Miscellaneous Appeal No. 87 of 2011 · Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.87 of 2011 ====================================================== Most. Sakila Khatoon, W/o Late Md. Wakil, Resident of Ward No. 4 Buchchar Tola, Maszid Chauk, P.S. & District - Madhepura .... .... Applicant / Appellant Versus The Union Of India through the General Manager, N.E. Railway, Gorakhpur .... .... Respondent/Respondent ====================================================== Appearance : For the Appellant : Mr. Pravin Kumar Gupta, Advocate For the Respondent : Mr. Anil Singh, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR CAV ORDER 15 8-01-2013 The present appeal under Section 23(1) of the Railway Claims Tribunal Act, 1987, has been preferred against an order dated 16.4.2009 passed by Railway Claims Tribunal, Patna Bench, Patna (hereinafter referred to as ‘the Tribunal’), in Claim Application No. OA9800216. The learned Tribunal by the impugned order has rejected the claim case, which was preferred for compensation of Rs. 4,00000/- in view of untoward railway accident. 2. Short fact of the case is that husband of the appellant on 22.9.1997 at Banmankhi Railway Station, after purchasing second class ticket for going to Purnea, had boarded Train No. 334 Down (Saharsa - Katihar Passenger). However, due to heavy rush, after boarding the train he subsequently fell down from the running train and was cut in two pieces and
Legal Reasoning
Patna High Court MA No.87 of 2011 (15) dt. 08 -01-2013 2/9 died on the spot. Since the deceased was a bona fide passenger and it was a case of untoward incidence a claim petition was filed by the appellant claiming compensation of Rs. 4,00000/-. Before the Tribunal, Respondent / North Eastern Railway appeared and filed written statement disputing the claim. However, after hearing the parties and considering the evidences brought on record, the learned Tribunal by order dated 16.4.2009 dismissed the claim petition, which has been assailed in the present appeal.
Legal Reasoning
3. Sri Pravin Kumar Gupta, learned counsel for the appellant has argued that despite the fact that there were sufficient evidences on record to suggest that deceased was a bona fide passenger and had started journey after purchasing valid railway ticket and he died due to heavy rush in the Train after falling down from the running train, the learned Tribunal on unsustainable grounds, has rejected the claim petition. He submits that before the Tribunal, besides bringing on record number of documentary evidences on behalf of the claimant, two witnesses were examined which includes the appellant as AW - 1. It was argued that after the accident, on the basis of information given by the Guard of 334 Down Train a U.D. case was registered. The said information was given vide memo dated Patna High Court MA No.87 of 2011 (15) dt. 08 -01-2013 3/9 22.9.1997, which has been marked as Exhibit A-3. By way of referring to Exhibit A-3 it was submitted that Guard of the Train had informed that one person had died due to fall from the running train and he was cut in two pieces. He has further referred to Exhibit A-4 i.e. inquest report, which was prepared after recovery of the dead body on the railway track after the accident. He has specifically referred to paragraph no. 7 of the inquest report i.e. Exhibit A-4 and submits that inquest report shows recovery of railway ticket from the place where dead body was found. Dead body was sent for post mortem examination through dead body Chalan, which has been marked as Exhibit A- 5, and subsequently, post mortem examination was conducted on the dead body, which corroborated the fact that death occurred due to railway accident. He further submits that AW-1/ appellant of the present case in her affidavit filed before the Tribunal as well as in her cross – examination had supported the claim. It is true that she was not an eye witness, but even then, she had corroborated the claim case. AW- 2 was an eye witness and co- passenger who was traveling on the said Train. AW-2 ( Saibun Khatoon) in her affidavit, which has been marked as Exhibit A-1 has categorically stated that on the date of accident she was going to Katihar from Saharsa on the said Train. When the Train Patna High Court MA No.87 of 2011 (15) dt. 08 -01-2013 4/9 arrived at Banmankhi Railway Station she had seen the deceased boarding the train and she was standing with her ‘Devar’ (younger brother of her husband) near the gate, where deceased was also standing, but immediately after the Train moved for about 100 Meter, due to heavy rush the deceased fell down from the running Train and came beneath the wheel of the Train. AW -2 was extensively cross –examined but nothing could be extracted to create any doubt on her statement. According to learned counsel for the appellant the learned Tribunal even ignoring all such evidences which were enough to draw an inference that the deceased had died in the railway accident, was a bona fide passenger, on trivial issues, has doubted the case of the claimant and rejected the claim petition. It was argued that since there were direct evidences on record suggesting death of the deceased in the railway accident, who was a bona fide passenger, there was no option for the Tribunal but to allow the claim petition, but in a way contrary to established principles of appreciation of evidences, the learned Tribunal has rejected the claim application. Learned counsel for the appellant has also taken me to the affidavit of one Md. Abbas, ‘Devar’ of AW-2. He further submits that Police in the case had submitted report in U.D. case in which entire fact was extensively stated which shows Patna High Court MA No.87 of 2011 (15) dt. 08 -01-2013 5/9 that on the date of accident the husband of the appellant namely, Md. Wakil, had purchased ticket at Banmankhi Railway Station booking counter and since Train had arrived he hurriedly boarded the Train and entered on the gate of Train No. 334 Down. Subsequently, he fell down and was cut in two pieces, from whose possession some cash, an old diary, wrist watch and railway ticket bearing no. 09535 were recovered. A true copy of Final Report submitted by the Police has been brought on record. It is fit to be set aside. A prayer was made for directing the Respondent to pay the compensation amount as claimed by the claimant before the Tribunal. 