Railway; Naimunesa Vs. Union of India [Patna High Court, 19-07-2016]

Railways Act, 1989 – Section 123(C) – Railway Claims Tribunal – person run over and killed by a train – dead body is lying over the track near Railway station after crossing the bridge – deceased was a passenger and had fallen from train – authenticity of the documents – non presence of ticket – Held, the deceased might have fallen down, might have committed suicide, accidentally would have come under wheels – the court cannot on its own presume contrary to pleading – Railway failed to substantiate that the deceased was found travelling without ticket for which he was fined – inquest did not divulge that pocket of apparel having worn by the deceased was checked – the intention of the legislature while introducing the specific provision has also to be perceived – the act, in its nature suggests benevolent one – it is for welfare of the passengers, who lost lives or sustained injuries during course of his travelling and further, should not be allowed to leave in the lurch – each case has to be adjudged in the background of the nature of the statute – when two version is found coming out then in that event, the version suited to the claimant has to be accepted.

Train Accidents


IN THE HIGH COURT OF JUDICATURE AT PATNA

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI

19-07-2016

Miscellaneous Appeal No.175 of 2013

1. Most. Naimunesa W/O Late Bigu Khalifa R/O Village – Saraia, P.S. Amjhor, District – Rohtas….. …. Appellant/s

Versus

1. The Union Of India Through The General Manager, Eastern Railway, Kolkata …. …. Respondent/s

Appearance : For the Appellant/s : Mr. Anant Kumar-1, Advocate For the Respondent/s : Mr. Bijoy Kumar Singha, Advocate

JUDGMENT

Appellant/claimant (wife) challenged the order dated 10.10.2012 passed by the Member, Technical, Railway Claims Tribunal, Patna Bench, Patna in Claim Application No. O.A. 000187/2002 whereby and whereunder the aforesaid claim petition has been dismissed.

2. It has been pleaded that on 06.05.2002 while the deceased, Bigu Khalifa was on his way to Banaras to visit the place of his daughter, after purchasing railway ticket boarded Train No. 053 EMU at Dehri-on-Sone. While the train was crossing the bridge near Bahera Railway Station, the aforesaid Bigu Khalifa fell down from the train due to heavy rush in the bogie on account of which he sustained severe injuries and subsequently, died and for that, Sasaram Rail PS (U.D.Case No.10/2002) was registered wherein after completing investigation, police report was submitted.

3. It has also been pleaded that while the police had reached at the place of occurrence, the deceased, who was alive, on his own disclosed his identity and telephone number. Police, accordingly, informed whereupon, applicant reached. The dead body was sent to mortuary for postmortem. Consequent thereof, instant claim petition has been filed.

4. Respondent/Opposite Party appeared and filed WS whereunder the facts so pleaded at the end of appellant/claimant has been controverted. Furthermore, it has also been pleaded that claimant happens to be under obligation to substantiate the status of the deceased to be a bona fide passenger and further, his death was in an untoward incident.

5. During course of trial on behalf of claimant two witnesses have been examined. AW-1 is applicant, Naimunesa while AW-2 is Nasruddin, major son of deceased. Side by side, had also exhibited FIR, police report, inquest report and postmortem report. Neither any witness nor any kind of documentary evidence has been brought up on behalf of respondent/opposite party.

6. The learned Tribunal had framed the following issues:-

1. Whether the deceased was a victim of the alleged untoward incident as defined under Section 123(C) of the Railways Act, 1989 ?

2. Whether the deceased, Bigu Khalifa was a bonafide passenger of train No. 053 Up EMU passenger on 06.05.2002 at the time of the alleged untoward incident ?

3. Whether the claim application of the applicant is maintainable ?

4. Whether the applicant/dependants of the deceased are entitled to receive compensation, as claimed for ?

7. While discussing the issues, the Tribunal doubted over authenticity of the documents as well as also took it a case of run-over as well as also considered non presence of ticket and dismissed the petition.

8. Learned counsel for the appellant submitted that the learned Tribunal had wrongly and illegally doubted the authenticity of the document, more particularly, when inception of case happens to be at the end of Railway official itself who had issued Memo acknowledging the incident. Therefore, inception of the case followed with other paraphernalia, so required, during course of investigation coupled with filing of police report happens to be in accordance with law, goes out of purview of challenge. In likewise manner, it has also been submitted that learned Tribunal was not at all justified in doubting the authenticity of the document, more particularly, when there happens to be no objection at the end of respondents. Apart from this, it has also been submitted that there happens to be specific disclosure in the claim petition itself that at the time of arrival of police the deceased was alive who disclosed the identity as well as telephone number by which family members were informed by the police and so presence of son of deceased, namely, AW-2 during course of preparation of inquest report was not at all abnormal one. Furthermore, during course of cross-examination, the respondents have not cross-examined over distance in between the P.O. as well as village of the deceased and so, it could not be said that mere presence of PW-2 at the time of preparation of inquest report, was something otherwise than normal event.

