Allowed

Gauri Shankar Bind and Ors. v. the Union of India

Patna HC4 Jul 2013MA/108/2011

Case brief

AI extract

What is this about?

In an appeal against the dismissal of a compensation claim for death during train travel, the Patna High Court set aside the Tribunal's award. The Court held the claim, supported by uncontradicted documentary evidence, could not be rejected based merely on oral inconsistencies absent proof of fraud.

What did the court decide?

The impugned judgment and award were set aside; the claim by the appellants was allowed with interest of 9% payable from the date of claim filing.

Gauri Shankar Bind and Ors. Vs the Union of India — Civil Procedure and Limitation | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Miscellaneous Appeal No.108 of 2011

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====================================================== 1. Gauri Shankar Bind son of Sri Mohan Bind 2. Smt. Lal Kuwar Devi, wife of Sri Gauri Shanker Bind, both are resident of village-Khajuri tola Ram Kishun Bigha, P.S. Karpi, District Jahanabad .... .... Appellant/s Versus The Union of India represented through the General Manager, East Railway, Kolkata .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Amarnath Mishra, Adv. Mr. Anant Kumar-1, Adv. For the Respondent/s : Mr. Anil Singh, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER

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7 04-07-2013 Heard Mr. Amarnath Mishra, learned counsel appearing on behalf of the appellants and Mr. Anil Singh, learned counsel for the respondent-Union of India.

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This appeal under Section 23 of the Railway Claims Tribunal Act 1987 is directed against the judgment and award dated 23.7.2009 passed by the Railway Claims Tribunal, Patna Bench in Claim Application Case No. OA00348 of 1999 whereby the claim filed by the applicants seeking compensation, has been dismissed.

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With the consent of the parties, the matter has been taken up for disposal at the stage of admission itself.

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Facts of the case as according to the claimant, is that his son Bijaya Bind aged about 28 years was traveling from Patna to

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Jehanabad by 3 PG Train, on 7.11.1999 after purchasing a valid ticket. It is further the case of the claimant that as the train was approaching Northern outer signal of Jehananbad Railway station his son fell down and died on the spot. A U.D. Case No. 30 of 1999 was registered by the Railway Police, Jehanabad on the basis of the intimation given by the Station Master. The dead body of his son was recovered from the railway track following which an inquest report was prepared and the body was sent to the Sadar Hospital, Jehanabad for postmortem. It is the case of the claimant that having gathered knowledge about the occurrence, he went to the place of occurrence along with other villagers and after identifying the dead body by his face and his clothes, he requested the authorities for handing over the body after postmortem for its cremation.

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The circumstances aforementioned led to the filing of the claim case in question under Section 16 of the Railway Claims Tribunal Act 1987 praying for compensation on account of death in an untoward incident while travelling in a train. The railways confronted the claim case and filed an eight paragraph written statement, a copy whereof is placed at Annexure-3 to the present application. Except raising ornamental objections as to the veracity of the claim case, nothing specific was pleaded

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questioning the claim setforth by the claimant to its genuineness. Though leave was sought for filing additional written statement, it is a matter of record that no additional written statement was filed by the railways. After completion of pleadings and the evidence led by the parties, the matter was considered by the Tribunal who upon consideration of the rival contentions of the parties and the evidence on record dismissed the claim case inter alia on grounds that the claim case was shrouded with incongruities, contradictions and that the evidence demonstrated that it was a false claim filed for securing unlawful gains. Being aggrieved the claimants are in appeal.

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Mr. Amarnath Mishra has appeared for the appellants and has submitted that despite there being clear evidence supporting the incident as also the fact that the deceased was the son of the claimant yet the Tribunal has ignored the evidence and basing the finding on conjectures and presumptions, the claim has been dismissed. Mr. Mishra, learned counsel for the appellants with reference to the evidence led by the parties which have been taken note in the award submits that although the claimant had led ten documentary as well as oral evidence in support of the claim, no evidence was led by the Railways to confront the claim except their written statement which did not question the claim on its

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genuineness. It is submitted that despite this position, the Tribunal has exceeded its jurisdiction by venturing into issues not reserved for them and basing its conclusions on probabilities. It is contended by Mr. Mishra that the ground for rejection of the claim has been set out in paragraph 13 of the impugned award and a perusal whereof demonstrates that the claim has been rejected inter alia on grounds that there were contradictions in the evidence of the claimant as well as the witness Pramod Kumar which cast a shadow as to the genuineness of the claim. He submits that the other ground assigned for rejection of the claim was that the name of the deceased did not find mention either in the F.I.R., the inquest report or the postmortem report. It is stated that the Tribunal assigning such reason has proceeded to hold that in absence of any credible evidence led by the parties to prove that the dead body was that of Bijay Bind the son of the claimant, the claim did not merit consideration. It was submitted that even where the occurrence which led to a death of a man is admitted, the Tribunal has proceeded to dismiss the claim on frivolous grounds. It is stated that the very fact that the claim case was filed by the father of the claimant who also identified the dead body of his son then until such time that it was proved by cogent evidence that the dead body did not belong to his son Bijay Bind

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who was yet alive or that the claimant had no son by that name, the claim could not have been rejected. It is stated that on the very date of the occurrence i.e. 7.11.1999 upon gathering knowledge, the claimant reached to the spot and filed application before the police for handing over of the dead body of his son while identifying the same and which is sufficient to proof of the connection between the claimant and the dead body. It is further submitted that though the recovery of ticket has been put to question, its genuineness was never doubted by the railways. The representation was marked as Ext. A-2.

