Kandarpa Kr. Das vs Union Of India

Heard Mr. S. Islam, learned counsel for the appellant. I have also heard Mr. R. Sarma, learned Standing Counsel, N.F.Railway, appearing for the

respondent.

This appeal is directed against the judgment and order dated 14.03.2013passed by the learned Railway Claims Tribunal, Guwahati Bench, rejecting

the Claim Application No.OA-II-57/2010 (Old) filed by the appellant seeking compensation for the death of his wife in an untoward incident while

travelling as a Railway passenger.

The facts of the case giving rise to the filing of this appeal, briefly stated, are that the wife of the appellant Late Jumi Kalita being accompanied by

three other passengers, viz., Herombo Kumar Das, Konkon Kalita and Kalyan Das had boarded No.706 Down Passenger Trainfrom Guwahati

towards destination Bongaigaon and during the course of the journey Jumi Kalita slipped and fell out of the running train. The accident was stated to

have occurred at around 7.30 p.m. due to a sudden jerk in the train which had led to the deceased losing her balance while trying to wash her face

in the wash basin and she fell out of the train through the open door and sustained grievous injury which lead to her death.

The respondents had filed written statement, inter alia, denying the claim ofthe appellant. The stand of the respondent is that it is a case of suicide

committed by Jumi Kalita.

Based on the pleadings of the parties, the learned Tribunal had framed the following issues :-

“1. Whether the deceased was a bonafide passenger?

Was there been an untoward incident as contended?

Whether the applicant is entitled for any compensation? If so, what isthe sum?

Reliefs and costs ?â€​

During the course of trial the appellant had examined three witnesses as AWs 1to 3 and exhibited documents being Exts-A1 to A6 and R1

series. After hearing the learned counsel for the parties and on consideration of the evidence on record the learned Tribunal had concluded that this

was a case where the deceased Jumi Kalita had in all probability committee suicide and therefore, the incident would not come within the definition of

“untoward incidentâ€. The said conclusion of the learned Tribunal is primarily based on the two exhibits i.e. A1 and A6 which are the First

Information Statement (F.I.S.) as well as Final Report dated 30.08.2007 submitted by ASI of Goalpara Police Station.

The learned counsel for the appellant, Mr. S. Islam, has argued that theconclusion of the learned Tribunal as regards Issue No.2 is perverse to the

evidence on record inasmuch as there is nothing to show that the deceased wife of the appellant had committed suicide by jumping out of the train.

Mr. Islam has further argued that from the testimony of the co-passengers, particularly AW-2, Heromba Kumar Das and AW 3, Konkon Kalita it is

proved that the deceased had lost her balance while washing her hands and face due to the sudden jerk and fell down from the train through the open

door. As such, there was no occasion for the learned Tribunal to decide the said issue against the appellant.

Mr. R. Sarma, learned Standing Counsel, N.F.Railway, has opposed thesubmissions of the appellant’s counsel primarily on the ground that the

deceased was not a bonafide passenger since no valid journey ticket was produced by the appellant before the Railway Tribunal. As regards the

findings in respect of Issue No.2, Mr. Sarma contends that F.I.S. (Ext-A1), the Inquest Report (Ext-A3) as well as the Final Report (Ext-A6) clearly

goes to show that it is a case of suicide and therefore, the claim for compensation would be barred under section 124A(a) of the Railways Act, 1989

(for short Act of 1989). On such ground the learned Standing Counsel has prayed for dismissal of the appeal.

I have considered the submissions advanced by learned counsel for theparties and have also gone through the materials available on record.

It is not in dispute that on 02.08.2007 the wife of the appellant Late Jumi Kalita along with three other passengers, viz., Heromba Kumar Das,

Konkon Kalita and Kalyan Das were travelling by the 706 Down Passenger Train from Guwahati Railway Station with the intent of reaching her

matrimonial home at Boalimari in the district of Bongaigaon. It is also not disputed that the unfortunate incident had occurred at around 7.30 p.m.

when the train reached Haimuri Gate at Krishnai, which is about three kilometres from Goalpara Railway Station. The post mortem report brought

on record as Ext-A2 goes to show that the death had occurred due to haemorrhage and shock as a result of multiple injuries in head and brain

which is ante mortem in nature. Â

The witness AW 1, who is the appellant herein, had deposed that on the date of the journey his deceased wife was being accompanied by three

other copassengers inlcuding Heromba Kumar Das (AW -2) and Kalyan Das. The witness had also stated that he had himself purchased the tickets

for all the four passengers travelling by the 706 Down Passenger Train and the cost of the ticket was Rs.28/- each which was in the general class.Â

The AW- 1 had also stated that he had accompanied his wife upto the Station and he left the station after she had boarded the train and the train had

left the station. It is also the statement of the witness that he had himself purchased the platform ticket. According to AW -1, although he had not seen

his wife falling down from the train, yet the incident was narrated to him by Heromba Kumar Das. Durign the cross-examination, save and except

making a suggestion that the deceased wife of the AW -1 had not fallen down from the train and she had not purchased the ticket, no other

suggestion was made to the said witness.

AW-2 Heromba Kumar Das was the co-passenger who was travelling along with Jumi Kalita i.e. his sister-in-law. The said witness had

confirmed that the ticket for the journey was purchased by his elder brother i.e. the appellant and that the tickets were card ticket, the cost of which

was Rs.28/- each.  According to the witness, the ticket was from Guwahati to Abhayapuri and his ticket was with his sister-in-law. AW 2 has

also stated that he was standing near the corridor inside the compartment when the deceased went to the toilet and while returning from the toilet,

when she was washing her hands a heavy jerk occurred as a result of which she had fallen down from the train through the open door. The witness

AW 2 has also stated that the matter was immediately informed to the TTE and after about 2/3 minutes, the train was stopped when he, along with

other passengers went to the spot and found the deceased Jumi Kalita in injured condition. She was later taken to the hospital but succumbed to the

injuries on the way.

