Jharkhand High Court
Smt. Lilo Devi vs Union Of India Through The General ... on 30 June, 2020
Equivalent citations: AIRONLINE 2020 JHA 1453
Author: Kailash Prasad Deo
Bench: Kailash Prasad Deo
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Miscellaneous Appellate Jurisdiction)
M.A. No. 592 of 2018
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1. Smt. Lilo Devi, w/o deceased Rajan Kumar Sah.
2. Soni Kumari (minor) D/O deceased Rajan Kumar Sah.
3. Sri Lakhindar Sah, S/o Late Bhushan Sah .
4. Smt. Kaushalya Devi, W/o Sri Lakhindar Sah.
All resident of village-Pathariya, P.O.-Pathariya, P.S.- Kotalpokhar, Sub-Div.- Rajmahal, Dist.- Sahibganj (Jharkhand) ............Appellants.
Versus Union of India through the General Manager, Eastern Railway, Kolkata, P.O.+ P.S- Koilaghat Street, Kolkata, (W.B.) ....... Respondent.
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CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
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For the Appellants : Mr. Shashi Kant Thakur, Advocate
For the Respondent : Mr. Gautam Rakesh, Advocate
08/Dated: 30/06/2020
1. Heard, learned counsel for the parties.
2. The appellants are the claimants before this Court. They have preferred the instant appeal against the judgment dated 17.04.2018 passed in Case No.OA(IIU)/RNC/61/2017, whereby the claim application of the claimants/ appellants have been dismissed by the learned Railway Claim Tribunal, Ranchi Bench, Ranchi on perverse finding contrary to the record.
3. Learned counsel for the appellants, Mr. Shashi Kant Thakur has assailed the impugned award on the ground that the deceased- Ranjan Kumar Sah was travelling in a train from Kotalpokhar to Barharwa, vide Train No.53403 UP (Rampurhat-Gaya Passenger) but he fell down near Village Labda (before Barharwa Railway Station), due to heavy rush from running train and succumbed to the injuries. The information was given to the family members and thereafter unnatural death case was instituted at Barharwa Police Station vide UD Case No.1 of 2015.
4. Learned counsel for the appellants has submitted that the learned Tribunal has wrongly decided issue no.(1) by not considering deceased- Ranjan Kumar Sah as a bona fide passenger and issue no.(2) by not considering said incident as untoward incident defined under Section 123(c)(2) of the Railways Act, 1989. Though their was enough materials on record.
Learned counsel for the appellants has further submitted that the evidence of A.W.3- Lakhinder Saha particularly at Paras 1, 2, 3 and 4 clearly shows that deceased had purchased ticket on the alleged date of accident on 21.01.2015 between 7 to 8 A.M. for travelling a Train No.53403 UP (Rampurhat-Gaya Passenger) from Kotalpokhar to Barharwa and as soon as train reached near Village Labda because of jolt and heavy pressure, the victim fell down and died.
5. During cross-examination, the witness (AW-3) has categorically stated that from -2- possession of his son no ticket nor his mobile was recovered nor any article was given by the police, but has categorically denied during cross-examination that it is wrong to allege that his son has sustained injury from a running train while crossing the track rather A.W.-3 has categorically stated in his cross-examination, which is at page of 54 of the LCR, that he has stated in the affidavit that his son has fallen from train.
6. Learned counsel for the appellants has thus, submitted that in view of the evidence of A.W.3- Lakhinder Saha, father of the deceased, the evidence brought by A.W.3 is sufficient to prove the deceased to be a bona-fide passenger as defined under Section 2(29) of the Railways Act, 1989 in view of the judgment rendered in the case of Union of India vs. Rina Devi, reported in (2019) 3 SCC 572 para 29 and the incident comes under the definition of untoward incident as defined under Section 123(c)(2) of the Railways Act, 1989, in view of the judgment passed in the case of Union of India vs. Prabhakaran Vijaya Kumar AIR 2008(2) T.A.C. 777(SC) equivalent 2008(9) SCC 527, as such, the impugned order of dismissal of claim application, be set aside and direction may be given to the respondent- Railways to pay the compensation to the tune of Rs.8,00,000/- to the claimants.
