Calcutta High Court (Appellete Side)
Shrimati Jaymala Das vs Union Of India on 30 June, 2010
Author: Subhro Kamal Mukherjee
Bench: Subhro Kamal Mukherjee
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Form No. J.(2)
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Present :
The Hon'ble Justice Subhro Kamal Mukherjee
And
The Hon'ble Justice Prabhat Kumar Dey.
F. M. A. 117 of 2005
Shrimati Jaymala Das ... Appellant
Versus
Union of India ... Respondent
Mr. Krishanu Banik ... for the appellant
Mr. Krishna Das Poddar ... for the respondent.
Heard on: June 30, 2010
Judgement on: June 30, 2010.
Subhro Kamal Mukherjee, J. : This is an appeal against the judgement and order dated
October 12, 2001 passed by the Railway Claims Tribunal, Kolkata Bench, in Case No. A/722/2000.
The application for compensation was filed before the Railway Claims Tribunal for
compensation on account of an untoward incident. The application was filed by Shrimati Jaymala
Das, widow of the victim, for self and on behalf of her minor daughter, Rita Kumari, who was
about ten years old on the date of filing of the application. In the claim application, it was
contended that the victim, namely Jogendra Nath Das, at the time of his journey by 133 Up Howrah
Mokama Passenger, fell down from the running train on November 11, 1999 at 11.30 p.m. and
sustained severe head injury. He was admitted at Serampore Walsh Hospital. As his condition
deteriorated, he was shifted to S.S.K.M. Hospital, Kolkata. He succumbed to his injuries on
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November 15, 1999. In the application it was categorically stated, in column 7, that the victim was
holding a second class railway ticket being no. J-17052.
The claim case was registered as Case No.A/722/2000 before the Railway Claims Tribunal,
Kolkata Bench.
In the written statement the railway authorities, inter alia, alleged that the incident did not
fall within the meaning of untoward incident as defined under the Railways Act, (the said Act of
1989 in short). It was stated that the onus to prove the claim solely lay on the applicant. It was for
her to prove that the victim was a bona fide passenger of the train. The railway authorities disputed
their liability to pay compensation.
The applicant deposed before the Railway Claims Tribunal. She stated that her husband was
a cobbler. She stated that her husband was travelling by the said train for going to his native place
in the district of Begusarai in the state of Bihar. The elder brother of the deceased, who was present
at Serampore Railway Station when the victim met with the accident, stated in his deposition that
the train was over crowded. The victim boarded the train, but he slipped on the platform and,
thereafter, he slipped on the railway track He stated that his brother was trying to enter into the
compartment, but the train started moving. His brother tried to place his feet on the foot-board of
the train, but due to heavy rush he was pushed and fell on the platform. He stated that his brother
had an ordinary second class passenger ticket from Serampore to Mokama.
Madhusudan Saha was the only witness on behalf of the railway administration. He was the
Assistant Station Master of Serampore Railway Station at the relevant point of time. On coming to
know of the incident, he sent an information to the Medical Officer of Serampore Walsh Hospital
for treatment of the victim. He, also, proved the station diary where the accident was recorded. He
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stated that he had no personal knowledge of the accident, but he confirmed that he took the
initiative to send the victim to the hospital.
The Railway Claims Tribunal rejected the application for compensation primarily on the
ground that the applicant failed to prove that her husband was a bona fide railway passenger
holding valid railway ticket. According to the Railway Claims Tribunal as she failed to prove her
case that her husband was a bona fide railway passenger, she was not entitled to receive any
compensation.
The victim was a cobbler. He was going to his native place in the district of Begusarai in the
state of Bihar. It is quite natural for him to travel by a passenger train in general compartment.
Travelling by a reserved compartment is a luxury for such a person.
In the claim application it was categorically stated that the victim possessed a railway ticket
being no. J-17052. The brother of the victim, who was present at the time of the incident, also
deposed that the victim possessed a valid railway ticket. The railway administration in the written
statement vaguely stated that it was to be proved by the applicant that the victim was a bona fide
passenger of the train having a valid ticket. The witness of the railway administration did not utter a
single word. We have no reason to disbelieve the brother of the victim.
We are of the opinion that the Railway Claims Tribunal erred in law and in fact in refusing
the prayer for claim on the ground that the victim was not a bona fide railway passenger. In the
claim application there was reference to the ticket purchased by the victim for travelling by the
train. The Railway Claims Tribunal observed that the elder brother did not say anything in his
deposition that the ticket was in possession of the victim or that the deceased had purchased the
said ticket. In fact the brother of the victim in his cross-examination stated that his brother held an
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ordinary second class passenger ticket. The original railway ticket was, also, filed before the
tribunal and is lying with the records.
The Railway Claims Tribunal was unnecessary critical of the elder brother of the victim.
The victim died while attempting to board the train. The number of railway ticket was categorically
mentioned. The ticket has been exhibited before the tribunal. It is not the case of the railway
administration that such ticket was not issued from Serampore Railway Station for travelling from
Serampore to Mokama. The Railway Claims Tribunal erroneously shifted the burden on the
claimant when the onus to prove that deceased was a ticketless passenger and, therefore, not a bona
fide passenger, is on the railway administration.
We, therefore, hold that the claimant purchased a valid ticket for travelling by 133 Up
Howrah Mokama passenger between Serampore and Mokama. The general compartment was filled
with passengers. He could not enter into the compartment. He lost his footing when the train started
moving. There was a jerk. Due to such jerk and melee he accidentally fell down from the train.
It has been proved that the deceased was a bona fide passenger and while travelling by a
train he had accidentally fallen down from the running train and received grievous injuries resulting
in his death. This is an untoward incident as defined under Section 123(c)(2) of the said Act of
1989 and as such the dependents of the deceased are entitled to compensation in pursuance of
Section 124 A of the said Act of 1989.
We, therefore, set aside the impugned judgement and order of the Railway Claims Tribunal
and hold that the applicant is entitled to compensation of Rs.4,00,000/- (Rupees four lakh) only in
terms of the part I of schedule of compensation payable for death under the Railway Accidents
Untoward Incident (Compensation) Rules 1990.
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The claimant is, also, entitled to interest at the rate of 8% (eight per cen tum) on the amount
of compensation, as above, from the date of filing of the claim application till its realisation.
The railway administration is directed to deposit the awarded sum including the interest
thereon in the tribunal below within two months from the date.
The claimant shall receive the compensation for self and on behalf of her minor daughter as
the mother and natural guardian of the minor. She shall invest half of the compensation in interest
bearing fixed deposit scheme of any nationalised bank of her choice. She shall be entitled to utilise
the interest accrued on such fixed deposit for the benefit of the minor, but she shall not encash the
principal. The daughter only on attaining the age of 21(twenty one) years shall be entitled to
receive the principal.
With the aforesaid directions, the appeal is allowed.
In view of the disposal of the appeal, all interlocutory applications become infructuous and
those are disposed of.
There will be no order as to costs.
The office is directed to send down the lower court's records of this case immediately.
Xerox certified copy of this order, if applied for, is to be given to the parties immediately.
(Subhro Kamal Mukherjee, J.)
Prabhat Kumar Dey, J. :
I agree.
(Prabhat Kumar Dey, J.)