AW-3, Sri Konkon Kalita, who was also a co-passenger had corroborated theversion given by AW 2 by making categorical statements that he had

witnessed the deceased falling down from the train through the open door due to a heavy jerk which had occurred while she was washing her hands.

The witness had denied the suggestion that the deceased had not fallen down from the train while travelling or that she had not purchased the ticket.

From the testimony of the AWs 1, 2 and 3 it is clear that the cause of death ofthe deceased Jumi Kalita is on account of injuries sustained by her

on account of falling down from the running train and the said incident had occurred due to sudden jerk in the train. The post mortem report (Ext-

A2) also confirms the fact that the death of the deceased had occurred due to head injury which was ante mortem in nature. Although the learned

Tribunal has decided the Issue No.2 against the appellant by holding that it was a case of suicide, yet, the evidence on record, in the opinion of this

Court, does not support such a conclusion. The materials relied upon by the learned Tribunal to arrive at such conclusion are nothing but opinions

expressed by the officers on duty, which was not based on any cogent material. Be that as it may, since those officials had not been examined by the

respondents as witness, hence, it can be safely concluded that there was not even an iota of evidence available on record for the learned Tribunal to

conclude that the deceased Jumi Kalita had committed suicide.Â

Section 123(c)(2) of the Railways Act, 1989, provides that the accidental falling of any passenger from a train carrying passenger would constitute

“untoward incident†within the meaning of the Act of 1989. Since this is a case where the wife of the appellant had fallen down from the train

accidentally and the train was a passenger carrying train, the said incident would obviously come within the definition of “untoward incidentâ€, as

defined in Section 123(c) of the Act of 1989.

Coming to the next issue raised by Mr. Sarma questioning the status of thedeceased as a bonafide passenger, it is no doubt correct that no journey

ticket had been produced by the appellant before the learned Tribunal. The case of the appellant is that the ticket was lost by his deceased wife in the

accident. Therefore, the question that would arise in this case is as to whether merely because the ticket was not produced, would it automatically lead

to the conclusion that the deceased was not a bonafide passenger. Dealing with a question of similar nature, a Division Bench of the High Court of

Judicature at Kerala (Ernakulam) has held in the case of Union of India vs. Leelamma and others reported in 2010 ACJ 566 that merely because

the ticket was not produced the passenger cannot be levelled as “not a bonafide passengerâ€. That was also a case where the claimant had

categorically stated that the ticket was purchased but the same was lost in the accident. By relying upon another Division Bench judgment of the

Kerala High Court in Joji C. John vs. Union of India [2003 ACJ 52] it was held in that case that when the claimant contend that the deceased was

a passenger who fell down while attempting to board a train the burden would heavily lie upon the Railways to prove that the deceased had attempted

to such a journey without purchasing a ticket. Similar view has been expressed by the Division Bench of this Court in the case of Nrihanya Devi

(Smti) vs. Union of India reported in 1999 (3) GLT 216 wherein it has been observed that simply because the appellant had taken a stand that the

ticket was lost as a result of accident would be no ground to decline compensation.

In the present case also the stand of the appellant is that the deceased wastravelling on the basis of a valid journey ticket which was lost during the

accident and the said fact has been brought on record by leading oral evidence. Therefore, it is not a case where the appellant failed to lead evidence

to show that the deceased was a bonafide passenger. The circumstances under which the ticket could not be produced have also been brought on

record by leading evidence, as stated above. The respondent has, however, failed to lead any evidence in rebuttal. Under the circumstances having

regard to the ratio of the aforementioned decisions of the Kerala High Court as well of this Court, the mere fact that the ticket was lost in the accident

cannot be a ground in this case to decline compensation to the appellant.

It is also to be noted that in this case although an issue in the form of Issue No.1 was framed by the learned Tribunal, yet, the said issue was not

decided by the learned Tribunal. Be that as it may, this Court being the First Appellate Court, would also be entitled to record a finding of fact based

on the evidence available on record. From the evidence on record, I am of the view that the appellant has succeeded in establishing the fact that

deceased Jumi Kalita was a bonafide passenger.

For the reasons stated herein above, I am of the view that the Issue Nos.1 and2 ought to have been decided by the learned Tribunal in favour of

the appellant. The same not having been done, the impugned judgment and order of the learned Tribunal clearly suffers from an error that needs to be

corrected in this appeal. The issue Nos.1 and 2 are therefore, decided in favour of the appellant.

It is to be noted herein that since the learned Tribunal had rejected the claimpetition only on the basis of findings recorded with regard to Issue

No.2 there is neither any discussion nor any decision with regard to Issue Nos.3 and 4 which relates to the quantum of compensation and/or relief that

can be granted to the appellant. In view of the above, I am of the view that these issues must be considered and decided by the learned Tribunal after

hearing the parties.

Consequently, the impugned order dated 14.03.2013 stands set aside. In thelight of the observations made above, this matter is now remanded

back to the learned Tribunal for deciding the quantum of compensation that would be payable to the appellant due to the death of his wife Jumi Kalita

in the untoward incident. Since this is a old case, the exercise, as directed by this Court, be concluded as expeditiously as possible, preferably within a

period of six months from the date of receipt of the records, by confining the consideration only to the issue Nos.3 and 4.

 The appeal stands allowed to the extent indicated herein above.

 No order as to cost.

 Send back the LCR.