Calcutta High Court (Appellete Side)
Suchitra As (Ash) vs Union Of India on 11 April, 2019
Author: Harish Tandon
Bench: Harish Tandon
1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Harish Tandon.
AND
The Hon'ble Justice Subhasis Dasgupta.
F.M.A. 384 of 2015
Suchitra As (Ash)
-Versus-
Union of India
For the Appellant : Mr. Jayanta Banerjee, Adv.
Mr. Prasanta Banerjee, Adv.
Mr. Sandip Bandhyapadhyay, Adv.
Smt. Ruxmini Basu Roy.
For the respondent : Smt. Aparna Banerjee, Adv.
Judgment on : 11.04. 2019 Subhasis Dasgupta, J. :-
This appeal is against the judgment and order dated 8.7.2008 passed by Railway Claims Tribunal, Kolkata Bench in claim application No. U/252/2005 under Section 124-A of the Railways Act, 1989 dismissing the claim case.
The Tribunal dismissed the claim case on the ground that it was not a case of "untoward incident", but a case of 'run over'. The deceased was not a bone fide passenger.
The appellant felt aggrieved with the decision reached by the Railways Claims Tribunal, and preferred the instant appeal. The Tribunal while dismissing the claim application considered each of the circumstances, 2 germane to the incident and proceeded to disbelieve the evidence of two witnesses examined so far as in this case.
Some crucial facts, however, may be mentioned here for decision of this appeal.
The deceased a permanent teacher of Antpur High School under P.S. Jangipara, District Hooghly, accidentally fell down from an over crowded railway train compartment on 1.4.2004 in course of his return travel from school to his home at Rishra, near kilometre post No. 17/30-17/28 in between Serampore and Rishra Railway Station on the main line at about 18.30 hours, when vegetable baskets, kept staked near the exit/entrance of train compartment, suddenly fell on him causing the deceased victim to loose his balance, and subsequently fell down from the moving train and ultimately died on the spot. The claimant being the widow of the deceased husband preferred this claim case under Section 124-A of the Railway Act, describing the incident to be an untoward incident, not covered within the exception, shown in (a) to (e) of Section 124A of the Railways Act. The accidental falling of the deceased from the moving train was witnessed by PW-2, who had the occasion to board the same train from Serampore, where he had been earlier on the same day to meet his ailing sister, and said witness had seen the untoward incident at the time of his performing return journey from Serampore to Rishra. The claimant/wife produced monthly ticket of her deceased husband covering the date of accident, which was disbelieved by the Tribunal on the premise that it was not recovered from the possession of the dead body of the deceased, or near the precincts of the railway track, where the dead body was found lying after the incident.3
Learned advocate for the claimant/appellant submitted that mere recovery of dead body within the railway track together with non-recovery of railway ticket would not be itself sufficient to negate a claim case simply on the basis of an observation of Tribunal Judge holding the case to be a run over without any bone fide ticket and thereby denying the possibility of undertaking journey at the relevant point time in a moving train, as contended. Thus, according to appellant/claimant, the observation reached by the Railway Claims Tribunal was not on the basis of evidence adduced by the claimant supported by documents, and rather it was not a perfect appreciation of the evidence adduced so far in this case.
Repelling the contention raised by appellant, learned advocate for the respondent being railway authority submitted that since the dead body was lying inside the railway track being separated from his head and both hands, as revealed from the police inquest report together with railway memo issued by the station master of Seoraphuli to O.C GRPS Seoraphuli for arranging disposal of the dead body, the case complained of at best could to be construed to be a run over without any bone fide ticket, not akin to an untoward incident and also being covered within the exception curved out in '(a)' to '(e)' of Section 124-A of Railway Act. Dismissal of the claim case by the Railway Claims Tribunal was perfectly done requiring no interference by the Appellate Court, as contended by appellant.
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The points to be addressed by this Appellate Court requiring decision are whether the deceased suffered death in consequence of an untoward incident under Section 123(c) of the Railways Act, not coverable within the exception shown in 'a' to 'e' of Section 124-A of the Railways Act or not, and whether the recovery of dead body in between the railway track together with no recovery of a bone fide railway ticket would negate the claim case or not.
