Calcutta High Court (Appellete Side)
Bandana Mishra vs Union Of India on 12 May, 2017
Author: Dipankar Datta
Bench: Sahidullah Munshi, Dipankar Datta
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT : Hon'ble Justice Dipankar Datta
and
Hon'ble Justice Sahidullah Munshi
F.M.A. 213 of 2010
Bandana Mishra
v.
Union of India
For the appellant : Mr. Jayanta Banerjee,
Mr. Prasanta Banerjee,
Ms. Ruxmini Basu Roy,
Mr. Pratip Mukherjee.
For the respondent : Mr. Moloy Kr. Das,
Ms. Aparna Banerjee.
Hearing concluded on : February 23, 2017
Judgment on : May 12, 2017
DIPANKAR DATTA, J. :
1. Dismissal of Claim Application No.U/421/2006 by the Railway Claims Tribunal, Kolkata, vide judgment and order dated February 29, 2008, has been called in question in this appeal by the applicant thereof (hereafter the appellant).
2. The appellant had approached the tribunal seeking compensation on the death of her husband, Barun Kumar Misra (hereafter the victim), on July 21, 2005. It was pleaded in the claim application that the victim while returning home from Sheoraphuli boarded a Howrah bound local train and fell down on the track at Serampore Railway Station by slipping in between the gap of the platform and the train due to pressure exerted by other passengers, suffered multiple injuries and died on the spot. Accordingly, Rs.4,00,000/- was claimed together with interest and costs. The claim application was contested by the Eastern Railway by filing a written statement wherein the material allegations levelled in the claim application were denied and disputed. The appellant examined herself as a witness, AW-1, and another gentleman who was allegedly accompanying the victim and was in the train with him adduced evidence as AW-2. The railway did not adduce any evidence.
3. The tribunal framed the following issues for determination:
"1) Whether the victim sustained injuries by falling from a running train and died thereof on the alleged date and time and if so, whether the said incident is covered within the meaning of 'untoward incident' as defined under Section 123 (c) of the Railways Act, 1989?
2) Whether the victim was a bona fide railway passenger?
3) Whether the applicant, is entitled to get compensation from the respondent, as prayed for?
4) To what other relief, if any, the applicant is entitled?"
4. All the aforesaid issues were decided against the appellant resulting in dismissal of the claim application, as referred to above.
5. Mr. Banerjee, learned advocate appearing for the appellant contended that the tribunal erred in the exercise of its jurisdiction in returning the findings it did and thereby declining relief despite the claim of the appellant having been duly proved on the basis of the evidence on record. He further contended that despite the railway having sought for time for adducing evidence and obtained adjournments, it ultimately did not and the Member (Technical) who presided over the tribunal imported his personal knowledge in recording the finding that the victim was run over while crossing a railway track and not that he fell down from a moving train and died, as claimed by the appellant. He also contended that the oral evidence of AW-2 was not appreciated in the proper perspective and submissions advanced on behalf of the appellant by her advocate relying on decisions having the force of precedents binding on the tribunal were not at all considered. Placing reliance on the decision of the Supreme Court reported in 2011 (1) T.A.C. 10 (S.C.) [Jameela & others v. Union of India] and a decision of a coordinate Bench of this Court reported in (2010) 1 WBLR (Cal) 106 [Bandana Mondal v. Union of India], he submitted that the appellant is entitled to relief and prayed for compensation in a sum of Rs.8,00,000/- having regard to the amendment effected in the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990 by the Amendment Rules of 2016.
6. Per contra, Mr. Das appearing for the respondent contended that the judgment and order of the tribunal does not suffer from any infirmity warranting interference. According to him, the victim was a ticketless passenger and, therefore, not a bona fide passenger as explained in section 124-A of the Railway Act, 1989. Relying on the decision of a coordinate Bench of this Court reported in (2010) 1 WBLR (Cal) 444 [Smt. Shakuntala Show & ors. v. Union of India], he prayed for dismissal of the appeal.
7. We have heard the learned advocates for the parties and perused the materials on record. The contentious issue, arising for decision is whether the tribunal was justified in dismissing the claim application or not.
