Gauhati High Court
Smt. Alchuma Bibi And 4 Ors vs The Union Of India And 4 Ors on 2 April, 2019
Author: Suman Shyam
Bench: Suman Shyam
Page No.# 1/12
GAHC010212502011
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : MFA 6/2011
1:SMT. ALCHUMA BIBI and 4 ORS,
2: PIARA BEGAM
3: MINARA BEGAM
4: HAZIRA BEGAM
5: HARUN MIA
SL. NO. 1 IS THE WIFE OF LATE ANCHAR ALI
AND SL. NO. 2 TO 4 ARE DAUGHTERS OF LATE ANCHAR ALI AND SL. NO.
5 IS THE S/O LATE ANCHAR ALI
SL. 2 TO 5 ARE REPRESENTED IN THIS APPEALBY THEIR MOTHER I.E.
SMT. ALCHUMA BIBI
ALL ARE R/O VILL. NADLAPUR
P.O. KALACHERRA
P.S. CHURALBARI
DIST. NORTH TRIPURA
STATE TRIPUR
VERSUS
1:THE UNION OF INDIA and 4 ORS,
REPRESENTED BY THE SECY. MINISTRY OF RAILWAYS, RAIL BHAWAN,
NEW DELHI
2:THE UNION OF INDIA
REPRESENTED BY THE GENERAL MANAGER
N.F. RAILWAYS
MALIGAON
GUWAHATI-11
ASSAM.
Page No.# 2/12
3:THE UNION OF INDIA
REPRESENTED BY THE DIVISIONAL MANAGER
LUMDING DIVISION
LUMDING
ASSAM.
4:THE UNION OF INDIA
REPRESENTED BY THE AREA MANAGER
N.F. RAILWAYS
BADARPUR
P.O. BADARPUR
DIST. KARIMGANJ
ASSAM.
5:THE UNION OF INDIA
REPRESENTED BY THE STATION MASTER
KARIMGANJ RAILWAY JUNCTION
N.F.RAILWAY
KARIMGANJ
P.O. andDIST. KARIMGANJ
ASSAM
Advocate for the Petitioner : MR.A CHOUDHURY
Advocate for the Respondent : MR.A K SARKAR
Linked Case : MFA 7/2011
1:SMT. ALCHUMA BIBI and 4 ORS
2: PIARA BEGAM
3: MINARA BEGAM
4: HAZIRA BEGAM
5: HARUN MIA
SL. NO. 1 IS THE WIFE OF LATE ANCHAR ALI
AND SL. NO. 2 TO 4 ARE DAUGHTERS OF LATE ANCHAR ALI AND SL. NO. 5
IS THE S/O LATE ANCHAR ALI
SL. 2 TO 5 ARE REPRESENTED IN THIS APPEALBY THEIR MOTHER I.E. SMT.
ALCHUMA BIBI
ALL ARE R/O VILL. NADLAPUR
P.O. KALACHERRA
P.S. CHURALBARI
Page No.# 3/12
DIST. NORTH TRIPURA
STATE TRIPURA
VERSUS
1:THE UNION OF INDIA and 4 ORS
REPRESENTED BYTHE SECY.
MINISTRY OF RAILWAYS
RAIL BHAWAN
NEW DELHI.
2:THE UNION OF INDIA
REPRESENTED BY THE GENERAL MANAGER
N.F. RAILWAYS
MALIGAON
GUWAHATI-11
ASSAM.
3:THE UNION OF INDIA
REPRESENTED BY THE DIVISIONAL MANAGER
LUMDING DIVISION
LUMDING
ASSAM.
4:THE UNION OF INDIA
REPRESENTED BY THE AREA MANAGER
N.F. RAILWAYS
BADARPUR
P.O. BADARPUR
DIST. KARIMGANJ
ASSAM.
5:THE UNION OF INDIA
REPRESENTED BY THE STATION MASTER
KARIMGANJ RAILWAY JUNCTION
N.F.RAILWAY
KARIMGANJ
P.O. andDIST. KARIMGANJ
ASSAM.
