Karnataka High Court
Sri.M.Nanjappa S/O Lt Babanna vs Union Of India on 26 September, 2012
Author: N.Ananda
Bench: N.Ananda
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 26TH DAY OF SEPTEMBER 2012
BEFORE :
THE HON'BLE MR.JUSTICE N.ANANDA
M.F.A.No.4233/2009 (RCT)
BETWEEN:
1. M.Nanjappa
S/o late Babanna
Aged 69 years,
2. Smt.Leelavathi @ Leelamma,
W/o M.Nanjappa
Aged 57 years,
3. Nagaraju
S/o M.Nanjappa
Appellants 1 to 3 are
R/at 19-7-48, Sathnarayanapet,
Hindupura Post,
Ananthapura District.
4. M.Lokesh,
S/o Nanjappa
Aged 34 years,
R/a Old Check Post,
Bangalore Road
Hindupura Post
Ananthapura District.
2
5. Smt.Swapna,
D/o Nanjappa
W/o. Manjunath
R/at No.132/8, Narayanaswamy
Block, ModernLayout
Devarajeevanahalli
Bangalore-560 045. .. Appellants
( By Sri Narayanh Perdalkar, Advocate )
AND:
Union of India
Rep.by the General Manager
South Western Railway
Hubli,
Karnataka. .. Respondent
( By Sri N.S.Sanjay Gowda, Advocate )
-.-.-
This Appeal is filed under Section 23(1) of the RCT
Act against the judgment dated 27.2.2009 passed in
O.A.No.168/2007 on the file of the Railway Claims
Tribunal, Bangalore, dismissing the claim petition for
compensation.
This Appeal is coming on for hearing this day, the
Court delivered the following :
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JUDGMENT
This appeal is filed by appellants-claimants praying to set aside the order dated 27.2.2009 passed in OA.No.168/2007 by the Railway Claims Tribunal, Bangalore Bench.
The Tribunal has dismissed claim petition for following reasons :
(i) the deceased was not a bona fide passenger,
(ii) the deceased might have committed suicide.
The above findings of Tribunal are based on contents of post mortem examination report, which would reveal that body of deceased was found on the railway track near platform No.1 of Yeshwanthapur Railway station. The body was cut into pieces and railway ticket was not found on dead body. 4
2. The inquest report prepared by the Railway Rural Police Station, Yeshwanthapur, would reveal that due to rush of passengers boarding train, the deceased while trying to board Yeshwanthpur- Guntur train, fell down from the train. His body was dragged and he succumbed to injuries. This is the first version of accident as narrated in the inquest report prepared by Railway police.
The claimants have examined AW-2 to put forth another version. As per evidence of AW-2, he had accompanied deceased to the railway station; the deceased had purchased the ticket to travel from Bangalore to Hindupur. The deceased boarded the train and went to the middle of coach; and thereafter, AW-2 returned back.
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3. Thus, from the above, it is clear that there are conflicting versions relating to manner in which the deceased succumbed to injuries.
4. The respondent-Railway has contended that the deceased had committed suicide which is without any basis. The respondent has not adduced evidence to prove that deceased committed suicide. The Railway Tribunal ignoring the inquest report prepared by the Railway Police, has come to the conclusion that the deceased committed suicide and he is not entitled to compensation under Section 123
(c)(2) of Railways Act, 1989.
5. As per inquest report and the final report submitted by the Railway Police, the dead body was found on the railway track. It was cut into pieces. In the circumstances, it was for the railways to 6 establish that the deceased was travelling without a valid ticket.
