Miscellaneous Appeal No. 456 of 2008 · Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.456 of 2008 ====================================================== Parshuram Sao @ Parsuram Sao son of late Ramadeo Sao, resident of village-Sonaru, P.S. Fatuha, District Patna at present C/o- Guptaji, Railway Colony Ward No. 18, P.S. Fatuha, District Patna .... .... Appellant/s Versus The Union of India represented through the General Manager, East Central Railway, Hazipur (Bihar). .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Birendra Kumar Singh, Adv. For the Respondent/s : Mr. Naresh Dikshit, Adv. Mr. Anant Kumar, Adv. Ms. Kalpana, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER 12 19-08-2013 This appeal under Section 23 of the Railway Claims Tribunal Act, 1987 (hereinafter referred to as the „Act‟) is directed against the judgment and order dated 14.5.2008 passed in Claim Case No. O.A.000148 of 2004 by the Railway Claims Tribunal, Patna Bench, Patna whereby the Tribunal has dismissed the claim case. Facts of the case leading to the filing of the claim application, in brief is that the son of the claimant was travelling by Train No. 560 Down from Gulzarbagh to Fatuha on 5.2.2004 after purchasing valid tickets bearing No. 44106 and 44107. As the train approached the Fatuha Station, the deceased named Rahul Kumar along with his own aunt (Fua) reached near the gate of the bogie to detrain at the Fatuha Railway Station when on 2
Legal Reasoning
Patna High Court MA No.456 of 2008 (12) dt.19-08-2013 2 / 10 account of a sudden jerk and jostling amongst the passengers, the son of the claimant Rahul Kumar fell from the train and was amputated waist down, leading to instant death. The aunt informed the father of the deceased about the incident whose house was at a very short distance and came back along with him to the place of occurrence where the body of the deceased was lying yet on the railway line. Before the arrival of the claimant, the information regarding the untoward incident had already been reported by the Station Master (Ext.A/2) leading to registration of U.D. Case No. 22 of 2004 (Ext.A/3). As until that time the identity of the deceased was not known hence the name is not reflected in the F.I.R. but finds mention in the inquest report (Ext.A/4), the postmortem report (Ext. A/5) , and the final report submitted by the police (Ext.A/6). The circumstances leading to the untoward incident finds mention in the final report where the police also admits that the deceased along with his aunt was travelling with valid ticket No. 44106 and 44107. In the circumstances set forth the claimant-appellant filed the claim case in question under Section 16 of the Act. The claim was contested by the Railways by filing a written statement inter alia on grounds of the deceased not being a bona fide passenger in absence of production of railway ticket and on 3 Patna High Court MA No.456 of 2008 (12) dt.19-08-2013 3 / 10 grounds that the incident was a result of the own negligence of the deceased and thus the claimant was not entitled to any compensation. The Tribunal on the basis of the rival pleadings and the evidence adduced by the parties, has dismissed the claim case and hence this appeal.
Legal Reasoning
Mr. Birendra Kumar Singh has appeared on behalf of the appellant while the respondents have been represented by Ms. Kalpana, J.C. to Mr. Naresh Dikshit learned counsel for the Railway. Mr. Singh while questioning the judgment and order impugned, has submitted that the claim of the appellant has been rejected on grounds of non recovery of the ticket as well as on the non-reliability of the evidence of the eye witness i.e. aunt of the deceased. It is with reference to the evidence of the aunt of the deceased, the relevant extract whereof has been annexed as Annexure-11, submitted that even while the aunt has admitted that the tickets had been handed over to the police during the course of investigation and which fact finds mention also in the final form submitted by the police, yet the statement has been disbelieved by the Tribunal who has held that the aunt as well as the deceased were not bona fide passengers, in absence of production of the 4 Patna High Court MA No.456 of 2008 (12) dt.19-08-2013 4 / 10 tickets. Mr. Singh has further relied upon the final report submitted by the police Ext. A/6 to submit that number of the tickets have been expressly mentioned in the final report and have not been proved to be wrong by the railways during the course of the trial. Mr. Singh with reference to the provisions of Section 123 (c) of the Act has submitted that the term „untoward incident‟ has been defined under the said provisions and includes the accidental falling of any passenger. He thus with reference to the evidence led by the claimant which has also been taken note by the Tribunal in the order impugned, submits that even when the untoward incident stands proved by the documentary evidence and even when the railways have not been able to prove that the ticket numbers given by the aunt of the deceased were incorrect or the deposition was a piece of false declaration, yet the Tribunal has committed a serious illegality in rejecting the claim. Learned counsel for the railways has contested the argument of Mr. Singh by reiterating the statements made in the written statement filed before the Tribunal and the counter affidavit filed before this Court. Although the copy of the counter affidavit is not on record but a plain unaffidavited copy was handed over by learned counsel and with reference to the statement made in 5 Patna High Court MA No.456 of 2008 (12) dt.19-08-2013 5 / 10 paragraphs 5, 7 and 8 to 10 thereof it is contended that since no ticket was found on the person of the deceased or the aunt of the deceased nor the aunt bothered to inform the police regarding incident rather chose to go to the brother‟s house first, by itself manifests that the story introduced, is an afterthought. Learned counsel has tried to question the veracity of the deposition of the aunt who has deposed as applicant witness No.2 on grounds that even when she claims to be an illiterate lady yet she has spelt out the number of ticket, which creates suspicion. I have heard learned counsel for the parties and have perused the materials on record including the lower Court Records. Perusal of the judgment and order impugned manifests that primarily on two grounds the claim has been rejected namely; (a) non production of the railway ticket and (b) unrealiability of deposition of the aunt, as A.W. 2. It is not in dispute that the death of the son of the claimant occurred in an untoward incident by a fall from the