Mina Devi And Ors vs Union of India

I.A. No.6889 of 2019 Learned counsel for the appellants, Ms. C.C. Sinha has submitted that there is delay of 80 days in preferring the appeal and for

condonation of the same, I.A. No.6889 of 2019 has been filed.

Learned counsel for the appellants has further submitted that the victim is a poor lady, who lost her husband in the unfortunate accident, as such, there

is delay in filing the appeal, which may be condoned as it is a benevolent legislation.

Learned counsel for the respondent/Railway, Mr. Gautam Rakesh has opposed the prayer but no counter-affidavit has been filed in limitation matter.

After hearing the learned counsel for the parties and on the basis of the materials brought on record, this Court is inclined to condone the delay of 80

days.

Accordingly, I.A. No.6889 of 2019 is hereby allowed. M.A. No. 28 of 2019 On the joint prayer of the parties, the matter is taken up for final hearing

as the counter-affidavit has been filed by Railway in the memo of appeal.

Heard, learned counsel for the parties.

Learned counsel for the appellants, Ms. C.C. Sinha has submitted that the instant Misc. Appeal has been preferred against the judgment dated

26.07.2018 passed by learned Member (Technical), Railway claims Tribunal, Ranchi Bench, Ranchi in Case No.OA(IIU)/RNC/77/2017 whereby the

claim application of the claimants- 1. Mina Devi, 2. Banti Kumar, 3. Laxmi Kumari,

Bikram Kumar, 5.Mangar Yadav and 6. Saro Devi have been dismissed by the learned Tribunal. The minor Banti Kumar, Laxmi Kumari and

Bikram Kumar have been represented through the natural guardian and mother (claimant no.1-Mina Devi).

Learned counsel for the appellants has submitted that the learned Tribunal has not taken notice of the DRM's report, which has been brought on

record as Exhibit-R3, which is profitably quoted hereunder:

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24.03.2017 24/25.03.2017

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As well as, in view of evidence adduced by the Mina Devi (A.W-1) particularly in paras 1, 2 and 3, the learned Tribunal has come to a wrong finding

quoted are as follows:-

That today I am adducing evidence as applicant on account of death sustained by my husband Baleshwar yadav @ Bali Yadav in an untoward

train incident.

That about one years ago Baleshwar Yadav @ Bali Yadav was travelling Exp. Koderma Jn. to Hawrah having valid second Class Railway Ticket

by Kolkatta Mail Exp. Train for driving the Tanker.

That during the course of journey a railway my husband accidentally fell from the running Kolkatta Mail exp. train due to over crowded pressure

and sudden jerk near East of Railway Station Koderma and Succumbed to his injured instantaneously.

Learned counsel for the appellants has further submitted that no contrary evidence has been brought on record by the Railway even then the learned

Tribunal has not considered the judgment passed by the Apex Court in the case of Union of India vs. Rina Devi, reported in (2019) 3 SCC 572, Para

29 of the same may be profitably quoted hereunder:-

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.

Learned counsel for the appellants has further submitted that unfortunate accident took place on 25.03.2017, the claim application was filed on

12.06.2017, which was dismissed on 26.07.2018 and as per the new amended Rules vide Railway Accidents and Untoward Incidents (Compensation)

Rules, 2016, with effect from 01.01.2017, the compensation for death is Rs.8 lacs.

Learned counsel for the appellants has thus submitted that appeal may be allowed.

Learned counsel for the respondent, Mr. Gautam Rakesh has opposed the prayer and submitted that counter-affidavit has been filed in this matter and

referred pars 6 to 11 of the same, which are as follows:-

That the case of the appellants as claimed is that on 25.03.2017 the deceased Late Baleshwar Yadav @ Bali Yadav after purchasing a railway

journey ticket was travelling by Train No.12322 DN Kolkata Mail. As in pleaded the deceased fell down from this train due to heavy jerk and jostling

and died on the spot.

That Railway- Respondent had filed written statement before the Ld. Tribunal and denied that anybody seen the incident. It was only a hypothetical

story which had been placed in the claim application. It is denied that the deceased Late Baleshwar Yadav @ Bali Yadav after purchasing a railway

journey ticket was travelling on Train No.12322 DN Kolkata Mail. It was denied that the deceased fell down from the running train due to heavy jerk

and jostling and died on the spot. There respondent raised objection to the claim of the appellant. As no ticket was found from the body of the

deceased it is denied that the deceased was a bonafide passenger of any train.

