Telangana High Court
Nasreen Sultana, Karimnagar Dist 3 ... vs The Union Of India, Rep By Its Gm, Scr, ... on 16 August, 2022
THE HON'BLE SRI JUSTICE SAMBASIVA RAO NAIDU
CIVIL MISC. APPEAL No.1012 OF 2016
JUDGMENT:
Being aggrieved by the order of Railway Claims Tribunal in O.A.II.(U).No.279 of 2010 dated 25.10.2016, the applicants therein have filed the present Civil Miscellaneous Appeal and sought for setting aside the order of the Tribunal and also for grant of Rs.4,00,000/- with interest @ 9% per annum towards compensation for the death of one Mohd. Fashiuddin. The appellants herein are the wife, mother and minor children of the said Mohd. Fashiuddin (hereinafter be referred to as deceased). According to their application before the Tribunal, it was alleged that on 28.07.2010 the deceased went to Mancherial on some personal work and after meeting his brother, he wanted to proceed to Sirpur Kagaznagar, for that purpose he along with the son of his brother went to the railway station at Mancherial and boarded the train i.e., 336 Nagpur passenger train after purchasing ticket. 2
SSRN, J CMA.No.1012 of 2016 He got down at Bellampally railway station for drinking water and as there was heavy rush in the train, he boarded the train again at Bellampally, but due to jerks of the train, he accidentally fell down from the train at Bellampally railway station and immediately he was shifted to Government Hospital at Bellampally, but before he reached hospital, he succumbed to the injuries. In view of untoward accident, the appellants herein filed the present O.A.II.(U).No.279 of 2010 dated 25.10.2016 and sought an amount of Rs.4,00,000/- towards compensation.
2. Respondent/Railways opposed the claim filed by the appellants and submitted that the deceased was not having a valid ticket, thereby he cannot be treated as bona fide passenger, as such the respondent is not liable to pay any compensation.
3. On the basis of pleadings, the Tribunal framed 3 issues. During enquiry, the 1st appellant herein was examined as Aw1 and she got marked Exs.A1 to A5. 3
SSRN, J CMA.No.1012 of 2016 Respondent has examined one witness and got marked Exs.R1 to R3.
4. The Tribunal having considered the oral and documentary evidence came to a conclusion that the deceased was not having a valid journey ticket, thereby the respondent is not liable to pay any compensation, as such the application filed by the appellants herein was dismissed. As against the said findings, the appellants herein filed the present appeal on various grounds.
5. The appellants have pleaded that the finding of the Tribunal is incorrect and it ought to have seen the contents of Ex.A1 i.e., First Information Report (F.I.R) which was registered soon after the accident and Ex.A2 i.e., Inquest conducted on the dead body of the deceased wherein it is clearly stated that the deceased was traveling in the said train and he accidentally fell down from the train and suffered grievous injuries. As per Ex.A4, he met with an untoward train accident at Bellampally railway station. They have also claimed that according to Rw1 it is found 4 SSRN, J CMA.No.1012 of 2016 that the deceased falling down from the train and he conveyed the message to the driver of the train and Deputy Station Master of Bellampally. Therefore, the evidence of Aw1 and Rw1 proved the death of the deceased due to an untoward accident.
6. While placing reliance on judgment of Division Bench of Madhya Pradesh High Court, reported in 1993 ACJ 846, another judgment reported in 2002 (4) ALT 310 and ACJ 2013 (727), the appellants have claimed that the burden lies on the railways to prove that deceased was not a bonafide passenger. But the respondent did not discharge the said burden. They have also claimed that the son of the brother of the deceased who accompanied the deceased to railway station is working at Saudi Arabia. Thereby, the appellants could not examine him before the Tribunal.
7. According to these appellants, as per Ex.R3, it is clear that Additional Railway Manager recorded the statement of Sirajuddin who categorically gave a statement that he accompanied the deceased to the railway station, 5 SSRN, J CMA.No.1012 of 2016 the deceased purchase the journey ticket and he got down the train for drinking water and while he was boarding the train, he accidentally fell down from the train. Thereby, the statement recorded by the railway staff clearly shows that the deceased purchased valid ticket. Therefore, they sought for setting aside the order of the Tribunal and prayed for compensation.