Advocate for the Petitioner : MR.A GOYAL
Advocate for the Respondent : SC
NF RLY
BEFORE
HON'BLE MR. JUSTICE SUMAN SHYAM
Page No.# 4/12
JUDGMENT & ORDER (ORAL)
Date : 02-04-2019 Heard Mr. G. Khandelia, learned counsel appearing for the appellants in both these appeals. I have also heard Mr. G. Goswami, learned standing counsel, N.F. Railway appearing for the respondents.
2. Both these appeals arise out of two orders passed by the learned Railway Claims Tribunal, Guwahati Bench rejecting two claim petitions seeking compensation due to the alleged death of the husband and the son of the appellant No. 1 in an "untoward" incident whereby, their bodies were recovered lying near the railway tracks. The appellants/ claimants being legal heirs of both the deceased persons, had filed the two claim petitions being numbered and registered as OA No. 53/2008 and OA No. 54/2008. Both the claim petitions were dismissed by the learned Railway Claims Tribunal, Guwahati Bench by separate orders dated 05-06-2009 passed in the individual O.A.s on identical grounds. Since the original applications were tried analogously and common questions of law and facts are involved in both these appeals, hence, I propose to dispose of the appeals by this common order.
3. The factual background of the case, as projected through the pleadings, briefly stated, is that the husband of the appellant No. 1 Anchar Ali and her son Nazrul Islam, who are residents of Nadlapur, North Tripura District in the State of Tripura, were returning by train from Tinsukia after attending proceedings in the court of Chief Judicial Magistrate, Tinsukia. Due to gauge conversion, the deceased had to change the train at the Lumding Station where they had boarded the 856 UP Tripura Passenger Train for Page No.# 5/12 onward journey to Tripura. However, during the course of their journey, at about 10:30 p.m, after the train had left Karimganj Junction, the father and the son were attacked by some unknown miscreants inside the compartment. Both the persons were killed and thereafter, their bodies were thrown out of the running train in the presence of other co- passengers. Later on, the co-passengers had informed the Station Master about the incident in the next stoppage, i.e. at Nilam Bazar Railway Station. The incident had occurred on the night of 04-09-2005 but on the following day, i.e. on 05-09-2005, the dead bodies of Anchar Ali and Nazrul Islam were found by the local public lying near the railway track. Accordingly, the Officer-in-Charge of Karimganj Police Station was informed about the matter, who in turn had intimated the Officer-in-Charge, GRP Railway, Karimganj. On receiving the information, the Officer-in-Charge, GRP Railway and Officer- in-Charge, Karimganj moved to the place of occurrence and recovered the dead bodies and sent them for Postmortem Examination. An FIR was also lodged, based on which, Badarpur GRPS Case No. 26/2005 was registered.
4. Alleging that the victims were bonafide passengers travelling in train No. 856 when they were killed by the unknown miscreants, the appellants, being the legal heirs of the deceased persons, had filed the claim petitions seeking compensation on account of their death.
5. The respondents had filed written statement inter-alia denying that the deceased persons were bonafide passengers travelling in the train or that they had died in an untoward incident.
6. Based on the claims and counter-claim of the parties, the learned Tribunal had Page No.# 6/12 framed the following issues for trial:-
(i) Whether the defendant proved deceased was not a bonafide passenger of the train in question on the date of incident?
(ii) Whether the applicant proves incident as alleged in the claim application took place and is covered within the definition of untoward incident under Section 123 of the Railway Act, 1989?
(iii) Whether the applicant proves what amount of compensation the applicant is entitled to get from the Respondents?
(iv) What relief, if any, the applicant is entitled to?
(v) What order?
7. By the impugned judgment and orders dated 05-06-2009, the learned Railway Claims Tribunal, Guwahati Bench had dismissed both the claim petitions, inter alia, holding that the appellants had failed to prove that the deceased were bonafide passengers. The learned Tribunal had also held the claimants had failed to establish that the deceased had died in an untoward incident.
