HONBLE SRI JUSTICE D.V.S.S. SOMAYAJULU
C.M.A.No.591 of 2007
24-01-2018
Labanyavathi Panigrahi,W/o late Simanchal Panigrahi,Aged about 54 Yrs., Occ: house hold,Municipal Colony, Premnagar,Berhampu
.
The Union of India, Rep., by its General Manager,Eastern Railways,Calcutta. Respondents
Counsel for the appellants: Sri Pottigari Sridhar Reddy
Counsel for the Respondents: Sri J.Ashok Kumar
<Gist:
>Head Note:
? Cases referred:
2016 (1) ALT 1
2 2011 ACJ 693
3 2013 ACC 371
4 2009 ACJ 2444
5 2001 ACJ 721
6 2007 (4) ALD 105
HONBLE SRI JUSTICE D.V.S.S. SOMAYAJULU
CMA No. 591 of 2007
J U D G M E N T :
This appeal is filed against the order dated 26.04.2007
in OAA.No.43 of 2002 passed by the Railway Claims Tribunal,
Secunderabad.
The appellants before this Court are the applicants
before the Tribunal. They are the wife and children of one
Simanchal Panigrahi, who is hereinafter referred to as the
deceased. According to the application, on 09.12.2001, the
deceased was traveling by train No.219 DMU Bhubaneswar-
Palasa passenger and he accidentally fell down from the train
at Jadupudi Railway Station in front of the Station Masters
office. He died on the spot. Claiming compensation of
Rs.4,00,000/-, the application was filed. The respondents
denied the entire case set up by the applicants. On behalf of
the applicants, AW.1-wife of the deceased was examined and
Exs.A.1 to A.7 were marked. For the respondents, RW.1-a
Junior Clerk was examined and Ex.R.1 and Ex.C.1 final
report were marked. The Tribunal, after going into the
matter, held as follows:
(a) the applicants are the sole dependents of the deceased.
(b) that the death occurred due to the fact that the deceased
fell down from a moving train and that therefore, Section 124-
A of the Railways Act, 1989 (for short the Act) is applicable.
(c) however, the claim was dismissed on the ground that the
train ticket was not found with the deceased and that there is
no proof to show that he is a bona fide passenger.
Therefore, on the sole ground that the deceased was not
a bona fide passenger, the entire case was dismissed. This
order is now assailed in the appeal.
Heard Sri Pottigari Sridhar Reddy, learned counsel for
the appellants and Sri J.Ashok Kumar, learned counsel for
the respondent.
The learned counsel for the appellants has strongly
relied upon
(a) three judgments of a learned single Judge of this Court,
which are passed in CMA.Nos.1047, 507 of 2009 and Shaik
Mahboob Basha and others v. Union of India . In all these
three cases, the learned single Judge held that the mere fact
that the railway ticket was not found upon the deceased or
with the deceased is not a ground to hold that he is not a
bona fide passenger. The learned single Judge, on the basis of
other High Court judgments, held that it can be presumed
that a person traveling in a train possessed a valid journey
ticket and is a bona fide passenger.
(b) a judgment of another single Judge of this Court reported
in Parisa Anjali and others v. Union of India , wherein it
was held that it is the intention of the person, who was
traveling in the train that it is important. The single Judge
held that there can be an instance where a person boards the
train in a hurry, which is before its starting and has no time
to purchase a ticket and held that such a person although
technically does not possess a ticket is still a bona fide
passenger.
(c) a Division Bench judgment of the Kerala High Court in
Union of India v. Parameswaran Pillai and Another ,
wherein the Division Bench held that due to the common
course of human conduct, there is a presumption that the
passenger was traveling with a valid ticket. In paragraph 8,
this Division Bench relied upon earlier judgments including
the judgment of the Honble Supreme Court in Tahazhathe
Purayil Sarabi and Others V. Union of India (UOI) and
Another and came to a conclusion that there is a
presumption that a passenger has purchased a ticket and is a
bona fide passenger. This presumption can be rebutted by
the Railways by introducing evidence.
This Court is of the opinion that the reasoning adopted
by the learned single Judges of this Court in the decisions
cited earlier and of the Division Bench of the Kerala High
Court are correct. There is a presumption in favour of a
passenger that he is a bona fide passenger and the Railways
have a duty to rebut this presumption. In the present case,
there is no evidence to rebut the presumption. There is no
cross-examination of AW.1 to the effect that the deceased was
not a bona fide passenger. There is no dispute about the fact
that the deceased was traveling on a train and that he fell
down in Jadupudi station itself. RW.1 the witness examined
for the Railways clearly states that I have actually seen the
deceased falling from the moving train.