train. Whereas it is the case of the claimants that the occurrence falls within the meaning of untoward incident, the claim is contested by the railways who have sought to bring the same within the purview of proviso of Section 124A of the Act. One extraordinary 6 Patna High Court MA No.456 of 2008 (12) dt.19-08-2013 6 / 10 feature of this contest is that neither any documentary nor any oral evidence was led by the railways to prove the claim wrong. The provisions underlying Section 124A is a beneficial piece of legislation and has to be given a liberal interpretation. A plain reading of the provision manifests that until such time that a case of a claimant falls within the proviso or is an attempt to defraud, normally it has to be allowed. In fact, the provisions casts an obligation on the railway to make payment of the compensation the moment an untoward incident occurs provided it does not fall within the preview of the proviso. That the deceased was travelling along with his aunt is not in contest. That the aunt has stated that she handed over the tickets to the police has also not been contested as is manifests from the cross examination of the aunt who has been examined as A.W. 2. In fact, the railways have not even chosen to prove that no such tickets were issued on the date of the occurrence or that they were issued subsequent to the incident. A mere circumstance that the aunt happens to be an illiterate in itself is not sufficient to hold that she could not remember the ticket numbers more particularly when her deposition as regarding the ticket numbers has not been proved to be a false statement. In fact even for a moment if it is presumed for the sake of argument 7 Patna High Court MA No.456 of 2008 (12) dt.19-08-2013 7 / 10 that no ticket was found on the person of the deceased, yet the circumstance in itself is not sufficient for rejection of the claim in view of the Division Bench pronouncement of this Court reported in 2008(3) PLJR 711(Smt. Kaushalaya Devi & Ors. Versus Union of India through General Manager,North-Eastern Railway, Gorakhpur, U.P.). However the said circumstance does not exist in the present case since in the present case the aunt travelling with the deceased has disclosed two ticket numbers and which she says, were handed over to the police and finds mention in her affidavit as well as the final report of the police. Now neither the statement has been proved false nor the ticket numbers have been proved to be, either fake or having not been issued on that date or having been issued subsequent to the accident. Once a claimant has set out a claim giving ticket numbers then the onus to prove that the statement is not correct, shifts on the person contesting the claim which in the present case would be the railways and with all the machinery available at their disposal, they have not been able to prove that the claim is based on falsity. The F.I.R., the inquest report and the postmortem report are sufficient documentary evidence proving the death of the son of the appellant in an untoward incident. It is now to be seen whether the case of the claimant falls 8 Patna High Court MA No.456 of 2008 (12) dt.19-08-2013 8 / 10 within any of the proviso in view of the contention of the Railways that the occurrence was a consequence of a negligent act of the deceased. Again whereas it is the case of the claimant that the fall of the deceased was due to the jerk and jostling in the train, the same is being contested by the railways on grounds of negligence and carelessness of the victim. Surprisingly even when the railways have chosen to contest on this issue, yet they have not chosen to lead any evidence in support. A death on the railway tracks would be presumed to be a case of untoward incident unless proved otherwise by the railways with aid of evidence and in which event the burden would shift on the claimant to prove the same. The presumption is rebuttable and the onus lies on the railways to rebut the same by evidence and avoid the liability. The tenor of Section 124 A of the Act reflects the same legislative intendment with the exception of the proviso. It is rather surprising that despite absence of evidence to prove the contrary, the Tribunal has proceeded to reject the claim by trying to find fault in the claim set up even when the evidence, ocular as well as documentary led by the claimant, support the incident. On a similar objection raised, which was subject matter of a judgment reported in (2010)12 SCC 443 (Jameela & Ors. Versus Union of India) when on a charge of negligence by the 9 Patna High Court MA No.456 of 2008 (12) dt.19-08-2013 9 / 10 deceased by standing on the door of the bogie the claim was rejected, the Supreme Court observed as follows: “11. Coming back to the case in hand, it is not the case of the Railways that the death of M. Hafeez was a case of suicide or a result of self-inflicted injury. It is also not the case that he died due to his own criminal act or he was in a state of intoxication or he was insane, or he died due to any natural cause or disease. His falling down from the train was, thus, clearly accidental. 12. The manner in which the accident is sought to be reconstructed by the Railways, that the deceased was standing at the open door of the train compartment from where he fell down, is called by the Railways itself as negligence. Now negligence of this kind which is not very uncommon on Indian trains is not the same thing as a criminal act mentioned in clause (c) to the proviso to section 124-A. A criminal act envisaged under clause (c) must have an element of malicious intent or mens rea. Standing at the open doors of the compartment of a running train may be a negligent act, even a rash act but, without anything else, it is certainly not a criminal act. Thus, the case of the Railways must fail even after assuming everything in its favour.” As I have observed that the provisions of Section 124A being a beneficial piece of legislation, it has to be interpreted more liberally and is to be given a wider interpretation and not in a pedantic manner as having been done in the present case where the Tribunal has gone on a fault finding mission. For the reasons aforementioned, the judgment and order being contrary to the statutory provisions and the legislative intendment, cannot be upheld and is accordingly set aside. The claim is allowed together with interest quantified at 9% to be paid 10 Patna High Court MA No.456 of 2008 (12) dt.19-08-2013 10 / 10 from the date of institution of the claim case until the date of payment. Let the Lower Court Records be returned to the Tribunal concerned forthwith. Bibhash/- (Jyoti Saran, J)