6. The Railway Tribunal on the basis of contents of post mortem examination should not have drawn inference that the deceased committed suicide and his body was cut into pieces after being run over by a train. The Tribunal has not appreciated evidence in proper perspective. In a decision reported in case of Raj Kumari and another
-v- Union of India (1993 ACJ 846), it is held :
" 4 : The aforesaid decisions cited at the Bar (Sic. held that liability of) railway administration under section 82-A of the Act to pay compensation for death in a railway accident arises only if the deceased was a "bona fide passenger' and not for the death in such accident of any trespasser or ticketless traveller.7
5. The main question that arises in this case is on whom the onus of proof lies in such claim cases and whether any presumption under the Evidence Act can be raised. Normally under sections 101 and 102 of the evidence Act, the burden to prove such facts, on which the legal right or liability depends, is on such person who asserts existence of these facts. But the question before us is whether the burden of proof that the deceased held a valid ticket, pass or permission during his journey, in which he died in accident, can be placed on his dependants. Obviously, such burden of proof is impossible to be discharged by the dependants, who can have no means of knowledge, whether the deceased, before boarding the train, had purchased a valid ticket, pass or permission from the railway authorities. It is likely that such a deceased passenger held a valid ticket, pass or permission, but the same is lost in the accident with the death of person and loss of his belongings, if any.8
6. The provisions of sections 66, 68, 113 and 122 of the Act do indicate that the person is deemed to be a `passenger' when he travels either on ticket, pass or with permission of the authorised officer of the Railways. Section 68 contains prohibition against travelling without pass or ticket or permission and provides as under :
" 68. Prohibition against travelling without pass or ticket.- (1) No person shall, without the permission of a railway servant empowered in this behalf by the railway administration, enter or remain in any carriage on a railway for the purpose of travelling therein as a passenger unless he has with him a proper pass or ticket.
(2) A railway servant granting the permission referred to in sub-
section (1) shall ordinarily grant to the passenger a certificate that the 9 passenger has been permitted to travel in such carriage upon condition that he subsequently pays the fare payable for the distance to be travelled."
7. The provisions of sections 113 and 122 of the Act make travelling without ticket punishable under certain circumstances and liable for payment of fare and fine. The scheme and the Act seen as a whole makes it evident that the entry into a railway carriage required of a person to obtain a ticket, pass or permission and in absence thereof, his action or omission is punishable with imprisonment or fine, including removal from the carriage. In our opinion, when a person is found dead as a result of accident in a railway carriage, in which he was travelling, a presumption may be drawn under section 114 of the Evidence Act keeping in view of the prohibition under section 68 of the Act against boarding a train without ticket that the deceased was a 10 bona fide passenger. Since ticketless travel is an illegal act and exposes such traveller to penal action, the presumption is of innocence in favour of such one of the travellers or passengers in a train. It is for the railway administration to prove contrary and the burden in such circumstances that the deceased was a ticketless traveller or was not a bona fide passenger, should be on the railway administration which has special means of knowledge as to whether any ticket was issued to that deceased or whether at any point, before or at the end of journey, he was checked and detected by staff of the railway as an unauthorised person without ticket, pass or permission. We have to keep in mind that the provision contained in section 82-A of the Act is a beneficial piece of legislation to compensate monetarily at a fixed sum each victim involved in railway accident. The argument of the learned counsel for the Railways cannot be accepted that the burden is on the dependants of the deceased passenger 11 to prove that the deceased, who died in railway accident, possessed a valid ticket or pass. To place such onus of proof on the dependants would amount to denial of the benefit of such legislation to them for reasons beyond their control because such onus is impossible to be discharged." In a decision reported in the case of Union of India, through General Manager -v- Sarla and others ( 2011 ACJ 1841), it is held:
" 12. In the present case, the dead body of the deceased was found on the railway track. Station memo was issued to GRP who conducted further proceedings informing that the death was caused due to railway accident.
13. Insofar as question of bona fide passenger is concerned, the learned Tribunal has found that as the body of the deceased Om Prakash was cut into many pieces and his clothes were torn, there is 12 every possibility of his having lost the ticket. Moreover, in the case of Devkabai v. Union of India, 2007 ACJ 2380 (MP), it has been held that "plea of Railways that deceased was travelling without ticket and was not a bona fide passenger cannot be believed that the police authorities did not make any efforts to discover or recover the ticket."
14. In the case of Maniben Paljibhai Parmar v. Union of India, 2005 (!) RCR (Civil) 255, it has been held that "in case of death of passenger in railway accident, presumption is that the deceased was a bona fide passenger and burden is upon the Railways to prove that he was travelling without ticket."
15. Thus, keeping in view the facts that no evidence has been led by respondent-appellant to discharge the burden that the deceased was travelling without a ticket, therefore, it is presumed that he was a bona fide passenger." 13
The Tribunal has also ignored the settled principles of law applicable to facts of instant case. Therefore, I am of the considered opinion that the matter requires reconsideration by the Tribunal. In the result, I pass the following order :
The appeal is accepted. The impugned award is set aside. The matter is remanded to the Railway Tribunal for re-consideration in the light of the observations made herein and in accordance with law. The other contentions raised herein are kept open.
Sd/-
JUDGE *bk/-