7. Learned counsel for the respondent -UOI, Mr. Gautam Rakesh has submitted that learned Tribunal has rightly repudiated the claim.
Learned counsel for the respondent -UOI has further submitted that the respondent has filed D.R.M.'s report along with other reports marked as Exhibit R1 to R4. The learned Tribunal has considered the DRM's report and repudiated the claim considering the deceased- Ranjan Kumar Sah is not a bona-fide passenger and the incident is not an untoward incident as defined under Section 123(c)(2) of the Railways Act, 1989, as such, this Court may not interfere with the same.
8. Heard, learned counsel for the appellants and perused the entire materials including the L.C.R. called for by this Court. From perusal of evidence of A.W.3- Lakhinder Saha, father of the deceased- Ranjan Kumar Sah, this Court has found that :-
1- ;g fd eSa tUe ls Hkkjrh; ukxfjd ,oa mijksDr irs dk LFkk;h fuoklh gwWa rFkk mDr okn esjh irksgw yhyks nsoh us dh gSA 2- ;g fd e`rd esjs iq= FksA og izR;sd fnu dh HkkWafr fnukad& 21-01-2015 dks cjgjok Øs'kj esa dke djus tkrk FkkA 3- ;g fd e`rd mDr frfFk dks 07%00&08%00 cts lqcg dksVkyiks[kj LVs'ku rd fVdV ysdj jkeiqjgkV& x;k iSlsUtj Vªsu lañ& 53403 vi ls cjgjok tk jgk FkkA ;g fd tc Vsªu cjgjok LVs'ku ls igys ycnk xkWao ds ikl igq¡pk rks Vsªu ds Hkkjh >Vds ls e`rd fxj x;k vkSj ?kk;y gksus ds dkj.k e`R;q gks x;hA e`Rkd jatu dqekj esjk csVk FkkA ?kVuk 21-01-2015 dh gSA oks dksVkyiks[kj ls cjgjok LVs'ku dke djus tk jgk FkkA oks iksdysu pykrk FkkA esjs e`rd csVs dh 'kknh gks pqdh Fkh mldh iRuh thfor gS mldk uke yhyks nsoh gSA esjs e`rd yM+ds ds ,d yM+dh lksuh dqekjh gSA esjh iRuh Hkh thfor gSA eq>s dksVkyiks[kj Fkkuk us ?kVuk ds ckjs [kcj fd;k FkkA eSa ?kVukLFky ij x;k FkkA ogk¡ eSaus iqfyl dks viuk QnZc;ku fy[kok;k FkkA mlesa eSaus flQZ gLRkk{kj fd;k FkkA mlesa D;k fy[kk Fkk gesa ugha irk gSA QnZc;ku dh fy[kh ckrs iqfyl us gesa crk;h FkhA esjs yM+ds ds ikl ls dksbZ fVdV ugha feyk FkkA esjs yM+ds dk eksckbZy Hkh ugha feyk FkkA iqfyl us eq>s esjs yM+ds &3& dk dksbZ lkeku ugha fn;k FkkA lq>ko& esjk dguk gS fd oks fdlh pyrh Vsªu ls VSªd ikj djrs gq, dV dj ej x;k blfy, vki eqvkotk ds gdnkj ugha gSA mÙkj& ;s xyr gS fd esjsk yM+dk VSªd ikj djrs gqq, Vsªu ls dV x;k Fkk ;s xyr gS fd eSaus xyr dsl fd;k gSA esjs yM+ds dks dfFkr rkSj ij Vsªu ls fxjrs gq, fdlh us ugha ns[kk FkkA eSaus vius 'kiFki= esa Vsªu ls fxjus dh ckr crk;h gS oks ugha crk ldrk fd fdl vk/kkj ij dgk gSA
9. Learned counsel for the appellants has placed reliance on the judgment passed by the Hon'ble Apex Court in the case of Rina Devi (Supra) considering para 29 that "Initial burden will be on the claimant which can be discharged by filing an affidavit of the relevant facts and the burden will then shift on the Railways and the issue can be decided on the facts shown or the attending circumstances."
