the exhibited documents. A perusal of the impugned judgment would show that the learned Claims Tribunal came to the conclusion that the deceased was not a bona fide passenger and the incident is not covered in an untoward incident, without analyzing the evidence properly, the finding of the Claims Tribunal has to be reassessed. 17. This Court is of the view that the learned Claims Tribunal gravely erred in holding that the appellants are not entitled for any compensation under section 124-A of the Act, because the deceased had died by falling from the train of his own negligence, even if, it were to be assumed that the deceased fell from the train and succumbed to death due to his negligence, it will not have any effect on the compensation payable under section 124-A of the Act. For ready reference, relevant Chapter are reproduced as under :— 8. Chapter XIII of the Railways Act, 1989 deals with the liability of Railway Administration for death and injury to passengers due to accidents. Section 123, the first section of the Chapter, has definition clauses. Clause (c) defines “untoward incident” which insofar as relevant for the present case is as under : “123. (c) ‘untoward incident’ means — (1)(i)-(iii) (2) the accidental falling of any passenger from a train carrying passengers.” 9. Section 124-A of the Act provides as follows : “124-A. Compensation on account of untoward incidents. — 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 — (a) suicide or attempted suicide by him; (b) self-inflicted injury; (c) his own criminal act; (d) any act committed by him in a state of intoxication or insanity; (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— (i) a railway servant on duty; and (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.” 18. As per clause (2), the accidental falling of any passenger from a train carrying passenger would be an “untoward incident”. As per section 124-A, the Railway Administration is liable to pay compensation on account of untoward incident. As per clause (2), the accidental falling of any passenger from a train carrying passenger would be an “untoward incident”. As per section 124-A, the Railway Administration is liable to pay compensation on account of untoward incident. In the written statement, the respondent/Railways taken plea that the deceased was travelling in an unknown train as described in the claim petition is not an untoward incident as defined under section 123(c)(2) of the Railways Act, 1989 and as per the written statement/reply filed by the respondent/Railways has not taken a plea that the incident comes under the provision of section 124(2) of the Railways Act, therefore, the accident, in which, Shubham Dubey, died, is clearly covered under the provisions of section 124-A and the accident did not occur because of any of the reasons mentioned in clauses (a) to (e) of the proviso of section 124-A. The present case is clearly covered by under section 124-A of the Railways and not its proviso. To strengthen the same, DRM’s report exhibit marked under R-1 stated that Sundram Dubey has clarified in his statement that on 12-12-2018 at about 7:00 p.m., he took Shubham Dubey to Harda station to go to Khandwa, where Shubham Dubey took a general ticket from Harda to Khandwa and went to catch the train. After going to platform he returned to his house in support of the Investigating Report reveal that during the investigation, it was found that dead body of the Shubham Dubey found in the middle kilometer of Methela-Khandwa Station Police No. 569/2017 on the track. The DRM’s report dated 3-7-2020 supported the para No. 6 as stated by Sundram Dubey. The statement and the evidence collected by the investigating officer, the travel ticket was not seized by the Railways authority and further reveals that the deceased on 12-12-2018 left the train from Harda to Khandwa at night. It was found that the deceased Shubham Dubey had left for Khandwa from Harda by the some train on 12-12-2018. He was found dead after falling from the train at night and dead body was found, on 13-12-20213 at 6:50 a.m. informed the same to the station superintendent. It was found that the deceased Shubham Dubey had left for Khandwa from Harda by the some train on 12-12-2018. He was found dead after falling from the train at night and dead body was found, on 13-12-20213 at 6:50 a.m. informed the same to the station superintendent. Considering the DRM’s report and investigating report as stated supra the incident occurred in the intervening night of 12/13-12-2018 and the deceased fell from the running train and the incident occurred due to the untoward incident, and therefore, the present case clearly covered by section 124-A of the Railway Act and not its proviso, as per the opinion of panches in the inquest report, panches opined due to fallen from the train the deceased died. In support of panchayatnama, the dead body was shifted to Government Hospital for autopsy where doctor conducted post-mortem in the Government Hospital, Khandwa indicate the cause of death due to shock and hemorrhage and because of multiple amputated injuries, the claim petition was filed before the learned Claims Tribunal claiming adequate compensation but the respondent/Railways taking defence that the deceased was not bona fide passenger because of his journey ticket was not found and the allegation of death of the deceased due to an untoward incident was denied but in view of DRM’s report and investigation report clearly established that the deceased was died due to fallen from the train and sustained multiple amputated injuries and the dead body was lying on the track. 