8. I have heard both parties.
9. Learned counsel for the appellants has submitted that there is clear evidence before the Tribunal about the deceased proceeding to Bellampally railway station, boarding the train along with the son of his brother after purchasing a valid journey ticket. The death of the deceased is due to accidentally fall down from the train is evident from the record including the FIR and Inquest. The Tribunal did not consider the oral and documentary evidence and came to a wrong conclusion. Thereby, he prayed for compensation. In support of his plea, learned counsel relied on a judgment in a case between Jameela 6 SSRN, J CMA.No.1012 of 2016 and others vs Union of India, reported in (2010) 12 SCC 443, wherein the Hon'ble Apex Court was pleased to observe that Death caused due to own negligence and negligence is not a ground to deny compensation under Sec.124-A proviso. Falling from train to death due to one's own negligence does not come within any exception enumerated in Sec.124-A proviso to deny compensation. In the absence of malicious intent or mens rea, such negligence can neither be held as criminal act under Sec.124-A proviso
(c).
10. He also relied on another judgment between Union of India vs Parameshwaranpillai Died (Kerala) (DB), reported in 2013 ACJ 635, wherein it was observed that it shall be presumed that passenger purchased a ticket and is a "bona fide" passenger is always to be presumed unless it is shown to be otherwise. Such presumption would always swing in favour of the injured.
11. The learned counsel has submitted that the railways always try to avoid compensation on one or other ground, 7 SSRN, J CMA.No.1012 of 2016 but in the absence of any strict proof it cannnot be presumed that the deceased was a ticketless travellor.
12. He has also placed reliance on the judgment in a case between Shaik Mahboob Basha and others vs Union of India, reported in 2016 ACJ 1882 for the proposition that it shall presumed that a passenger was traveling with a valid ticket unless contrary is proved.
13. He has also relied on the judgment in a case between Union of India vs B.Koddekar and others, reported in 2002 (4) ALT 310 (DB), wherein it was observed that burden lies on the railway administration to prove that deceased was ticketless traveler or was not a bona fide passenger. Dependants of deceased need not prove that deceased was a bona fide passenger.
14. There is no dispute about the relationship between the appellants and the deceased. There is no dispute about the death of the deceased due to his fall form the train at Bellampally railway station. The material documents 8 SSRN, J CMA.No.1012 of 2016 including F.I.R and Inquest report clearly indicates that the deceased was traveling in the above said train and he got down the train for drinking water and while he was boarding the train, he fell down from the train due to jerk of the train and died due to injuries caused in the said accident.
15. The Tribunal below also believed the death of the deceased is due to fall from the train, thereby, it is an untoward accident. The application filed by the appellants was dismissed on the ground that no journey ticket was found with the deceased.
16. Learned Member of the Tribunal placing reliance on the report of the Additional Railway Manager which is marked as Ex.R3, came to conclusion that there is nothing on record to show that the deceased was traveling with a journey ticket. It is true as per Ex.P2 Inquest report, it was mentioned that no journey ticket was found with the deceased.
9
SSRN, J CMA.No.1012 of 2016
17. As per the impugned order, it shows the learned Member of the Tribunal found that there is no provision in the Railways Act or the Railway Claims Tribunal Act or ratio of any judgment of the Supreme Court that initial onus in a claim petition is not on the applicants but on the Railways. According to the order which is impugned in the present appeal, it was observed when once the applicants have failed to discharge he initial onus lying on them the question of burden of proof shifting on the respondent to show that the deceased was not a bona fide passenger does not arise.
18. It is true that being applicant before the Tribunal, it is their duty to prove that the deceased was a bona fide passenger and he died in an untoward accident otherwise they are not entitled to any compensation. To prove these two aspects, they are relying on the oral evidence of Aw1 and Exs.A1 to A5.
