Karnataka High Court
Laxmavva W/O Laxman Chikkod vs The Union Of India on 13 December, 2017
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
M.F.A.No.102826/2014
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 13TH DAY OF DECEMBER, 2017
BEFORE
THE HON'BLE DR.JUSTICE H.B.PRABHAKARA SASTRY
M.F.A. NO.102826/2014 (RCT)
BETWEEN:
1. LAXMAVVA W/O LAXMAN CHIKKOD,
AGE: 52 YEARS, OCC: AGRICULTURE,
R/O DHUPADAL, TQ: GOKAK,
DIST: BELGAUM.
2. HANAMANTH S/O LAXMAN CHIKKOD,
AGE: 32 YEARS, OCC: AGRICULTURE,
R/O DHUPADAL, TQ: GOKAK,
DIST: BELGAUM.
3. BHIMASHI S/O LAXMAN CHIKKOD,
AGE: 29 YEARS, OCC: AGRICULTURE,
R/O DHUPADAL, TQ: GOKAK,
DIST: BELGAUM.
4. KALLAWWA W/O PADMANNA SAJJANAVAR,
AGE: 28 YEARS, OCC: AGRICULTURE,
R/O DHUPADAL, TQ: GOKAK,
DIST: BELGAUM.
... APPELLANTS
(BY SRI.SHRIHARSH A NEELOPANT, ADV.)
AND:
THE UNION OF INDIA,
REPRESENTED BY ITS GENERAL MANAGER,
SOUTH WESTERN RAILWAY, HUBLI.
... RESPONDENT
(BY SRI.AJAY U PATIL, ADV.)
M.F.A.No.102826/2014
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THIS MFA IS FILED U/S 23(1) OF RAILWAYS CLAIMS
TRIBUNAL ACT, 1987, AGAINST JUDGMENT AND ORDER DATED
28.08.2014, PASSED IN OA II U 64/2010 ON THE FILE OF THE
RAILWAY CLAIMS TRIBUNAL, BANGALORE BENCH AT
BANGALORE, DISMISSING THE APPLICATION FILED U/S. 16 OF
THE RAILWAY CLAIMS TRIBUNAL ACT, 1987 R/W. SEC. 124-A OF
RAILWAYS ACT, 1989.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The Original Application No.OA II U 64/2010 filed under Section 16 of the Railway Claims Tribunal Act, 1987 read with Section 124-A of Railways Act, 1989 (henceforth referred to as the 'Railways Act', for brevity) by the present appellants before the Railway Claims Tribunal, Bangalore Bench at Bangalore (henceforth referred to as the 'Tribunal', for brevity) seeking compensation of `4,00,000/- for the death of one Sri.Laxman Satteppa Chikkod, who is said to have died in an untoward incident, said to have been occurred on 23.06.2009 was not allowed and dismissed by the Tribunal. Challenging the said judgment, the applicants before the Tribunal have M.F.A.No.102826/2014 :3: filed the present appeal under Section 23(1) of the Railways Claims Tribunal Act, 1987.
2. In their memorandum of appeal, the appellants have taken a contention that the impugned judgment passed by the Tribunal is contrary to the material evidence on record. The Tribunal has relied upon the evidence of railway official, who was an interested person and overlooked the evidence adduced by the applicants before it. The observation made by the Tribunal that the death of deceased Laxman Satteppa Chikkod was a suicide was also unfounded one. With this, they have prayed for allowing the appeal by setting aside the judgment under appeal.
3. The respondent is being represented by its counsel.
4. Though the matter was listed in the admission list, but with the consent from both sides, the matter was taken up for its final disposal.
M.F.A.No.102826/2014:4:
5. Heard the arguments on main from both sides. Perused the materials placed before this Court.
6. The summary of the case of the appellants as applicants in the Tribunal was that, one Sri.Laxman Satteppa Chikkod, upon whom the present appellants are dependants, while traveling in the train No.7415 Haripriya Express (Tirupathi-Kolhapur) from Hubli to Ghataprabha on 23.06.2009 due to an untoward incident, which took place in between Belgaum Desur Railway Station at about 12.00 hours KM No.607/9-8 fell down from the train and died on the spot.