19. At this juncture, it is relevant to refer the judgment of Hon’ble Apex Court in the case of Union of India vs. Rina Devi, (2019) 3 SCC 572 , para 29 concludes as thus : “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. 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”. 20. In the light of the above legal position and on the basis of the pleadings and the material placed on record before the learned Claims Tribunal, but the learned Tribunal has not properly came to the conclusion and rejected the application, this Court is not satisfied with the finding recorded by the said Tribunal. 21. Apart from the DRM’s report, the burden was on the railway administration to prove that the passenger was not a bona fide passenger, the Railways Administration has a special knowledge whether ticket was issued or not. The Act of 1989 as also the similar provisions in sections 55 and 137 in view has led to interference that any person died or injured found on the railway premises has to be presumed to be a bona fide passenger so as to maintain the claim for compensation. 22. The another decision of Hon’ble Apex Court Kalandi Charan Sahoo vs. South-East Central Railway, (2018) ACJ 1460, wherein para-4 as follows : “………... we find that it is not even necessary to go into the issue as to whether it was the fault of the deceased or that he accidentally fell down. The learned counsel for the appellants has drawn our attention to the provisions of section 124-A of the Railways Act, 1989, which warrants payment of compensation whenever an untoward incident occurs whether or not such an incident has occurred by any wrongful act, neglect or default on the part of the Railway Administration. Going by the aforesaid provisions and in the peculiar facts of this case, where no inquiry as mandated by the Rules was conducted immediately after the incident had occurred, we are of the view that the appellants shall be entitled to compensation payable under section 124-A of the Railways Act, 1989, which warrants payment of compensation whenever untoward incident occurs whether or not such an incident has occurred by any wrongful act, neglect or default on the part of the railway administration. Going by the aforesaid provisions and in the peculiar facts of this case, where no inquiry as mandated by the Rules was conducted immediately after the incident had occurred, we are of the view that the appellants shall be entitled to compensation payable under section 124-A of the Railways Act, 1989. We are informed that at the material time, compensation payable under the said provision was Rs. 4,00,000/-.” 23. In the absence of any cogent evidence by examining any of the witnesses by the respondent-Railways Administration by producing documentary evidence, notwithstanding anything contained in any other law, the railway administration shall be liable to pay compensation as prescribed. 24. The Co-ordinate Bench of this Court in the case of Hariram vs. Union of India, (2015) 1 M.P.H.T. 111 has held as under :— “15. In this context reference can be had of a decision rendered by a Division Bench of this Court in Union of India vs. Satish Patidar 2003(4) M.P.L.J. 306 ; wherein it is held : “27. This brings us to point No. 4. Learned Counsel for the appellants contended that the deceased was not a bona fide passenger, as the claimants could not establish that he purchased the ticket. The burden to prove that the deceased had a valid ticket during his journey which he proceeded cannot be placed on dependents. Obviously, such burden of proof is impossible to be discharged by the dependents who can have no means of knowledge whether the deceased before boarding the train had purchased the valid ticket. It is likely that such a deceased passenger had a valid ticket but the same was lost in accident. To place the onus of proof dependents would amount to denial of the benefit of legislation to them for reasons beyond their control. In the case before us, the presumption has to be drawn that the deceased was a bona fide passenger. Therefore, we affirm the finding of the Tribunal that the deceased was a bona fide passenger. 25. Besides the above judgment, a judgment of Hon’ble Supreme Court in Rina Devi’s case, the Hon’ble Supreme Court held that the burden of proof, which emphasis that any person found dead or injured on railway premises is presumed to be a bona fide passenger unless the railway administration proves otherwise. Therefore, the finding of the learned Claims Tribunal is not in accordance with law and perverse. Therefore, the finding of the learned Claims Tribunal is not in accordance with law and perverse. 