Bikash Chakraborty vs Union Of India & Anr

Harish Tandon, J

The appellants, the heirs of the deceased victim of unforeseen circumstances has filed the instant appeal before us challenging the judgment and order of Railway Claims Tribunal, Kolkata Bench in O.A (IIu)/ KOL/0158/2016 whereby and whereunder the petition for claim of compensation was dismissed.

The victim namely Bimal Chakraborty was allegedly travelling from Sealdah to Birati Railway station by Duttapukur local train on 17/08/2014 during evening hours. The said victim fell down from the running train due to over-crowded pressure and sudden jerk at the platform of Birati Railway Station and was taken to Dum Dum Municipal Hospital by the local people. The victim was thereafter referred to R.G. Kar Medical College & Hospital and was further transferred to Bangur Institute of Neuroscience and N.R.S. Medical College and finally, succumbed to his injuries on 23/08/2014 at the N.R.S. Medical College & Hospital. It is thus specific case of the appellants that the father was travelling with a second class valid railway ticket from Sealdah to Birati Railway Station and it was further stated in the claim petition that due to such "untoward incident" that the entire belongings of the father was misplaced and/or lost and in the event the same is recovered subsequently, it will be produced before the Tribunal.

The claim petition was filed beyond the statutory period of limitation along-with an application for condonation of delay which was eventually allowed on 16/11/2016.

The respondent took a defence in the written statement that the victim was not a bona fide purchaser as he did not purchase a valid ticket to travel in the train. It is further stated that there is no recording of such incident in the station memo that the victim being a passenger fell from the running train nor any case was registered in this regard. It is thus stated that in absence of any registration of the incident the story is concocted as no such incident even happened making the railway authorities liable to pay compensation.

As indicated, all the above three sons jointly filed the compensation application and one of such sons deposed before the Tribunal. The said witness deposed that he had no knowledge of such incident except that he was informed by some local people that the father suffered injury because of falling from the running train and is admitted in the hospital. He subsequently produced various documents pertaining to admission in the hospital, the treatment therein and the death certificate. He also filed the First Information Report subsequently lodged and the Final Police Report and a railway ticket issued by the railway authorities for previous day. It is the specific stand of the said witness that the ticket for travelling on the said date was lost and never recovered. However, subsequently the police authorities handed over some papers and cash which includes the ticket of the previous day. Though the railway authorities did not adduce any evidence but it appears from the paper book that the inquiry report was submitted which corroborates the happening of the incident on the said date.

The Railway Tribunal held that the claimants have failed to produce the valid railway ticket required for such travel and, therefore, the initial onus to prove that he was a bona fide passenger is not discharged. The Tribunal further held that since there was no entry of such accident happening on `17/08/2014 at the Birati railway station, it is improbable that the incident occurred due to the fault of the railway administration. The entire ground on which the claim was rejected is that there was a discrepancy in the evidence of the witness deposed on behalf of the claimants regarding the route on which the said victim was travelling with the following findings:-

"7.3. Out of the documents filed on record, it appears that though in the FIR as well as Final Police Report ( Exhibit - A/6) pointed out that on receipt of one written information from Ward Master, NRS Hospital to the effect that Bimal Chakraborty S/0 of Bishnupada Chakraborty died on 23.08.2014 at 03.45 p.m. but the said written information has neither been annexed nor there appears any step to have been taken by the applicant to collect that document. Further Final Police Report has not mentioned whether any reason of sustaining fatal injury by the victim was revealed during investigation. Moreover, in the P.M Report (Exhibit-A/7) in column 'information furnished by police' it has mentioned that victim fell from train on 17.08.2014 at about 7.00 p.m. and was admitted to the NRS Hospital and expired on 23.08.2014 at 3.45 p.m. but how this information has been gathered by the doctor in the P.M. Report has not been clarified since nowhere in the police document it has mentioned that the victim fell down from the train. Though in the document of NRS Hospital, it has mentioned that victim sustained head injury by falling from the train, but this document was prepared based on the version of the patient party especially the applicant, Bikash Chakraborty who carried his father to the hospital. But on going through the cross- examination of the applicant it is seen that the applicant (AW/1) himself has specifically stated that he has no personal knowledge about the incident and he heard that one person carried his father to the hospital. Thus reliance cannot be placed upon the contents of the said hospital document. Moreover, in his report, CI/ Accident Law Section of Respondent Railway has clearly stated that there is no such incident is found entry on 17.08.2014 at Birati Railway Station. That apart, Ld. Counsel of the respondent has rightly pointed out the contradiction about the journey of the victim wherein in the original claim petition it has submitted that victim was travelling from Sealdah to Birati whereas in the cross-examination of the Applicant as well as certain document i.e. GDE of Entally P.S., it has mentioned that alleged victim was travelling from Birati to Bidhannagar which has not been clarified 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 to note that Police document especially FIR as well as Final Police Report does not reflect any specific reason for sustaining fatal injury by the alleged victim. The relevant statement of P.M. Report as well as hospital documents appears to have been made based on hearsay evidence which has not been substantiated by producing any evidence. Accordingly, the Tribunal has no room to place any reliance upon those purported documents. Finally, on enquiry, the respondent has specifically stated that there was no such incident in the Station Record of Birati Railway Station on the alleged date of incident and this fact has also been corroborated in the DRM's Report. Thus, looking into the very nature of the case and after considering every aspect from the circumstantial evidence available in the record, the Tribunal is absolutely helpless to place any reliance upon the documentary evidence sent by Police to come to the conclusion that the victim may have died due to fall from any train, as alleged. Moreover, apart from the documents discussed above, there is no other prima facie document available in the record which could corroborate the contention of the applicant in regard to facts of these Issues.