In addition, Ex.A.1-F.I.R clearly states that one male
person aged about 30 years fell down from 219 DMU
Bhubaneswar-Palasa passenger and was run over. The death
certificate-Ex.A.4 clearly states that the deceased fell from the
train 219 DMU Bhubaneswar-Palasa passenger. Ex.A.6-the
case diary also states that the deceased fell down from a
running train and that he died instantaneously. Even Ex.R.1,
which is marked by the respondent states that one male
person aged about 30 years fell down from the train and was
run over and killed. Therefore, the overwhelming evidence in
this case is that the deceased was traveling in 219 DMU
Bhubaneswar-Palasa passenger and that he accidentally fell
down and died. A perusal of the evidence shows that the
Railways did not discharge the burden of rebutting the
presumption that the deceased was a bona fide passenger.
Therefore, this Court holds that the deceased was a bona fide
passenger and the mere fact that ticket was not found on his
body or near his body is not a ground to hold that he was not
a bona fide passenger. This Court agrees with the
submissions of the counsel for the appellants that the order
of the lower Court on this issue is wrong.
The next question that arises for consideration as a
corollary to this finding is about the quantum of
compensation payable since the liability of the Railways is
absolute.
The learned counsel for the appellants argued that as
per the decision reported in Rathi Menon v. Union of India ,
the deceased was entitled to compensation of Rs.8,00,000/-
as per the notification dated 22.12.2016 issued by the
Ministry of Railways.
An analysis of the facts in Rathi Menons case (5 supra)
shows that the applicant was injured on 03.09.1996. She
filed two claim petitions on 27.06.1997 before the Railway
Claims Tribunal. The Railway Claims Tribunal awarded a
sum of Rs.6,00,000/- as damages in both the cases due to
the ceiling imposed. In the interregnum period, on
01.11.1997, the Railway Accidents and Untoward Incidents
(Compensation) Amendment Rules, 1990 (for short the
Rules) were amended. The ceiling limit was raised from
Rs.2,00,000/- to Rs.4,00,000/-. At this point of time, the
appeal filed by the Railways was pending before the Division
Bench of High Court of Kerala. The Kerala High Court
reduced the compensation awarded by the Tribunal holding
that the applicant was only entitled to compensation under
the Rules in force at the time of the accident.
The Honble Supreme Court, after an analysis of the
facts and the amendment, came to a conclusion that:
(a) the compensation for injuries is not fixed by the Railway
Claims Tribunal Act, but was left to be determined by the
Government from time to time by means of the Rules.
(b) that the Parliament left it to the Government to fix the
amount of compensation payable and
(c) the clear language of Section 124 of the Act is to pay the
compensation to such accidents as may be prescribed.
The Honble Supreme Court ultimately held that the
compensation should be awarded as per the Rules prevalent
on the date of the order. Paragraphs 26 to 29 of the judgment
clearly discuss the reasons and the rationale that was
adopted by the Honble Supreme Court for awarding the
compensation as per the current Rules in force. The Honble
Supreme Court ultimately came to the following conclusion in
paragraph 30: we are of the definite opinion that the Claims
Tribunal must consider what the Rules prescribed at the time
of making the order for payment of the compensation.
This Court finds considerable force in the submissions
made by the learned counsel on this aspect in line with the
order of the Honble Supreme Court in the case of Rathi
Menons (5 supra). In paragraph 29 of the said judgment, the
Supreme Court discussed a hypothetical example of a
wrongful dismissal of a claim by the Tribunal and an appeal
filed in the High Court, which ultimately is allowed. The
Honble Supreme Court clearly states that it would be a pity if
the High Court awards the amount in terms of the figures
indicated in the Rules on the date of the accident while
allowing an appeal after a few years. This hypothetical
example considered by the Supreme Court is a reality in this
case. The appeal was dismissed by the impugned order dated
26.04.2007, but till date, the applicants have not seen the
colour of money which they have claimed for the death of the
breadwinner of the family.
For all these reasons including the authoritative
pronouncement of the Honble Supreme Court of India, which
is the law throughout this country, this Court holds that the
claimants are entitled to compensation as per the current
Rules in force. This Court is also supported in this view by a
Division Bench decision in G.Rajababu v. Government of
Andhra Pradesh and others , wherein it was held in para
35 as follows:
The decision of the Supreme Court,
enunciating a principle of law, is applicable to all cases
irrespective of the stage of its pendency. The law laid
down by the Supreme Court must be held to be the
law from the inception, unless the Supreme Court
itself indicates that its decision will operate
prospectively.