8. It would be profitable at this stage to look into the claim application for finding out what exactly the appellant had pleaded therein. Relevant portions therefrom are set out below:
"After marketing he alongwith his one neighbour Sri Amit Bagchi boarded in a Howrah bound local train with valid Railway Ticket Ex-Sheoraphuly to Sreerampore. The train was over crowded for which they were standing at the door. Sri Amit Bagchi was standing behind my husband - Barun Misra. They did not try to enter in the middle portion of the compartment as because the train was over crowded and they will get down at next station Sreerampore. Just entering Sreerampore station due to sudden jerk and heavy pressure from the passengers standing behind him, he could not keep his balance with his bags and accidentally fell down from the running train and by rolling his body entered in between the gap of Sreerampore platform and running train compartment for which he sustained lacerated injuries and succumbed to the injuries on spot.
On arrival at Sreerampore Stn. his neighbour Sri Amit Bagchi going to the spot found Barun dead. He informed to SM/Serampore and to our house also."
9. In its written statement, the respondent averred that the alleged incident was not an untoward incident in terms of section 123 of the Railway Act. A doubt was cast on the case pleaded in the claim application by averring that it was difficult to believe that no other passenger except the victim fell down from the moving train due to sudden jerk and pressure created by other passengers. The further assertion was that:
"Normally in the Subarban (sic suburban) section at 20.05 hrs no question of over crowded of office passengers, as the alleged train was coming from Bandel to Howrah."
Standing near the door of the compartment, whatever be the cause, was pleaded to be a fault committed by the victim by the respondent in the written statement. In paragraphs 9 and 10 of the written statement, the case of the respondent was stated as follows:
"9. That the respondent also states no passenger may fall down from a stopping train by rolling his body entered in between the gap of railway platform and compartment unless the said passenger take a (sic an) attempt to get down on a platform from a running train. As such it is a case of contributed (sic contributory) negligence on the part of the deceased person and in this circumstances it will be within the ambit of self inflicted injury causing to death and in that situation Railway Administration is not liable at all for any compensation.
10. That it is to be proved by the applicant that the deceased was a bona fide passenger of the train having a valid ticket purchased."
10. Admittedly, the appellant was not an eye-witness to the occurrence. In her evidence she disclosed how she received information of the death of the victim. She also deposed that the victim was a reputed footballer who had represented leading football clubs like Mohan Bagan Athletic Club and Mohammedan Sporting Club. In course of cross-examination, she reiterated that she was not present at the time of incident but had derived information of the victim's death from AW-2. She also asserted that AW-2 saw the victim purchase tickets for both on the date of the incident. While answering a query of the tribunal, the appellant said that the victim was working in the Dock Labour Board, Calcutta and left behind her and an unemployed son as his surviving heirs. She also stated that the victim did not commit suicide.
11. The appellant in course of her deposition before the tribunal proved the post mortem report, police report (final report of a reported case of unnatural death under section 174, Code of Criminal Procedure) and the death certificate of the victim, which were marked exhibits A, A/1 and A/2 respectively.
12. AW-2, the eye-witness, stated on affidavit as follows:
"3. That after marketing, I along with Barunda came to Sheoraphuli Rly. Stn. on giving his bag to me he stood in queue for purchasing ticket. After purchasing computerised ticket in which it was stated for 2 Adults Ex- Sheoraphuli to Serampur. We boarded a Howrah bound local train from Sheoraphuli for Serampur at about 20.05 hrs. Barunda was standing in front the door and I was behind him.
4. That the train was over crowded for which we were standing at the door in this sense that we will get down at next station Serampur. When the train just entered in platform No.1 of Serampur Rly. Stn. on sudden jerk and a heavy pressure from inside Serampore bound passengers-Barunda could not keep his balance he fell down from the running train and by rolling his body entered between the gap of Serampur platform No.1 and the said compartment.
5. That after stopping the train I immediately went to the spot and found Barunda dead. I informed the SM/Serampore and went to the house of Barunda.
I called Suvadip Misra, the only son of Barun Kumar Misra and told the incident to him in presence of other person of that locality. On hearing this sad news Suvadip was weeping and hearing his voice his mother Bandana Misra immediately rushed to us and on hearing this tragic incident she burstforth into tears.
6. That I alongwith his son Suvadip Misra went to the spot and identified the dead body before OC/GRPS/Sheoraphuli."
In course of cross-examination, AW-2 deposed as follows:
"My name is Amit Bagchi. I knew the victim, as he was my neighbour. The accident of this case took place at about 08.10 p.m. in the evening on 21.07.2005. On the date of accident, I accidentally met with the victim at Sheoraphulli Market. After marking (sic marketing) I along with Barun Misra came to Sheoraphulli Station. Barun purchased two tickets for our journey to Srerampore and we were travelling from Sheoraphulli to Srerampore. As Srerampore is the next station of Sheoraphulli and the train was over- crowded, we both were standing near the entrance of the compartment. When the train was just entered in Platform No. 1 of Srerampore Railway Station due to sudden jerk and the pressure exerted from inside passengers, Barun losing his balance fell down between the gap of platform and the train. Immediately after the train stopped, I went to the spot and found Barun dead. I informed the incident to the Station Master, Srerampore verbally, but, I did not sign any paper before him. During investigation GRP personnel came and enquired me about the incident and I signed as a witness. I saw the dead-body of the victim. The body was lying inside the track and the dissected leg was lying outside the track. I came here voluntarily to depose."
