Telangana High Court
Bolla Sailu 3 Others vs The Union Of India on 29 March, 2022
HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY
CIVIL MISCELLANEOUS APPEAL No.250 of 2016
JUDGMENT :
1. This appeal is directed against the orders in O.A.A.No.185 of 2007, dated 30.05.2014 of the Railway Claims Tribunal, Secunderabad Bench. Applicants before the Tribunal are the appellants.
2. The appeal is filed on the ground that the order under appeal is contrary to the facts, evidence on record and probabilities of the case. It is stated that the Railway Claims Tribunal dismissed the appeal on the ground that the appellants have failed to prove any untoward incident on the alleged date i.e. 27.09.2006, which is prima facie incorrect and that the findings on Issue No.3 are based on surmises and conjunctures. It is further stated in the grounds of appeal that the complainant is not examined to doubt or suspect the genuineness of the contents of the FIR, which is not considered by the learned Tribunal and that the Tribunal ought not to have taken into consideration Ex.R-1/the letter dated 14.01.2008 which is not 2 GAC, J CMA.No.250 of 2016 supported by any record in respect of the incident which took place on 27.09.2006. It is stated that the Tribunal has erroneously held that even if the incident had happened by unknown train dashing the deceased while crossing the track in the broad day light, definitely it would have been noticed by some passengers or Station Manager or Guard and the train would have been halted and the Driver of that train would have reported the same.
3. Heard learned counsel for the appellants as well as the learned Standing Counsel for Railways appearing for respondent and perused the record.
4. The original application was filed by the applicants/appellants who are the husband and three sons of the deceased Smt. Bolla Lakshmi (hereinafter referred to as "the deceased"), who was alleged to have travelled from Jammikunta to Kothapalli by 321 passenger train with Ticket No.07605020 and fell down accidentally due to sudden jerks of the said train, sustained severe injuries on head and limbs and succumbed to injuries on 28.09.2006 while undergoing treatment. 3
GAC, J CMA.No.250 of 2016
5. The respondent filed a detailed counter before the Tribunal denying all the contentions of the applicants and contended that it is not a case of accidental fall from the trian and therefore, petition may be dismissed.
6. The Tribunal, basing on the pleadings, has framed the following three issues:
"1. Whether the applicants are dependants of deceased;
2. Whether the deceased was a bona fide passenger of the train in question; and
3. Whether the deceased died as a result of an untoward incident of accidental fall from the said train."
7. The 1st appellant was examined as AW-1 and Exs.A-1 to A- 8 were marked on behalf of applicants. On behalf of respondent, RW-1 was examined and Ex.R-1 was marked.
8. Issue No.1 was decided in favour of the appellants basing on Ex.A-8/the Family Members Certificate dated 08.05.2013 issued by the Tahsildar, Jammikunta Mandal, which certifies that as per the inquiry made by the Revenue Inspector, the deceased was 4 GAC, J CMA.No.250 of 2016 survived by her husband and three sons, who are appellant Nos.1 to 4 respectively.
9. The Tribunal also gave a finding in favour of applicants on Issue No.2 also, that the deceased was a bona fide passenger of the train in question as the deceased travelled with Ticket bearing No.07605020, which was marked as Ex.A-2 and which was issued from Jammikunta to Kothapalli Station on 27.09.2006 at 05.50 hours in II Ordinary Class. However, issue No.3 i.e. whether the deceased died as a result of untoward incident of accidental fall from the said train, was decided against the applicants/appellants.
10. It is the contention of the learned counsel for appellants that though issue Nos.1 and 2 are decided in favour of the appellants, the Tribunal has not considered that the deceased had died as a result of untoward incident of accidental fall from the train and dismissed the claim petition of the appellants, which is highly arbitrary and illegal and is against the evidence adduced by the appellants. It is also contended that the incident took-place in the year 2006, whereas, the Tribunal has relied on Ex.R-1/the letter 5 GAC, J CMA.No.250 of 2016 dated 14.01.2008 issued by the Guard of the train after lapse of about one and half years and has come to the conclusion that the train halted at Kothapalli Railway Station from 06.56 to 06.57 hours and that there was no unusual incident or accident at the Station at that time. It is contended that relying on the said letter and the evidence of RW-1, the Tribunal has come to an erroneous conclusion that there was no untoward incident and if at all there was any fall from the train from 06.56 to 06.57 hours in the morning, definitely it would have been noticed by the passengers of the train, Station Manager or Guard of the Train and the Train must have been halted. It is urged by the learned counsel for the appellants that it is a fit case to grant compensation to the appellants basing on the findings of the Tribunal on Issue Nos.1 and 2 that the appellants are the family members of the deceased and that the deceased was a bona fide passenger of the train in question.
