Jharkhand High Court
Punam Devi vs Union Of India Through The General ... on 15 March, 2021
Author: Kailash Prasad Deo
Bench: Kailash Prasad Deo
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Miscellaneous Appellate Jurisdiction)
M.A. No. 436 of 2019
........
Punam Devi .... ..... Appellant
Versus
Union of India through the General Manager,
East Central Railway, Hajipur(Bihar) .... ..... Respondent
CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
(Through : Video Conferencing)
............
For the Appellant : Mr. Vijay Shanker Jha, Advocate.
For the Respondent : Mr. Gautam Rakesh, Advocate.
........
06/15.03.2021.
Heard, learned counsel for the appellant, Mr. Vijay Shanker Jha and learned counsel for the railway, Mr. Gautam Rakesh.
Learned counsel for the appellant has submitted that appeal has been preferred by mother of the deceased against the judgment dated 12.07.2019, passed by learned Member (Technical), Railway Claims Tribunal, Ranchi Bench, in Case No. OA(IIU)/ RNC/6/2018, whereby the claim application of the applicant has been dismissed on the ground that applicant has failed to discharge its initial burden of proof to establish that victim Riya Verma died due to untoward incident as defined under Section 123 (c) (2) of the Railways Act, though the learned Tribunal has decided issue no.1 with regard to bonafide passenger in favour of the applicant as six persons were travelling on the train i.e Kolkata - Agra Cant. Superfast Express Train No.12319 from Asansole to Gaya having Ticket No. Q 37627178 to Q 37627183 dated 20.09.2017 from Asansole to Gaya.
Learned counsel for the appellant has submitted that Riya Verma along with family members were going from Asansole to Gaya by Train No.12319, after receiving information, that her father Radha Ranjan Prasad Verma, who was hospitalized at Indira Gandhi Medical College, Patna has passed away. The learned Tribunal has presumed that deceased has committed suicide after jumping from the running train near Hariharpur Gumti at KM No. 303/12-14 DN line.
Learned counsel for the appellant has submitted, that no evidence has been brought on record by the railway to establish, that deceased has committed suicide, only the presumption is that since the father of the deceased has died during treatment, she might have committed suicide.
-2-Learned counsel for the appellant has submitted, that if a lady or a girl will jump from train, she will not fall near the railway track on which the Train is running, rather the dead body will be found at a distance from the said track. If she will jump from train, she might sustain injury by hitting on pole, but these evidence have not been adduced by the railway to establish that victim Riya Verma committed suicide. No evidence has been brought on record by the railway to establish, that it is a case of self inflicted injury, as such, the learned Tribunal has erroneously passed the impugned judgment.
Learned counsel for the appellant has submitted, that as per the case of the claimant, deceased went to the wash basin to wash / clean her face, normally the gates are open in the train during month of September and because of the jostling in the train, the deceased has fallen dawn and sustained injury. The railway has completely failed in establishing that deceased has committed suicide.
Learned counsel for the appellant has submitted that fardbeyan also says that Riya Verma went near the wash basin to wash / clean her face and hands and fallen down from the running train.
A.W.-1, Punam Devi has supported her case in her evidence recorded at paras-6 & 7 of her examination-in-chief with respect to untoward incident and nothing has been elucidated by the railway during her cross-examination.
Para Nos. 6 & 7 of A.W.1, Punam Devi during her examination-in- chief may be profitably quoted hereunder:-
"6. That in course of their journey when the said train was running and crossed the Gomoh Jn., the deceased was washing her hand and mouth in the basin which is situated near the gate, the door of the gate was open, in the mean time she instantly, accidentally fell down from the said running train at Rail K.M. No.303/12-14 near between the Hariharpur Rly. Gumti, Resulting she sustained grievous injuries and died on the spot.
7. That thereafter on information of the incident the GRPS Gomoh registered a U.D. Case No.22/17 dated 20.09.2017 and prepared inquest report and after due postmortem the police gave the dead body to her family for final rites and rituals."-3-
A.W. 2- Sanjay Burman has also supported the claim application in his evidence at paras-2, 6, 7, 8 & 9 of his examination-in-chief. This witness has been cross-examined by the railway, but nothing has been brought on record to elucidate any contradictory evidence.
Para Nos. 2, 6, 7, 8 & 9 of A.W.2, Sanjay Burman during his examination-in-chief may be profitably quoted hereunder:-
"2. That I have seen the deceased washing her hand & mouth in wash basin which is situated near the gate and also I was the eye witness of the said untoward incident.
6. That I had all the valid Rly. Journey tickets of six persons whose ticket No. was Q 37627178 to Q 37627183 dated 20-09-2017, from Asansole Jn. to Gaya Jn.