4. Sri Anil Singh, learned counsel for Respondent opposing the appeal has firstly argued that mentioning of ticket no. in column no. 7 of inquest report i.e. Exhibit A-4 creates serious doubt on the claimant’s case. It was submitted that nothing has been explained as to how it was mentioned in column no. 7 of the inquest report that ticket no. 09535 was found near the neck that too, according to Sri Singh, it appears that ticket no. was mentioned in inquest report at subsequent stage. He further submits that AW-2 in her statement before the Tribunal had admitted that she along with her ‘Devar’ was going to Katihar from Saharsa and they were not known to the deceased or the Patna High Court MA No.87 of 2011 (15) dt. 08 -01-2013 6/9 claimant, even then, in affidavit of one Md. Abbas, who was ‘Devar’ of AW -2 it was stated that while they got down at Purnea Station, from Purnea he informed some one at Masjid Chowk over telephone regarding the accident but he did not bother to get down from the running train after the accident. According to Sri Singh, the facts stated in the affidavit of Md. Abbas, which has been marked as Exhibit A-2 and deposition of AW-1 suggest that at belated stage a story was cooked up for the purposes of claiming compensation in the present case. He has further submitted that the claimant had completely failed to establish that she was entitled to get compensation. 5. Besides hearing the parties, I have also perused the materials available on record which include affidavit, statement of witnesses in their cross-examination and other exhibits. From the memo dated 22.9.2007 (Exhibit A-3), which was issued on the basis of information given by the Guard of Train No. 334 Down it is evident that a U.D. Case vide U.D. Case No. 4 of 1997 was registered which suggests that one passenger had fallen down from the running Train No. 334 Down and was cut in two pieces. This Exhibit categorically suggests that death of deceased had occurred since he fell down from the running Train. Now the question is as to whether the person who had died in the said Patna High Court MA No.87 of 2011 (15) dt. 08 -01-2013 7/9 accident was a bona fide passenger or not for the purposes of grant of compensation in the claim case. So next point to be examined is as to whether he was bona fide passenger or not. This issue has been set at rest on the basis of inquest report i.e. Exhibit A-4 as well as Police Report/Final Report. True copy of same is available on record. Fact mentioned in column no. 7 of the inquest report suggests that near the dead body a railway ticket bearing ticket no. 09535 was recovered. Meaning thereby, that the deceased who had fallen from the running train was having a valid railway ticket. This fact has been corroborated in the Police Report dated 24.9.1997. The true copy of the Final Report in U.D. Case No. 4 of 1997 was issued by Railway Police (G.R.P., Banmankhi). In the Police Report it has been specifically mentioned that on 22.9.1997 at about 7.45 Train No. 334 Down from Saharsa arrived at Banmankhi Railway Station. In the said Train there was heavy rush. The report further indicates that deceased Md. Wakil purchased railway ticket and in hurry he boarded the Train and got near the gate, when the Train took its speed due to heavy rush he fell down and was cut in two pieces. So far Police Report is concerned, the learned Tribunal, to the reasons best known to it, has even ignored the same besides ignoring other documentary and oral evidences. Surprisingly, Patna High Court MA No.87 of 2011 (15) dt. 08 -01-2013 8/9 before the Tribunal one witness was examined on behalf of the Respondent / Railway itself, whose affidavit has been exhibited as Exhibit ‘R’. In the affidavit respondent’s witness though has stated that deceased was not a bona fide passenger, in his cross examination in paragraph no. 3 he has admitted that he had examined the documents enclosed with the claim application such as, post mortem report, inquest report, dead body Chalan & papers relating to U.D. case and he was prima facie satisfied that documents were genuine. Meaning thereby, that the witness, who was examined on behalf of Respondent / Railway had never created any doubt on any of the documents even on inquest report or facts incorporated in inquest report showing recovery of ticket no. 09535. Even on the basis of evidence brought by the Respondent / Railway the case of the claimant was established. The court is satisfied that the claimant had brought on record sufficient evidence i.e. documentary and oral evidence to establish that deceased was a bona fide passenger and he died in an untoward incident. After hearing the parties and considering the Lower Court Records, the court is satisfied that the learned Tribunal has committed serious error in rejecting the claim petition, and accordingly, the order dated 16.4.2009 is hereby set aside. The Respondent / North Eastern Railway, Gorakhpur, Patna High Court MA No.87 of 2011 (15) dt. 08 -01-2013 9/9 through its General Manager, is directed to pay the claimed amount i.e. Rs. 4,00000/- to the appellant within a period of two months from the date of receipt / production of a copy of this order. The Respondent is further directed to pay the aforesaid compensation amount along with interest at the rate of 4% per annum from the date of filing of the claim petition till the date of payment of compensation amount. 6. The appeal stands allowed. Praful/- (Rakesh Kumar, J)