Further as there was no material to prove that some one seen the deceased purchasing the ticket neither any ticket was recovered from the body of

the deceased the deceased was not a bonafide passenger.

Further there is also no material in support of the claim that the deceased had boarded on the claimed train. There is also no material to accept that

there was jostling/rush in the train and due to it the deceased was standing at the gate and due to rush and heavy rush he fell down from the claimed

running train.

In the written statement the railway-respondent put its emphatic objection that without strict proof any claim of the claimant regarding purchase of

ticket, boarding on train, rush in train, sudden jerk in train, falling from the train due to sudden jerk and rush may not be admitted.

That the claimant has failed to bring any reliable material in support of their claimed that Late Baleshwar Yadav @ Bali Yadav after purchasing a

railway journey ticket was travelling on Train No.12322 DN Kolkata Mail as is pleaded fell down from the running train due to heavy jerk and jostling

and died on the spot as is pleaded fell down from the running train due to heavy jerk and jostling and died on the spot.

That the Learned tribunal taken into note that from the body of the deceased no journey ticket was recovered. It was taken into note that no one

has stated on oath supported by affidavit that he had seen the deceased purchasing the ticket. It was also taken into note that the co-passenger

deposed that the tkcket was in possession of the passenger but in reality no ticket was recovered.

It was held that there was no evidence direct or circumstantial which go to establish that the deceased was a bonafide passenger of the train during

the claimed travel there.

That in view of the above, and also that there was no material on record that any body has seen the passenger purchasing the ticket even. In fact

the ratio decided in Union of India vs. Rina Devi not applicable in the present case. More so over the Learned Tribunal has rightly by discussing the

ration decided in the case of Union of India Vs. Rina Devi been pleased to hold that the deceased was not even a bonafide passenger of any train.

Hence the claim of the claimant was dismissed.

The learned Tribunal has also hold that the passenger was not bonafide passenger.

That it is stated that there is nothing on the record as to show that the respondent can be held liable for any delay in disposal of the case.

Learned counsel for the respondent has thus, submitted that appeal may not be allowed as the learned Tribunal has rightly passed the judgment.

After hearing the learned counsel for the parties and on the basis of the materials brought on record, it appears that husband of the applicant no.1

(Baleshwar Yadav @ Bali Yadav) was travelling from Koderma Jn. to Hawrah vide train No.12322 DN Kolkata Mail and to that effect evidence has

been brought on record by A.W.1 (Mina Devi) particularly paras 1, 2 and 3, who got information from one Ashok Yadav. No cross-examination has

been made by the Railway that whether she can bring Ashok Yadav for examination, as such, in view of the evidence brought on record by A.W.1

(Mina Devi) particularly paras 1, 2 and 3 and in view of the judgment passed by the Apex Court in the case of Rina Devi, (Supra), the deceased was

a bonafide passenger. This fact is also corroborated from DRM's report, which has been brought on record as Exhbit-R3 by the Railway particularly

the conclusion of the inquiry, as such, it appears that the deceased was a bonafide passenger and he lost his life in an untoward incident at pole no.

393/7-8 due to heavy jerk and jostling of passenger.

Accordingly the appeal is allowed, considering the deceased to be a bonafide passenger and lost his life in an untoward incident as defined under

Section 123(c)(2) of the Railways Act, 1989.

So far compensation is concerned, as per the Railway Accidents and Untoward Incidents (Compensation) Rules, 2016, the claimants are entitled for

Rs.8 lacs along with interest @ 7.5% per annum from the date of filing of the claim application i.e. 12.06.2017 till the date of indemnifying the award

in view of the judgment passed by the Apex Court in the case of Thazhathe Purayil Sarabi and others vs. Union of Indian and another, reported in

2009(7) SCC 372 at para 38, which is profitably quoted hereunder:-

As we have indicated earlier, payment of interest is basically compensation for being denied the use of the money during the period in which the

same could have been made available to the claimants. In our view, both the Tribunal, as also the High Court, were wrong in not granting any interest

whatsoever to the appellants, except by way of a default clause, which is contrary to the established principles relating to payment of interest on

money claims.

Accordingly, the instant Miscellaneous Appeal is hereby allowed in the aforesaid terms.

LCR be sent down forthwith.