Patna High Court
Binod Kumar Sinha vs The Union Of India Through The General ... on 12 July, 2019
Equivalent citations: AIRONLINE 2019 PAT 1424, (2019) 4 ACC 471
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi, Ashutosh Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.233 of 2014
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Binod Kumar Sinha, S/O Late Dukhharan Prasad, Resident of Village-
Parwati, P.S. Kashichak, Dist.- Nawada, Bihar.
... ... Appellant/s
Versus
The Union Of India Through The General Manager, East Central Railway
Hajipur.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Amarendra Kumar Pathak, Advocate
Mr. Harendra Pandey, Adv.
For the Respondent/s : Mr. Ashok Kumar Keshri, Sr. Railway Advocate
Ms. Seema Kumari, Railway Advocate
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
and
HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI) Date : 12-07-2019
1. As the matter has been referred by the learned Single Judge, on account thereof, Hon'ble the Chief Justice listed the same after constituting the Division Bench.
2. From perusal of the order dated 11.02.2019 (order of reference), it is evident that no questionnaire has been formulated. In Brishketu Bihari Sinha vs. State of Bihar & Ors. reported in 2019(2)PLJR 554, it has been observed by the Full Bench.
"2. Having heard the learned counsel appearing on behalf of respective parties, we are of the opinion that reference to the Full Bench itself is not maintainable. Apart from the fact that no Patna High Court MA No.233 of 2014 dt.12-07-2019 2/43 specific question is framed and thereafter referred to the Full Bench, we are of the opinion that the learned Single Judge could not have referred the matter to the Division Bench and thereafter the Division Bench ought not to have referred the matter to the Full Bench ... ...."
"3. ... ...At the cost of repetition, it is to be noted that as such no question is framed and referred to the Full Bench for its decision. Under the circumstances, we remit the matter back to the learned Single Judge to consider the same in accordance with law and on its own merits."
3. Having deficient on that very score, the matter would have been dealt with under the guise of principle laid down by the Full Bench as referred herein above however, after going through the order impugned, it appears to be prudent to resolve the issue which, in the opinion of the learned Single Judge appears to be poignant more particularly, when propriety of the earlier judgments Kedar Nath Singh vs. Union of India reported in 2013(3) PLJR 580, Jaleshwar Das vs. The Union of India reported in 2013(3) PLJR 450 based upon Division Bench Patna High Court MA No.233 of 2014 dt.12-07-2019 3/43 decision Smt. Kaushalaya Devi & Ors. vs. Union of India through General Manager, North Eastern Railway, Gorakhpur, U.P. reported in 2008(3) PLJR 711 have been doubted in the background of obligation having been cast under Chapter-VII of the Evidence Act. Furthermore, the learned Single Judge under para-5 of the order has observed that while deciding the issue in Kaushalya Devi (Supra) case as well as subsequent decisions so referred, the relevant provisions of law, apart from Chapter-VII of the Evidence Act, the definition of the passenger in terms of Section 2(29) of the Railway Act inconsonance with Section 124-A of the Railway Act has not been properly been considered and further, concluded under para-10 in following way:
"10. From the provisions of law cited above, it is evident that:
(a) To maintain a claim for compensation on account of untoward incidents the claimant must be victim of accident as a passenger or he must be dependant on the deceased passenger who has been killed in the untoward incident of the railways.
(b) The passenger must be a bona fide passenger in the sense that he had purchased a valid ticket for travelling.
(c) The burden is on the claimant to prove what he wishes the Court should believe.
Further burden is to prove that the victim was in possession of a valid ticket for travelling to come within definition of word "Passenger". Patna High Court MA No.233 of 2014 dt.12-07-2019 4/43
4. In order to properly appreciate the lis, the relevant facts of the case is to be taken up, firstly. It is the case of the appellant/applicant that on 23.08.2002 he along with his wife (deceased) after having valid ticket proceeded from Deepnagar Hault to Bakhtiarpur, through EMU train. After reaching at Bakhtiarpur, they both got down. In order to continue their journey, they again boarded ENU Train No.507 UP after purchasing ticket. Then it has been disclosed that deceased was killed at Gulzarbagh Railway Station at 02:30 AM on 24.09.2002 by hitting of passenger mob. Simultaneously, controverting the same, it has been averred that during course of de-boarding at Gulzarbagh Station deceased slipped, fell down as a result of which, there was amputation of both legs and for that, she was referred to NMCH to PMCH where she was declared dead.
5. The respondent railway vehemently denied the assertion, allegation and further, challenged status of appellant as well as his wife (deceased) to be bonafide passenger and in likewise manner also challenged the story so propounded at the end of appellant/applicant regarding death of deceased in an untoward incident.
6. After having pleading the learned TRIBUNAL framed following issues:
Patna High Court MA No.233 of 2014 dt.12-07-2019 5/43
1. Whether the deceased was a victim of the alleged untoward incident and whether the alleged untoward incident is covered under Section 123(c)(2) of the Railway Act, 1989 ?
2. Whether the deceased, Dharmshila Sinha was a bonafide passenger of train No.507 Up. On 23.08.2002 at the time of alleged untoward incident ?
