Dismissed

Mehrun Nisha v. Union of India through the General Manager Konkan Railway Corporation Ltd.

Jharkhand HC20 Mar 2023MA/37/2019

Case brief

AI extract

What is this about?

The High Court dismissed an appeal against the Railway Claims Tribunal's order refusing compensation. The court held that the Tribunal correctly found the deceased died due to intoxication based on corroborative evidence, thus attracting the proviso to Section 124A of the Railways Act, 1989.

What did the court decide?

The appeal was dismissed without any costs.

Mehrun Nisha Vs Union of India through the… — Writ and Judicial Review | Jharkhand HC (2023)

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M.A. 37 of 2019

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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M.A. No. 37 of 2019

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(Against the judgment dated 28.09.2018 passed in Case no. OA (IIU) / RNC/58/2017 by Railway Claims Tribunal, Ranchi Bench, Ranchi)

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Mehrun Nisha, aged about 39 years, wife of deceased Anwar Hussain

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Akhtar Ansari, aged about 20 years, son of deceased Anwar Hussain

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Mukhtar Ansari, aged about 15 years, son of deceased Anwar Hussain

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Tajboon Khatoon, aged about 25 years, D/o deceased Anwar Hussain

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Taranum Parveen @ Gudia, aged about 18 years, D/o deceased Anwar Hussain

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Majahid Ansari, aged about 16 years, minor son of deceased Anwar Hussain

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Ibran Ansari, aged about 15 years, minor son of deceased Anwar Hussain

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Sobrati Miya, father of deceased Anwar Hussain

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Hafija Khatun, mother of deceased Anwar Hussain Appellant nos. 3, 6 and 7 being minor represented through their natural guardian, mother Mehrun Nisha (Appellant no. 1) Resident of village/ Mohalla: Patisale, P.O.- Makatpur, P.S.-Jainagar, District- Koderma, 825318 (Jharkhand)

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…... Appellants/ Applicants

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Versus Union of India through the General Manager, Konkan Railway Corporation Ltd., P.O.: CBD Belapur, P.S.- Belapur, District-Thane, PIN- 400614 (Maharashtra) ... . Respondent/ Respondent For the Appellants : Mr. Rajesh Kumar Jha, Adv. For the Respondent : Mr. Sunil Kumar , Adv.

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P R E S E N T

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HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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By the Court:- Heard the parties.

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This Miscellaneous Appeal under Section 23 (1) of Railway Claims Tribunal Act, 1987 has been filed against the judgment dated 28.09.2018 passed in Case no. OA (IIU) / RNC/58/2017 by Railway Claims Tribunal Ranchi Bench, Ranchi whereby and where under the prayer for claim of Rs. 4,00,000/- was made by the appellants, who are the wife,

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M.A. 37 of 2019

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sons, daughters and parent of the deceased Anwar Hussain., was dismissed.

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The brief fact of the case is that on 11.12.2013, while the deceased- Answar Hussain, was travelling in a Konkan Kanya Express Train, it is claimed that he accidentally fell down from the running train at Kasal, Kumbharwadi, sustained severe injuries and died at the spot.

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In the written statement, the Union of India, through General Manager –cum –Managing Director took the plea that the deceased was not a bonafide passenger as the railway ticket was neither recovered nor mentioned in the police report. Hence, the ticket produced cannot be relied upon.

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The respondent stated in the DRM report that the deceased Anwar Hussain was drunk and he fell from the running train, hence in view of the proviso (d) of the Section 124A of the Railways Act 1989, the claimants are not entitled for payment of any compensation.

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On the basis of the rival pleadings, learned tribunal framed

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the following four issues:-

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1. Whether the deceased Anwar Hussian was a bonafide passenger as alleged?

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2. Whether any untoward incident as defined under Section 123 (c ) (2) of the Railways Act, 1989 occurred to him while travelling by train Kokankanya Express from Madgaon station to Panvel station on 11.12.2013?