11. On the other hand, the learned Standing Counsel for respondent contended that Ex.R-1 clearly discloses that no 6 GAC, J CMA.No.250 of 2016 untoward incident took place at Kothapalli Railway Station on the alleged date, and further, as per Ex.A-1/FIR, the incident was not reported to the Station Staff and apparently, the relatives of the deceased took the deceased to the hospital and later on, came back to report the incident to the Station Master only at 15.40 hours on 27.09.2006, though the alleged incident had occurred at around 06.55 hours. It is contended that the Tribunal has rightly dismissed the claim application and accordingly, prayed to dismiss the appeal.
12. On perusal of the entire record, the admitted facts before the Tribunal are that Appellant Nos.1 to 4 are the family members of the deceased as per Ex.A-8/Family Members Certificate. It is also an admitted fact before the Tribunal that the deceased had travelled in the train in question i.e. 321 Passenger Train from Jammikunta to Kothapalli with a valid journey ticket Ex.A-2 bearing No.07605020 and later she died on the railway track near Kothapalli Railway Station. Ex.A-1 is the FIR which discloses that the deceased/Bolla Lakshmi, aged 35 years, had fallen from the 7 GAC, J CMA.No.250 of 2016 train i.e. 321 Passenger Train at Kothapalli halt Station, got injured and was joined at Karimnagar Civil hospital by her relatives and the said complaint was given by Kothapalli Grama Sarpanch, for which, a case was registered in Crime No.187 of 2006 under Section 174 Cr.P.C. on 27.09.2006 at 15.40 hours. As per the oral evidence of AW-1, on 27.09.2006, his brother-in-law by name Raja Narsu informed him that the deceased suffered severe injuries due to accidental fall from Ramagiri Passenger Train (321) at Kothapalli Railway Station and she was admitted in the Government Hospital at Karimnagar. The evidence of AW-1 corroborates with Ex.A-1/FIR on all aspects as to the manner in which the accident took place and also as to the death of the deceased. Ex.A-2 is the train journey ticket dated 27.09.2006 from Jammikunta to Kothapalli for a fare of Rs.8/- which clearly disclose that the deceased traveled on the said train. As discussed above, the mode of journey of the deceased in the said train is not at all in dispute. Ex.A-3 is the attested copy of the Inquest Report, which discloses that Mr.D.Subba Reddy, who was the Station Superintendent of Peddapalli Railway Station, was one of the 8 GAC, J CMA.No.250 of 2016 witnesses for the inquest panchanama. Column No.9 of Ex.A-3/ Inquest Report discloses that the manner in which the dead body was found i.e. that the deceased had fell down while boarding down the Passenger 321 Up Train at Kothapalli Railway Station, even as per the complaint. Though there is a contra version in the statement of AW-1 i.e. the brother of the deceased that the deceased, after boarding down the train, while crossing the tracks, was hit by another train, it is not supported by either oral or documentary evidence. The post-mortem report/Ex.A-4 clearly discloses that the deceased sustained head injury and fracture to both the legs and that the cause of death also disclose that she succumbed to injuries. Thus, Ex.A-4/post-mortem report corroborates with Ex.A-1/FIR and it further partly corroborates with the inquest report/Ex.A-3. The cause of death mentioned in the "Death Report" is that the deceased had fallen from the train accidentally, which was issued by the Sub-Inspector of Police, GRP, Bellampalli, dated 30.11.2006.