3. Whether the claim application of the applicant is maintainable?
4. Whether the applicant/dependents of the deceased is entitled to receive compensation, as claimed for ?
and, decided the same against the appellant/applicant ultimately, dismissing the claim petition consequent thereupon, has been challenged under present appeal.
7. Before coming to the main issue, certain enactments having influence over the issue in hand have to be seen. The backbone happens to be the Railway Act, 1989. Section 2 thereof speaks about the definition and so far present controversy is concerned, the following definition are relevant to be taken note of.
"2(3) "Claims Tribunal" means the Railway Claims Tribunal established under Section 3 of the Railway Claims Tribunal Act, 1987. Patna High Court MA No.233 of 2014 dt.12-07-2019 6/43 2(14) "fare" means the charge levied for the carriage of passengers;
2(28) "pass" means an authority given by the Central Government or a railway administration to a person allowing him to travel as a passenger, but does not include a ticket;
2(29) "passenger" means a person travelling with a valid pass or ticket;
8. Chapter-VIII of the Railway Act contains the head carriage of passengers. Section 50 deals how the ticket is to be issued and for better appreciation the same is quoted below:
"50. Supply of tickets on payment of fare.(1) Any person desirous of traveling on a railway shall, upon payment of the fare, be supplied with a ticket by a railway servant or an agent authorized in this behalf and such ticket shall contain the following particulars, namely,
(i) this date, of issue;
(ii) the class of carriage;
(iii) the place from and. the place to which it is issued; and
(iv) the amount of the fare.
(2) Every railway administration shall display the hours during which booking windows at a Patna High Court MA No.233 of 2014 dt.12-07-2019 7/43 station shall be kept open for the issue of tickets to passengers.
(3) The particulars required to be specified on a ticket under clauses (ii) and (iii) of sub-section (1) shall,-
(a) if it is for the lowest class of carriage, be set forth in Hindi English and the regional language commonly in use at. the place of issue of the ticket; and
(b) if it is for any other class of carriage, be set forth in Hindi and English:
Provided that where it is not feasible to specify such particulars in any such language due to mechanization or any other reason, the Central Government may exempt such particulars being specified in that language."
9. Another Section which appears to be relevant is Section 55 and for better appreciation, the same is quoted below:
"55. Prohibition against traveling without pass or ticket.
(1) No person shall enter or remain in any carriage on a railway for the purpose of traveling therein as a passenger unless he his with him a proper pass or ticket or obtained permission of a railway servant authorized this behalf for such travel.
Patna High Court MA No.233 of 2014 dt.12-07-2019 8/43 (2) A person obtaining permission under sub- section (1) shall ordinarily get a certificate from the railway servant referred to in that sub- section that he has been permitted to travel in such carriage on condition that he subsequently pays the fare payable for the distance to be traveled."
10. Chapter-XII which originates from Section 113 to 122 deals with the headings accidents. Contiguous thereof, the Chapter-XIII carries identification of liability of railway administration for death and injury to passenger due to accident. It begins with Section 123 to 129. With regard to present controversy, Section 123, 124 and 124A are relevant and for better appreciation, those are quoted below:
"123. Definitions.--In this Chapter, unless the context otherwise requires,--
(a) "accident" means an accident of the nature described in section 124;
(b) "dependant" means any of the following relatives of a deceased passenger, namely:--
(i) the wife, husband, son and daughter, and in case the deceased passenger is unmarried or is a minor, his parent;
(ii) the parent, minor brother or unmarried sister, widowed sister, widowed daughter-in-law and a minor child of a pre-deceased son, if dependant wholly or partly on the deceased passenger;
(iii) a minor child of a pre-deceased daughter, if wholly dependant on the deceased passenger;
(iv) the paternal grandparent wholly dependant on the deceased passenger.
[(c) "untoward incident" means-- (1) (i) the commission of a terrorist act within the meaning of sub-section (1) of section 3 of Patna High Court MA No.233 of 2014 dt.12-07-2019 9/43 the Terrorist and Disruptive 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 passengers, 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.]"
124. Extent of liability.--When in the course of working a railway, an accident occurs, being either a collision between trains of which one is a train carrying passengers or the derailment of or other accident to a train or any part of a train carrying passengers, 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 has suffered a loss 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 a passenger dying as a result of such accident, and for personal injury and loss, destruction, damage or deterioration of goods owned by the passenger and accompanying him in his compartment or on the train, sustained as a result of such accident. Explanation.--For the puposes of this section "passenger" includes a railway servant on duty. [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, Patna High Court MA No.233 of 2014 dt.12-07-2019 10/43 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 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.]
11. While dealing with the issue Section 110 of the Act is also to be seen:
"110. Burden of proof.--In an application before the Claims Tribunal for compensation for loss, destruction, damage, deterioration or non- delivery of any goods, the burden of proving--
(a) the monetary loss actually sustained; or
(b) where the value has been declared under sub-section (2) of section 103 in respect of any consignment that the value so declared is its true value, shall lie on the person claiming compensation, but subject to the other provisions contained in this Act, it shall not be Patna High Court MA No.233 of 2014 dt.12-07-2019 11/43 necessary for him to prove how the loss, destruction, damage, deterioration or non-
delivery was caused."