Learned Judge of Railway claims Tribunal observed in the impugned judgment that two (2) contradictory versions could be found available from the evidence so far as adduced, one that the victim had fallen down from the running train, and another that the deceased had been run over by an upcoming train. Relying upon the railway memo, PM report and the police inquest report the learned Judge of Railway Claims Tribunal proceeded to hold in application of the principles of preponderance of probability that in a case of accidental falling down from a running train, it was not possible for a person to be dissected by the wheels of the train, and causing entire dissected body to place inside the railway track. Thus, according to learned Judge of Railway Claims Tribunal, the existence of the body of the deceased between the railway lines could be only made possible, when a person comes before running train, while crossing the track carelessly or otherwise. The possibility of accidental falling down from course of travelling in a moving railway train by the deceased was completely disbelieved.
Claimant/appellant examined as many as two witnesses only, like PW1, the widow of the deceased, and PW2, the friend of the deceased, who had 5 seen the accidental falling of deceased from moving railway train and his instantaneous death being a co-passengers of same train. PW1 is a post occurrence witness, who was made to know about the death of the deceased subsequent to the incident by the elder brother of the deceased. The accidental falling of the deceased from a moving railway train and the circumstances involved therein was conveyed by PW-2, (eye witness) to the elder brother of the deceased. PW-2 has his residence in the same locality where deceased victim had his own house, but PW-2 was not related by blood to deceased.
In the written statement furnished by the respondent, it was specifically mentioned therein that the body having found to exist inside the railway tract, it was a case of suicidal in nature, contrary to accidental falling, so as to come up within the meaning of untoward incident under Section 123(c) of Railways Act. The learned Tribunal Judge after considering of the evidence arrived at a definite finding that by reason of recovery of the dead body revealing its position inside the railway track, as reflected in inquest report being the first hand account of the incident, the incident under reference pointed out to be a case of run over, not a case of falling down from a moving train.
The argument raised by appellant on this score was that the findings reached by the Tribunal was not based on evidence, adduced in this case and it should not be entertained by the Appellate Court to disbelieve a claim case, sought to be established by adducing cogent evidence before the Railway Claims Tribunal.
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The incident was alleged to be a case of suicidal in nature as per written statement, while the learned Tribunal Judge on the basis of the pleading of the Railway Claims Tribunal proceeded to make out a case of run over disbelieving version of accidental falling down causing deceased victim to suffer instant death.
Learned Tribunal Judge put much emphasis on the police inquest report prepared under Section 174 Cr. P.C., the railway memo generated by the station master Seoraphuli together with the post-mortem report so as to disbelieve the version of witnesses examined in this case. The police inquest showed that the body of the deceased was found to exist inside the railway track completely separated from his head and both hands with mark of cut above the elbow. The intervening distance between the head and the main trunk of the deceased could not be mentioned in the police inquest report. The opinion of the witnesses as to the cause of death revealed in course of conducting preliminary enquiry as to the cause of death that the deceased suffered death having fallen down from a moving train and in consequence of run over. The opinion of the police officer conducting the police inquest report showed that in consequence of preliminary enquiry, the deceased victim suffered death having fallen down from a moving train and further in consequence of run over. It was a preliminary finding as regards the cause of death of deceased by the inquest performing police officer, which is of course subject to investigation, to be undertaken by the police under the provisions of law. Two witnesses were present, one of whom was the elder brother of the deceased, from whom the inquest performing police officer enquired of in order to arrive at his preliminary opinion as to the cause of death, while conducting preliminary enquiry therefor.
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The objective purpose of preparing police inquest report is to mention the apparent cause of death of the deceased describing such wounds, fractures, bruises and other marks of inquiry, that may be found on the body and stating in what manner or by what weapon or instrument, if any, such marks appear to have been inflicted. Such police inquest report has to be necessarily prepared in presence of two responsible witness of the neighbourhood where such death of deceased was caused upon receiving a reasonable suspicion as to the death of the deceased. The sole object of police inquest report, prepared under Section 174 Cr. P.C. being to reveal the apparent cause of death, same cannot be used as substantive piece of evidence.