As per the notification issued by the Ministry of
Railways, which was published in the Gazette of India, new
Rules were promulgated on 22.12.2016 and have came into
force on 01.01.2017. The amount of compensation payable is
now fixed at Rs.8,00,000/- in case of death as per the new
Rules. During the course of hearing, the learned counsel
wanted these Rules to be applied to the case on hand. On
14.11.2017, the learned counsel initially argued the matter.
On 16.11.2017, the learned counsel for the appellant placed
the judgment of Rathi Menons case (5 supra) and the
notification of the Gazette of India before this Court. This
Court directed that a memo detailing the compensation
payable as per the current schedule should be served on the
counsel for the Railways, so that their views can be
ascertained on the point of law and also on the facts.
On 21.11.2017, the learned counsel for the appellant
filed a memo stating that Rs.8,00,000/- is payable. She also
stated that the learned counsel for the respondent Railways
was not present to receive the memo. The matter was posted
to 21.11.2017 to hear the learned counsel for the respondent.
As the matter did not reach, it was posted to 30.11.2017 to
hear the respondents counsel. From there, it was posted to
05.12.2017. On that day also, there is no representation for
the counsel for the respondent. Therefore, the matter was
adjourned to 08.12.2017. Ultimately, on this day, as there
was no representation for the counsel for the respondent, the
matter was reserved for orders.
In these circumstances, relying on the presumption
under section 81 of the Indian Evidence Act that the contents
of the Gazette of India are genuine and correct, the same is
taken on record.
After considering all the facts and circumstances, the
compensation payable is fixed at Rs.8,00,000/-, in line with
the judgment of the Honble Supreme Court of India in Rathi
Menons case (5 supra) and the latest guidelines. The said
compensation of Rs.8,00,000/- is directed to be paid by the
Railway Administration to the appellants within three months
from the date of this order along with interest at the rate of
12% per annum from 26.04.2007 (the date of impugned order
passed by the Railway Claims Tribunal) till the date of actual
payment to the claimants.
The order of the Railway Claims Tribunal is set aside
and the appeal is allowed and compensation as mentioned
above is grated. No order as to costs.
Consequently, miscellaneous petitions, if any, pending
in this appeal shall stand closed.
_______________________
D.V.S.S. SOMAYAJULU, J
Date: 24.01.2018
C.M.A.No.591 of 2007
24-01-2018
Labanyavathi Panigrahi,W/o late Simanchal Panigrahi,Aged about 54 Yrs., Occ: house hold,Municipal Colony, Premnagar,Berhampu
.
The Union of India, Rep., by its General Manager,Eastern Railways,Calcutta. Respondents
Counsel for the appellants: Sri Pottigari Sridhar Reddy
Counsel for the Respondents: Sri J.Ashok Kumar
<Gist:
>Head Note:
? Cases referred:
2016 (1) ALT 1
2 2011 ACJ 693
3 2013 ACC 371
4 2009 ACJ 2444
5 2001 ACJ 721
6 2007 (4) ALD 105
HONBLE SRI JUSTICE D.V.S.S. SOMAYAJULU
CMA No. 591 of 2007
J U D G M E N T :
This appeal is filed against the order dated 26.04.2007
in OAA.No.43 of 2002 passed by the Railway Claims Tribunal,
Secunderabad.
The appellants before this Court are the applicants
before the Tribunal. They are the wife and children of one
Simanchal Panigrahi, who is hereinafter referred to as the
deceased. According to the application, on 09.12.2001, the
deceased was traveling by train No.219 DMU Bhubaneswar-
Palasa passenger and he accidentally fell down from the train
at Jadupudi Railway Station in front of the Station Masters
office. He died on the spot. Claiming compensation of
Rs.4,00,000/-, the application was filed. The respondents
denied the entire case set up by the applicants. On behalf of
the applicants, AW.1-wife of the deceased was examined and
Exs.A.1 to A.7 were marked. For the respondents, RW.1-a
Junior Clerk was examined and Ex.R.1 and Ex.C.1 final
report were marked. The Tribunal, after going into the
matter, held as follows:
(a) the applicants are the sole dependents of the deceased.
(b) that the death occurred due to the fact that the deceased
fell down from a moving train and that therefore, Section 124-
A of the Railways Act, 1989 (for short the Act) is applicable.
(c) however, the claim was dismissed on the ground that the
train ticket was not found with the deceased and that there is
no proof to show that he is a bona fide passenger.
Therefore, on the sole ground that the deceased was not
a bona fide passenger, the entire case was dismissed. This
order is now assailed in the appeal.