12. The purpose for incorporation of Section 110 of the Act has got a significance. As per Railway Act, the burden of proof with regard to compensation for loss, destruction, damage, deterioration, non-delivery of the property entrusted to the Railway for carriage to destination has been entrusted upon the person who is to seek compensation but, no such kind of obligation has been prescribed under Chapter-XIII that means to say, asking for compensation on account of death/injury to the passenger. It has got a bearing. When the Act is gone through, it speaks a lot more particularly with regard to relaxation of cumbersome procedural law as well as it also deals with the principle of no fault liability.
13. The intention of the legislature could be seen after going through the Railway Claims Tribunal Act, 1987. Section 2 deals with the definition clause and for the present purpose, the relevant definition are quoted below:
Section 2(n) "untoward incident" shall have the meaning assigned to it in clause (c) of Section 123 of the Railway Act, 1989 (24 of 1989);] Patna High Court MA No.233 of 2014 dt.12-07-2019 12/43 2(o) words and expressions used and not defined in this Act but defined in the Railways act or the rules made thereunder shall have the meanings respectively assigned to them in that Act or the said rules."
14. Chapter-IV thereof deals with procedure to be followed during curse of adjudication and Section 18 has got primacy over the others whereupon the same is quoted below:
"18. Procedure and powers of Claims Tribunal- (1)The Claims Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 (5 of 1908), but shall be guided by the principles of natural justice and, subject to the other provisions of this Act and of any rules, the Claims Tribunal shall have powers to regulate its own procedure including the fixing of places and times of its enquiry. (2) The Claims Tribunal shall decide every application as expeditiously as possible and ordinarily every application shall be decided on a perusal of documents, written representations and affidavits and after hearing such oral arguments as may be advanced.
(3) The Claims Tribunal shall have, for the purposes of charging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:-
(a) Summoning and enforcing the attendance of any person and examining him on oath;
(b) Requiring the discovery and production of documents;
(c) Receiving evidence on affidavits;
(d) subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872(1 of Patna High Court MA No.233 of 2014 dt.12-07-2019 13/43 1872), requisitioning any public record or document or copy of such record or document from any office.
(e) Issuing commissions for the examination of witnesses or documents;
(f) Reviewing its decisions;
(g) Dismissing an application for default or deciding it ex parte;
(h) Setting aside any order of dismissal of any application for default or any order passed by it ex parts;
(i) Any other matter which may be prescribed."
15. The Railway Claims Tribunal Act follows with the Railway Claims Tribunal Rules, 1989, guiding the procedure to be taken up right from the stage of filing of petition to final order. The following are the relevant rules governing the issue:-
14. Filing of affidavit .-(1) The Tribunal may direct the parties to give evidence, if any, by affidavit.
(2) Notwithstanding anything contained in sub- rule (1), where the Tribunal considers it necessary for just decision of the case, it may order cross-examination of any deponent.
15. Filing of reply and other documents by the respondents .-(1) Each respondent may file his reply to the application and copies of the documents on or before the date of hearing. (2) In reply filed under sub-rule (1), the respondent shall specifically admit, deny or explain the facts stated by the applicant in his application and state such additional facts as may be found necessary in his reply [* * *]. [(3) When the respondent admits the facts stated in the application, the Tribunal may make order in this regard.] [17-A. Oath to the witness .-The Court Master or the Commissioner, as the case may be, shall administer the following oath to a witness:-
Patna High Court MA No.233 of 2014 dt.12-07-2019 14/43 "I do swear in the name of God that what I shall state shall be truth and nothing but the truth".]
20. Procedure and powers of Tribunal .-The Tribunal shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:-
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents;
(c) receiving evidence on affidavits;
(d) subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), requisitioning any public record or docu-
ment or copy of such record or document from any office;
(e) issuing commissions for the examination of witness or documents;
(f) reviewing its decisions;
(g) dismissing an application for default or ex parte;
(h) setting aside any order of dismissal of any application for default or any order passed by it ex parte.
21. Framing and determination of issues .-(1) After considering the reply, the Tribunal shall ascertain upon what material propositions of fact or of law the parties are at variance and shall thereupon proceed to frame and record the issues upon which the right decision of the case appears to it to depend.
(2) In recording the issues, the Tribunal shall distinguish between those issues which in its opinion concern points of facts and those which concern points of law.
Patna High Court MA No.233 of 2014 dt.12-07-2019 15/43 (3) After framing the issues, the Tribunal shall proceed to record evidence thereon which each party may desire to produce.
[22. Summoning of witnesses and method of recording evidence .-(1) If an application is presented by any party to the proceedings for summoning of witness, the Tribunal shall issue summons for the appearance of such witness with recording the reasons for doing so, unless it considers that his appearance is not necessary for the just decision of the case.
(2) The Tribunal shall make a brief memorandum of the substance of the evidence of every witness as the examination of the witness proceeds and such memorandum shall form part of the record:
Provided that if the Tribunal is prevented from making such memorandum, it shall record the reasons of its inability to do so and shall cause such memorandum to be made in writing from its dictation and shall sign the same, and such memorandum shall form part of the record.] [(3) Where summons are issued by the Tribunal under sub-rule (1) to any witness to give evidence or to produce any document, the person so summoned shall be entitled to such traveling and daily allowance, sufficient to defray the traveling and other expenses, as may be determined by the Registrar.]"