13. No evidence was tendered by any officer/employee of the railway and, therefore, the tribunal was required to base its decision on the pleadings vis-à-vis the evidence that were on record.
14. It appears on a bare reading of the impugned judgment that the tribunal accepted the contention raised by the learned advocate for the respondent. The relevant portions of the impugned judgment and order read as follows:
"5.1.8 On the other hand, Ld. Counsel for the respondent submits that it is mentioned in the Railway Memo that a dead body of an unknown person (male) aged about 60 years was found lying inside Down M/L track near platform no.1 of Seerampore railway station. He pointed out that according to the statement made by the witness, Amit Kumar Bagchi, he saw the entire dead-body of the victim lying inside the track and the dissected leg lying outside the track. The Ld. Counsel for the respondent cites the injuries listed in the Post Mortem Report and submits that the left leg of the victim was seen dissected at just below the knee joint and the fracture of all major bones of the shoulder and fracture of humerus, radius and ulna was noticed. From these injuries, sustained by the victim, it appears that the train ran over the upper portion of the victim's body. He points out that according to the applicant, the victim, Barun Kumar Misra fell down on the platform of Seerampore Railway Station and slipped in between the gap of the platform and the train. He argues that in that event, there is not possibility of the upper parts of the victim's body coming underneath the moving train. He submits that from this it is clear that the victim was run over by the train while crossing the track in a negligent manner. Thus, the alleged incident is not a case of accidental falling from a train and therefore, this incident cannot be classified as "untoward incident" under Section-
123(c) of the Railways Act.
5.1.9 I find lot of merits in the arguments advanced by the Ld. Counsel for the respondent. The evidences on record clearly establish that the body of the victim was found inside the track. As pointed out by the Ld. Counsel for the respondent, it appears to have that the train had gone over the upper portion of the body of the victim. That can happen only when the person comes before a running train. When a person falls down from the train on the platform and slips into the gap between the platform and the train, there is no possibility of the upper portion of his body coming underneath the train. Therefore, I agree with the contention of the Ld. Counsel for the respondent that the accident could not have happened as a result of a fall of the passenger from a running train. The alleged incident probably happened while the victim was crossing the track carelessly. Thus, in my opinion the applicant had failed to prove that the victim had died as a result of an accidental falling from a train. Therefore, the incident does not come within the purview of the definition "untoward incident" under Section 123(c) of the Railways Act. This issue is answered against the applicant."
15. Having read the aforesaid extract, which forms the plinth of the impugned judgment, we are unable to hold that the tribunal proceeded in a manner known to law.
16. The appellant had discharged the burden of proof by leading evidence through herself and AW-2, being the eye-witness to the untoward incident. The onus shifted to the respondent to prove that the victim did not die as a result of the incident as narrated by the AW-2. Such onus was, however, not discharged. From the police report, we find that the dead body of the victim was "lying inside DN M/L track between Sheoraphuli and Serampore R/S, KM Post No. 19/36 - 19/38 near platform No. 1 of Serampore R/S." (underlining for emphasis by us).
17. No effort seems to have been made by the respondent to lead evidence to prove that the area between KM Post No. 19/36 and 19/38 was well beyond platform no.1 and, therefore, the claim of the appellant that the victim fell down from a moving train on the railway track was not trustworthy. Identification of the exact spot from where the body of the victim was recovered was crucial. Although the tribunal returned a finding on the basis of the evidence on record that the body of the victim was found inside the track, it missed the woods for the tree. The fact in issue was whether the body was found on the railway track by the edge of/near the platform or not. If indeed, the case set up in the claim application by the appellant was true, and the victim died in the manner deposed by AW-2, the dead body ordinarily should have been on the railway track by the edge of/near the platform. The respondent could have produced the police officer, who conducted 'inquest' of the dead body of the victim to depose about the exact spot where it lay. In the alternative, the respondent could have also produced the inquest report prepared by the police to prove that the dead body of the victim was lying on the railway track at some distance from the platform and, therefore, the appellant had set up the claim for compensation with a concocted story. No such evidence having been led by the respondent, the argument of its learned advocate advanced before the tribunal that the victim must have been run over by a moving train while crossing the track in a negligent manner was not proved at all. Had the victim tried to cross a railway track and owing to negligence had failed to notice a moving train coming towards his direction, the dead body would definitely not have been found by the edge of/near the platform but in some open space giving access to the victim to the railway track. In the absence of any other evidence to cast doubt on the exact spot, the police version that the dead body was lying near platform no.1 seems to corroborate the case set up in the claim application.
