Orissa High Court
Smt. Mochi Bisoyi And Others vs Union Of India on 10 September, 2012
Equivalent citations: 2012 AAC 3391 (ORI), (2013) 123 ALLINDCAS 602 (ORI), (2013) 1 TAC 58, (2013) 1 CLR 737 (ORI), (2013) 1 ACC 695, (2013) 3 ACJ 2026, (2013) 116 CUT LT 23, (2012) 2 ORISSA LR 876
Author: B.K. Patel
Bench: B.K. Patel
HIGH COURT OF ORISSA: CUTTACK.
F.A.O. NO.53 of 2012
From the order dated 30.11.2011 passed by Shri A.K.Das, Member
(Technical), Railway Claims Tribunal, Bhubaneswar Bench in Case
No.OA/71/2008.
Smt. Mochi Bisoyi and others ...... Appellants
- Versus-
Union of India,
represented through General Manager,
Northen Railway, New Delhi ...... Respondent
,
For Appellants : M/s. Rama Pr. Mohapatra,
D. Mohapatra and S. Parida
For Respondent : M/s. A.K.Mishra, H.M.Das and
A.K.Sahoo
---------
PRESENT:
THE HONOURABLE SHRI JUSTICE B.K. PATEL
Date of hearing - 30.8.2012 :: Date of judgment -10.9.2012
B.K. PATEL, J.This appeal is directed against the impugned order dated 30.11.2011 passed by the Member (Technical), Railway Claims Tribunal, Bhubaneswar Bench (for short 'the Tribunal') rejecting claim application bearing Case No.OA/71/2008.
2. Appellants-claimants filed the claim application claiming compensation of Rs.4,00,000/- along with interest and cost on account of death of deceased Maheswar Bisoyi (for short 2 'the deceased'). Claimants are wife (A.W.1) and minor children of the deceased respectively.
3. Claimants' case is that on 4.1.2008 the deceased purchased valid ticket to travel from Bhubaneswar to Jammu Tawi. He along with three companions boarded the Purushottam Express from Bhubaneswar and reached New Delhi on 6.1.2008. On the same day the deceased and his companions boarded the Malwa Express from New Delhi station to go to Jammu Tawi. Around 1.30 A.M. on 7.1.2008 the deceased went to the toilet, but did not return back to his seat. On 8.1.2008 at Jammu Tawi railway station, deceased's companions got information that a man had fallen down from Malwa Express and died near Kathua railway station. His dead body was kept by police in mortuary. A.W.2, one of his companions, went there and identified the dead body of the deceased. Police case was instituted and enquiry was conducted in connection with deceased's death. Claimants filed the claim application claiming that they are entitled to get compensation as the deceased died due to an untoward incident within the meaning of Section 123
(c) of the Railways Act, 1989 (for short 'the Act').
Respondent-Railway Administration filed written statement resisting the claim and pleading that claim of the 3 applicants does not fall within the provisions under Sections 123 (c), 124 and 124-A of the Act.
4. In order to substantiate the claim, claimants examined the deceased's wife as A.W.1 and one of the co- passengers as A.W.2. Also, Daily Diaries dated 7.1.2008 and 9.1.2008 prepared in course of enquiry in the police case as well as the train ticket of the deceased along with English translation of Daily Diaries were relied upon by the claimants. No evidence was adduced by the Railway Administration.
5. Considering the rival pleadings, the Tribunal settled the following issues:
1) Whether the applicants are the sole dependents of the deceased?
2) Whether the deceased was a bona fide passenger under section 124-A of Railways Act, 1989?
3) Whether the incident was an untoward incident as provided in the said Act?
4) Whether the applicants are entitled to get compensation under relevant sections of the Act?
5) If so, what reliefs?
6. In answering issue nos.1 and 2 it was held by the Tribunal that the applicants are dependants of the deceased and that deceased was traveling in the train with a valid ticket from Bhubaneswar to Jammu Tawi. Therefore, it is not disputed that the deceased was a bona fide passenger. However, upon 4 reference to certain documents and statements stated to be available in the enquiry report of the PC/RPF/JAT (Jammu Tawi) it was held by the Tribunal that claimants failed to establish that the deceased died due to untoward incident as pleaded in the claim application. Accordingly, the claim application was disallowed.