16. After going through the aforesaid relevant provisions, it is evident that neither there happens to be strict adherence to civil procedure code and in likewise manner to the Evidence Act. That means to say on bare perusal of the provisions, it is crystal clear that strict compliance of Chapter-VII of the Patna High Court MA No.233 of 2014 dt.12-07-2019 16/43 Evidence Act is not at all warranted, however it should be and the mode has been prescribed by an affidavit.
17. Be that as it may, under the Evidence Act an obligation has been cast over an aggrieved who has come to court for redressal of his grievances by way of an order in his favour and for that, he is under obligation to produce reliable, admissible evidence. The aforesaid obligation is known as "Burden of Proof".
Burden of Proof is a clumsy affair and after proper, analytical appreciation of Chapter VII of the Evidence Act, it is evident that it never shift. However, whenever there happens to be application of Burden of Proof, another event, 'onus' also appears and attracts attention for its proper appreciation posing to be synonyms thereof, during course of appreciation of evidence having led on behalf of rival parties once, in due discharge of burden is offered, and in order to discharge onus, is produced. During course of appreciation, the theme of burden is to be seen strictly, as being under obligation while during course of discharging onus, preponderance of probability.
18. The law lexicon (P Ramanatha Aiyer) defines burden of proof:-
"Burden of Proof. The necessity which lies, now, on one party, now on the other, of calling evidence, to Patna High Court MA No.233 of 2014 dt.12-07-2019 17/43 prevent judgment going against him. The onus frequently shifts as the case proceeds from the person on whom it rested at first to his opponent. This occurs whenever a prima facie case has been established on any issue of fact or whenever a rebuttable presumption in of law has arisen. (Ency. Of the Laws of England).
Per DUNKLEY, J.-the phrase "burden of proof" is used in two distinct meanings in the Indian Evidence Act, viz., burden of establishing a case and the burden of introducing evidence. In a criminal trial the burden of proving everything essential to the establishment of the charge against the accused lies upon the prosecution, and that burden never changes.
WEIGHT OF EVIDENCE DISTINGUISHED.
"the burden of proof and the weight of evidence are two very different things. The former remains on the party affirming a fact in suppport of his case, and does not change in any aspect of the cause. The latter shifts from side to side in the progress of the trial, according to the nature and strength of the proofs Patna High Court MA No.233 of 2014 dt.12-07-2019 18/43 offered in support of denial of the main fact to be established."
Onus. A burden, a load. Also an incumbrance. Onus probandi. Burden of proof;
The burden of proving; the burden of proof."
19. As per Webster's:
Burden of proof [trans. of L onus probandi]:
the duty of proving a disputed assertion of charge <the burden of proof is upon the critic>;
specif: the duty of proving a particular position in a court of law under penalty against the party on whom the duty is imposed.
Onus : Something (as a task, duty,
responsibility) that involves considerable
difficutly or annoyance or necessitates rather strenuous effort or results in notable strain or fatigue: Burden <the job of caring for his dependents was a real~><believe it to be the ~ on every man to Add .. to the sum total of human knowledge -douglas Carruthers> b:
something distasteful or objectionable and difficult to bear :as (1) : a disagreeable Patna High Court MA No.233 of 2014 dt.12-07-2019 19/43 necessity of doing something <free of all ~ of retort or comment-Richard Blaker> (2): Blame <tried to shift the ~ for causing the war onto the other country><adroitly transfer the ~ from the accused to the accusers-Eugene Lyons> (3) Stigma <excusing himself ahead of time so that the ~ would be less if his failure was realized -Norman Mailer> 2 or onus probandi :Burden of proof <put forth a theory that left the ~ squarely on him."
20. There happens to be two different kind of approaches recognized under criminal law as well as civil law respectively on that very score. Under criminal law, there happens to be compulsive/onuerous obligation upon the prosecution/complainant to substantiate its case beyond all reasonable doubt irrespective of status of the accused having brewed with fundamental right on the other hand, find out whether the prosecution succeeded in proving its case. So far, civil rights are concerned, basically are adjudged over preponderance of probability. In criminal law, if the prosecution completes evidence, the accused may or may not controvert the same, as the court has to adjudicate upon in consonance with the burden having over Patna High Court MA No.233 of 2014 dt.12-07-2019 20/43 prosecution but in civil proceeding, it is the right, being claimed to be enforced/recognized/controverted/denied and for that the evidence having at the end of plaintiff as well as the defendant is expected to be adjudged (irrespective of applicability of Order- XVIII as the case may be) and the mode of appreciation is to be carried out under the theme of 'onus', which as seen above, is subject to shifting of obligation. That means to say, burden of proof never shifts while onus always. In Anil Rishi vs. Gurbaksh Singh reported in (2006) 5 SCC 558, it has been held:
"19. There is another aspect of the matter which should be borne in mind. A distinction exists between a burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is which party is to begin. Burden of proof is used in three ways : (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all counter evidence; and (iii) an indiscriminate use in which it may mean either or both of the others. The elementary rule is Section 101 is inflexible. In terms of Section 102 the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same.
20. In R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple and Anr. [JT 2004 (6) SC 442], the law is stated in the following terms :
Patna High Court MA No.233 of 2014 dt.12-07-2019 21/43 "29. In a suit for recovery of possession based on title it is for the plaintiff to prove his title and satisfy the court that he, in law, is entitled to dispossess the defendant from his possession over the suit property and for the possession to be restored to him. However, as held in A. Raghavamma v. A. Chenchamma there is an essential distinction between burden of proof and onus of proof:
burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. In our opinion, in a suit for possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff's title."