8. By referring to the materials on record, more particularly, the Station Master's report, Mr. Khandelia submits that there is an endorsement in the "Stock Book"
maintained by the Station Master that the passengers travelling in the said compartment had reported about the existence of blood in the compartment but they were not willing speak out anything as regards the accident. That apart, submits Mr. Khandelia the inquest report in this case clearly shows that the dead bodies were recovered by the side of railway track with grievous injuries and the nature of injuries are confirmed by the Page No.# 7/12 Postmortem Report. The learned counsel submits that materials on record clearly point towards the fact that the deceased persons were killed inside the compartment and their dead bodies were thrown out of the running train. As such, submits Mr. Khandelia, there were sufficient materials available on record to show that the incident had happened inside the compartment while the deceased persons were travelling by train.
9. By inviting the attention of this court to the deposition of the PW-1, the learned counsel for the appellant further submits that the witness has clearly stated that the deceased persons never travelled without a valid journey ticket and the said statement had not been challenged by the respondents nor did they lead any evidence to show that the deceased persons were travelling without valid ticket. Under the circumstances, the findings and conclusions arrived at by the learned Tribunal, according to the learned counsel, are perverse to the evidence on record and hence, liable to be declared so.
10. Responding to the above arguments, Mr. G. Goswami, learned standing counsel, N.F. Railway contends that the story projected by the appellants is imaginary inasmuch as there is not even an iota of evidence to establish the claim made by the appellants that the deceased persons were travelling by train with a valid ticket when the alleged incident took place inside the train compartment. Under the circumstances, submits Mr. Goswami, the learned Tribunal had rightly dismissed the claim petitions filed by the appellants. Mr. Goswami further submits that the appellants had earlier named two suspects who could be responsible for the murder of the deceased persons but after the investigation by the police, no evidence could be found against the two suspects, as a result of which, the police had submitted final report in this case. Therefore, it is established that the entire Page No.# 8/12 story projected by the appellants was completely baseless.
11. By placing reliance upon a decision of the Supreme Court in the case of Union of India Vs. Rina Devi reported in AIR 2018 SC 2362 Mr. Goswami submits that this is a classic example where the claimants have failed to discharge their initial burden to establish the fact that the deceased persons were bonafide passengers. The claimants have also failed to lead evidence to show that the incident occurred inside the compartment of the train. Such being the position, the learned Tribunal had rightly decided the issues against the claimants.
12. I have considered the submissions advanced by the learned counsel for both the parties and have also meticulously gone through materials available on record.
13. The issue Nos. 1 and 2 are the material issues in this case. The learned Tribunal had decided both these issues against the claimants. In so far as issue No. 1 is concerned, the learned Tribunal has held that since the claimants had failed to produce the journey ticket, hence, it was proved that the deceased persons were not bonafide passengers. It was also held that the mere fact that the bodies were found lying near the track do not prove that the deceased were travelling by train. I am afraid such reasoning of the learned Tribunal cannot be accepted as valid in the facts and circumstances of the case.
14. In this case, both the father and the son were evidently killed in the same incident on being attacked by some unknown miscreants and their dead bodies were recovered lying near the railway track. The belongings of the deceased persons were also reportedly Page No.# 9/12 stolen. Under the circumstance, it would be wholly unjustified to expect the claimants to produce the journey ticket to prove that the deceased persons were bonafide passengers.
15. In a number of judicial pronouncements rendered by the different High Courts, it has been held that mere non-availability of the travelling ticket need not necessarily lead to the conclusion that the deceased persons were not bonafide passengers. It would not be necessary for this court to burden this judgment by referring to all those decisions. However, it may be mentioned here that in the case of Smti. Nridhaniya Devi Vs. Union of India (UOI) reported in 1993 (3) GLT 216, the Division Bench of this Court had observed that merely because a stand was taken by the claimant to the effect the travelling ticket was lost, it would not be proper to decline compensation to the victim on the ground that the victim was not a bonafide passenger. From the above decision of this court it is apparent that the mere non-production of the journey ticket cannot be treated to be the proof of the fact that the persons were not bonafide passengers. This is more so, since the issue No. 1 has been couched in a negative form which casts a burden upon the respondents to prove that the deceased were not bonafide passengers. Therefore, the conclusion of the learned Tribunal deciding the issue No. 1 against the claimants merely on the ground of non-production of journey ticket, in the facts and circumstances of the case, is found to be erroneous.
