Suchitto Kumar Das JUDGMENT
Suchitto Kumar Das, Vice Chairman
1. The applicant, Sundari Hembram has filed this claim petition under Section 16 of the Railway Claims Tribunal Act, 1987 on 07.09.2011 seeking compensation for an amount of Rs. 4,00,000/- for herself as well as on behalf of her husband, Lakkshami Ram Hembram @ Lakshami Ram Tudu and wife of the deceased, Jhumri Murmu, as dependants for the death of her son, Sonatan Tudu who stated to have died in an untoward railway accident. The averments made by the applicant in brie fare that on 27.09.2010 at about 4.00 p.m., her son, Sonatan Tudu, since deceased, boarded Dn. Katwa-Burdwan local train for his journey from Katwa to Bankapi Railway Stations. It is pleaded that at about 5.30 p.m., when the said train was entering before Bankapi Railway Station, her son, accidentally fell down from the said running train at K.M. Post No. 40/7 and died. It is further pleaded that over the incident a Police Case has been registered at Katwa GRPS vide U.D. Case No. 25/10 dated 27.9.2010. It is also pleaded that the victim was having journey ticket which was lost duet incident.
2. To contest the case, the Respondent, Eastern Railway has filed written statement wherein it has denied and disputed almost all the material allegations of the applicant. It has contended inpara-3 of the 'WS' that there was no untoward incident as defined under Section 123(c) of the Railways Act, 1989 on the alleged date and place which may come under the purview of Section 124 of the Railways (Amendment) Act, 1994 and the alleged incident arising out of that may tantamount to self-inflicted injury. It has further contended in para-4 of the 'WS' that the applicant is to provide strict proof that the deceased was a bona fide passenger of the train, in question. It has finally prayed for dismissal of the claim petition.
3. Upon pleadings of the parties, the following issues were framed on 15.07.2015:-
1) Whether the deceased, Sonatan Tudu was travelling from Katwa to Bankapi Stations by Katwa-Burdwan local train on 27.9.2010?
2) Whether the death of the deceased, Sonatan Tudu was caused due to an 'untoward incident' as defined under Section 123(c) read with Section 124-A of the Railways Act?
3) Whether the applicants are the sole dependants of the deceased, Sonatan Tudu and are entitled to get compensation, as claimed?
4) Whether the deceased, Sonatan Tudu was a bona fide railway passenger on the date of incident?
5) Relief.
4. To prove her case, the applicant, Sundari Hembram has produced herself as oral evidence (AW/1). The applicant has not produced any other witness. The applicant has furnished certain documents which are marked as follows:-
1) Copy of Voter I/Card of Sundari Hembram. ---- Exhibit? A/1.
2) Copy of Aadhaar Card of Sundari Hembram. ---- Exhibit? A/2
3) Copy of Aadhaar Card of Laxmiram Tudu. ---- Exhibit? A/3
4) Copy of Voter I/Card of Sonatan Tudu. ---- Exhibit? A/4
5) Death Certificate of Sonatan Tudu. ---- Exhibit? A/5
4.1 Further, during the course of proceedings, Ld. Counsel for the applicant filed certified copy of certain documents which were marked as follows:-
1) Certified copy of F.I.R. ------ Exhibit A/6
2) Certified copy of Investigation Report. ------ Exhibit A/7
3) Certified copy of Dead Body Challan. ------ Exhibit A/8
4) Certified copy of Final Police Report. ------ Exhibit A/9
5) Certified copy of P.M. Report. ------ Exhibit A/10
5. On the other hand the respondent railway has neither adduced any evidence nor produced any document.
DECISION WITH REASONS
Issue Nos. 1, 2 & 4:-
6.1 For the sake of cogency, these three issues are taken up together for analysis.
6.2 From the record, it appears that by her own admission the applicant (AW/1) did not see the incident with her own eyes and therefore she has no personal knowledge about the incident and as such her evidence is purely hearsay and accordingly is of little use in deciding the manner of the incident. In the instant case, no eye-witness has been produced by the applicant. Thus, in the absence of any reliable direct evidence, the Tribunal has no other option except to examine the documents available on record from different possible angles to come to the reasonable conclusion about the fact of the case.
6.3 In support of his arguments in regard to the facts of these issues, Ld. Counsel of the applicant has relied upon the evidence of the applicant and the police documents available on record. In regard to bona fide of the victim as a passenger of the train, Ld. Counsel of the applicant has submitted that the victim was having journey ticket which was lost due to the incident. In regard to the fact of these issues, Ld. Counsel for the applicant relied upon the several judgments of Hon'ble Apex Court and Hon'ble High Courts.
6.4 Ld. Counsel for the applicant submitted that from the evidence of the applicant and from the copy of the documents available on record, it is established that the victim, Sonatan Tudu died due to falling down from the running train while travelling as a bona fide passenger.
6.5 On the other hand, the respondent's side did not lead any oral evidence. In his argument, Ld. Counsel for the respondent referring to the railway memo which has been treated as FIR filed on behalf of the applicant argued that the victim died run over by 292Dn. Train. In his argument, Ld. Counsel for the respondent has further argued that victim was not a bona fide passenger as no journey ticket was recovered from the possession of the victim. Ld. Counsel for the respondent also pointed out that as per the claim petition the victim died on 27.9.2010 and an U.D. case was registered on that date. But, the death certificate filed on behalf of the applicant, the date of death of the victim has been mentioned as 28.9.2010. Finally, it has prayed for dismissal of the case.
