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2020 Supreme(Jhk) 1166
IN THE HIGH COURT OF JHARKHAND AT RANCHI
KAILASH PRASAD DEO, J.
Ajay Kumar Pandit & Ors. - Appellants
Versus
The Union of India, through its General Manager, Eastern Railway, Kolkata - Respondent
M.A. No. 243 of 2013
Decided On : 08-12-2020
For the Appellants : Mr. Rajesh Kr. Jha, Mr. Ashok Kr. Singh.
For the Respondent: Mr. Vijay Kr. Sinha, M/s Ganga Kumari Kacchap.
Headnote:
Code of Civil Procedure, 1908 - Section 146 - Order XXII - Rule 3 - Railways Act, 1989 - Section 124A, 123(b), 123(c), 123(c)(2), 2(29), 123, 125(1)(a ), 125 (2), 124 - Motor Vehicles Act, 1988 - Section 163A - Transfer of Property Act, 1882 - Section 6 - Railways Accidents and Untoward Incidents (Compensation) Rules, 1990 - Rule 26 - Railway Accidents and Untoward Incidents (Compensation) Amended Rules, 2016 - Hindu Succession Act, 1956 - Section 8 - Untoward incident - Strict liability or no fault liability - Application for compensation - Proceedings by or against representatives - Substitution of legal representatives – whether findings recorded by Tribunal on these two scores are sustainable in law on basis of evidence adduced by claimants and judgment passed by the Apex Court - whether right to claim compensation under Section 124A read with Section 123(b) and 125(d) can lead to conclusion that only dependent and not legal heirs of deceased dependent would be entitled to claim compensation, it is important that we note that there is no specific statutory stipulation suggesting abatement or extinction of the claim in the event of death of a dependent/claimant - Held, that fact is slightly different than that was placed before Apex Court in case of, where it has been held that maximum amount should be paid to claimants either Rs. 4,00,000/- with interest or Rs. 8,00,000/-, but in this case under peculiar circumstances, matter remained pending before Tribunal because of laches on part of Railway and matter remained pending before Court in appeal because of laches on part of claimants - Railway to pay a sum of Rs.4,00,000/- with interest @ 7.5% from date of filing of claim application till date of filing of appeal before Court or Rs.8,00,000/- in view of subsequent amendment, whichever is higher to claimants / appellants - Miscellaneous appeal allowed.
JUDGMENT :
(Through : Video Conferencing)
1. Heard, learned counsel, Mr. Rajesh Kumar Jha assisted by learned counsel for the appellants, Mr. Ashok Kumar Singh and learned counsel for the respondent – Railways, Mr. Vijay Kumar Sinha assisted by learned counsel M/s Ganga Kumari Kacchap.
2. This matter was heard on 23.11.2020, 07.12.2020 and today.
3. The claimants / appellants have preferred this appeal against the dismissal of the claim application filed vide Case No. TAU/RNC/2003/0032, which has been dismissed in terms of order dated 23.04.2013 passed by learned Member (Technical), Railway Claims Tribunal, Ranchi Bench, Ranchi holding that deceased – Bhaskar Pandit was not a bonafide passenger nor incident is covered under provisions of Section 123(c)(2) of the Railways Act, 1989.
4. Learned counsel for the appellants, Mr. Rajesh Kumar Jha, has assailed the impugned Award on the ground that the Tribunal has wrongly considered the material on record. The fact of the case is that Bhaskar Pandit, son of original claimant Triloki Nath Pandit fell down while travelling from Sindri to Dhanbad in Train No. 407 UP Sindri – Dhanbad Passenger near Barmasia Phatak. He died in PMCH, Dhanbad on the same day. The deceased was travelling with his friend and brother-in-law of his friend's sister.
5. Learned counsel for the appellants has submitted that Issue No. (1) that is with regard to the bonafide passenger is concerned, the Tribunal has given wrong finding contrary to the evidence brought on record by the witnesses and finding recorded by the learned Tribunal is contrary to the judgment passed by Apex Court in the case of Union of India vs. Rina Devi, reported in (2019) 3 SCC 572.
6. To buttress his argument, learned counsel for the appellants has brought evidence of A.W.-1 Prabhawati Devi at Para-1, 2 & 3 has deposed which has been brought on record by way of Annexure-7 at Page Nos. 28 & 29, which reads as follows:-
“(1) That, my son Bhaskar Pandit fell down accidentally from running train No. 407 UP (Sindri Dhanbad Passenger) at Barmasia Fatak, Near Dhanbad Station on : 12-12-2001.
(2) That, thereafter he was admitted to Patliputra Medical College & Hospital, Dhanbad, where he died during treatment on the same day in the night.
(3) That, my deceased son was travelling by the aforesaid train along with friend, Ratan Jyoti Sinha and Ansu Srivastava (Relative of Ratan Jyoti Sinha) from Sindri Town Stn. to Dhanbad after having proper ticket”.
7. Learned counsel for the appellants has further submitted that Ratan Jyoti Sinha has been examined as A.W.-3. The deposition of this witness has also been brought on record as Annexure-7 series at Page Nos. 34 & 35, Paras-1 to 3 of which has been referred hereunder:-
“(1) That, I along with my friend Bhaskar Pandit and my Sister's Debar – Ansu Srivastava was going to Dhanbad by Train No. 407 UP (Sindri Dhanbad Passenger) on : 12-12-2001 in the evening from Sindri Town Station.
(2) That, I purchased three Tickets for us from Booking Counter of Sindri Town Station for going to Dhanbad on : 12-12-2001 in the evening and kept the same in my Pocket.
(3) That, we were standing at the gate of the compartment of the train due to heavy rush inside.”
8. Though, this witnesses have been cross-examined by the Railways, but nothing has been elucidated to bring any evidence by the Railways contrary to the claim of the appellants.
9. Learned counsel for the appellants has submitted that in view of para-29 of the judgment passed by the Apex Court in the case of Rina Devi (Supra), which is profitably quoted hereunder, the deceased was bonafide passenger and as such, the finding recorded by the learned Tribunal is bad in law and not sustainable in the eyes of law:-
“29. 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
