Jharkhand High Court
Ganesh Das Father Of The Deceased ... vs Union Of India on 7 February, 2018
Equivalent citations: 2018 AAC 1851 (JHA), 2018 (3) AJR 711, (2019) 1 CIVLJ 405, (2018) 3 JCR 350 (JHA)
Author: Rajesh Kumar
Bench: Rajesh Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No.233 of 2015
1. Ganesh Das father of the deceased Shushant Das
2. Smt. Shyamli Das mother of the deceased Shushant Das, Residents
of Village/Mohalla: Sangrami nagar, P.O. Belagachi, P.S. Baruipur,
District-South 24 Pargana, (West Bengal) ...... Appellants
Versus
Union of India, through the General Manager, East Central Railway,
P.O./P.S.-Hajipur, District-Hajipur (Bihar) ...... Respondent
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CORAM: HON'BLE MR. JUSTICE RAJESH KUMAR
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For the Appellant : Mr. R.K.Jha, Advocate
For the Respondent : Mr.V.K.Sinha, A.S.C. (Rly)
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C.A.V. on 29.01.2018 Pronounced on 07/02/2018
Heard learned counsel for the parties.
The present appeal has been filed against the order dated 18.03.2015 passed by Shri Arjun Rakshit, Hon'ble Member Technical, Railway Claims Tribunal, Ranchi Bench, Ranchi in case no. OA (IIU)/RNC/2013/0101, wherein claim of the claimant has been rejected on the ground that no ticket has been found in the pocket of the deceased.
It appears that Mr. Sushanta Das died on 09.08.2013 in between Chechaki to Garia, railway station, Bihar near railway KM no. 337/02- 336/32.
It appears that father of the deceased got information through mobile bearing mobile no. 8927056865 that the owner of this mobile has died falling from the running train. Thereafter, the present claim petition has been filed.
The claim tribunal has formulated three issues, which reads as under.
i. Whether Sushanta Das was a bonafide passenger? ii. Whether any untoward incident as defined under Section 123 (c)(2) of the Railway's Act, 1989 occurred to him while travelling by Train from Delhi to Sealdah on 09.08.2013?
iii. Whether the Applicants are entitled for the compensation as claimed and other relief, if any?
In support of the claim, the applicant has produced himself as witness and has furnished the original/certified copies of the following documents which have been marked as exhibits.
a. FIR-Ext. A1 b. Fardbayan of Sri Ganesh Das-Ext.A2 c. Final Report-Ext.A3 d. Inquest Report-Ext. A4 e. P.M. Report in two sheets-Ext. A5 f. Journey ticket-Ext.A6 On the other hand, the respondent has not adduced either oral or documentary evidence.
So far, issue no. 2 is concerned, it appears that it has been answered in favour of the applicant, but claim of the applicant has been rejected due to negative answer of issue no.1.
On the first issue i.e. whether Sushanta Das was a bonafide passenger or not, it appears that the tribunal has taken the view that no ticket has been found in the pocket of the deceased for journey from Delhi to Sealdah and as such he was not a bonafide passenger and accordingly he was not entitled for compensation under Section 124 of the Railways Act 1989.
The counsel appearing for the appellant has drawn attention towards the judgment rendered in the case of Raj Kumari and Anr. Vs. Union of India reported in 1993 ACJ 846. Relevant paragraph-5 and 7 of the judgment is quoted hereinbelow:-
"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. "7. The provisions of Section 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 bona fide passenger. Since ticketless travel is an illegal act and exposes such traveler to penal action, the presumption is of innocence in favour of such one of the travelers to penal action, the presumption is of innocence in favour of such one of the travelers 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 traveler 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 unauthorized 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 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.
Learned counsel for the appellant also draws attention to the judgment rendered by the Division Bench of the Hon'ble Patna High Court in the case of Smt Kaushalaya Devi & Ors. Vrs. Union of India through General Manager, North Eastern Railway, Gorakhpur, U.P. reported in 2008 Volume 3 PLJR page 711 to the effect that it is to be presumed that the person travelling in the train has a valid ticket and he is a bonafide passenger unless and until proved otherwise by the Railway Authority.
In the present case, it appears from perusal of the inquest report that only it has been mentioned that the appellant was wearing black sando ganzi, blue jeans full pant, brown janghiya and found a general ticket no. 63063284 dated 06.08.2013 from Sealdah to Delhi. From the inquest report, it is evident that there is no mention regarding the mobile phone of the deceased. Further one ticket has been found from Sealdah to Delhi. So it is evident that he was having atleast a ticket from Sealdah to Delhi and it is quite possible, that return ticket from Delhi to Sealdah may have been misplaced.
Learned counsel appearing for the Railway, opposes the prayer of the appellant but could not met the judgment brought to the notice to this Court and as such objection raised by the learned counsel for the respondent is rejected.
In view of the discussion mentioned above, this Court finds that the issue no.1 decided by the learned tribunal is not proper, accordingly the same is reversed and the same is answered in favour of the applicant. Applicant is being a bonafide passenger and further issue no.2 has been settled in his favour and as such he is entitled for compensation u/s 124 of the Railways Act 1989. So far as quantum of claim is concerned, it has been brought to my notice the judgment rendered by the Apex Court in the case of Rathi Menon Vs. Union of India reported in 2001 (3) SCC 714. Relevant paragraph-30 of the said judgment is quoted hereinbelow:-
"30. From all these, we are of the definite opinion that the claims Tribunal must consider what the Rules prescribed at the time of making the order for payment of compensation."
Therefore, it appears from the said judgment that claims Tribunal must consider what the Rules prescribed at the time of making the order for payment of compensation. Now quantum of compensation has been enhanced to Rs.8,00,000/-. Therefore, claimant is entitled for compensation of Rs.8,00,000/- with interest @ 9% per annum from the date of application.
So far as the interest from the date of application is concerned, the claimant is entitled the same as per the judgment rendered by the Apex Court in the case of Tahazhathe Purayil Sarabi & Ors. Vrs. Union of India & Anr. reported in 2009 (7) SCC 372.
In view of the above discussion, it is ordered that claimant is entitled for Rs. 8,00,000/- as compensation with interest @ 9% per annum from date of application.
Accordingly, the present appeal stands disposed of.
( Rajesh Kumar, J.) Shahid