The contention of the respondent in the Tribunal was that, the death of deceased Laxman was suicide but not due to any untoward incident. It also denied that the deceased was a bonafide passenger at the time of the occurrence of the incident.
7. On the strength of the pleadings of the parties, the Tribunal framed the following issues: M.F.A.No.102826/2014 :5:
" 1. Whether there was any untoward incident?
2. Whether the deceased was a bonafide passenger?
3. Whether the applicants are the sole dependants of the deceased?
4. Whether the applicants are entitled for any relief and the interest as prayed in the claim application? If so, to what extent? "
8. In support of their claim, the applicants in the Tribunal examined applicant No.1 Smt.Laxmawwa, wife of the deceased as AW.1 and got marked exhibits from A.1 to A.24. They also got examined one Sri.Subhash, Railway Police Sub-Inspector/GRP/Belgaum as AW-2. Respondent examined one Sri.Yellappa Dyammanna, a Gateman/Civil Engineering Department /PW1/SWR/Belgaum and got marked Ex.R.1. The respondent also filed DRM's report and got it marked as Ex.R.2.
After hearing both sides, the Tribunal answered issue Nos.1 and 2 in the negative, issue No.3 as does not arise for consideration, issue No.4 in the negative and proceeded to dismiss the application.
M.F.A.No.102826/2014:6:
9. Learned counsel for the appellants in his argument while reiterating the contention taken up by the appellants in their memorandum of appeal submitted that, the Tribunal failed to notice that the incident that has occurred was an untoward incident and that the death of deceased Laxman was not a suicide. He has also submitted that the Tribunal also failed to notice that the burden of proving that the deceased was not a passenger was upon the respondent-Railways. In support of his argument, he relied upon two judgments reported in 1993 ACJ 846 and AIR 2007 Rajasthan 38.
10. Learned counsel for the respondent in his argument submitted that the deceased was not carrying a journey ticket with him, as such, he was not a passenger and that it is for the applicants to prove that the deceased was a passenger at the time of the incident. He further submitted that the evidence of Yellappa, a Gateman establishes that the death of the deceased was a suicide. M.F.A.No.102826/2014 :7: As such, the impugned judgment does not deserve any interference in it.
11. Section 16 of the Railway Claims Tribunal Act, 1987 deals with the procedure of filing an application to Claims Tribunal. Section 124-A of the Railways Act reads as below:
"124A. Compensation on account of untoward incident.--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 M.F.A.No.102826/2014 :8: 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 traveling by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident."
From a reading of the above mentioned Section 124-A goes to show that in order to be entitled for compensation, it has to be established that an untoward incident has occurred and that the person injured or the deceased was a passenger; in case of death, the applicants are also required to prove that they were the dependants on the person, who was killed in the untoward incident. However, the applicants should not be entitled for any compensation, where it is established that the death or injury to the passenger was falling in any one of the proviso at (a) to (e) to the said Section 124-A. M.F.A.No.102826/2014 :9:
12. Section 123(c) of the Railways Act defines "untoward incident" as below:
"123(c) "untoward incident" means--
(1) (i) the commission of a terrorist act within the meaning of sub-section (1) of section 3 of the Terrorist and Desruptive Activities (Prevention) Act, 1987 (28 of 1987); or
(ii) the making of a violent attack or the commission of robbery or dacoity; or
(iii) the indulging in rioting, shoot-out or arson, by any person in or on any train carrying passegngers, or in a waiting hall, cloak room or reservation or booking office or on any platform or in any other place within the precincts of a railway station; or (2) the accidental falling of any passenger from a train carrying passengers."