Heard Sri Pottigari Sridhar Reddy, learned counsel for
the appellants and Sri J.Ashok Kumar, learned counsel for
the respondent.
The learned counsel for the appellants has strongly
relied upon
(a) three judgments of a learned single Judge of this Court,
which are passed in CMA.Nos.1047, 507 of 2009 and Shaik
Mahboob Basha and others v. Union of India . In all these
three cases, the learned single Judge held that the mere fact
that the railway ticket was not found upon the deceased or
with the deceased is not a ground to hold that he is not a
bona fide passenger. The learned single Judge, on the basis of
other High Court judgments, held that it can be presumed
that a person traveling in a train possessed a valid journey
ticket and is a bona fide passenger.
(b) a judgment of another single Judge of this Court reported
in Parisa Anjali and others v. Union of India , wherein it
was held that it is the intention of the person, who was
traveling in the train that it is important. The single Judge
held that there can be an instance where a person boards the
train in a hurry, which is before its starting and has no time
to purchase a ticket and held that such a person although
technically does not possess a ticket is still a bona fide
passenger.
(c) a Division Bench judgment of the Kerala High Court in
Union of India v. Parameswaran Pillai and Another ,
wherein the Division Bench held that due to the common
course of human conduct, there is a presumption that the
passenger was traveling with a valid ticket. In paragraph 8,
this Division Bench relied upon earlier judgments including
the judgment of the Honble Supreme Court in Tahazhathe
Purayil Sarabi and Others V. Union of India (UOI) and
Another and came to a conclusion that there is a
presumption that a passenger has purchased a ticket and is a
bona fide passenger. This presumption can be rebutted by
the Railways by introducing evidence.
This Court is of the opinion that the reasoning adopted
by the learned single Judges of this Court in the decisions
cited earlier and of the Division Bench of the Kerala High
Court are correct. There is a presumption in favour of a
passenger that he is a bona fide passenger and the Railways
have a duty to rebut this presumption. In the present case,
there is no evidence to rebut the presumption. There is no
cross-examination of AW.1 to the effect that the deceased was
not a bona fide passenger. There is no dispute about the fact
that the deceased was traveling on a train and that he fell
down in Jadupudi station itself. RW.1 the witness examined
for the Railways clearly states that I have actually seen the
deceased falling from the moving train.
In addition, Ex.A.1-F.I.R clearly states that one male
person aged about 30 years fell down from 219 DMU
Bhubaneswar-Palasa passenger and was run over. The death
certificate-Ex.A.4 clearly states that the deceased fell from the
train 219 DMU Bhubaneswar-Palasa passenger. Ex.A.6-the
case diary also states that the deceased fell down from a
running train and that he died instantaneously. Even Ex.R.1,
which is marked by the respondent states that one male
person aged about 30 years fell down from the train and was
run over and killed. Therefore, the overwhelming evidence in
this case is that the deceased was traveling in 219 DMU
Bhubaneswar-Palasa passenger and that he accidentally fell
down and died. A perusal of the evidence shows that the
Railways did not discharge the burden of rebutting the
presumption that the deceased was a bona fide passenger.
Therefore, this Court holds that the deceased was a bona fide
passenger and the mere fact that ticket was not found on his
body or near his body is not a ground to hold that he was not
a bona fide passenger. This Court agrees with the
submissions of the counsel for the appellants that the order
of the lower Court on this issue is wrong.
The next question that arises for consideration as a
corollary to this finding is about the quantum of
compensation payable since the liability of the Railways is
absolute.
The learned counsel for the appellants argued that as
per the decision reported in Rathi Menon v. Union of India ,
the deceased was entitled to compensation of Rs.8,00,000/-
as per the notification dated 22.12.2016 issued by the
Ministry of Railways.
An analysis of the facts in Rathi Menons case (5 supra)
shows that the applicant was injured on 03.09.1996. She
filed two claim petitions on 27.06.1997 before the Railway
Claims Tribunal. The Railway Claims Tribunal awarded a
sum of Rs.6,00,000/- as damages in both the cases due to
the ceiling imposed. In the interregnum period, on
01.11.1997, the Railway Accidents and Untoward Incidents
(Compensation) Amendment Rules, 1990 (for short the
Rules) were amended. The ceiling limit was raised from
Rs.2,00,000/- to Rs.4,00,000/-. At this point of time, the
appeal filed by the Railways was pending before the Division
Bench of High Court of Kerala. The Kerala High Court
reduced the compensation awarded by the Tribunal holding
that the applicant was only entitled to compensation under
the Rules in force at the time of the accident.