The apparent cause of death, as transpired by the police inquest performing police officer in course of his conducting preliminary enquiry could not be taken into account by the Tribunal Judge merely having found the presence of the body inside the railway track with head separated from the body towards north without conspicuously mentioning the intervening space or distance of the head and the body of the deceased. The post-mortem report further demonstrated that the head of the deceased was separated from the body together with both arms cut being separated from the body. The railway memo generated for the purpose indicated that on the basis of the report of driver of 3050 down train, it could be known to railway authority that one unknown mail person had been lying dead inside the track in between Seoraphuli and Rishra Station. The police investigation report showed materials that the deceased had been run over and succumbed to injuries after having fallen down from a moving train. The evidence of PW-2, (an eye witness) testified in the cross-examination, the circumstances as to 8 how he boarded the train and what occasion he had to view the incident at the relevant point of time being a co-passenger of train compartment. According to PW-2 that is the train, in which he boarded from Seoraphuli in course of his return journey to Rishra from Serampore, some vegetables baskets were kept staked at the left inside of exist/entrance point for off loading at Rishra railway station. The baskets suddenly got tilted following a jerk of the compartment and the basket fell on the head of the deceased causing him to loose his balance and fell down accidentally from that compartment, when the train was in motion. PW-2 categorically stated that the co-passengers shouted and even pulled down the chain to stop the train. PW-2 admittedly got down at Rishra and proceeded to the spot and found there that his friend, deceased lying dead with his head and two hands cut. He was so nervous seeing his friend body in such a formidable state that other people watching his position even supplied him water and thereafter he reported the incident to gate man and ultimately to the elder brother of the deceased. The witness denied that it was a case of run over in answer to a suggestion being put by the railway authority to that effect. PW-2 had his bone fide ticket on the fateful day of incident. The railway authority had nothing to discredit the testimony of PW-2, as specifically transpired in his cross-examination, by producing satisfactory evidence. Circumstances were shown to exist in the cross-examination of an eye witness/PW-2 as to why he could not be cited as a witness to the police inquest, while police inquest was prepared under Section 174 Cr. P.C., as he suffered serious mental shock watching dead body of his friend in railway track.
PW-1 being the widow of the deceased spoke in her testimony that on the day of incident her husband had left house at about 9.AM in the morning 9 and he was supposed to return by 7 PM in the evening. Her deceased husband was a permanent school teacher. At the time of accident the deceased was not mentally depressed. Thus according to PW-1, her husband did not commit any suicide on the day of accident. The place of occurrence was described to be situated at a distance of 20 minutes away from locality, where both deceased and the PW-2(eye witness) had there original place of residence. The monthly ticket of the deceased together with an identity card of the deceased showed materials that it was purchased with effect from 1.4.04.
Whether a person would commit suicide by laying or putting his body before a moving train, or causing a person's body to put in front of a moving train', while crossing the track carelessly could be conveniently ascertained from the facts and circumstances involved in a particular case together with the attending circumstances, if therebe any. The intention behind of the deceased is of paramount consideration, which has to be gathered from the facts and circumstances together with the attending circumstances of a particular case. It is a case, where the deceased victim had no mental depression conducive for commission of suicide. The victim even had purchased monthly ticket with effect from 1.4.04. The deceased suffered death in course of his return journey. The place of occurrence where the dead body of the deceased was found to exist was intervened by distance of 20 minutes walk from the locality, where the deceased had his own house. PW-2 is not a person having his blood relation with the deceased victim. The facts and circumstances, as gathered here together with the attending circumstances discussed herein above, would not demonstrate the requisite intention necessary to reveal the attending circumstances, supportive of 10 commission of suicide, far to speak off a case based on run over, caused purposefully and carelessly.
There may be a number of hypothetical theories as to how the deceased suffered death, but the theory which is in consequence with the evidence on record has to be accepted. Court is not concerned with the academic exercise and theoretical possibilities, but with practical relation derived from evidence adduced in a particular case during trial.
When a person falls down from a speeding train, he sustained multiple injuries in consequence of repetitive impacts and rolling depending upon the surface on which the body falls together with the relative velocity of falling body and that aspects not having been adequately taken care of by the learned Tribunal Judge, it cannot be concluded with all certainty that the finding reached by the Tribunal making out the case of run over upon considering the recovery of the body of the deceased from inside the railway track was the one and only probability, reasonably drawable from a given set of facts and thereby leaving aside the other probabilities to go away at the same time.
There was nothing on record to suggest or even surmise a plausible reason for the victim to commit suicide. Consequently the theory of run over sought to be established by the learned Tribunal Judge together with the theory of suicide pleaded in the written statement of the railway authority, seems to be a matter of invention, based on imagination, than even a remote possibility, warranted or could reasonably be justified on the proved facts. As was observed by the learned Tribunal Judge, while dismissing the claim application that two versions were available with regard to the death of the 11 deceased, one that the victim had fallen down from the running train and suffered instant death, and another the victim had been run over by coming a train, so the version pertaining to death of the deceased, consequent upon falling down from a moving train being based on evidence has to be preferred keeping in mind that it is a piece of beneficial legislation.