7.1 Heard the arguments of both sides and perused the documents and evidence available on record.
7.2 At the outset it appears that by her own admission the applicant was not the eyewitness of the incident. Therefore, her evidence is purely hearsay and is of no use in deciding the Issues. That a part, no eye-witness has been produced by the applicant. Thus, the Tribunal has no other option except to examine the documents available on record from different possible angles to come to the reasonable conclusion about the fact of the case.
7.3 Out of the documents filed on record by the applicant, it is clear that certified copy of FIR which is actually a railway memo available on record reveals that one unknown male person aged about 28 years has run over by 292Dn. at KM Post No. 40/07. Body was lying outside the track and head was inside the track. Further, though in the Investigation Report, it has stated that from witnesses it is learnt that the victim fell down from the running train, but to substantiate her case, the applicant has not produced those witnesses. That apart, in the certified copy of P.M. Report available on record it is seen that there were several lacerated wound son different parts of the body and the cause of the death has reserved pending for receipt of Chemical Examination Report which has not been filed by the applicant. Moreover, there is no eye-witness evidence on record who saw the victim falling down from the train has been produced by the applicant.
7.4 Admittedly in the instant case there is no direct evidence. Further, it is the well settled principle of law that where there is no direct evidence, the circumstantial evidence should be reckoned to come to the reasonable conclusion. It is also to note that in the FIR which is the most prima facie documents, it has clearly mentioned that victim died run over by train. Further, Investigation Report was prepared based on the version of the witnesses who was not at all travelling with the victim on the alleged date of incident and has not been produced by the applicant, as witnesses. That apart, in the certified copy of P.M. available on record, it is seen that there were several lacerated wounds on different parts of the body and the cause of the death has reserved pending for receipt of Chemical Examination Report. Thus, looking into the very nature of the case it is observed that for want of sufficient documentary evidence, the Tribunal is helpless to consider the fact that the victim actually fell down from any train which might have attracted the provision of Section 123(c)(2) of the Railways Act.
7.5 Further, in regard to the loss of alleged ticket, the Tribunal observes that in the instant case the applicant has not been able to produce sufficient proof to establish that the cause of death of the victim reasonably attracts the provision laid down under Section 123(c)(2) of the Railways Act and therefore, in the opinion of this Bench of the Tribunal, the observation of Hon'ble High Courts, in several cases, would not be applicable in this case. Accordingly, Tribunal is helpless to draw parallel view with the observation of Hon'ble High Courts made in several cases. Further, in the case of Civil Appeal No. 4945 of 2018 (SC) in the case of Union of India vs. Rina Devi wherein the Hon'ble Apex Court has observed that mere presence of a body on the railway premises will not be conclusive to hold that injured or deceased was a bona fide passenger for which claim for compensation could be maintained. However, mere absence of ticket with such injured or deceased will not negative the claim that he was a bona fide passenger. Initial burden will be on the claimant which can be discharged by filing an affidavit of the relevant facts and burden will then shift on the railway sand the issue can be decided on the facts shown or the attending circumstances. This will have to be dealt with from case to case on the basis of facts found. But, in the instant case, the affidavit filed by the applicant has not been affirmed before any 1st Class Judicial Magistrate. Further in the case of Gurcharan Singh & Ors. vs. Union of India (Delhi High Court) reported in FAO No. 507/2011 decided on 08.01.2014 wherein the Hon'ble High Court has observed that the initial onus in my opinion always lies with the appellants/claimants to show that there is a death due to untoward incident of bona fide passenger. Of course, by filing of the affidavit and depending on the facts of a particular case that initial onus can be a light onus which can shift on the Railways, however, it is not the law that even the initial onus of proof which has to be discharged is always on the railways and not on the claimants. I cannot agree to this proposition of law that the Railways have the onus to prove that a deceased was not a bona fide passenger because no such negative onus is placed upon the Railways either under the Railways Act or the Railway Clams Tribunal Act & Rules or as per any judgment of the Supreme Court. No doubt, in the facts of the particular case, onus can be easily discharged such as in a case where deceased may have died at a place where he could not have otherwise been unless he was travelling in the train and in such circumstances depending on the facts of a particular case it may not be necessary to prove the factum of the deceased having a ticket because ticket as per the type of incident of death can easily be lost in an accident. I at this stage take note of a judgment of a learned Single Judge of this Court in the case reported as Pyar Singh vs. Union of India 2007 (8) AD Delhi 262 which holds that it is the claimant upon whom the initial onus lies to prove his case. I agree to this view and I am bound by this judgment and not by the ratio of the case of Leelamma (supra). In the concluding part of the said judgment, it has further observed that the appeal is, therefore dismissed. Though the present is a fit case for imposition of costs, however, I am not imposing any costs because the husband/father of the appellants/claimants had died in the accident. The copy of the judgment was sent to the Chairman, Railway Claims Tribunal for being circulated so that the legal position of the onus of proof is known.
7.6 Thus, keeping in view of the above facts, evidences, circumstances and documents available in the record, this Bench of the Tribunal observes that since the applicant has miserably failed to prove that her son died due to a reason which may fall within the ambit of untoward incident', as per provision of Section 123(c)(2) of the Railways Act, as alleged by the applicant and as the applicant has also been failed to establish that the victim was a bona fide passenger on the date of the alleged incident, the Tribunal is absolutely helpless to consider the Issues in favour of the applicant. Hence, these three issues are decided against the applicant.
Issue Nos. 3 & 5 :
8.1 Since the above two issues are inter-related, they are being taken up together for discussion.
8.2 Since as per the findings of Issue Nos. 1, 2 & 4 above, the applicant has failed to establish her case, she is not entitled to get any compensation or any relief, as prayed for. There is no need to discuss the above issues. Thus, these Issues are also answered against the applicant. Hence,
ORDERED
9. That the instant claim application is dismissed on contest on its merit. No costs.
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