7.5. Further, in regard to the loss of alleged ticket the arguments advanced by the Ld. Counsel of the applicant that several Hon'ble High Courts have unequivocally echoed that when it is proved that the victim of a railway accident actually fell down from the train, the onus of proving that the victim was a ticketless traveler heavily lies upon the respondent, even if ticket is not produced and if the railway has been failed to discharge such duty, an inference can easily be drawn that the victim of such incident is a bona fide passenger. But, 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, we are of the opinion that the observation of Hon'ble High Courts, as discussed above, would not be applicable in this case. Accordingly, Tribunal is helpless to draw parallel view with the observation of Hon'ble High Court made in the case cited by the Ld. Counsel of the applicant. Further the applicant has filed a journey ticket from Birati to Bidhannagar dated 10.08.2014 which is prior to the date of the alleged incident and this fact has also been admitted by the applicant during his cross-examination.

7.6. Thus, keeping in view of the above facts, evidence, circumstances and documents available in the record, we observe that since the applicant has been miserably failed to prove that his father 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 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 two issues are decided against the applicant."

The learned Advocate appearing for the appellant submits that none of the claimants were travelling along with the said victim and therefore, they have stated the truth that they heard the incident being informed subsequently and therefore, the Tribunal should not have applied the reject rule of proof in such cases. It is further submitted that the victim was admitted to the hospital by the local people and the post mortem report clearly depicted that the death was due to such injury and ante mortem in nature. It is thus submitted that all the medical documents would show that such injury was caused by falling from the train and railway authorities cannot deny their liability to pay compensation. It is further submitted that the entire belongings of the victim was misplaced and lost and subsequently the police authorities handed over a polythene containing some documents which includes the railway ticket of the previous day. It is ardently submitted that once the railway ticket is lost and the evidence in this regard is produced the onus shifts upon the railway authorities to prove that he was not a bona fide passenger and relied upon an unreported judgment of the Supreme Court rendered in case of Union Of India -Vs- Rina Devi Civil Appeal No. 4945 of 2018 decided on May 9, 2018. It is arduously submitted that non-entering in the station diary of such incident on 17/08/2014 cannot be applied adversarily nor can it be presumed that no incident happened on the said date.

Per contra, the learned Advocate appearing for the railway authorities submitted that the claimants have not satisfied the definition of "untoward incident" occurring in Section 123 (c) (2) of the Railways Act, 1989 as there was no reporting of such incident in the station diary maintained at the Birati railway station. It is further submitted that in order to claim compensation on account of "untoward incident", a person must purchase a valid ticket for travelling by a train carrying passengers and since the same was not produced by the claimant there is no error in the decision of the Tribunal in rejecting the claim. It is further submitted that the inquiry report submitted by the various authorities as per the order of the authorities also revealed that no such incident was recorded on 17/08/2014 and therefore, the claim of the petitioner that the victim suffered injury having fallen down from the running train at Birati railway station is concocted and manufactured for claiming compensation. It is vehemently submitted that the claimants have failed to discharge their initial onus that the said victim was a bona fide passenger travelling with a valid railway ticket for such route and therefore, the compensation so claimed is not sustainable.