9
GAC, J CMA.No.250 of 2016
13. It is pertinent to mention that Ex.R-1 dated 14.01.2008, is the letter issued by Senior Goods Guard to the Chief Claims Officer. On a perusal of Ex.R-1, it could be understood that it is an explanation submitted by RW-1 to the Chief Claims Officer stating that no unusual incident took place at Kothapalli Railway Station on 27.09.2006. It is also relevant to mention here that the incident took place in the month of September 2006, whereas, the explanation/Ex.R-1 was given by RW-1 after the lapse of almost one and half years. Further, the cross-examination of RW-1 discloses that the original rough journal of 321 Passenger Train dated 27.09.2006 was mis-placed by him when kept in his house. It is also admitted by RW-1 that he received letter from the Chief Claims Officer on 14.01.2008 calling for explanation from him, for which, he has given reply under Ex.R-1, and in the said explanation also, he has not stated about the missing of the rough journal. Surprisingly, the oral evidence of RW-1 disclose that an incident had happened at Kothapalli Railway Station on 27.09.2006, which is contrary to the recitals of Ex.R-1. Further, it 10 GAC, J CMA.No.250 of 2016 was clearly deposed by RW-1 that he has never seen an Inquest Report in his service.
14. On a perusal of the entire order of the Railway Claims Tribunal, it can be construed that the Tribunal has relied on the oral evidence of RW-1 and the documentary evidence i.e. Ex.R-1 and rejected the claim of the appellants by believing the version of the respondent that the deceased died while crossing the track due to hit by another train. Admittedly, there is no whisper by any of the Railway Authorities, as to any accident or any other train hitting any person on the said date i.e. 27.09.2006. Further, the inquiry report of the Deputy Divisional Railway Manager was not marked before the Tribunal for the reasons best known to the Railway Authorities. The oral evidence of AW-1 corroborates with the documentary evidence i.e. Exs.A-1 to A-5 on all aspects as to the manner in which the accident had occurred.
15. The dead body of the deceased was recovered at Kothapalli Railway Track. None of the Railway Authorities were examined to prove the case of the Railways that after boarding down the train, 11 GAC, J CMA.No.250 of 2016 the accident took place while the deceased was crossing the track. In the absence of proper evidence on behalf of respondent- Railways as to the nature of the accident, the claim of the appellants cannot be rejected. It is pertinent to mention that the finding of the Tribunal, that there is a delay of Six hours in reporting the crime and that the appellants have not reported immediately to the Police is fatal, cannot be accepted as it is a human psychology that if an incident takes place, the injured shall be immediately shifted to hospital for treatment, but not to go to Police Station for reporting. Hence, the delay in lodging the FIR is not at all fatal to the case of the appellants.
16. In this connection, it is relevant to refer to the law laid down by the Hon'ble Supreme Court in Jameela & others v. Union of India1. In para 5 of the said judgment, it is held as under :
"Section 124A of the Act provides as follows:
"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 1 2010 ACJ 2453 12 GAC, J CMA.No.250 of 2016 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, 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."
17. Further, para 9 of the said judgment reads as under : 13
GAC, J CMA.No.250 of 2016 "9. The manner in which the accident is sought to be reconstructed by the Railway, the deceased was standing at the open door of the train compartment from where he fell down, is called by the railway itself as negligence.
Now negligence of this kind which is not very uncommon on Indian trains is not the same thing as a criminal act mentioned in clause (c) to the proviso to section 124 A. A criminal act envisaged under clause (c) must have an element of malicious intent or mens rea. Standing at the open doors of the compartment of a running train may be a negligent act, even a rash act but, without anything else, it is certainly not a criminal act. Thus, the case of the railway must fail even after assuming everything in its favour."
18. For the aforesaid reasons, the appeal is allowed and the order passed by the Railway Claims Tribunal, Secunderabad Bench in O.A.A.No.185 of 2007, dated 30.05.2014 is hearby set aside.
19. As per the Schedule given by the Ministry of Railways vide Notification dated 22nd December, 2016, the Railways are liable to pay compensation of Rs.8,00,000/- for the death of its passengers. Therefore, the appellants are entitled to compensation of Rs.8,00,000/- for the death of the deceased Smt.Bolla Lakshmi, 14 GAC, J CMA.No.250 of 2016 payable by the respondent within a period of two months from the date of receipt of a copy of this judgment.
20. As a sequel, pending miscellaneous applications, if any, shall stand closed.
_______________________________ G. ANUPAMA CHAKRAVARTHY, J Date: 29.03.2022 ajr