18. We are reminded, at this stage, of what the Supreme Court observed in AIR 1975 SC 1534 [Dr. N. G. Dastane v. Mrs. S. Dastane] in regard to the standard of proof applicable in a civil case. The relevant passage reads as follows:
"24.The normal rule which governs civil proceedings is that a fact can be said to be established if it is proved by a preponderance of probabilities. This is for the reason that under the Evidence Act, Sec. 3, a fact is said to be proved when the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact-situation will act on the supposition that the fact exists, if on weighing the various probabilities he finds that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weight them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second. Within the wide range of probabilities the court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies. Important issues like those which affect the status of parties demand a closer scrutiny than those like the loan on a promissory note: 'the nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue' Per Dixon, J. in Wright v. Wright, (1948) 77 CLR 191 at p. 210; or as said by Lord Denning, 'the degree of probability depends on the subject-matter. In proportion as the offence is grave, so ought the proof to be clear. Blyth v. Blyth, 1966-1 All ER 524 at p.536.' But whether the issue is one of cruelty or of a loan on a pro-note, the test to apply is whether on a preponderance of probabilities the relevant fact is proved. In civil cases this, normally, is the standard of proof to apply for finding whether the burden of proof is discharged."
19. The claim of the appellant, in the light of section 3 of the Evidence Act and tested on preponderance of probability, does not seem to be improbable. Having regard to the version of AW-2, which stood firm even during cross-examination, and recovery of the dead body of the victim from near platform no.1 as appears from the police report, leads us to believe that sudden fall of the victim from the moving train and slipping between the edge of the platform and the compartment are so probable that a prudent man would, under the circumstances of the particular case, act upon the supposition that the victim suffered injuries having come under the moving train and died. Incidentally part of a severed leg of the victim was found not on the railway track but by its side lending credence to the pleaded case that the victim may have died in the manner stated by AW-2.
20. The submission made by the learned advocate representing the respondent to the effect that the nature of injuries suffered by the victim was akin to injuries suffered by a victim upon being run over by a moving train was not supported by any evidence adduced by any expert produced by the respondent as a witness. The Supreme Court in its decision reported in AIR 1968 SC 1413 [Gopal Krishnaji Ketkar v. Mohamed Haji Latif] held that if a party withholds best evidence, adverse inference against such party may be drawn although onus of proof did not lie on it or it was not called upon to produce it. The law laid down by the Supreme Court in its decision reported in AIR 1999 SC 1441 [Vidhyadhar v. Mankikrao & anr.] is also very clear that where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct. Evidence, either oral or documentary, ought to have been brought on record of the proceedings before the tribunal by the respondent to contest the claim of the appellant to discharge its onus. Not having done so, its case cannot be accepted.
21. A word or two about the role of the adjudicator is also considered necessary. Being a technical member, who presumably was in service for long, the presiding officer of the tribunal could claim knowledge as to whether an individual has been run over while crossing a railway track leading to his death or whether he suffered death as a result of a fall from a moving train; however, such personal knowledge could not have been relevant for rejection of a claim for compensation. A lis should not to be decided by the adjudicator of a judicial proceeding on the basis of his perception as to how an accident might have occurred, for the simple reason that the party against whom such knowledge is applied does not get the opportunity of cross-examining such adjudicator. The conclusion recorded in paragraph 5.1.9 of the impugned judgment not being based on oral or documentary evidence, is hardly of any worth.
22. Omission of the respondent to contradict the version of AWs 1 and 2 by adducing cogent evidence is considered crucial for a decision on this appeal and there is no option but to hold that whatever AW-2 had deposed, being an eye witness to the occurrence, were quite probable and acceptable. In view thereof, we unhesitatingly conclude that the tribunal committed error in deciding issue no.1 against the appellant.
