Heard Shri Mahendra Kumar Misra, learned counsel for the appellant and Shri R.K.S. Chauhan, learned counsel for the claimants-respondents.
The instant appeal has been preferred under Section 23 of the Railway Claims Tribunal Act, 1987 aggrieved against the award dated 27.01.2009 passed in O.A. No.0600190 - Smt. Madhu Kumari & Ors. vs. Union of India, whereby the Tribunal has passed the award in favour of the claimants-respondents for a sum of Rs.4,00,000/- with 7% interest.
The submission of the learned counsel for the appellant is that the Tribunal has erred in passing the award inasmuch as it failed to consider the evidence, which was available on record which belied the stand taken by the claimants-respondents, as the specific case of the claimants-respondents was that the deceased husband of the respondent No.1 was travelling from Train No.143 Bareilly-Mailani at Izzatnagar Station and the accident occurred while he was boarded the train from Izzatnagar to Bijauria whereas the record would indicate that the accident occurred not by Train No.143 rather it was caused from Train No.5311 which had to be boarded at Izzatnagar Station.
Learned counsel for the appellant has also submitted that claimants-respondents could not substantiate its case regarding being a bonafide passenger and that he was a victim of untoward incident. Accordingly, the award is vitiated and deserves to be set aside.
Shri R.K.S. Chauhan, learned counsel for the claimants-respondents has supported the award and has submitted that the material evidence which was made available clearly established the fact that the deceased was travelling with a ticket and the original ticket was also brought on record. This fact was not denied by the Railways, consequently, so far as the status of the deceased as a bonafide passenger is concerned, the same stood confirmed. However, learned counsel for the claimants-respondents submitted that the version as well as corroborating documentary evidences which was brought on record clearly established that the deceased was possessing a valid ticket and was available in the railway premises at platform and it is also not disputed by the Railways that the accident did not occur. He has also submitted that merely by mentioning an incorrect train number it would not cause any impediment for the grant of compensation as, otherwise, it was established from the record that the deceased died on account of an untoward incident.
Shri Chauhan has further submitted that the factum of the accident is also not disputed. However, the manner in which the accident is said to have occurred, which is disputed by the Railways, thus it was the burden of the Railways to have explained by cogent evidence, which has not been done.
Learned counsel has further pointed out that the evidence which was brought on record on behalf of the Railways was merely hearsay evidence inasmuch as the affidavit filed by the driver as well as the Guard of the train train categorically stated that the deceased did not have a ticket. The other evidence, which was brought on record, was of Mohd. Roshan Ali who is the Commercial Inspector and even in his affidavit, he has merely referred the statements made by the other persons, who are said to have some semblance of the accident. However, the persons whose statements have been annexed with the affidavit were not examined before the Tribunal and thus, the evidence of Mohd. Roshan Ali does not help the appellant and in view of the aforesaid, the Tribunal has rightly drawn the correct inference and passed the award.
The Court has heard learned counsel for the parties and also perused the record.
In order to appreciate the respective submissions, certain brief facts giving rise to the above appeal are being noted first.
The claimants-respondents had filed a claim petition before the Railway Claims Tribunal, Lucknow which was registered as O.A. No.0600190. It was the case of the claimants-respondents that Shri Narendra Kumar, the husband of the respondent No.1 and the father of the respondents No.2 to 4 had bought a second class Railway Ticket No.20448 for travelling from Izzatnagar to Bijauria by a passenger train which was to be boarded at Izzatnagar Railway Station on 20.01.2006. It was stated that Shri Narendra Kumar on account of heavy rush in the train fell from the train and sustained serious injuries which resulted in his death and it is with the aforesaid that the claim petition was filed.
The Railways filed their written statement and denied the allegations of the claim petition. It took up two fold plea. (i) the allegations of the claimants that the deceased was travelling and fell from Train No.143 is incorrect inasmuch as per the inquiry report of the Railways, it was an accident which occurred with Train No.5311. (ii) it was also submitted that the deceased died on account of his own criminal act and, therefore, the Railways cannot be held responsible. It also denied the factum of the ticket inasmuch as it was stated that at time when the body of the deceased was searched, no ticket was recovered.
The claimants-respondents in order to prove its case had filed the affidavit of the respondent No.1, who is the wife of the deceased and an affidavit of Mr. Tarun Kumar, who is said to be signatory of the Panchnama. The Railways filed the evidence of Mohd. Roshan Ali, who was the Commercial Inspector and he was also filed an affidavit of one Shri Sanjay Jagati, who was posted as an Assistant Station Manager at Izzatnagar Railway Station.