10. This Court finds that there is sufficient material adduced by the claimants showing deceased- Ranjan Kumar Sah as a bona fide passenger as defined under Section 2(29) of the Railways Act, 1989.
11. So far the incident comes under definition of under Section 123(c)(2) of the Railways Act, 1989 which has been decided in the case of Union of India vs. Prabhakaran Vijaya Kumar AIR 2008(2) T.A.C. 777(SC) equivalent 2008(9) SCC 527, of which paras 14 to 17 are profitably quoted hereunder:-
14. In our opinion, if we adopt a restrictive meaning to the expression "accidental falling of a passenger from a train carrying passengers" in Section 123(c) of the Railways Act, we will be depriving a large number of railway passengers from getting compensation in railway accidents. It is well known that in our country there are crores of people who travel by railway trains since everybody cannot afford travelling by air or in a private car. By giving a restrictive and narrow meaning to the expression we will be depriving a large number of victims of train accidents (particularly poor and middle class people) from getting compensation under the Railways Act. Hence, in our opinion, the expression "accidental falling of a passenger from a train carrying passengers"
includes accidents when a bona fide passenger i.e. a passenger travelling with a valid ticket or pass is trying to enter into a railway train and falls down during the process. In other words, a purposive, and not literal interpretation should be given to the expression.
15. Section 2(29) of the Railways Act defines "passenger" to mean a person travelling with a valid pass or ticket. Section 123(c) of the Railways Act defines "untoward incident" to include the accidental falling of any passenger from a train carrying passengers. Section 124-A of the Railways Act with which we are concerned states:
"124-A. Compensation on account of untoward incidents.--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 dependent 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;-4-
(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 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 travelling by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident."
(emphasis supplied)
16. The accident in which Smt Abja died is clearly not covered by the proviso to Section 124-A. The accident did not occur because of any of the reasons mentioned in clauses (a) to (e) of the proviso to Section 124-A. Hence, in our opinion, the present case is clearly covered by the main body of Section 124-A of the Railways Act, and not its proviso.
17. Section 124-A lays down strict liability or no fault liability in case of railway accidents. Hence, if a case comes within the purview of Section 124-A it is wholly irrelevant as to who was at fault.
12. On the other hand, this Court has perused the impugned judgment as because the learned counsel for the respondent-Railways has submitted that at page no.3, Mr. Dipankar Lahiri, Member (Technical), Railway Claims Tribunal, Ranchi Bench, Ranchi has recorded that "on the other hand, the respondent has filed DRM's report along with other documents marked as Exhts. R1 to R4."
13. This Court has perused the entire record and found that the DRM's report is not on record rather Exhibits R1 to R4 is on record, which are as follows:-
"(a) Exhibits R1, the submission of enquiry report in connection with untoward incident vide Case No.MA/RNC/12/2017 Lilo Devi & Ors. vs. Union of India dated 22.06.2017 submitted by SI/S.K. Sudha, RPF/Post/Barharwa.
(b) Exhibits R2, the station diary entry No.985 on the statement of ASI, Naval Kishor Paswan.
(c)Exhibit-R3, the report of Divisional Security Commissioner/RPF/ Eastern Railway/Malda dated 05.07.2017 before the Chief Claim Manager, Eastern Railway, Kolkata.
(d) Exhibit-R4, report of SI/S.K. Sudha, RPF/Post/Barharwa regarding submission of enquiry report before the Inspector In-charge/RPF/Post/ Barharwa".
14. No DRM's report has been appended with these Exhibits- R1 to R4. This Court has taken pain to search the same from the LCR and also invited the learned counsel for the Railway to peruse the same, though the Court is functioning through virtual system but has given option to the counsel for the respondent-railways to peruse the same as this Court is pained to see the conduct of Mr. Dipankar Lahiri, Member (Technical) in recording perverse finding.
15. In the present case, there is no DRM's report. But in the impugned judgment at internal page no.3 it has wrongly been mentioned that Railways has filed DRM's report along with other documents marked as Exhibits-R1 to R4.