16. Coming to the decision of the learned Tribunal as regards issue No. 2, it is to be noted here-in that there is no eye witness in this case and the claim of the claimants is entirely based on circumstantial evidence. It is not in dispute that the deceased persons are the residents of Nadlapur in the district of North Tripura and they had come to Page No.# 10/12 Tinsukia to attend court proceeding before the Chief Judicial Magistrate, Tinsukia. The claimants witness (PW-1) had categorically stated that after attending the court proceedings, the deceased person were returning back to Tripura by the 856 UP Tripura Passenger Train. The PW-1 in her cross-examination had also stated that the deceased persons never travelled in a train without a ticket. I find from the record that the said assertion of the claimants witness had not been assailed by the respondent during her cross-examination.
17. The Station Masters Register as well as the Inquest Report clearly points towards the fact that there was some incident that took place on that night and blood was also found inside the compartment. Within proximate time from the discovery of blood in the compartment, the dead bodies of the two deceased persons were also recovered from near the railway track which was traversed by the same train. The respondents have not come up with their version so as to explain as to how blood could be found in the compartment or as to how the dead bodies were found lying near the railway track. Under the circumstances, it was incumbent upon the learned Tribunal to consider as to whether any other inference than the one suggested by the claimants was permissible in this case having regard to the peculiar facts and circumstances of the case. But no such attempt had been made in this case.
18. The learned Tribunal had held that since there was no eye witness to prove that the bodies of the deceased persons were thrown out of the compartment, hence, the case was not proved. It was also held that the injuries suffered by the deceased might be on account of their own mischief or negligence. However, such finding of fact recorded Page No.# 11/12 by the learned Tribunal is not based on any evidence and hence, in the opinion of this Court, is a perverse finding.
19. Upon perusal of the impugned judgments and orders of the learned Tribunal, this Court is of the un-hesitant opinion that the Tribunal had failed to appreciate the evidence available on record in their proper perspective while recording the finding of facts leading to the decisions and conclusion recorded in the impugned judgments. Therefore, I am of the considered opinion that the impugned judgments and order dated 05-06-2009 passed by the learned Railway Claims Tribunal dismissing both the claim petitions are unsustainable in the eye of law and the same are accordingly set aside.
20. As notice above, the case of the claimants is entirely based on circumstantial evidence. It is quite possible that if the claimants succeed in establishing the fact that the deceased were travelling in the train as bonafide passengers and were killed in violent attack that took place inside the train compartment during the course of their journey for no fault on their part, then the appellants would be entitled to receive compensation for the death of the deceased persons in an untoward incident coming within the definition of Section 123(C)(ii) or (iii) of the Act of 1989. The question that would, therefore, arise for consideration in this case is as to whether the claimants have succeeded in discharging their initial burden to establish the said facts. The aforesaid question would have to be answered on the basis of proper appreciation of evidence on record, which exercise in the opinion of this Court, has not been done carried out properly by the learned Tribunal.
21. It is also to be borne in mind that since it is a proceeding of civil nature, the standard of proof in this case would be of "preponderance of probability". As such, there Page No.# 12/12 was no necessity for the Claimants in this case to prove any fact beyond reasonable doubt. Therefore, the claim of the appellants in this case would have to be assessed on the touch stone of the law laid down in the case of Rina Devi (Supra) having due regard to the standard of proof applicable in this case.
22. For the reasons stated above, I am of the view that the issues framed in these cases are required to be decided afresh by recording finding of facts based on proper appreciation of evidence. However, in order to avoid any prejudice being caused to either party, instead of recording fresh findings of facts at the appellate stage, the matters is being remanded back to the learned Claims Tribunal for a fresh decision of the claim petitions in the light of the observations made above, keeping in mind the ratio laid down by the Hon'ble Supreme Court in the case of Rina Devi (Supra).
Considering the delay that has already occurred in this case, the learned Tribunal may make an endeavor to dispose of the Claim Petitions as expeditiously as possible, preferably within a period of six months from the date of receipt of the LCR.
Facilitating the above, parties to appear before the learned Tribunal on 02-05-2019 and produce a certified copy of this order for passing further order in the matters.
With the above observation both these appeals stand disposed of. Registry to send back the LCR expeditiously.
JUDGE GS Comparing Assistant