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3. Whether the applicants are dependents of deceased as defined under Section 123 (b) of Railways Act?

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4. Reliefs.

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In support of their case, the claimants examined Mehrun Nisha, the wife of the deceased and claimants produced the documents which have been marked as Exhibit A1 to A5. The respondent did not produce any oral or documentary evidence.

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Learned tribunal first took up issue no 1 and 2 together and considering the materials in the records, observed that the inquest report does not show the journey ticket of the

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M.A. 37 of 2019

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deceased. Learned tribunal considered that the brother of the deceased –Answar Hussain, namely, Nijam Ansari recorded his missing complaint as MPR No. 34 of 2014 before Madgaon Goa Police station on 27.01.2014 and it was revealed from the given information that the deceased was a liquor addict and when the deceased was talking with his wife over phone at the door, he was under the influence liquor. The train started and the deceased lost his balance and fell down and came under the wheels of the train at Kasal and died instantly. On the basis of the report of the deceased by Assistant Chemical Analyzer to Government Regional Forensic Science Laboratory, Pune, in the viscera examination report of the deceased, it has been stated that the same contained (103) mgs and (76) mgs of Ethyl alcohol per (100) gms. and contained (60) mgs. of Ethyl Alcohol per (100) milliliters, hence, the tribunal came to the conclusion that the railway administration shall not be liable to pay any compensation to the claimant as the same do not come under the definition of ‘untoward incident’ as per Section 124 A of the Railways Act, 1989 provides that if a passenger dies or suffers injuries due to interalia an act committed by him in the state of intoxication, no compensation shall be payable, and decided issue no. 1 and 2 in the negative and in view of the findings of issue no. 1 and 2, decided the issue no. 3 and 4 also in the negative.

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Mr. Rajesh Kr. Jha, Learned counsel for the appellants submits that the impugned judgment is not sustainable in law. The Railway Claims tribunal failed to appreciate that the respondent Railways, filed the written statement without annexing D.R.M. report and later on, filed the DRM report in which it has been mentioned that due to own carelessness and negligence act in alcoholic state, the deceased proved to be travelling on footboard and standing on the door of the train and he fell down, leading to his death. It is next

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M.A. 37 of 2019

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submitted by learned counsel for the appellants that since Railways Act, is a beneficial piece of legislation, no negligence on the part of the victim be looked into and the liberal approach ought to have been taken by the Railways Claims Tribunal. In support of his contention, Mr. Jha, relies upon the judgment of the Hon’ble Supreme Court of India, in the case of Jiju Kuruvila and Others v. Kunjujamma Mohan and Others reported in (2013) 9 SCC 166, para 20.6 of which, reads as under :-

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“20.6. The post-mortem report, Ext. A-5 shows the condition of the deceased at the time of death. The said report reflects that the deceased had already taken meal as his stomach was half-full and contained rice, vegetables and meat pieces in a fluid with strong smell of spirit. The aforesaid evidence, Ext. A-5 clearly suggests that the deceased had taken liquor but on the basis of the same, no definite finding can be given that the deceased was driving the car rashly and negligently at the time of accident. The mere suspicion based on Ext. B-2 “scene mahazar” and Ext. A-5 post-mortem report cannot take the place of evidence, particularly, when the direct evidence like PW 3 (independent eyewitness), Ext. A-1 (FIR), Ext. A-4 (charge-sheet) and Ext. B-1 (FI statement) are on record.” (Emphasis supplied)

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wherein in a case involving the claim made under Section 166 of the M.V.Act, the Hon’ble Supreme Court interalia observed that merely because the deceased had taken liquor, on that the basis, no definite finding can be given that the deceased was driving the car rashly and negligently.