13. The case of the appellants is under Section 123(c)(2) that, it was an accidental falling of the deceased from a train carrying passengers. Applicant No.1, who claims to be the wife of the deceased in her examination- in-chief has stated that deceased Laxman was traveling in the train but due to rush and sudden jerk/jolt of the train by accidentally he fell down from the running train and M.F.A.No.102826/2014 : 10 : sustained grievous head injuries and died on the spot. In her cross-examination no specific denial of the description of the alleged untoward incident was made, but it was only suggested that the deceased committed suicide, which suggestion was not admitted as true by the witness. The suggestion made to her from the respondent that the incident has occurred due to the criminal act of the deceased was also not admitted as true by her.
One Sri.Subhash, who was examined as AW.2 and who was the Police Sub-Inspector in Railway Police has stated that his investigation revealed that the death was due to suicide, however, he made it clear that his opinion regarding the death of the deceased was only based on inquest panchanama, post mortem report and the statements of relatives of the deceased, if any. The inquest panchanama at Ex.A.3 shows that the panchas have opined that the death of the deceased appear to be a suicide due to he losing hopes in the life. However, there is no reason found in the inquest panchanama for the M.F.A.No.102826/2014 : 11 : panchas to arrive at such an opinion for the alleged suicide due to dejection by the deceased.
Post mortem report at Ex.A.1 shows that the doctor has opined that the death was due to neurogenic shock as a result of the injury of head sustained by the blunt force impact (railway accident as per police information).
The police final report at Ex.A.4 of Railway Police Station at Belagavi shows that the Circle Inspector of Police has concluded the cause of death of the deceased as suicide. The said Circle Inspector of Police was not examined by the respondent and no opportunity was given to the applicants to cross-examine the said witness in the light of his final report at Ex.A.4. As such, in the absence of an opportunity to the appellants to cross-examine the said witness, his final report and his conclusion regarding nature of the death cannot be accepted. The post mortem report except stating the cause of death does not lead one to conclude that the death was suicide. As such, neither the inquest panchanama nor the police final report nor M.F.A.No.102826/2014 : 12 : even the post mortem report would lead anybody to conclude that the death was due to suicide.
14. The only other witness upon whom the Tribunal had relied upon is the evidence of RW.1- Sri.Yellappa, a Gateman in the Railway Department. The said witness in his examination-in-chief has stated that after hearing through some public about a run over and laying of a dead body at four posts away from his gate spot, he went to the spot and informed about the incident to the Station Master, Belagavi. He has also stated that public informed him that the said person was hit by a train and got run over while crossing the track. The said evidence of RW.1 also makes it very clear that he was not an eyewitness to the incident but was only a hearsay. As such, his evidence is not worth to be believed.
15. When the evidence of AW.1 and RW.1 are weighed, it is clear that RW.1, who is a hearsay witness could not even say as to who informed him about the M.F.A.No.102826/2014 : 13 : nature of death as a run over of the train while the deceased was said to have crossing the track. On the other hand, AW.1 is none else than the wife of the deceased and she in her evidence has clearly stated that her husband was everyday traveling in the same train from his place of work at Gokak to his place of residence. As such, on the ill-fated day also he was traveling in the same train. This is more nearer to the truth, as such can be believed. Thus, the finding of the Tribunal that the death of the deceased was due to suicide is erroneous finding. On the other hand, it has to be taken that the appellants/applicants have proved that the deceased was killed in an untoward incident as falling under Section 124-A of the Railways Act.
16. The second question is whether the deceased was a passenger at the time of the incident. Section 2(29) of the Railways Act defines passenger as "passenger" means a person traveling with a valid pass or ticket. M.F.A.No.102826/2014 : 14 : Explanation (ii) to 124-A of the same Act mentions that for the purpose of the said Section, "passenger" includes a person who has purchased a valid ticket for traveling by a train carrying passengers, on any date or a valid platform ticket and becomes a victim for an untoward incident.