It is no gainsay that the railways is liable to pay compensation to the passenger or the dependent of a passenger for an "untoward incident" irrespective of the wrongful act, negligent or default on the part of the railway administration except when the passenger dies or suffers injury due to suicide or attempt to suicide, self-inflicted injury, his own criminal act, act committed in the state of intoxication or insanity and death due to natural cause. Section 123 (c) defines "untoward incident" and imbibe within itself an accidental falling of any passenger from a train carrying passengers. Section 124A of the said Act contains exhaustive provision for compensation on account of "untoward accident" but it is further controlled by the proviso inserted thereto. The expression "passenger" is defined in an explanation clause and includes a person who has purchased a valid ticket for traveling by a train carrying passengers on any date or a valid platform ticket and becomes a victim of an "untoward incident". In order to understand explicitly and more clearly Section 123, 124 A of the Railways Act, 1989 are quoted as under:-

"123. Definitions.- In this Chapter, unless the context otherwise requires,-

(a) "accident" means an accident of the nature described in section 124;

(b) "dependant" means any of the following relatives of a deceased passenger, namely:-

(i) the wife, husband, son and daughter, and in case the deceased passenger is unmarried or is a minor, his parent;

(ii) the parent, minor brother or unmarried sister, widowed sister, widowed daughter-in-law and a minor child of a pre-deceased son, if dependant wholly or partly on the deceased passenger;

(iii) a minor child of a pre-deceased daughter, if wholly dependant on the deceased passenger;

(iv) the paternal grandparent wholly dependant on the deceased passenger.

[(c) "untoward incident" means-

(1) (i) the commission of a terrorist act within the meaning of sub-section (1) of section 3 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 1987) ; or

(ii) the making of a violent attack or the commission of robbery or dacoity; or

(iii) the indulging in rioting, shoot-out or arson, by any person in or on any train carrying passengers, or in a waiting hall, cloak room or reservation or booking office or on any platform or in any other place within the precints of a railway station; or

(2) the accidental falling of any passenger from a train carrying passengers.]

[124A.Compensation on account of untoward incident.- when in the course of working a railway an untoward incident occurs, then whether or not there has been any wrongful act, neglect or default on the part of the railway administration such as would entitle a passenger who has been injured or the dependant of a passenger who has been killed to maintain an action and recover damages in respect thereof, the railway administration shall, notwithstanding anything contained in any other law, be liable to pay compensation to such extent as may be prescribed and to that extent only for loss occasioned by the death of, or injury to, a passenger as a result of such untoward incident:

Provided that no compensation shall be payable under this section by the railway administration if the passenger dies or suffers injury due to-

(a) suicide of attempted suicide by him;

(b) self-inflicted injury;

(c) his own criminal act;

(d) any act committed by him in a state of intoxication or insanity;

(e) any natural cause or disease or medical or surgical treatment unless such treatment becomes necessary due to injury caused by the said untoward incident.

Explanation.- For the purposes of this section, "passenger" includes-

(i) a railway servant on duty; and

(ii) a person who has purchased a valid ticket for travelling by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident.]

On conjoint reading of the aforesaid provision for the present purposes it leaves no ambiguity that the "untoward incident" means and includes any accidental fall of a passenger from a train carrying passengers and such passenger having purchased a valid ticket for travelling by the train carrying passengers on any date. Precisely, for such reason the defence is taken by the railway administration that the victim was not a bona fide purchaser travelling with a valid ticket and therefore, is not entitled to compensation.

Apart from the same, the defence is under the cloak of non-happening of such event as there was no entry in the station diary maintained at the Birati railway station. The first and foremost question which arise in the instant case is who is to discharge the first onus that the passenger was travelling with a valid ticket on the said date. The reference can be made to the unreported judgment of the Hon'ble Supreme Court rendered in case of Rina Devi (supra) where apart from the other questions whether the injury was a self-inflicted injury or not, the question relating to burden of proof, when the body is found on the railway premises was also under consideration. The Hon'ble Supreme Court noticed the judgments of the various High Courts in which some has held that it is an initial onus of the claimant to prove that the victim was travelling with the valid railway ticket and some has held that once the necessary ingredients have been proved by way of an affidavit that the same is lost it is imperative on the part of the railway authorities to rebut such presumption, the Apex Court thus held:-

" 17.4 We thus hold 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 Railways and 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. The legal position in this regard will stand explained accordingly."

From the exposition of law as laid down in the above noted decision, the recovery of body on the railway premises will not be conclusive that he was a bona fide passenger; equally the absence of ticket with the deceased person will not deny the claim that he was a bona fide passenger. It is a further requirement that the initial burden of proving that he was a bona fide passenger if discharged by filing an affidavit that the materials possessed by the deceased victim was lost, it shifts the burden on the railway administration to prove otherwise.

