IN THE HIGH COURT OF PATNA
Aditya Kumar Trivedi, Ashutosh Kumar, JJ.
BINOD KUMAR SINHA — Appellant
Vs.
UNION OF INDIA — Respondent
Miscellaneous Appeal No. 233 of 2014
Decided on : 12-07-2019

Headnote:

Railway Act, 1989 – Sections 123, 124 and 124A – Railway Claims Tribunal Act, 1987 – Section 18 – Accident claim proceeding – Adjudication of – Strict compliance of Chapter-VII of Evidence Act is not at all warranted, however it should be and mode has been prescribed by an affidavit – Burden of Proof is a clumsy affair and it never shift – However, whenever there happens to be application of Burden of Proof, another event, 'onus' also appears and attracts attention for its proper appreciation posing to be synonyms thereof, during course of appreciation of evidence having led on behalf of rival parties once, in due discharge of burden is offered and in order to discharge onus, is produced – During course of appreciation, theme of burden is to be seen strictly, as being under obligation while during course of discharging onus, preponderance of probability. (Paras 16 and 17)

Railway Act, 1989 – Sections 123, 124 and 124A – Railway Claims Tribunal Act, 1987 – Section 18 – Untoward incident – Death of passenger – Mere presence of dead body within railway premises will not favour presumption of being bonafide passengers and in likewise manner, non-presence of ticket will not discredit entitlement – However, initial burden on that score lies upon applicant/claimant with obligation to discharge which by way of rebuttal could be at end of Railway under guise of shifting of onus. (Para 26)

Cases Referred:

Brishketu Bihari Sinha vs. State of Bihar, 2018 (4) BLJ 100 (PHC) : 2019(2) PLJR 554; Kedar Nath Singh vs. Union of India, 2013 (3) BLJ 108 (PHC) : 2013(3) PLJR 580; Jaleshwar Das vs. Union of India, 2013(3) PLJR 450 – Referred.

Smt. Kaushalaya Devi vs. Union of India through General Manager, North Eastern Railway, Gorakhpur, U.P., 2008(3) PLJR 711 – Impliedly overruled by Supreme Court.

Anil Rishi vs. Gurbaksh Singh, (2006)5 SCC 558; National Insurance Co. Ltd. vs. Rattani, (2009) 2 SCC 75; Union of India vs. Rina Devi, (2019) 3 SCC 572; Union of India vs. Radha Yadav, (2019) 3 SCC 410 – Relied.

Per Ashutosh Kumar, J. (Assenting View)

Railway Act, 1989 – Sections 123, 124 and 124A – Railway Claims Tribunal Act, 1987 – Section 18 – Railway Claims Tribunal (Procedure) Rules, 1989 – Rule 22 – Untoward incident – Death of passenger – A passenger who dies or gets injured in an untoward incident is liable to be compensated by Railways – Claims Tribunal is not to be bound by procedure laid down in CPC but is to be guided by Principles of Natural Justice and Rules framed by Tribunal. (Paras 12 and 16)

Indian Evidence Act, 1872 – Sections 101, 102 and 103 – Burden of proof – Distinction exists between burden of proof and onus of proof – Burden of proof lies upon a person who has to prove the fact for seeking the relief claimed – Burden of proof is static for and on person who wishes Court to believe him and such responsibility never shifts on anybody-else – Onus of proof is not static and it can shift in process of evaluation of evidence of person who has first responsibility of offering evidence for discharging burden of proof and in beginning, onus of proof is also on him – For discharge of burden of proof, onus is always on person who claims a relief from Court and if he discharges onus and makes out a case entitling him to a relief claimed, onus shifts to one who contests such assertions by claimant – If a claimant wishes Court to believe that deceased, a valid passenger, died in railway accident, burden of proof and onus of proof would be on him – Burden of proof shall always remain with claimant with onus of proof in beginning. (Paras 18 to 20)

Railway Act, 1989 – Sections 123, 124 and 124A – Railway Claims Tribunal Act, 1987 – Section 18 – Railway Claims Tribunal (Procedure) Rules, 1989 – Rule 22 – Untoward incident – Death of passenger – If a claimant wishes Court to believe that deceased, a valid passenger, died in the railway accident, burden of proof and onus of proof would be on him – Burden of proof shall always remain with claimant with onus of proof in beginning – For discharging the burden and onus, he would be required to pitch in evidence which in a case of railway accident would be production of a valid ticket – However, it may not be necessary in all circumstances to produce a valid journey ticket or platform ticket and there could be other ways for proving that deceased was a valid passenger – An instance of such evidence would be statement of any person accompanying deceased that deceased had valid ticket but ticket was lost or a fellow passenger who was shown ticket by deceased or evidence that ticket was checked by TTE during course of travel, and so on and so forth – Once initial onus is discharged, it would be obligatory on respondent-Railways to disapprove it by evidence – Merely denying an assertion would not be sufficient – Likewise, for a claimant also, it would not suffice only to plead that deceased was a valid passenger but proof for the same has to be offered – Pleadings are no evidence and they cannot be taken to be proof of a fact asserted – Once this onus is discharged, it would be for Railways to disapprove the same by evidence. (Paras 20, 21 and 22)

Cases Referred:

Kaushalaya Devi vs. Union of India through General Manager, North Eastern Railway, Gorakhpur [U.P., 2008 (3) PLJR 711 – Impliedly overruled by Supreme Court.

Kedar Nath Singh vs. Union of India, 2013 (3) PLJR 580; Jaleshwar Das vs. Union of India, 2013 (3) PLJR 450 – Referred.

Addagada Raghavamma vs. Addagada Chenchamma, AIR 1964 SC 136; R.V.E. Venkatachala Gounder vs. Arulmigu Viswesaraswami and V.P. Temple, AIR 2003 SC 4548 and Anil Rishi vs. Gurbaksh Singh, AIR 2006 SC 1971; Union of India vs. Rina Devi, (2019) 3 SCC 572 – Relied.