7. That in course of our journey when the said train was running and crossed the Gomoh Jn., the deceased was washing her hand and mouth in the basin which is situated near the gate, the door of the gate was open and the floor near the basin was slipy, in the mean time she instantly, accidentally fell down from the said running train at Rail K.M. No.303/12-14 near between the Hariharpur Rly. Gumti, Resulting she sustained grievous injuries and died on the spot.
8. That my Bhagini left her seat for going to bath room and thereafter she wash her hand & mouth in the wash basin in the mean time she accidentally fell down from the said running train because the water was sprayed below of wash basin, the train was running in speed and gate was also open. I have seen this incident with my eyes.
9. That thereafter on information of the incident the GRPS Gomoh registered a U.D. Case No.22/17 dated 20.09.2017 and prepared inquest report and after due postmortem the police gave the dead body to her family for final rites and rituals."
Shankar Burman has been examined as A.W.-3, he is a hearsay witness and has supported the case of the claimant.
Learned counsel for the appellant has thus submitted that deceased was a bonafide passenger and died in an untoward incident, as such, in absence of any contrary material brought on the record by the railway, the claim application may be allowed by setting aside the impugned judgment.
-4-Learned counsel for the railway, Mr. Gautam Rakesh has opposed the prayer and has submitted that learned Tribunal has rightly passed the impugned judgment not considering it to be an untoward incident as defined under Section 123 (c) (2) of the Railways Act, rather the learned Tribunal has rightly considered it to be a case of self inflicted injury, as such, under Section 124 A of the Railways Act, 1989 the claimant is not entitled for any compensation.
Learned counsel for the railway has submitted that the counter affidavit has been filed on 15.03.2021 paragraphs - 8 to 12 of the same may be taken note of:-
"8. That written statement was filed stating denying that the occurrence was a untoward incidence as defined under the Act. Hence the claimant is not liable for any compensation.
9. That DRM report was filed. Sri Narayan Rai, investigating officer and ASI / RPF Post / Gomoh in the enquiry report concluded that it has come to light from station diary, the statement of relatives and from the available documents that the incident was true but the deceased was herself responsible for the incident.
10. That from the material on record it is apparent that the deceased sustained injuries due to her own act which was a self inflicted injury.
It was not an untoward incident and the Ld. Tribunal had rightly held that the death of the victim was not an untoward incident as defined under Section 123(c) (2) of Railway Act.
The Ld Tribunal has rightly dismissed the claim applicant. The appellant is not liable for compensation as claimed in the instant appeal.
11. That it is humbly submitted that there is nothing substantial material on the record as to show, in what manner or how the respondent can be held liable for any delay in disposal of the case. The Railway can not be held responsible for any fault on the part of the deceased.
12. That it is stated that there is no provision under the Railway Claims Tribunal Act for award of interest."
Learned counsel for the railway has thus submitted that the impugned judgment does not require any interference by this court.
Considering the rival submissions of the parties and looking into the fact and circumstances of the case, so far bonafide passenger is concerned, there is no dispute between the parties as the ticket numbers -5- have been brought on record, as such, the deceased was a bonafide passenger. So far untoward incident as defined under Section 123 (c) (2) of the Railways Act 1989 is concerned, in view of the evidence laid down by eye witnesses coupled with the fardbyean recorded soon after the occurrence, where categorical statement has been made that deceased went near the wash basin to wash / clean her hand and mouth and she fell down from the running train. No contrary evidence has been brought on record by the railway either in the investigation / inquiry of the UD case or recording of the statement of any co-passenger that deceased jumped from the rail, this Court is not inclined to accept the argument made by the railway.
This Court has also examined, that railway has not come up with a case that deceased has not fallen down near the railway track, rather she has jumped and as such, the dead body was found near the other track on which the aforesaid Train No.12319 Kolkata-Agra Cant. weekly Superfast Express Train was running, as such, in view of the judgment passed by the Apex Court in the case of Union of India v. Prabhakaran Vijaya Kumar, reported in (2008) 9 SCC 527, this Court consider the incident to be an untoward incident as defined under Section 123(c) (2) of the Railways Act,1989.
Considering the same, the impugned judgment dated 12.07.2019 passed by learned Member (Technical), Railway Claims Tribunal, Ranchi Bench in Case No. OA(IIU)/ RNC/6/2018 is set aside and the instant Miscellaneous Appeal is hereby allowed.
The Railway is directed to indemnify the award as per Railway Accidents and Untoward Incidents (Compensation) Amendment Rules, 2016 w.e.f. 01.01.2017 to the tune of Rs.8,00,000/- along with interest @ 7.5% simple per annum from the date of filing of the claim application, till the date of indemnifying the award as the incident is of dated 20.09.2017, the claim application was filed on 08.01.2018 and impugned judgment passed on 12.07.2019.
Let the L.C.R. be sent down to the court below forthwith.
(Kailash Prasad Deo, J.) Jay/-