Railway Claims Tribunal, Secunderabad. = Claiming compensation of Rs.4,00,000/-, the application was filed. = 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. – 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. – 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.= 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. – HIGH COURT OF HYDERABAD

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