26. As per DRM’s report and investigation report marked as exhibit R-1 not revealed that the death was due to gross negligence of the deceased, both the reports reveals that the deceased fallen from the running train and lying dead body on the railway track and no negligent pleaded by the Railway either in the written statement or by adducing any cogent evidence to substantiate the same, even the general principles relating to the negligence, though may be taken as a guiding principle, they cannot be said to be binding in case of an untoward incident as contemplated by the specific provisions of the Act. Specific provisions of the Act would prevail over such general principle. 27. In the light of the above evidence, the mere absence of ticket with such injured or deceased will not negative the claim that he was a bona fide passenger. Initial burden of being bona fide passenger has been discharged and the onus has been shifted on the Railway authorities which has not been discharged by them and the Railway/respondent have not come forward to adduce any evidence to substantiate the plea taken in written statement that the deceased was died due to negligence, therefore, the incident comes does not comes under the provisions of section 124-A that the deceased had fallen down from the running train, as a result, he sustained multiple amputated injuries and died and further in the investigation report or in the DRM report, they have not stated that there was no foul play is suspected in the cause of death of the deceased, it is a clear case of “accidental death due to fall down from the running train” merely because the deceased was not possessing journey ticket it cannot be said that the deceased did not die in an “untoward incident”, the investigation report in para-6 Mr. Sundram Dubey has clarified in his statement recorded by investigating officer stated that on 12-12-2018 at 7:00 p.m. he took Shubham Dubey to Harda to go to Khandwa where he took general ticket from Harda to Khandwa and went to the platform to catch the train and he returned, therefore, the deceased purchased ticket, due to the incident lost the ticket. The onus is upon the Railway Administration to bring the case under any of the said clause (a) to (e) of the section 124-A of the Railways Act but no one is examined on behalf of the respondent/Railways, therefore, the Railways cannot be exempted for payment of compensation. The basic principles for grant of compensation to the victim is that they should get just compensation even section 127(2) of the Railways Act says the award of compensation must be reasonable. The compensation must be commenced with the last occasioned to the victim but in the present case the learned tribunal has not analyzed the evidence properly in accordance with law and to award adequate amount compensation instead the learned Tribunal came to a wrong conclusion and rejected the application, the judgment passed by the learned Tribunal suffer from infirmity. 28. Under the circumstances, in view of death of Shubham Dubey as can be seen from the police papers i.e. DRM’s report, police report and the postmortem report is an untoward incident resulting from the unknown train, he fall from the running train and died, therefore, it cannot be denied that the incident was not an untoward incident and further observed in the case of Jameela and others vs. Union of India, (2010) 12 SCC 443 , an act may be a negligence or even rash but is not a criminal act. Negligence of the passenger does not have affect on liability of the Railways and the claimants would be entitled to compensation. Therefore, in this case as well although Shubham Dubey may have been negligent, however, that cannot affect compensation that would be payable to the appellants under section 124-A of the Railways Act. After perusing the impugned order of the Said Tribunal, this Court is not satisfied with the same and suffers from infirmity and warrant interference of this Court and the finding recorded by Tribunal are not correct and sustainable, both, on facts and law. 29. The Railways Authority has not adduced any evidence to demonstrate that the case falls under the exception in proviso to section 124-A. In the circumstances, the appellants would be entitled to compensation under section 124-A of the Railways Act. 30. 29. The Railways Authority has not adduced any evidence to demonstrate that the case falls under the exception in proviso to section 124-A. In the circumstances, the appellants would be entitled to compensation under section 124-A of the Railways Act. 30. Accordingly and as per the above discussion, this Court allow this appeal and set aside the impugned judgment dated 6-1-2022 passed by the Railway Claims Tribunal, Bhopal, in O. A. No. IIu/BPL/007/2020, consequently, the claim petition is allowed. The appellants are held entitled for compensation to the tune of Rs. 8,00,000/- (Rupees Eight Lakhs Only). The amount of compensation be satisfied by the respondent/Railway within a period of eight weeks from the date of this order. No order as costs.