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Mr. Jha next relies upon the judgment of Delhi High Court, in the case of Union Of India Versus Amaravati Devi and others reported in 2003 71 DRJ 425 , para 5 and 6 of which, reads as under :-

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“5. Untoward incident” has been defined in Section 123 of the Act to mean the “accidental falling” of any passenger from a train carrying passengers. In the post mortem report of the deceased it has been stated that 100 ml. Liquid was find in the stomach of the deceased with smell of alcohol. The contention of Mr. Salwan is that as the liquid taken out from the stomach of the deceased smelt of alcohol, the same clearly proved that he was intoxicated and consequently the railway administration in view of the proviso to Section 124A of the Act will not be

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M.A. 37 of 2019

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liable to pay compensation to the legal heirs of the deceased.

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6. I have carefully considered the arguments advanced by Mr. Salwan, however, I have not been able to make myself agreeable with the same. It is no doubt true that the liquid contents of the stomach smelt alcohol but that itself is not sufficient to prove that the deceased, when he had fallen from the train, was intoxicated. To avoid its liability under Section 124A of the Act, it was required of the appellant to prove before the tribunal that the deceased has fallen from the train because of intoxication. Merely because the deceased was smelling of alcohol cannot, in any case, prove intoxication. I do not find any illegality or infirmity in the observations of the tribunal that the smelling of alcohol in the stomach contents of the deceased would not by itself prove that there was a direct nexus between the alcohol and the death of the deceased, which had occurred because of his falling from the train. In my view, this case is fully covered by Section 124A of the Act and the appellant cannot avoid its liability on any of the exceptions in the said Section. For the aforesaid reasons, I do not find any merits in this appeal and the same is, accordingly, dismissed.” (Emphasis supplied)

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wherein in the facts of the case, when there was no proof before the tribunal, that the deceased has fallen from the train because of the intoxication and when the tribunal allowed the claim of compensation, the Delhi High Court dismissed the appeal, filed by the Union of India.

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Mr. Jha next relies upon the judgment of the Hon’ble Supreme Court of India, in the case of Kalandi Charan Sahoo and Another v. General Manager, South-East Central Railways, Bilaspur reported in (2019) 12 SCC 387 , para 5 of which, reads as under :-

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“5. After hearing the learned counsel for the parties, we find that it is not even necessary to go into the issue as to whether it was the fault of the deceased or that he accidentally fell down. The learned counsel for the appellants has drawn our attention to the provisions of Section 124-A of the Railways Act, 1989, which warrants payment of compensation whenever an untoward incident occurs whether or not such an incident has occurred by any wrongful act, neglect or default on the part of the Railway Administration. Going by the aforesaid provisions and in the peculiar facts of this case, where no inquiry as mandated by the Rules was conducted immediately after the incident had occurred, we are of the view that the appellants shall be entitled to compensation payable under Section 124-A of the Railways Act, 1989. We are informed that, at the material time, compensation payable under the said provision was Rs 4 lakhs.”

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M.A. 37 of 2019

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wherein in the facts of that case, no enquiry as mandated by the rule, was conducted immediately, after the incident had occurred, the Hon’ble Supreme Court of India, in the facts of that case, held that the appellant was the dependent of the deceased employee of the railway and was holding the post of Assistant Loco Pilot, shall be entitled for the compensation payable under Section 124A of the Railways Act, 1989, hence it is submitted that the impugned judgment of the Railways Claims Tribunal be set aside and the claim of the appellants be allowed to the tune of Rs. 4,00,000/-.

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Mr. Sunil Kumar, learned counsel for the Union of India , on the other hand, defends the impugned judgment passed learned Railway Claims Tribunal and submits that in the appeal memo, nowhere it has been controverted that there is material in the record to suggest that upon the complaint of Nijam Ansari-the brother of the deceased, it was revealed that the deceased was a liquor addict and he was talking with his wife standing at the door of the train, while he was under the influence of the liquor and as the train started, he lost his balance, hence, in view of the clause D of the proviso of Section 124 A of the Railways Act, 1989, the claim of the compensation of the claimant, has rightly been dismissed by the Railway claims Tribunal. It is then submitted that thus this appeal being without any merit be dismissed.