After considering the aforesaid the Tribunal has recorded a finding that the deceased was a bonafide passenger and that the accident occurred on account of untoward incident. The Tribunal further found that the claimants-respondents were legal heirs of the deceased, consequently the Tribunal awarded the fixed sum of Rs.4,00,000/- along with 7% interest by means of the award dated 27.01.2009. It is this award which has been assailed in the instant appeal.
After hearing the parties and on perusal of the record, this Court finds that so far as the facts regarding the plea of bonafide passenger is concerned, there can be two views on the same inasmuch as the original ticket bearing No.20448 was produced before the Tribunal bearing Paper No.13/3. This ticket has not been denied by the Railways. An attempt has been made to indicate that on the fateful day 14 tickets were sold, but there has been no evidence to rebut this fact that the ticket bearing No.20448 was not issued from the Izzatnagar Railway Station on the date of the accident. Accordingly so far as the finding returned by the Tribunal that the deceased being a bonafide passenger is concerned, the same is based on appreciation of evidence and accordingly it is upheld.
The other plea whether the death of the deceased Narendra Kumar was an outcome of untoward incident is concerned and to ascertain this, if the evidence is seen, it would indicate that so far as the deceased Narendra Kumar is concerned, he is said to be present at Izzatnagar Railway Station from where he was to board the train. The only dispute in between the parties appears to be that the claimants-respondents suggested that Narendra Kumar was to board the Train No.143 from Izzatnagar to Bijauria whereas the defence of the Railways is to that extend that the Train No.5311 which also comes to Izzatnagar, however, does not go to Bijauria but rather goes to Lalkuan. Despite the aforesaid, the facts still remains that both the trains do go through the Izzatnagar Railway Station. Thus, the possession of the ticket of the deceased Narendra Kumar and his presence at Izzatnagar Railway Station is not disputed.
From the perusal of the record, it indicates that he did meet with an accident, merely because the incorrect train number has been mentioned does not mean that the entire set of evidence and the testimony of the claimants-respondents can be washed out. As already noted above, the Railway had taken a stand in their written statement that the deceased expired on account of his negligence, however, if this is so, then the burden of proving the same lay on the railway. In order to substantiate the same, the railway has brought on record the evidence in the shape of the affidavits and supporting statements of the Guard and the driver. However, these persons were not examined before the Tribunal and thus, the statement of Mohd. Roshan Ali to that extent is hearsay evidence. Since, the persons whose evidence, the railway has relied upon were not produced before the Tribunal nor they were subjected to cross-examination at the behest of the claimants-respondents, therefore, it cannot be said that the evidence as introduced by the railway substantiated its case.
Learned counsel for the appellant has relied upon a Division Bench decision of this Court in the case of "Tara Chand Mathur vs. Union of India through General Manager", F.A.F.O. Defective No.763 of 2011, decided on 16.07.2012. However, from the perusal of the aforesaid judgment, it would indicate that the facts of the aforesaid case are completely different to the facts of the instant matter inasmuch as in the case before the Division Bench, the injury which was sought to be alleged by the claimants was completely belied inasmuch as the body was cut into two pieces. It is in this view that the Division Bench had held that the injuries did not support the case of the claimants and, therefore, the claim was rejected. However, in the instant case, it would reveal that so far as the deceased Narendra Kumar is concerned, there is no evidence brought on record to indicate that he ever attempted to commit suicide or was suffering under depression. If at all this plea was raised, the burden lay on the railway to prove the same which it has failed to do so. Another weak submission has also been raised that the claim of the respondents rested in respect Train No.143 UP whereas the accident has occurred by Train No.5311. This aspect of the matter has already been dealt with by this Court inasmuch as it has been noticed that merely by mentioning a wrong train number, the testimony cannot be discarded while all other foundational facts support the case of the claimants-respondents.
The Court is fortified in its view in light of the decision of the Apex Court in the case of Union of India vs. Prabhakaran Vijay Kumar & Ors., reported in (2008) 9 SCC 527.
Considering the aforesaid, this Court finds that the findings returned by the Railway Claims Tribunal, Lucknow by means of its award dated 27.01.2009 does not require any interference from this Court. Accordingly, the appeal being devoid of merits, it is dismissed. There shall be no order as to costs.
The office is directed to remit the lower court record to the Tribunal concerned within a period two weeks from today. The amount deposited before this Court shall also be remitted to the Tribunal concerned to be released in favour of the claimants-respondents after completing usual formalities.
Order Date :- 26.11.2019 Rakesh/-