7. In assailing the impugned order it was strenuously contended by the learned counsel for the appellants-claimants that evidence of A.W.2 regarding death of the deceased due to accidental fall from Malwa Express in the night of 6/7.1.2008 has not been rebutted or contradicted by the Railway Administration in any manner. No evidence was adduced from the side of the Railway Administration. On the contrary, Daily Diaries in the police enquiry corroborate the evidence of A.W.2 that deceased's dead body was found in the railway track near Kathua station as pleaded by the claimants. Also, in the final report of the police enquiry it has been categorically concluded that while travelling in Malwa Express the deceased suddenly slipped, fell down and died at the spot. In such circumstances, the claimants are entitled to get compensation on account of death of the deceased.5
8. In reply, it was argued by the learned counsel appearing for the respondent-Railway Administration that in view of discrepancies and inconsistencies between the version of the claimants with regard to date and time of alleged untoward incident and the version of Railway personnel in course of enquiry with regard to time of running of the Malwa Express, the Tribunal has rightly held that the claimants failed to substantiate their claim.
9. Admittedly, Railway Administration has not adduced any evidence. A.W.2 was travelling with the deceased. He testified that after arrival at New Delhi station on 6.1.2008, he along with deceased and others boarded the Malwa Express.
The compartment was over crowded. In the early morning at about 1.30 A.M. of 7.1.2008 deceased went to latrine attached to the compartment asking him to look after his luggage. A.W.2 never saw the deceased thereafter. As the deceased did not arrive at Jammu Tawi, A.W.2 went to Chaki Bank Railway Station and informed the station authority regarding missing of the deceased. As advised by the station authority, he went to Kathua Railway Station where Railway Police informed him that dead body of an unidentified man who had fallen down from Malwa Express in between Kathua and Budhi Railway Station 6 on 7.1.2008 had been kept in mortuary. A.W. 2 went to the mortuary and identified the dead body of the deceased. Evidence of A.W.2 remained unrebutted. It also finds corroboration from Daily Diaries dated 7.1.2008 and 9.1.2008 in P.P.G.R.P., Budhi. In Daily Diary dated 7.1.2008 it has been mentioned that one unidentified male person fell down from Malwa Express train and died on the spot. That apart, in the final report of the police investigation it has been mentioned that on 7.1.2008 at about 1.30 P.M. information was received regarding falling of one unknown person from running Malwa Express train which was coming to Jammu Tawi. It has been concluded in the police report that during the course of investigation it was found that the deceased was travelling in the Malwa Express train and he suddenly slipped from the door, fell down and died on the spot. Therefore, it is well established that the deceased died due to accidental fall from running train in the night of 6/7.1.2008 while travelling from New Delhi to Jammu Tawi.
10. Perusal of the impugned order reveals that the Tribunal did not accept the evidence adduced on behalf of the claimants upon to certain statements of some Railway personnel and some documents which are extraneous to record. Such 7 statements and documents were not admitted into evidence and were not brought to the attention of the claimants. Proceeding before the Tribunal being a quasi judicial proceeding, the Tribunal could not have placed reliance on materials beyond the record in order to find fault with the evidence adduced on behalf of the claimants which remained unrebutted. On an appraisal of the evidence on record this Court is of the considered view that claimants' case regarding death of the deceased due to untoward incident in the night of 6/7.1.2008 has been cogently established by evidence of A.W.2 which is corroborated by Daily Diaries and documents including final report prepared by police in course of enquiry into the death of the deceased. In such circumstances, claimants are entitled to get compensation of Rs.4,00,000/- (Rupees four lakhs only) with interest from the date of filing of the claim application.
11. In the result, the appeal is allowed. The impugned order is set aside. Respondent-Railway Administration is directed to deposit compensation of Rs.4,00,000/- (Rupees four lakhs) along with interest at the rate of 6 per cent per annum from the date of filing of the claim application till payment before the Tribunal within two months. In case the respondent fails to pay the amount within the time stipulated, the 8 compensation amount would be payable with interest at the rate of 9 per cent per annum from the date of filing of the claim application to the claimants. On deposit of the compensation amount with interest, the Tribunal shall keep 40% of the amount in the name of the wife of deceased, and 20% of the amount in the name of each of the children of the deceased in fixed deposit in any nationalized bank for a period of five years, and disburse the balance amount to the wife of the deceased.
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B.K. Patel, J.
Orissa High Court, Cuttack, Dated the 10.9. 2012/B. Jhankar