The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK FAO No.699 of 2019 (From the order dated 16th July, 2019 passed in Review No.45 of 2019 (arising out of O.A. No.146 of 2015) of the learned Railway Claims Tribunal, Bhubaneswar Bench, Bhubaneswar) Basudev Panda -versus- Union of India, represented through General Manager, East Coast Railway, Bhubaneswar Advocate(s) appeared in this case:- …. …. Appellant Respondent For Appellant
Legal Reasoning
: Ms. Deepali Mohapatra, Advocate For Respondent : Mr. A.K. Mohanty, CGC CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 10th February, 2023 B.P. Routray, J. 1. The matter is taken up through hybrid mode. 2. Heard Ms. D. Mohapatra, learned counsel for the Appellant and Mr. A. K. Mohanty, learned CGC for the Respondent-Union of India. 3. Present appeal by the Claimant is directed against the impugned order dated 16th July, 2019 passed in Review No.45 of 2019 (arising out of O.A. No.146 of 2015) of the learned Railway Claims Tribunal, Bhubaneswar Bench, Bhubaneswar, wherein the earlier award dated FAO No.699 of 2019 Page 1 of 8 18th January, 2019 passed by the same Tribunal was reversed and the claim application filed by the Claimant was dismissed. 4. The Appellant’s case is that on 16th February, 2015 the deceased namely, Harihar Panda was travelling from New Delhi to JJKR Road in Purusotam Express and he accidentally fell down from running train at JJKR Road Station and died on 18th February, 2015. 5. The claimant examined himself as A.W.1 and produced the journey ticket, copy of F.I.R., inquest report, etc., in support of his case. 6. The Railways neither examined any witness nor produced any document except DRM’s report. 7. Initially the tribunal granted compensation to the tune of Rs.8,00,000/- along with interest @ 9% per annum in award dated 18th January 2019. Thereafter, a review application was filed by the Railways under Rule 32 of the Railway Claims Tribunal (Procedure) Rules, 1989. In said review petition, the tribunal came to the finding that the deceased was knocked-down by train No.12510 while trespassing the railway track and thus reversed the earlier award dismissing the claim application. It is important to reproduce the relevant observations made in the award dated 18th January, 2019 and FAO No.699 of 2019 Page 2 of 8 order dated 16th July, 2019 passed in Review Petition. The relevant findings in terms of award dated 18th January, 2019 are as follows:- “xxxx xxxxx The fact remains that the deceased was a bonafide passenger. It is admitted fact that the death of deceased was caused due to train accident. The respondent has not examined the Loco-Pilot of the train before the Bench by which train the deceased was knocked down. The respondent has not also examined any witness in support of their plea that the deceased arrived at JJKR Road in the night and halted there till the morning of 18.02.2015 with intention to commit suicide. Xxxxx. xxxxxxx xxxxxxx xxxxxxx In view of the evidence led by the parties coupled with the principle laid down in the decision cited (supra), the preponderance of probability is that the death of deceased was caused in an untoward incident as defined under Section 123(c)(2) of the Railways Act, 1989 and the respondent cannot be exonerated from the liability of payment of compensation for the death of deceased. Both the issues are accordingly decided in favour of the applicant.” xxxxx xxxxxx xxxxxx.” 8. In the impugned order dated 16th July, 2019 the tribunal observed as follows:- in O.A. the Judgment dated 18.01.2019 “Perused No.146/2015 along with other materials available on record. It is the undisputed fact that the deceased arrived at JJKR station at 02 AM on 18.02.2015 as the train No.12802 (NDLS-Puri) Purusottam Express passed through JJKR Station at that time. The fact that the deceased was knocked down by Train No.12510 Express is not disputed. There is no evidence available on record to discard the statement of the Loco Pilot of Train No.12510 by which the deceased was knocked down as well as the Entry made in the Station FAO No.699 of 2019 Page 3 of 8 Diary. In his statement the Loco Pilot of Train No.12510 has stated that when the train was admitting JJKR Railway Station at 6.33 hours on Route No.3 he saw one male person aged about 55-60 years came on the track. He applied emergency break but the said person was knocked and injured seriously. The statement of the Loco-Pilot cannot be brushed aside who is an eye witness to the incident. The applicant has not adduced any evidence nor there is any material on record to arrive at conclusion that the deceased fell down from Train No.12802 (NDLS-Puri) Purusottam Express which reached at JJKR Station at 1.55 hrs on 18.02.2015 and got injured but the materials show that the knock down took place at around 6.33 hrs. by Train No.12510 at JJKR Station and the deceased got injured. Therefore, it cannot be said that the death of deceased was due to accidental falling down from Train No.12802 and it was an untoward incident as defined U/s.123(c)(2) of the Railways Act, 1989. Rather, as seen from the materials on record the death of deceased was caused, could be due to his own criminal act, while trespassing the railway track if not attempted to commit suicide as defined under clause (a) & (c) of the proviso to Section 124A of the Railways Act, 1989 and the railway administration is not liable to pay compensation for the death of the deceased. Thus, the Review Application is sustained and the Judgment dated 18.01.2019 in O.A. No.146/2015 is reversed.” 9. It is true that no evidence, except production of the DRM’s report, was produced from the side of the Railways and this remains undisputed by learned counsel for railways. 10. The tribunal relied on the alleged statement of Loco-Pilot of train No.12510, i.e. GHY-SBC Express. Train No.12802, New Delhi- Puri Purushottam Express passed JJKR Railway Station at 2 am on 18th February, 2015 and train No.12510 (GHY-SBC) Express passed FAO No.699 of 2019 Page 4 of 8 JJKR Road Station at 6.33 am on 18th February, 2015. As mentioned in the DRM’s report, the Loco-Pilot namely G.S. Rao has stated that while train No.12510 was passing through JJKR Road Station in Route No.3 a male person aged about 55-60 years suddenly came on the track and was knocked down by the train. 11. It is relevant here to look into the admissibility of the contents of DRM’s report. The DRM’s report is prepared as per the provisions contained in the Railway Passengers (Manner of Investigation of untoward incident) Rules, 2013 (presently substituted by 2020 Rules with effect from 1st January, 2020). As per Rule 11, the Divisional Railway Manager is required to pass necessary orders on the inquiry report submitted by Railway Protection Force with regard to happening of an untoward incident. These Rules do not speak anything about admissibility of such report of the DRM. On the other hand, Section 191 of the Railways Act states as follows:- “191. Proof of entries in records and documents.— Entries made in the records or other documents of a railway administration shall be admitted in evidence in all proceedings by or against the railway administration, and all such entries may be proved either by the production of railway the administration containing such entries or by the production of a copy of the entries certified by the officer having custody of the records or other documents under his signature and stating that it is a true copy of the that such original entries are original entries and records or other documents of the FAO No.699 of 2019 Page 5 of 8 contained in the records or other documents of the railway administration in his possession.” 12. According to aforesaid provisions in the Railway Act, the entries made in all such records or document of the Railway Administration shall only be admitted in evidence either by production of the documents or records containing such entries or by the certified copy of those entries stating that the same is the true copy of original entries of the Railway Administration. Thus it is clear that by mere production of the copy of DRM’s report, it would not satisfy the requirement to admit the contents thereof in evidence. 13. In the case at hand, as reveals from the award dated 18th January 2019, it is clear that the only document filed on behalf of the Railways is the DRM’s enquiry report. The entire observations made in the impugned order dated 16th July 2019 in the review application is based on the alleged statement of Loco-Pilot of train No.12510. Neither his statement in original or certified copy, nor the relevant records showing the entry and report in that regard has been produced by the Railway Administration to make such contents mentioned in the DRM’s report as admissible in evidence. Therefore, all such reasons mentioned in the impugned order dated 16th July, 2019 by the tribunal to reverse it’s earlier award passed in favour of the claimant is FAO No.699 of 2019 Page 6 of 8 found unsustainable for want of admissibility of the contents in the DRM’s report. As a consequence of the same, the impugned order dated 16th July 2019 passed in the Review Application is set aside. 14. The appeal is accordingly allowed. Judge ( B.P. Routray) M.K.Panda / S.Das FAO No.699 of 2019 Page 7 of 8