21. The basic character which Chapter-VII of the Evidence Act carries with is based upon the rule i.e. .....incumbit...probatio....qui..dicit, non qui, negate, that means to say the burden of proving a fact rests on the party who Patna High Court MA No.233 of 2014 dt.12-07-2019 22/43 substantially asserts the affirmative of the issue and not upon the party who denies it as, a negative is usually in capable of proof.
In National Insurance Co. Ltd. vs. Rattani, reported in (2009) 2 SCC 75 (at page-79), it has been held:
"The question as to whether burden of proof has been discharged by a party to the lis or not would depend upon the facts and circumstances of the case. If the facts are admitted or, if otherwise, sufficient materials have been brought up on record so as to enable a court to arrive at a definite conclusion, it is idle to contend that the party on whom the burden lies could still be liable to produce sufficient evidence."
22. Recently, the issue in hand has been subject to consideration before Hon'ble Apex Court in Union of India vs. Rina Devi reported in (2019) 3 SCC 572 wherein para-8 deals with the questionnaire so formulated and the relevant one, for the present purpose sub is 8.2,8.3 which is quoted below:
"8.2. Definition of passenger- Whether any person found dead near the track on Railway Precincts can be held to be a bona fide passenger for maintainability of a claim for compensation Patna High Court MA No.233 of 2014 dt.12-07-2019 23/43 in absence of recovery of a ticket from his body. Conflicting decisions of Andhra Pradesh High Court in Agam Shanthamma versus Union of India 2002 SCC OnLine AP 766; Kerala High Court in Union of India versus Leelamma 2009 SCC OnLine Ker 903 ; Bombay High Court (Nagpur Bench) in Union of India versus Surekha 2010 SCC OnLine Bom 1201;Ramdhan versus Union of India 2008 SCC OnLine Bom 1215 ; & Union of India versus Nandabai 2015 SCC OnLine Bom 4615 ; Calcutta High Court in Asharani Das versus Union of India 2009 SCC OnLine Cal 799 ; and Madhya Pradesh High Court in Raj Kumari versus Union of India 1992 SCC OnLine MP 96 are required to be resolved on this subject.
8.3. The concept of self inflicted injury- Whether attempt of getting into or getting down a moving train resulting in an accident was a case of 'self inflicted injury' so as not to entitle to any compensation or no such concept could not apply under the scheme of law which casts strict liability to pay compensation by the Railway under Sections 124 and 124A. In this regard views of the High Courts of Kerala in Joseph PT versus Union of India 2013 SCC OnLine Ker 24151, Bombay in Pushpa versus Union of India 2017 SCC OnLine Bom 8117 and Delhi in Shayam Narayan versus Union of India 2017 SCC OnLine Del 8734 may appear to be against the decisions of this Court in Union of India versus Prabhakaran Vijaya Kumar (2008) 9 SCC 527 and Jameela versus Union of India (2010) 12 SCC 443."
23. Under para-20 to 24 the Apex Court dealt with the relevant citations over the issue (questionnaire no.8(3), and concluded under para-25 as follows:
"25. We are unable to uphold the above view as the concept of 'self inflicted injury' would Patna High Court MA No.233 of 2014 dt.12-07-2019 24/43 require intention to inflict such injury and not mere negligence of any particular degree. Doing so would amount to invoking the principle of contributory negligence which cannot be done in the case of liability based on 'no fault theory'. We may in this connection refer to judgment of this Court in United India Insurance Co. Ltd. versus Sunil Kumar (2019) 12 SCC 398 laying down that plea of negligence of the victim cannot be allowed in claim based on 'no fault theory' under Section 163A of the Motor Vehicles Act, 1988. Accordingly, we hold that death or injury in the course of boarding or de- boarding a train will be an 'untoward incident' entitling a victim to the compensation and will not fall under the proviso to Section 124A merely on the plea of negligence of the victim as a contributing factor."
24. With regard to questionnaire no.8(2) even in case the body is found within railway premises/track after considering, analyzing the earlier pronouncements, it has been observed:
"29.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 bona 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 bona 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."
Patna High Court MA No.233 of 2014 dt.12-07-2019 25/43
25. The same view has been followed in another decision reported in (2019) 3 SCC 410 (Union of India vs. Radha Yadav).
26. So, whatever been held by the Apex Court, as referred herein above avouch clearly that mere presence of dead body within railway premises will not favour presumption of being bonafide passengers and in likewise manner, non-presence of ticket will not discredit the entitlement. However, the Initial Burden on that score lies upon the applicant/claimant with an obligation to discharge which by way of rebuttal could be at the end of Railway under the guise of shifting of onus. The Apex Court furthermore prescribed the methodology how and in what manner, it has to be discharged. That means to say the principle so laid down by the Division Bench in Kaushalya's case reported in 2008(3) PLJR 711 has been given a goby impliedly while encroaching over the area of by way of prescribing the rule of presumption whenever a dead body is found over the track, or within Railway premises under the garb of Section 55 as well as Section 137, 138 of the Railway Act, while deciding the issue, though the facts of the aforesaid case completely fit in within the frame.