17. It is not in dispute that the untoward incident has happened involving a passenger train in which the deceased was traveling. However, admittedly no journey ticket was found in the possession of the deceased. Taking the said position, the learned counsel for the respondent vehemently submitted that the appellants/applicants have failed to prove that the deceased had a valid journey ticket, as such, he was not a passenger.
On the other hand, learned counsel for the appellants in his argument submitted that the burden of proving that the deceased was not a passenger is upon the Railways but not upon the dependants of the deceased. In M.F.A.No.102826/2014 : 15 : that regard, he relied upon two judgments reported in 1993 ACJ 846 and AIR 2007 Rajasthan 38 respectively.
18. In Raj Kumari and Another Vs. Union of India case reported in 1993 ACJ 846, while dealing with Sections 82-A and 68 of the Railways Act, 1890 a Division Bench of Madhya Pradesh High Court was pleased to observe at para 5 of its judgment as below:
" 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 which 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."M.F.A.No.102826/2014 : 16 :
Further referring to Sections 113 and 122 of the said Act and discussing about traveling without ticket made punishable under certain circumstances in the said Act, the Madhya Pradesh High Court in para 7 of its judgment did not accept the argument of the learned counsel for the Railways before it that the burden was on the dependants of the deceased passenger to prove that the deceased, who died in railway accident, possessed a valid ticket or pass. On the other hand, it observed that in such a situation a presumption has to be drawn that the deceased was a bonafide passenger, who lost his life in the railway accident.
19. Relying on the above said judgment of Madhya Pradesh High Court, in Union of India Vs. Hari Narayan Gupta and Another case reported in AIR 2007 Rajasthan 38, the Rajasthan High Court also held that in the case of an untoward incident falling under Section 124-A of the Railways Act, where the death of the M.F.A.No.102826/2014 : 17 : passenger has occurred due to accidental fall from train and where the claimants may not know whether the deceased had purchased a valid ticket or not, since the railway has means through which they can easily prove that the deceased was not a bonafide passenger, the burden of proof lies on the Railway Administration to lead evidence and to prove that the deceased was not a bonafide passenger.
20. In the instant case also, the same analogy can be drawn keeping in view the object of the Railways Act, 1989 which is a social welfare legislation and particularly of Chapter XIII in it and considering penal provision under Chapter XV of the same Act, where under Section 137 makes it an offence to travel in a passenger train without a valid ticket and that the railways got machineries to supervise and get check ticket less passenger or travelers, it has to be held that in the instant case the Railway Administration has failed to establish M.F.A.No.102826/2014 : 18 : that the deceased Laxman was a ticket less traveler, as such, it has to be presumed that the deceased was a bonafide passenger falling within the scope of explanation
(ii) to Section 124-A of the Railways Act, 1989.
The Tribunal answering issue Nos.1 and 2 before it in the negative and holding that the applicants before it failed to prove that the incident was an untoward incident and that the deceased was a bonafide passenger, had dismissed the claim petition. In view of the fact that the said finding given by the Tribunal since found to be an erroneous finding, the impugned judgment deserves to be set aside and the matter requires to be remanded to the Tribunal to answer issue Nos.3 and 4 before it in the light of the finding given above with respect to issue Nos.1 and
2.
21. Accordingly I proceed to pass the following:
ORDER The appeal is allowed.M.F.A.No.102826/2014 : 19 :
The judgment in OA II U 64/2010 dated 28th August 2014 passed by the Railway Claims Tribunal, Bangalore Bench at Bangalore is set aside. The matter is remanded to the said Tribunal with a direction to dispose of the matter in accordance with law after hearing both sides on issue Nos.3 and 4 framed by it and in the light of the observations made above.
In order to enable the Tribunal to dispose of the matter, which is of the year 2010, as expeditiously as possible, both the parties herein are directed to appear before the said Tribunal on 16.01.2018 without anticipating any fresh notice or summons from the Tribunal.
Registry to transmit a copy of this judgment along with lower court records to the said Tribunal immediately.
Sd/-
JUDGE Sh