Section 124A of the Railways Act provided for compensation to a passenger or his dependants who suffers injuries or death, as the case may be, in an untoward incident, where the untoward incident is not the consequence of wrongful act, ignorance or default on the part of the railway administration. The attending circumstances so far gathered in the case is not at all sufficient to infer reasonably that the deceased victim at the time of incident act callously, unwisely or imprudently. Mere presence of body of the deceased inside the railway track in the given set of facts without proof of attending circumstances revealing the intention of the deceased neither would establish a case of run over, nor the case similar to that of theory of commission of suicide. For the discussion made above, the findings reached by the Tribunal, while dismissing the claim application believing the death of deceased to be a case of run over and thereby ignoring the evidence of the witnesses, both oral and documentary indicating a case of accidental falling from a moving train and causing victim to suffer instant death appears to be not a perfect appreciation of the evidence adduced. Death of the deceased being consequent upon falling down from a moving train would definitely attract the 'untoward incident' within a meaning of Section 123(c) of Railways Act. Mere existence of dissected body within railway track not revealing the intervening gap between the head with both the arms and that of the body of deceased would not itself alone sufficient to negate a claim case. 12
True it is that no railway ticket was recovered from the possession of the deceased as well as at the spot, where the body of the deceased was found to exist. The monthly ticket together with identity card of the deceased was subsequently produced by the claimant in course of trial of this case, which was disbelieved by the Tribunal on the score that no seizure list was prepared revealing such recovery either from the possession or from the vicinity of the dead body recovered. The learned Trial Judge proceeded a step ahead disbelieving the case of accidental falling down from moving train of deceased and held that victim did not even board any train on the alleged day and time of occurrence. It is true that at the time of ascertaining the apparent cause of death of the deceased by police performing inquest over the dead body of the deceased, the recovery of the monthly ticket together with identity card could not be surfaced.
From the testimony of PW-1 it is evident that the elder brother of the deceased collected the bag of the deceased containing monthly ticket together with identity card of the deceased from GRP personnel after the death of deceased. This evidence went unchallenged in cross-examination of PW-1 meaning thereby that in the absence of any suggestion being put to that effect denying such fact, the unchallenged testimony providing clarification as to the existence of a bone fide ticket of deceased at the time of travelling, would be treated to be sufficient at least for present purpose to believe that victim had a bone fide ticket on the day of incident.
It would be profitable her to refer relevant paragraph of a decision of Apex Court, rendered in the case of Union of India vs. Rani Devi reported in 2018(3) TAC 26 (SC) which may be mentioned as hereunder: 13
17.4 "We thus hold that mere presence of a body on the Railway premises will not be conclusive to hold that injured or deceased was a bone fide passenger for which claim for compensation could be maintained. However, mere absence of ticket with such injured or deceased will not negative the claim that he was a bone fide passenger.
Initial burden will be on the claimant which can be discharged by filing an affidavit of the relevant facts and burden will then shift on the Railways and the issue can be decided on the facts shown or the attending circumstances. This will have to be dealt with from case to case on the basis of facts found. The legal position in this regard will stand explained accordingly.'' Since the initial burden of claim, as asserted in the claim petition with regard to the accidental falling down of deceased from a moving train so as to make out a case to be covered by the meaning of untoward incident as contemplated under Section 123 (c) of Railways Act having been successfully discharged by filing an affidavit of the relevant facts in application of the provisions Section 101 of the evidence Act, the burden got automatically shifted to Railway authority, which has to be necessarily discharged by furnishing cogent evidence at the instance of railway authority. In the instant case, neither the driver/guard of the passenger train, from which the victim had fallen down for an untoward incident, was examined in this case, nor the cabin man, station master generating the memo, nor the driver of the 3050 down train reporting the incident to station master, was examined in order to discharge the shifted onus in accordance with law so as to negate the claim case. The name of the persons mentioned hereinabove are the best probable persons who have had their occasion to know about the incident first, and non-examination of the same would attract the presumption against the railway authority available under Section 114(g) of the evidence Act, and it should not be allowed to be mitigated merely looking at the recovery of dead body of deceased from inside the Railway track 14 It is trite law tht the statement of witnesses, if found cogent and reliable can be accepted without any corroboration. The incident now under reference being within the meaning of untoward incident under Section 123
(c) of the Railway Act 1989, the compensation shall be payable by the railway compensation, for the exception curved out in Section 124 (a) to (e) not being straightway attracted to.