The Honble Supreme Court, after an analysis of the
facts and the amendment, came to a conclusion that:
(a) the compensation for injuries is not fixed by the Railway
Claims Tribunal Act, but was left to be determined by the
Government from time to time by means of the Rules.
(b) that the Parliament left it to the Government to fix the
amount of compensation payable and
(c) the clear language of Section 124 of the Act is to pay the
compensation to such accidents as may be prescribed.
The Honble Supreme Court ultimately held that the
compensation should be awarded as per the Rules prevalent
on the date of the order. Paragraphs 26 to 29 of the judgment
clearly discuss the reasons and the rationale that was
adopted by the Honble Supreme Court for awarding the
compensation as per the current Rules in force. The Honble
Supreme Court ultimately came to the following conclusion in
paragraph 30: we are of the definite opinion that the Claims
Tribunal must consider what the Rules prescribed at the time
of making the order for payment of the compensation.
This Court finds considerable force in the submissions
made by the learned counsel on this aspect in line with the
order of the Honble Supreme Court in the case of Rathi
Menons (5 supra). In paragraph 29 of the said judgment, the
Supreme Court discussed a hypothetical example of a
wrongful dismissal of a claim by the Tribunal and an appeal
filed in the High Court, which ultimately is allowed. The
Honble Supreme Court clearly states that it would be a pity if
the High Court awards the amount in terms of the figures
indicated in the Rules on the date of the accident while
allowing an appeal after a few years. This hypothetical
example considered by the Supreme Court is a reality in this
case. The appeal was dismissed by the impugned order dated
26.04.2007, but till date, the applicants have not seen the
colour of money which they have claimed for the death of the
breadwinner of the family.
For all these reasons including the authoritative
pronouncement of the Honble Supreme Court of India, which
is the law throughout this country, this Court holds that the
claimants are entitled to compensation as per the current
Rules in force. This Court is also supported in this view by a
Division Bench decision in G.Rajababu v. Government of
Andhra Pradesh and others , wherein it was held in para
35 as follows:
The decision of the Supreme Court,
enunciating a principle of law, is applicable to all cases
irrespective of the stage of its pendency. The law laid
down by the Supreme Court must be held to be the
law from the inception, unless the Supreme Court
itself indicates that its decision will operate
prospectively.
As per the notification issued by the Ministry of
Railways, which was published in the Gazette of India, new
Rules were promulgated on 22.12.2016 and have came into
force on 01.01.2017. The amount of compensation payable is
now fixed at Rs.8,00,000/- in case of death as per the new
Rules. During the course of hearing, the learned counsel
wanted these Rules to be applied to the case on hand. On
14.11.2017, the learned counsel initially argued the matter.
On 16.11.2017, the learned counsel for the appellant placed
the judgment of Rathi Menons case (5 supra) and the
notification of the Gazette of India before this Court. This
Court directed that a memo detailing the compensation
payable as per the current schedule should be served on the
counsel for the Railways, so that their views can be
ascertained on the point of law and also on the facts.
On 21.11.2017, the learned counsel for the appellant
filed a memo stating that Rs.8,00,000/- is payable. She also
stated that the learned counsel for the respondent Railways
was not present to receive the memo. The matter was posted
to 21.11.2017 to hear the learned counsel for the respondent.
As the matter did not reach, it was posted to 30.11.2017 to
hear the respondents counsel. From there, it was posted to
05.12.2017. On that day also, there is no representation for
the counsel for the respondent. Therefore, the matter was
adjourned to 08.12.2017. Ultimately, on this day, as there
was no representation for the counsel for the respondent, the
matter was reserved for orders.
In these circumstances, relying on the presumption
under section 81 of the Indian Evidence Act that the contents
of the Gazette of India are genuine and correct, the same is
taken on record.
After considering all the facts and circumstances, the
compensation payable is fixed at Rs.8,00,000/-, in line with
the judgment of the Honble Supreme Court of India in Rathi
Menons case (5 supra) and the latest guidelines. The said
compensation of Rs.8,00,000/- is directed to be paid by the
Railway Administration to the appellants within three months
from the date of this order along with interest at the rate of
12% per annum from 26.04.2007 (the date of impugned order
passed by the Railway Claims Tribunal) till the date of actual
payment to the claimants.
The order of the Railway Claims Tribunal is set aside
and the appeal is allowed and compensation as mentioned
above is grated. No order as to costs.
Consequently, miscellaneous petitions, if any, pending
in this appeal shall stand closed.
_______________________
D.V.S.S. SOMAYAJULU, J
Date: 24.01.2018
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