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27. Thus, the query whatsoever been at the end of the learned Single Judge is found duly answered. As such, let the matter be placed before the Honble Single Judge.
(Aditya Kumar Trivedi,J.) (Per: Hon'ble Mr. Justice Ashutosh Kumar, J.)
1. I have gone through the opinion of my esteemed brother, Hon'ble Mr. Justice Aditya Kumar Trivedi, J.
2. My opinion is as follows, which is in conformity with the opinion rendered by Hon'ble J. Trivedi.
3. While hearing the Miscellaneous Appeal No. 233 of 2014 (Binod Kumar Sinha Versus the Union of India through the General Manager, East Central Railway Hajipur) against the judgement of the Railways Claims Tribunal, Patna, rejecting the claim of the appellant for compensation because of the death of his wife in a railway accident, the learned Single Judge, on noticing that a Division Bench judgement in Kaushalaya Devi & Ors. Versus Union of India through General Manager, North Eastern Railway, Gorakhpur [U.P. [2008 (3) PLJR 711], which has Patna High Court MA No.233 of 2014 dt.12-07-2019 27/43 been followed in Kedar Nath Singh Versus The Union of India [2013 (3) PLJR 580] and Jaleshwar Das Versus Union of India [2013 (3) PLJR 450] , did not take into account the combined effect of the provisions contained in Section 2(29) and 124-A of the Railways Act, 1989, juxtaposed with section 106 of the Indian Evidence Act, 1989, referred the matter to a larger Bench for an authoritative pronouncement. Without dwelling on facts of Miscellaneous Appeal No. 233 of 2014, it would be necessary to refer to the facts and decision of the Patna High Court in Kaushalaya Devi (supra). One Ram Singar Singh was alleged to have fallen down from the train at Hajipur Railway Station and died. In the Claim Case, a witness asserted that he had seen the deceased purchasing railway ticket. The plea of the Railways was that the deceased was an unauthorized passenger but no evidence was offered by the Railways before the Tribunal in support of the aforesaid assertion. The claim was allowed with the grant of compensation of two lakhs. In the challenge before the Patna High Court MA No.233 of 2014 dt.12-07-2019 28/43 High Court against the decision of the Claims Tribunal, the Division Bench of this Court held that since no person without a valid journey ticket or platform ticket can enter the platform as it entails prosecution, the necessary and logical corollary, therefore, is that any dead-body found in the Railway Station premises would be presumed to have a valid ticket with him. The Railways Administration, therefore, was required to prove that the deceased was not a valid passenger for disallowing the claim.
4. In the aforesaid case, except for a bald assertion that the deceased was a gratuitous user of the railways, no effort was made for disavowal of the assertion of the witness that the deceased had purchased a railway ticket before his journey.
5. The aforesaid Division Bench judgement in Kaushalaya Devi (supra) has been followed in Kedar Nath Singh (supra) and Jaleshwar Das (supra).
6. In the aforesaid Division Bench judgement in Kaushalaya Devi (supra), the burden was sought to be Patna High Court MA No.233 of 2014 dt.12-07-2019 29/43 discharged through the mouth of a witness who remained unshaken in the proceeding and stated that he had seen the deceased purchasing the railway ticket. This statement was attempted to be denied by the Railways but without leading any evidence or furnishing any proof. In this context, it was held by the Division Bench that since for entering the railway station premises and boarding a train, possession of platform ticket or a valid railway journey ticket, whatever may be the case, is a must, in the absence of which, the Railways Act, 1989 contemplates of prosecution, it is only logical to presume, in the absence of any evidence to the contrary, that the deceased was a bona-fide / valid passenger.
7. Two reasons have been assigned by the Division Bench for holding the deceased to be a valid passenger entitling his next kith and kin for compensation under the Railway Claims Tribunal Act, 1987. Firstly, neither the person who performed an inquest report nor anyone-else was examined by the Railways to prove that the deceased Patna High Court MA No.233 of 2014 dt.12-07-2019 30/43 did not have the ticket with him or that such ticket was never issued from the railways ticket counter. Secondly, in the absence of the aforesaid evidence, the only logical presumption was that the deceased had a valid ticket.
8. In order to test the correctness of the aforesaid reasoning by the Division Bench of this Court, it would be necessary to refer to certain provisions of the Railways Act, 1989; the Railway Claims Tribunal Act, 1987; and the Indian Evidence Act, 1972.
9. Section 2(29) of the Railways Act, 1989 defines a "Passenger" who is a person traveling with a valid pass or ticket.
10. Section 124-A, which was inserted in the Railways Act, 1989 w.e.f. 01.08.1994 deals with compensation on account of "untoward incident" providing for no fault liability for a deceased or his dependent to claim compensation in case of injury or death of such passenger respectively if an untoward incident occurs during the course of working of railways. Some exceptions Patna High Court MA No.233 of 2014 dt.12-07-2019 31/43 have been provided in the Section for which no compensation would be available, namely, if a person dies or gets injured by committing suicide or attempt to commit suicide, suffers from self-inflicted injury or gets injured or dies by his own criminal act or dies because of disease or medical or surgical treatment unless such treatment becomes necessary due to injury caused by any untoward incident. In the aforesaid Section "Passenger", is deemed to include a railway servant on duty and a person who has purchased a valid ticket or traveling by a train carrying passengers, on any date or a valid platform ticket and become a victim of an untoward incident.