19. As I have already stated that the death of the deceased in an untoward accident is not serious dispute. 10
SSRN, J CMA.No.1012 of 2016 The F.I.R and Inquest report categorically shows that the deceased who was about to board the train after drinking water in the railway station and while boardig the train, he fell down from the train and died die to the injuries caused to him.
20. In the above referred judgment i.e., in a case between Maleshwari vs Union of India, reported in 2022 ACJ 1376, it was observed that once an untoward incident is established then onus shifts on Railways to prove that deceased was not a bona fide passenger.
21. The following is the observation made in the above judgment:
"This Court is of an opinion that once an untoward accident is established on the death occurred due to falling from the running train and if the journey ticket was not retrieved the burden of proof must be shifted on the railway that the deceased passenger was not a bona fide passenger."11
SSRN, J CMA.No.1012 of 2016
22. However, there is every possibility that the journey ticket would have been lost or while taking the deceased to the hospital for post mortem or somewhere else.
23. In another judgment referred by this Court and reported in 2016 ACJ 1882 it was observed as under:
"Person will not be permitted even on to the platform without a platform ticket and that a person will be permitted to travel in a train without a valid ticket with him and that a duty is enjoyed upon the officers of the Railways to regulate the entry of passengers to the platform or into the railway station and into the compartments of trains and that the Railways have sufficient mechanism and manpower to regulate the same. Therefore, it can be presumed that every person entering onto the platform holds a valid platform ticket until the contrary is proved. Similarly, it can also be presumed that every person traveling in a train possesses a valid ticket."
24. Reliance was placed on the judgment of Division Bench of Kerala, reported in 2013 ACJ 635. The judgment of the Hon'ble Apex Court in a case between Jameela and 12 SSRN, J CMA.No.1012 of 2016 others vs Union of India vide (2010) 12 SCC 443, made an observation as under:
"Falling from train to death due to one's own negligence does not come within any exception enumerated in Sec.124-A proviso to deny compensation. In absence of malicious intent or mens rea, such negligence can neither be held as criminal act under Sec.124-A proviso (c)."
25. In the other judgment relied by the appellants vide 2002 (4) ALT 310 (D.B), it was observed as under:
"Burden lies on the claimants to prove the manner of the accident and negligence of the driver under the scheme of M.V.Act while the burden lies on Railways to prove that the case falls under any of the exceptions. Burden also lies on the railway administration to prove that deceased was ticket less traveler or was not a bona fide passenger. Dependants of deceased need not prove that deceased was a bona fide passenger."
26. The respondent railways cannot dispute the existence of mechanism to inspect the tickets of each and every passenger. There is no dispute that railways will not permit 13 SSRN, J CMA.No.1012 of 2016 anybody to enter the platform without a platform ticket and a passenger will not be allowed to travel without a valid ticket. Unless the respondent is able to produce sufficient evidence, it cannot be believed that every passenger travelled on train was possessing valid ticket. In the case on hand the deceased who got down the train in a particular railway station for drinking water died while attempting to board the train due to rush in the platform and due to jerks, there is every possibility of losing the ticket on the platform itself or there is a possibility of losing ticket while he was shifted from platform to hospital. Therefore, the observation made by the Tribunal with regard to right of claimants on the ground that the deceased was not a bona fide passenger must be held incorrect thereby, the appellants are able to prove that the deceased died while traveling on the train and the death was due to an untoward antecedent, thereby the claimants are entitled to compensation as such, the order of the Tribunal is liable to be set aside.
14
SSRN, J CMA.No.1012 of 2016
27. In the result, the appeal is allowed. The respondent is directed to pay compensation amount of Rs.4,00,000/- (Rupees Four Lakhs only) to the appellants with costs and interest @ 9% per annum on the compensation amount from the date of accident till the amount is realized.
28. As a sequel, pending Miscellaneous Applications, if any, shall stand closed.
___________________________________ JUSTICE SAMBASIVA RAO NAIDU Date: 17.08.2022 Pssk.