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IN THE HIGH COURT AT CALCUTTA
Bibhas Ranjan De, J.
Kakali Kurmi - Appellant
Versus
Union Of India & Anr. - Respondents
F.M.A No. 959 of 2011
Decided On : 09-01-2023
RAILWAY CLAIMS - UNTOWARD INCIDENT - COMPENSATION - CLAIMANT ENTITLED TO COMPENSATION - NO FAULT LIABILITY - STRICT LIABILITY APPLIES - DEATH DUE TO INVOLVEMENT OF TRAIN - SECTION 123 (C)(2) OF THE RAILWAYS ACT, 1989 - SECTION 124A OF THE RAILWAYS ACT, 1989 - RINA DEVI (2018) 3 SCC 572
Fact of the Case:
Claimant's father, Nitya Gopal Kurmi, died after falling from a running train. The Railway Claims Tribunal dismissed the claim petition filed by the claimant, Kakali Kurmi, under the Railways Act, 1989, for payment of compensation of Rs. 4,00,000/-. The Tribunal held that the claimant failed to prove that her father was a bona fide passenger and that he accidentally fell from the running train.
Finding of the Court:
The court found that the claimant had discharged the initial burden of proving that her father was a bona fide passenger and that he died in an untoward incident. The court relied on the evidence of an eye-witness, the police report, the post-mortem report, and the inquest report to conclude that the deceased died due to the involvement of the train.
Issues: 1. Whether the claimant had discharged the initial burden of proving that her father was a bona fide passenger? 2. Whether the deceased died in an untoward incident within the meaning of Section 123(c)(2) of the Railways Act, 1989?
Ratio Decidendi: 1. The initial burden of proving that the deceased was a bona fide passenger lies on the claimant. However, this burden can be discharged by filing an affidavit of the relevant facts, and the burden will then shift to the Railways. 2. An untoward incident is defined under Section 123(c)(2) of the Railways Act, 1989, as any untoward occurrence or accident happening in the course of working of a railway, not being an accident in respect of which compensation is payable under Section 124 of the Act.
Final Decision: The court allowed the appeal and directed the Railway Authority to deposit the compensation amount of Rs. 4,00,000/- along with interest @ 6% per annum from the date of the accident till the deposit of the compensation amount, subject to a maximum of Rs. 8,00,000/-.
JUDGMENT
Bibhas Ranjan De, J. - Brief facts available on record for just decision of the appeal this appeal has been preferred challenging the judgement and order passed by Railway Claims Tribunal, Kolkata Bench in connection with A/922/2002, whereby Ld. Tribunal dismissed the claim petition.
2. The claim petition filed by one Kakali Kurmi under the Railways Act, arose out of an accidental death of her father Nitya Gopal Kurmi in an 'untoward incident' within the meaning of Section 124A of the Railways Act, 1989 for payment of compensation of Rs. 4,00,000/-. Specific case of the claimant is that on 12.01.2002 her father was travelling from Berhampur Rail Station to Jiagang Rail Station by 103 by Up Lalgola Passenger Train. It is alleged that her father fell down from the running train between Berhampur and Cossimbazar Rail Station at about 2.00 p.m. In effect her father succumbed to his injuries on the spot. It is further alleged that her father was carrying a bag containing brass, copper household materials, some money and ticket which was lost after the accident.
3. On receiving notice Railways Administration appeared and filed written statement denying all material averments of the claim petition contending inter alia that claimant is not entitled to any compensation whatsoever.
4. In course of trial, claimant examined herself as AW-1 and one Pradip De has been examined as AW-2 .In course of their evidence, ration card, Police Report, Post Mortem report and inquest report were admitted in evidence as exhibit A1 to A4.
5. After scrutiny of the entire evidence on record, Ld. Tribunal ignored the evidence of eye-witness (AW-2) and returned his finding as follows:-
' Considering all the oral and documentary evidence filed on record and the pleadings of the Ld. Counsels of both the sides, I am of the considered opinion that the applicant has miserably failed to prove that the deceased was a bona fide passenger of the train in question and he accidentally fell down from the running train causing his death on the spot as alleged in her claim application. These three issues are, therefore, decided against the applicant and in favour o the respondent railway.' Argument advanced:-
6. Learned Advocate, Mr. Supratim Dhar, appearing on behalf of claimant, at the outset, submitted that Learned Tribunal should not have discarded the evidence of AW-2 only because of discrepancies of surname. It has been submitted further that accidental death due to railways accident has been proved beyond doubt by adducing the oral evidence together with the documents admitted in evidence as exhibit A2 (final Police Report), exhibit A3(Post Mortem Report) and exhibit 4 (inquest report) within the meaning of 'untoward incident' enumerated in Section 124A of the Railways Act, 1989. In support of his contention Mr. Dhar has referred to the provisions of Railways Act, particularly Section 123 & 124A.
7. Mr. Dhar has further argued that there is no dispute that the dead body of father of the claimant was recovered from the railways track and railway authority did not take any steps under Section 147 of the Act required to be taken against a trespasser.
8. In support of his contention, Mr. Dhar relied on the following authorities.
A. Union of v Rina Devi reported 2019) 3SCC 572
B. Keshu Shankarlal Giri Vs Union of India (2021) 03 BOM CK 0020
C. Suchitra As (Ash) Vs. Union of India in FMA 384 of 2015 passed by Hon'ble Division bench of this Court on 11.04.2019.
9. Per contra, Learned Advocate, Ms. Aparna Banerjee, appearing on the behalf of the Railway Authority, supporting the judgment passed by the Learned Tribunal, submitted that there is material discrepancy in the evidence of AW-2 (so called eye-witness) with regard to alleged accident due to falling from the train. Ms. Banerjee has further submitted that the residence of AW-2 is situated at 1/2 kilometer away from the station and thereby Ms. Banerjee has tried to make this Court understand that, it was not possible for
Mere absence of ticket does not negate bonafide passenger status; affidavit suffices to discharge burden. Falling from running train is untoward incident under no-fault liability, entitling dependent....
The absence of a ticket does not negate the presumption of a passenger's status, and the Railway is liable for compensation under section 124-A for untoward incidents.
Section 124A of the Railways Act, 1989 imposes strict liability on Railways for deaths from untoward incidents, with no requirement for proving negligence or production of a ticket to establish bona ....
The absence of a ticket does not negate the status of a bona fide passenger, and initial burden of proof lies on the claimant to establish the passenger status, which the court confirmed through exam....
The court ruled that an accidental falling of a bona fide passenger from a train constitutes an 'untoward incident' under the Railways Act, mandating strict liability for compensation, irrespective o....
The absence of a ticket does not negate the claim of a deceased as a bona fide passenger; once the claimants establish initial proof, the burden shifts to the Railways to rebut it.
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