11. "Untoward incident" has been defined under Section 123 (c), which too has been inserted in the Act w.e.f. 01.08.1994.
"Untoward incident" means -
(1)(i) the commission of a terrorist act within the meaning of sub-section (1) of section 3 of the Terrorist Patna High Court MA No.233 of 2014 dt.12-07-2019 32/43 and Disruptive Activities (Prevention), 1987 (28 of 1987);
or
(ii) the making a violent attack or the commission of robbery of dacoity; or
(iii) the indulging in rioting, shoot-out or arson, by any person in or on any train carrying passengers, 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."
12. Thus, from a conspectus of the aforesaid provisions under the Railways Act, 1989, it becomes very clear that a passenger who dies or gets injured in an untoward incident is liable to be compensated by the railways.
13. Chapter-VIII of the Railways Act, 1989 deals with the carriage of passengers. Section 50 of the Act provides that on the payment of a passenger, he shall be Patna High Court MA No.233 of 2014 dt.12-07-2019 33/43 supplied with a ticket which shall contain all necessary particulars which have been listed in Section 50 of the Act. Section 55 of the Act prohibits travel by any person without a pass or a ticket.
14. Under the Railway Claims Tribunal (Procedure) Rules, 1989, a Tribunal may direct the parties to give evidence, if any, by affidavit and may order cross- examination of any dependent if considered necessary for a just decision of the case.
15. The Tribunal under Section 22 of the Railway Claims Tribunal (Procedure) Rules, 1989 can summon witness and would make a brief memorandum of the substance of evidence of every witness examined.
16. The Claims Tribunal is not to be bound by the procedure laid down in CPC but is to be guided by the Principles of Natural Justice and the Rules framed by the Tribunal.
17. In this context, it would be necessary to refer to Part-III of the Indian Evidence Act, 1872, (hereinafter Patna High Court MA No.233 of 2014 dt.12-07-2019 34/43 referred to as "Evidence Act" for short) which deals with "burden of proof".
18. Anybody desiring any Court to give a judgement as to any legal right or liability dependent on the existence of facts which he asserts, he must prove those facts and the burden of proof lies on him (Section 101). The burden of proof lies on the person whose case would fail, if no evidence at all is given on either side (Section 102). The burden of proof as to any particular fact would lie on such person who claims its existence, unless it is provided by any law that the proof of such fact shall lie on any particular person (Section 103). If any fact is especially within the knowledge of any person, burden of proof of that fact is only upon such person (Section 106).
19. By several judicial pronouncements, it has been clarified that a distinction exists between the "burden of proof" and "onus of proof". The burden of proof lies upon a person who has to prove the fact for seeking the relief claimed. Thus burden of proof is static for and on the Patna High Court MA No.233 of 2014 dt.12-07-2019 35/43 person who wishes the Court to believe him and such responsibility never shifts on anybody-else. Onus of proof is however not static and it can shift in the process of evaluation of evidence of the person who has the first responsibility of offering evidence for discharging the burden of proof and in the beginning, the onus of proof is also on him. For the discharge of burden of proof, the onus is always on the person who claims a relief from the Court and if he discharges the onus and makes out a case entitling him to a relief claimed, the onus shifts to the one who contests such assertions by the claimant (Refer to Addagada Raghavamma & Anr. Versus Addagada Chenchamma & Anr. [AIR 1964 SC 136]; R.V.E. Venkatachala Gounder Versus Arulmigu Viswesaraswami and V.P. Temple & Anr. [AIR 2003 SC 4548] and Anil Rishi Versus Gurbaksh Singh [AIR 2006 SC 1971].
20. Tested on the aforesaid principles, if a claimant wishes the Court to believe that the deceased, a valid passenger, died in the railway accident, the burden of Patna High Court MA No.233 of 2014 dt.12-07-2019 36/43 proof and the onus of proof would be on him. The burden of proof shall always remain with the claimant with the onus of proof in the beginning. For discharging the aforesaid burden and onus, he would be required to pitch in evidence, which in a case of railway accident would be production of a valid ticket. However, it may not be necessary in all circumstances to produce a valid journey ticket or platform ticket and there could be other ways for proving that the deceased was a valid passenger. An instance of such evidence would be the statement of any person accompanying the deceased that the deceased had valid ticket but the ticket was lost; or a fellow passenger who was shown the ticket by the deceased or evidence that the ticket was checked by the TTE during the course of travel, and so on and so forth. Once the initial onus is discharged, it would be obligatory on the respondent / Railways to disapprove it by evidence. Merely denying an assertion would not be sufficient.
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21. Likewise, for a claimant also, it would not suffice only to plead that the deceased was a valid passenger but proof for the same has to be offered. Pleadings are no evidence and they cannot be taken to be proof of a fact asserted.