-5-This Court has not found DRM's report rather has only found as Exhibits- R1 to R4, as stated above. This Court is taking serious view in the matter because in the previous file i.e. M.A. No.579 of 2018, the impugned judgment was passed by the same officer, Mr. Dipankar Lahiri, Member (Technical), Railway Claims Tribunal, Ranchi Bench, Ranchi recording perverse finding, which is not correct as per the the record.
16. This Court has examined the LCR and has found that in the last page i.e. page no.3 of Case No.OA(IIU)/RNC/31/2017 which is impugned in M.A. No.579 of 2018, the Member (Technical), Railway Claims Tribunal, Ranchi Bench, Ranchi has recorded the finding which is quoted hereinafter:-
"In the present case neither has any affidavit been filed stating the relevant facts nor have any circumstantial evidence furnished by the applicant to establish that the deceased was a bona fide passenger and in absence of any evidence whatsoever- either direct or circumstantial-to establish the bonafide nature of the deceased, issue no.1 has been decided against the applicant."
In the said case after considering the LCR, this Court has allowed the appeal (M.A. No.579 of 2018) by setting aside the impugned judgment. The evidence of AW-1, Kalpana Pradhan at paras 3, 4 and 8 of examination-in-chief, which are as follows:-
"3. That on the fateful day i.e. on 01.09.2016, my son was going to Howrah Jn. From Dhanbad Jn. by the train No.12340 DN Dhanbad- Howrah Coal-field Superfast Express train after purchasing a IInd Class Valid Rly journey ticket, he boarded in the general bogie of the said train as a bonafide passenger.
4. That the valid journey ticket from Dhanbad Jn. to Howrah Jn. Of my son has been lost due to in untoward incident.
8. That thereafter on information of the incident the Rail P.P. Kumar Dhubi [G.R.P.S. Dhanbad] registered a U.D. Case No.47 of 2016 dated 01.09.2016 and prepared a inquest report and after due Post-mortem and identification the police gave the dead body to his family members for final rites and rituals".
17. During cross-examination at paras 8 and 11, this witness has replied to the following questions:-
8- iz'u& oks Vsªu dk ;k=k fVdV dVk;k Fkk fd ugha ;s Hkh vkidks irk ugha gSa\ mÙkj& oks gesa Qksu ls crk;k Fkk ftuds ?kj esa dke djrk gS mlds ?kj esa Qksu ls crk;k fd fVdV dVk;s gSa vkSj Vsªu ls vk jgs gSa Vsªu esa cgqr HkhM+ gSA 11- iz'u& 'kiFki= ds iSjk&6 esa tks fy[ks gSa ;s ckr vkidks dkSu crk;k\ mÙkj& yM+dk gh crk;k Fkk Qksu ij fd ge Vsªu ls vk jgs gSa vkSj Vsªu esa cgqr HkhM+ gSA esjs ?kj esa vkSj dksbZ ugha gS oks esjk ,dykSrk csVk FkkA
18. It appears that, Mr. Dipankar Lahiri, Member (Technical) Railway Claims Tribunal, Ranchi Bench, Ranchi is not working in accordance with the rules and law as he is recording perverse finding which is not correct as per the record. This act of the Member (Technical) is highly deprecated by this Court.
19. Under the aforesaid circumstances, considering the material, as discussed -6- above and rejection of the claim application on false pretext of DRM's report, which has not been brought on record, this Court allows this appeal by setting aside the impugned judgment dated 17.04.2018 passed by Railway Claims Tribunal, Ranchi Bench, Ranchi in Case No.OA(IIU)/RNC/61/2017.
20. Accordingly, the instant appeal is allowed.
21. The respondent- Eastern Railway is directed to indemnify amount of Rs.4,00,000/- with interest as the incident was of dated 21.01.2015 or Rs.8,00,000/- as per the new amended rules, which is applicable from 01.01.2017 whichever is higher, in favour of the claimants since it is benevolent legislation.
22. It is expected that respondent/Railway shall indemnify the awarded amount within a period of 90 days to the appellants/claimants.
23. Let LCR be sent down to the court concerned at once.
(Kailash Prasad Deo, J.) sandeep/R.S.-