23. Insofar as issue no. 2 is concerned, the tribunal has recorded the following reasons to rule against the appellant.
"5.3.4 In the instant case, the applicant could not establish that the victim sustained injuries while travelling on a train and died as a result of that injuries. Hence, the above argument of the Ld. Counsel for the applicant is not tenable in this case.
5.3.5. In my opinion, evidences on record do not establish that the victim was a bona fide passenger. Hence, this issue is decided against the appellant."
24. The reasoning in paragraph 5.3.4 extracted above would not relate to issue no.2 but to issue no.1. What remains is paragraph 5.3.5, recording the ipse dixit of the presiding officer. The decision in Bandana Mondal (supra) has been aptly cited by Mr. Banerjee, which proceeded to decide the lis before it relying on the decisions of the Supreme Court in Gopal Krishnaji Ketkar (supra) and Vidhyadhar (supra). Paragraph 11 of the cited decision reads as follows:
"11. We are quite conscious of the position of law that as provided in Section 106 of the Evidence Act, if a fact is within the special knowledge of a person, the burden of proving such fact is on that person and as provided in illustration (b) of that section, if a person is charged with travelling on a railway without a ticket, the burden of proving that he had a ticket is upon him. But such principle is not applicable to a case of a dead person whose dead body was found on the railway track and whose body was taken in custody of the Railway Police. In such a situation, it is the duty of the Railway Authority to first give evidence that he was without a valid ticket and if such evidence is given, the onus shifts upon the claimants to prove that he was a bona fide passenger having a valid ticket. In this case, as no person on behalf of the Railway has given any such evidence nor has any person come forward to disclose what articles were found with the victim, we conclude that the initial burden of proving such fact had not been discharged. We cannot lose sight of the fact that one is not entitled to enter even the platform of a railway station without having a valid platform ticket and one takes the risk of criminal prosecution by boarding a train without ticket. In such circumstances, in the absence of any evidence of the Railway Authority asserting absence of a valid ticket, we are of the opinion, there is no just reason for totally discarding the evidence of the PW-1, the mother of the victim, who deposed and asserted that it was she who purchased the ticket for her son, handed over the same to him and saw him off at the railway station. We have already mentioned that in cross-examination, no suggestion was even given to her denying those assertions."
25. We find no reason to disagree with the ratio of the said decision and hold that Mr. Banerjee's contention of the tribunal having erred in law as well as on facts must be accepted.
26. Paragraph 9 of the decision in Jameela (supra), also cited by Mr. Banerjee, has been perused. Having regard to the facts of the case before the Court, we are of the considered view that the same may not be of any real assistance in deciding the lis before us.
27. The decision in Sakuntala Show (supra), relied on by Mr. Das, does not aid in resolving the controversy before us in view of the undisputed case before the coordinate Bench that the deceased was travelling without any duty pass or residential pass and also that use of the pass in question for a journey to residential quarters by the deceased was unauthorized and as such he could not have been treated to be a bona fide passenger. In view of the deposition of AW-2, the cited decision is distinguishable.
28. What remains is the quantum of compensation payable to the appellant. With the amendment of rule 4 of the 1990 Rules with effect from January 1, 2017, the amount of compensation payable in case of death of a passenger as a result of untoward incident has been enhanced from Rs.4,00,000/- to Rs.8,00,000/-. In view of our judgment dated March 3, 2017 in F.M.A. 858 of 2012 [Smt. Radha Yadav v. Union of India], which was decided relying on the decision of the Supreme Court reported in 2001 WBLR (SC) 515 : Rathi Menon v. Union of India and wherein Mr. Das had represented the common respondent, we hold that the tribunal having dismissed the application for compensation the appellant is entitled to compensation in terms of the amended rule.
29. For the reasons aforesaid, we set aside the impugned judgment of the tribunal and allow Claim Application No.U/421/2006 by directing that the appellant shall be entitled to compensation in a sum of Rs.8,00,000/- with interest @ 7.5% p.a. from the date of lodging of the claim application before the tribunal till date of payment.
30. The compensation awarded by us together with interest shall be paid by the respondent by issuing an account payee cheque in favour of the appellant. Such cheque shall be deposited in the office of the Registrar General of this Court within two months from date, whereupon the appellant shall be entitled to collect the same from the Registrar General upon proving her identity and in accordance with law.
Urgent photostat certified copy of this judgment and order, if applied for, may be furnished to the applicant at an early date.
(DIPANKAR DATTA, J.) SAHIDULLAH MUNSHI, J. :
I agree.
(SAHIDULLAH MUNSHI, J.)