22. Once this onus is discharged, it would be for the Railways to disapprove the same by evidence.
23. In Kaushalaya Devi (supra), the Division Bench took note of the fact that one witness who remained consistent throughout claimed to have seen the deceased purchasing ticket. This was a piece of evidence. In the event of the Railway Administration refuting / denying the same, it had to be proved by the Railways that no ticket was purchased or that at the time of inquest or post mortem, the clothes which the deceased was wearing was also inspected and no ticket was found in the pocket. In this context, the Division Bench has stated that a person traveling on train has to have a valid ticket or else he Patna High Court MA No.233 of 2014 dt.12-07-2019 38/43 would be prosecuted for the same. The aforesaid presumption works against the Railway Administration.
24. While saying so, the Division Bench went a bit further and held that any person found inside the Railway Station premises is presumed to have either a platform ticket or a railway journey ticket and would not to be required to be proved that he had a valid ticket. This proposition, in my respectful opinion, is not correct. There could be several instances when a person may be found inside the Railway Station premises who is not a passenger or in possession of platform ticket or a railway journey ticket. Such blanket declaration, namely, any person found inside the railway station premises would be deemed to be a valid passenger, militates against the logic and reasonableness. It is not an unknown fact that the in the railway station premises, there are many wanderers, beggars and unauthorized persons. Treating all of them to be bona-fide passengers at all time would lead to disastrous results and would be self-destructive. Patna High Court MA No.233 of 2014 dt.12-07-2019 39/43
25. The issue at hand, namely, whether any person / deceased found inside the railway station premises would be deemed to be a bona-fide passenger for the purposes of claiming compensation and the claimant in that event would not be required to produce valid railway ticket, has now been set at rest by the Supreme Court in Union of India Versus Rina Devi [(2019) 3 SCC 572] .
26. In the aforesaid case, the respondent had filed claim for compensation for the death of her husband in an untoward incident in which her husband fell down from the train due to rush of passengers and died. One person claimed to have seen the deceased buying a ticket and thereafter boarding the train who filed an affidavit to that effect before the Claims Tribunal. It was urged that the ticket could not be recovered from the body of the deceased as it might have been lost somewhere. Obviously, the aforesaid claim was contested by the Railways holding the deceased to be a wanderer near the railway tracks. One of the cousins of the deceased who had Patna High Court MA No.233 of 2014 dt.12-07-2019 40/43 lodged the F.I.R. had stated that the deceased was suffering from mental disorder. The maker of the F.I.R. but was not examined as a witness. The claim for compensation was rejected by the Tribunal on the ground that it was not a case of "untoward incident" but a case of "run over". The aforesaid order of the Tribunal was set aside by the High Court after relying upon Kaushalaya Devi (supra) in which it was held that the onus of proof that the deceased was a ticketless traveller was on the Railways.
27. The Supreme Court in Rina Devi (supra) dealt with the definition of a passenger and noticed several conflicting decisions of different High Courts, namely, Andhra Pradesh High Court in Agam Shanthamma Versus Union of India [2002 SCC OnLine AP 766]; Kerala High Court in Union of India Versus Leelamma [2009 SCC OnLine Ker 903]; Bombay High Court (Nagpur Bench) in Union of India Versus Surekha [2010 SCC OnLine Bom 1201], Ramdhan Versus Union of India [2008 SCC OnLine Bom 1215] & Union of India Verus Nandabai [2015 SCC OnLine Patna High Court MA No.233 of 2014 dt.12-07-2019 41/43 Bom 4615]; Calcutta High Court in Asharani Das Versus Union of India [2009 SCC OnLine Cal 799] ; and Madhya Pradesh High Court in Raj Kumari Versus Union of India [1992 SCC OnLine MP 96].
28. The aforesaid conflict was resolved by the Supreme Court by relying upon Gurucharan Singh Versus Union of India [2014 SCC OnLine Del 101]; Jetty Naga Lakshmi Parvathi Versus Union of India [2011 SCC OnLine AP 828]; and Kamrunnissa Versus Union of India [(2019) 12 SCC 391] and declaring as follows:
"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 bona-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 bona-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 Patna High Court MA No.233 of 2014 dt.12-07-2019 42/43 be dealt with from case to case on the basis of facts found. The legal position in this regard will stand explained accordingly."
29. The decision of the Division Bench in Kaushalaya Devi (surpa) has been thus impliedly overruled by the Hon'ble Supreme Court.
30. From the aforesaid conclusion of the Apex Court in Rina Devi (supra) on the issue, there no longer remains any controversy with respect to burden of proof and the onus of proof regarding a deceased being a bona- fide passenger in the absence of a valid ticket for the claim of compensation to succeed.
31. The reference is answered accordingly.
(Ashutosh Kumar, J.) (Per:Hon'ble Mr. Justice Aditya Kumar Trivedi, J.) There happens to be unanimity in approach conceivement as well as answering the reference which happens to be under the garb of principle laid down by the Apex Court in Union of India vs. Rina Devi reported in (2019) 3 SCC 572, Patna High Court MA No.233 of 2014 dt.12-07-2019 43/43 whereunder the law has been propagated that the burden lies upon claimant to substantiate the identity of the deceased/injured to be a bonafide passenger whereupon, the onus will shift upon the railway by way of rebuttal. That being so, the matter is returned back to Hon'ble the Chief Justice for getting it placed before the Single Judge.
(Aditya Kumar Trivedi, J.)
Prakash Narayan/
skm
AFR/NAFR AFR
CAV DATE 08.05.2019
Uploading Date 15.07.2019
Transmission Date NA