9. On the other hand, the learned counsel for the respondents submitted that though after registration of the case, the police conducted investigation in accordance with law and submitted its report but, right from beginning the police connived and the aforesaid event is itself exposed from the relevant document. Further, it has been submitted that the learned tribunal rightly doubted over genuineness of the document as well as the deceased being bonafide passenger.

10. Gone through the record. From the LCR it is evident that Dy.SS/Bhabhua had issued Memo on 06.05.2002 at about 9:30 p.m. that at the same day at about 9:20 hours, he was informed by Dy.SS/DGO that one unknown person has been run over and killed by a train and his dead body is lying over the DN track near village- Bahera. So, it is evident therefrom that it happens to be in vagueness. Had there been bonafide conduct, the Dy SS/DGO should have informed by which train the said incident occurred, and further, whether it was near Bahera Railway station after crossing the bridge.

11. The inquest report is dated 07.05.2002 at 8:00 a.m. So the inquest report was prepared after eleven hours. Furthermore, from the Memo itself, it is evident that deceased had died and dead body was lying. Furthermore, from the format of the formal FIR it is evident that the entry having under column thereof, happens to be contrary to the memo as it was not disclosed in the memo that deceased was a passenger and had fallen from Up EMU train. Not only this, it is also evident from Column-4 thereof, that the same was transmitted to the court of Magistrate on 07.05.2002 and certainly, as per inquest report, the presence of Nasiruddin, AW-2 happens to be before transmission of the FIR to the Magistrate and on account thereof, column-3 of the FIR has been incorporated contrary to the memo. The aforesaid event is found totally contradicted from police report whereunder it has been incorporated that the deceased was alive who disclosed his identity as well as telephone number whereupon family members were informed son of deceased arrived and then inquest followed with other requirements were performed. In the petition, it has been incorporated that the police had arrived at the place of occurrence who was informed by the deceased regarding his identity as well as telephone number which in the police report is not found confirmed at the end of the Investigating Officer that he was informed by the deceased. From minute observation of the police report, it is evident that deceased might have disclosed to the persons having assembled there and some one, out of them, might have informed whereupon persons of AW-2 was there.

12. From Memo as well as from the postmortem report, the death of deceased is found out of controversy. In the background of infirmities as pointed out in foregoing paragraph, now it has to be seen whether appellant/claimant succeeded in substantiating her case.

13. Run over is not defined under the Railways Act. Three kinds of eventualities may be perceived. The deceased might have fallen down, might have committed suicide, accidentally would have come under wheels. It could not be inferred on its own contrary to the evidence having on the record. That means to say, the court cannot on its own presume contrary to pleading. For the purpose of presumption, the certain eventualities have been perceived under the Evidence Act. Therefore, the learned Tribunal presumed it a case of run over without having so permitted in the eye of law nor having been coming out from the evidence of the witnesses.

14. Then coming to the nature of evidence, first of all propriety of the documents have to be seen in consonance with the conduct of the parties. As is evident, inquest report was prepared on 07.05.2002 at 8:00 A.M at which time presence of AW-2, son of deceased was there. During cross-examination, he has not been cross- examined over time of his arrival, source of knowledge as well as distance in between his village from Place of occurrence. It has also not been cross-examined that at the time of arrival, deceased had already met with death. It has also not been challenged by way of cross-examination that not even a single person was present at the site of accident. Though AW-1, during her cross-examination at para-7 had disclosed the distance as 15 „Kosh‟. So without having proper information, presence of AW-2 at place of occurrence, would not be expected, that means to say, somebody whose presence was at the site, might have informed. That means to say, identity of deceased was established.

15. Now coming to the evidence on the score of bona fide passenger, it is evident that certainly AW-1 as well as AW-2 have not claimed themselves to have witnessed the occurrence, it probabilizes in the background of memo having been at the end of railway official itself regarding the occurrence. Furthermore, the distance in between as per evidence of AW-1, para-7, speaks a lot contradicting it a case of self inflicted, as presence of the deceased would not have been save and except passenger of a train.

16. With regard to non availability of the ticket, less said is better, more particularly, in the background of the prohibition having under the Railways Act whereunder travelling without ticket has been made an offence which, the respondent Railway failed to substantiate that the deceased was found travelling without ticket for which he was fined. Not only this, the inquest did not divulge that pocket of apparel having worn by the deceased was checked.

17. Apart from this, the intention of the legislature while introducing the specific provision has also to be perceived. The act, in its nature suggests benevolent one. It is for welfare of the passengers, who lost lives or sustained injuries during course of his travelling and further, should not be allowed to leave in the lurch. Therefore, each case has to be adjudged in the background of the nature of the statute. Furthermore, it has been settled at rest that when two version is found coming out then in that event, the version suited to the claimant has to be accepted as held in