The judgment of the Hon'ble Delhi High Court relied upon by the railway authorities rendered in the case of Gurcharan Singh & Ors -Vs- Union Of India (2015) ACJ 171 was considered by the Supreme Court in the above unreported judgment wherein it was held that the initial onus to prove the death or injury to a bona fide passenger is always on the claimant. However, the onus to prove such facts will get discharged if the affidavit of relevant facts is filed by the claimant. The aforesaid decision of the Hon'ble Delhi High Court was accepted by the Hon'ble Supreme Court in the above unreported decision.

The ratio laid down in the above two decisions is that though the initial onus to prove that the deceased passenger was a bona fide passenger travelling with the valid ticket, but, if by an affidavit it is proved that the same was lost and/or misplaced then such initial onus stands discharged and it shifts on the railway authorities to prove the contrary. The adverse influence in such case cannot be drawn against the claimant if the relevant facts as indicated above are proved by way of an affidavit but may apply if the railway failed to discharge such shifted onus.

The Apex Court further indicated that the discharge of onus depends upon the variety of facts and therefore, the Tribunal/Court has to consider the same in the perspective of the special facts appearing in the given case. It is beyond cavil that while considering the case relating to compensation the Tribunal/ Court must bear in mind the avowed object more particularly that the same is a beneficial piece of legislation.

In the backdrop of the exposition of law as indicated above let us see whether the claimants have discharged their initial onus of proving that the victim was a bona fide passenger and died of an "untoward incident".

The claimant in his deposition categorically stated that the father fell from the running train at Birati Railway station because of the over crowded pressure and the certain jerk on 17/08/2014. It is also stated that the victim was taken to the hospital by the local people and all his belongings were lost and/or misplaced. It is also a specific statement of the sole witness of the claimant that subsequently the police authorities handed over a plastic polythene containing some articles including a railway ticket for previous day. What can be seen from the deposition of the sole witness of the claimant that he categorically asserted that the father was traveling with the railway ticket on the said ill fate day and the same was lost and/or misplaced as the police authorities could not recover it. The cross-examination of the said witness could not yield any other material to run counter to what was stated in the pleading as well as in the examination-in-chief. The railway authorities chose not to depose in the matter and no affidavit was filed denying the specific stand of the sole witness deposed on behalf of the claimants. Such specific stand taken in the evidence discharge the initial onus of the claimant that the victim was a bona fide passenger having a valid railway ticket to travel in the said route but such ticket was lost and/or misplaced .

Apart from the same, a valid railway ticket of the previous day was subsequently recovered and filed before the Tribunal. If the passenger was in habit of buying the ticket it further raises a presumption in favour of the claimants that he was travelling on the said date with the valid ticket . We, therefore, find that the findings of the Tribunal on foisting the onus upon the claimants to prove that the victim was a bona fide purchaser is infirm and contrary to the decision of the Hon'ble Supreme Court.

Another important point which we feel should also be highlighted herein is that with regard to happening of such "untoward incident" on the said ill fate day i.e., 17/08/2014. The entire defence of the railways is founded upon that there was no reporting or entry of such accident/incident actually happening on 17/08/2014. It is the duty of the railway authorities to make such entry and if there is any lapses in this regard the presumption should not be drawn that no such incident happened on the said date.

Furthermore, an enquiry was directed to be conducted and the inquiry report revealed that the incident took place on the said date and the local people had taken the victim to the hospital and he was treated there in different hospitals for nearly five days. The record maintained in the hospital indicates the cause of injury to be falling from the train, which is corroborated from the documents produced before the Tribunal. One of the document which is filed before the Tribunal would indicate that the station master was on leave on the said date. There is no corroborative evidence that who had taken the charge of the station master on the said date. Mere wrong entry in the station diary, when the station master was on leave, cannot lead to an inference that no such incident happened on the said date. The inquiry report is explicit and revealed such incident to have happened on the said date which cannot be ignored totally.

We, therefore, find that the judgment of the Tribunal cannot be sustained.

The same is hereby set aside.

It is a death due to fall from the train at the railway station. The claimants are entitled to compensation under Rule 3 of the Railways Accidents and Untoward Incidents (Compensation Rules 1990) and the schedule appended thereto.

We, therefore, award a compensation of Rs.4,00,000/-(Four lakhs only) to the claimants.

The appeal is thus disposed of.

No order as to costs.

I agree.