Admittedly the accident with the meaning of 'untoward incident' was occurred on 01.04.04, when the liability to pay compensation had already arisen before the amendment was brought in enhancing the compensation from Rs.4,00,000/- to Rs.8,00,000/-. The Railway Accidents and Untoward Incident (Compensation) Rules, 1990 provide a sehedule prescribing the amount of compensation to be payable in respect of the death and injuries. During the pendency of the matter by way of amendment, amount of compensation, which was earlier at the level of Rs.4,00,000/- in case of death, was raised to Rs.8,00,000/-.
It would be most relevant here to refer a decision of Apex Court rendered in the case of Union of India vs. Rani Devi (supra) wherein in para 15.3 and para 15.4, it was elaborately discussed as to what would be the quantum of compensation and whether it would be as per the prescribed rate of compensation as on the date of application/incident or on the date of order awarding compensation together with other points, which may be mentioned as hereinunder.
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"15.3............We are of the view that law in the present context should be taken to be that the liability will accrue on the date of the accident and the amount applicable as on that date will be the amount recoverable but the claimant will get interest from the date of accident till the payment at such rate as many be considered just and fair from time to time. In this context, rate of interest applicable in motor accident claim cases can be held to be reasonable and fair. Once concept of interest has been introduced, principles of Workmen Compensation Act can certainly be applied and judgment of 4-Judge Bench in Pratap Narain Singh Deo reported in (1976) 1 SCC 189 will fully apply. Wherever it is found that the revised amount of applicable compensation as on the date of award of the Tribunal is less than the prescribed amount of compensation as on the date of accident with interest, higher of the two amounts ought to be awarded on the principle of beneficial legislation. Present legislation is certainly a piece of beneficent legislation.
15.4. Accordingly, we conclude that compensation will be payable as applicable on the date of the accident with interest as may be considered reasonable from time to time on the same pattern as in accident claim cases. If the amount so calculated is less than the amount prescribed as on the date of the award of the Tribunal, the claimant will be entitled to higher of the two amounts. This order will not affect the awards which have already become final and where limitation for challenging such awards has expired, this order will not be itself be a ground for condonation of delay. Seeming conflict in Rathi Menon reported in (2001) 3 SCC 714 and Kalandi Charan Sahoo reported in 2018(7) SCJ 159 stands explained accordingly. The 4- Judge Bench judgment in Pratap Narain Singh Deo holds the field on the subject and squarely applies to the present situation. Compensation as applicable on the date of the accident has to be given with reasonable interest and to give effect to the mandate of beneficial legislation, if compensation as provided on the date of award of the Tribunal is higher than unrevised amount with interest, the higher of the two amounts has to be given."
What the Apex Court had laid down in the case of Union of India vs. Rani Devi (supra) is that the amount of compensation payable on the date of accident with reasonable rate of interest shall first be calculated. If the amount so calculated is less than the amount prescribed as on the date of the award, the claimant would be entitled to higher of these two amounts. 16
The Court makes it clear, that the liability of the Railway authority having arisen before the amendment was brought in, the basic figure would be as per schedule as was in existence before the amendment, and on such basic figure reasonable rate of interest would be calculated to be mentioned hereafter. If there be any difference between amount so calculated and the amount prescribed in the schedule, as on the date of the award, the higher of the two figures would be the measure of compensation. The accident having occurred before the amendment, the amount of compensation should be Rs.4,00,000/- with 6% interest per annum from the date of accident till the disbursement of the award subject to maximum of Rs.8,00,000/- in the light of the principle laid down in Union of India vs. Rani Devi (supra) . The respondent/Railway authority is directed to pay the compensation to claimant/appellant to the extent as shown hereinabove within 60 days from the date of delivery of judgment failing which the appellant/claimant would be at liberty to put the award into the execution.
In the result the appeal succeeds.
Urgent certified copy of this order if applied for, be made available to the parties upon compliance with requisite formalities.
I agree.
(Harish Tandon, J.) (Subhasis Dasgupta, J.)