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Having heard the submissions made at the Bar and after going through the materials in the records, the sole point for determination which crops up for consideration in this appeal is :

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“ Whether Railway Claims tribunal committed an error in dismissing the claim for compensation by the claimant?”

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M.A. 37 of 2019

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It is pertinent to refer to Section 124 A of the Railways Act 1989, which reads as under :-

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“ Section 124A.Compensation on account of untoward incidents.

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124A. Compensation on account of untoward incidents.-When in the course of working a railway an untoward incident occurs, then whether or not there has been any wrongful act, neglect or default on the part of the railway administration such as would entitle a passenger who has been injured or the dependant of a passenger who has been killed to maintain an action and recover damages in respect thereof, the railway administration shall, notwithstanding anything contained in any other law, be liable to pay compensation to such extent as may be prescribed and to that extent only of loss occasioned by the death of, or injury to, a passenger as a result of such untoward incident:

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Provided that no compensation shall be payable under this section by the railway administration if the passenger dies or suffers injury due to—

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(a) suicide or attempted suicide by him;

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(b) self-inflicted injury;

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(c) his own criminal act;

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(d) any act committed by him in a state of intoxication or insanity;

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(e) any natural cause or disease or medical or surgical treatment unless such treatment becomes necessary due to injury caused by the said untoward incident. Explanation.--For the purpose of this section,

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"passenger" includes--

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(i) a railway servant on duty; and

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(ii) a person who has purchased a valid ticket for travelling, by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident.]” (Emphasis supplied)

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From bare perusal of the Act, it is crystal clear that the exception on which, the Railways administration, interalia , can avoid payment of compensation of a passenger is, “who died due to any act committed by him in a state of intoxication”. After carefully, going through the materials in the record, this Court finds that there is categorical observation, made by the Railway Claims Tribunal that there is material in the record to suggest that the deceased was a liquor addict and at the relevant time, he was talking with his wife, standing at the door of the train, he was under the influence of the liquor and as the train started, he lost his

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M.A. 37 of 2019

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balance and fell down and came under the wheels of the train. These evidences are over and above the post-mortem report. There is no dispute regarding these evidences in the record. The viscera report categorically shows that the Ethyl Alcohol was found in the viscera and nothing has been mentioned in the appeal memo, controverting the said facts. On the other hand in the appeal memo itself, it has also been mentioned by the appellants that in the DRM report it has been mentioned that due to own carelessness and negligent act, in alcoholic state, the deceased was proved to be travelling on the footboard and standing at the door of the train, and fell down, leading to his death.

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Unlike the judgements cited by the learned counsel for the appellant, this is not a case where the conclusion of intoxication was drawn by the tribunal only on the basis of the viscera report, rather such finding is based on all controverted materials in the record based on undisputed admitted documents. Hence, in the considered opinion of this Court, the ratio of the judgements relied upon by the learned counsel for the appellant is insufficient to overturn the finding of fact arrived at by the tribunal.

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Under such circumstances, this court has no hesitation, in holding that the materials in the record suggests that the deceased died due to an act committed by him in the state of intoxication. Accordingly, this is a case where no compensation shall be payable under Section 124 A of the Railways Act, 1989 by the railways administration, accordingly, in the considered opinion of this court, no illegality has been committed by the Railway Claims Tribunal, hence, the sole point for determination is answered in the negative.

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In view of the discussions made above, there is no merit in this appeal, accordingly, the same is dismissed on contest but under the circumstances, without any costs.

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9 M.A. 37 of 2019

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Let a copy of this Judgment along with the Lower Court Records be sent back to the learned tribunal forthwith.

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(Anil Kumar Choudhary, J.)

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High Court of Jharkhand, Ranchi Dated, the 20^th March , 2023. Smita /AFR

Mehrun Nisha v. Union of India through the General Manager Konkan Railway Corporation Ltd.

Case brief

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Mehrun Nisha v. Union of India through the General Manager Konkan Railway Corporation Ltd.

Case brief

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