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Learned counsel for the appellants further with reference to the Lal Card which was led as Ext. A/8 submitted that the name of the deceased appears at Serial No. 3. Learned counsel further with reference to the final form report submitted by the police, marked as Ext. A-6, submits that the final form submitted by the police puts to an end to all speculations as well as inconsistencies or doubts, if any that may have played in the mind of the Tribunal members. It is submitted that the accident, the death in the accident, information regarding the accident, the name of the victim who deceased in the accident as well as the fact that the appellants filed a representation identified the dead body as that of his son and the requisition for handing over the same after the

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postmortem all these documents confirm the claim.

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It is submitted that these relevant documents do not even find reference in the award impugned when the same are answers to the inconsistencies noted by the Tribunal for rejecting the claim.

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The arguments of Mr. Mishra has been vehemently contested by Mr. Singh appearing for the railways.

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A startling feature of this contest is that the Railway did not even chose to lead any evidence to contest the claim. In fact, on the issue of ornamental objections to the claim, it is noted that not a single objection is present in the written statement questioning the claim on its veracity, its genuineness or that it was manifestly attended with fraud. Nonetheless, Mr. Singh has chosen to contest the arguments relying upon the records which have been summoned under the orders of this Court as also the reasons assigned by the Tribunal to justify its conclusion.

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Mr. Singh in the process of questioning the claim on the anvil of inconsistencies referred to the information given by the Station Master giving rise to U.D Case No. 30 of 1999 led as Exhibit A- 3 to submit that the said information was given at 1.30 pm and the identity of the dead body was not known.

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Mr. Singh next with reference to the inquest report led as Ext. A-5 submitted that the inquest was performed at 3 pm and

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again the identity of the dead body is missing. The postmortem report led as Ext. A-6 was referred to submit that body was received at 10.30 am on 8.11.1999 and again the name is absent. The circumstances has been set up by Mr. Singh to demonstrate that although the claimant father is stated to have filed an application (Annexure A-2) on 7.11.1999 itself which has been received by the police and thus though the events have taken place thereafter but yet the name of the deceased is not mentioned which shows that there is no connection of the claim with the dead body recovered.

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Mr. Singh while appreciating his limitations regarding absence of grounds taken in his written statement had no option but to rely upon the reasons assigned by the Tribunal to contest the claim and in which process he referred to the observation of the Tribunal at paragraph 9 of the impugned award to submit that there are inconsistencies in the deposition of the witness Pramod Kumar as well as in his deposition. It is submitted that even the statement of the claimant regarding recovery of ticket is a false statement because whereas he stated in his claim application that the ticket was recovered by the police but in his application dated 7.11.1999 (Annexure-3) he has stated that he handed over the ticket to the police. Mr. Singh has further relied upon the opinion

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drawn by the Tribunal present at paragraph 10 to submit that the variance in the stand of the claimant itself was sufficient to demonstrate that it was founded on falsity. It is further submitted that although Pramod Kumar was led as a witness but his name does not find mention at any place either in the claim application or in the police records, which again creates a doubt on his testimony. With reference to the conclusion drawn by the Tribunal at paragraph 13 of the judgment and award it was submitted that the inconsistencies were such nature that the Tribunal had no other option but to reject the claim for the reasons set out in the said paragraph.

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Concluding his submissions Mr. Singh contended that as the claim was based on falsity suffering from variance; since no other evidence was led by the claimant in support of the fact that the dead body belonged to his son; in absence of a death certificate, the Tribunal rightly held the claim as unworthy, untrue and the claimant having completely failed to prove their claim. It was lastly submitted that the circumstances taken note of by the Tribunal also demonstrates that the records have been appropriately manipulated by the police in favour of the claimant.

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I have heard learned counsel for the parties and I have perused the materials available on record.

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The compensation payable under Section 124A of the Act is based on either strict liability or no fault liability and is not adversial in nature. In fact, the expression of the provisions underlying Section 124A leaves no room for doubt that once the factum of an untoward incident as defined under Section 123, is established by the claimant by cogent evidence then until such time that the claim is proved to be based on a fraud or comes within the purview of the proviso, it cannot be denied. Surprisingly, even when neither of these two objections were ever raised by the Railways to contest the claim setforth by the claimant, this mantle has been adorned by the Tribunal itself and even when there is no evidence to prove to the contrary, the Tribunal merely relying upon some inconsistencies in the statement made in the claim application and/or in the deposition of the witnesses, has rejected the claim holding the same to be based on falsehood. As I have observed, the Railways in their written statement filed in the proceedings have merely raised ornamental objections requiring the claimant to prove negligence. No issues of falsehood or any fraud having been practiced by the claimant have been raised by the Railways.

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The reasons assigned by the Tribunal to reject the claim as enumerated in paragraph 13 of the judgment and award, manifests

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that primarily on two grounds i.e. inconsistencies in the statement of the claimant in relation to approaching the police and in respect of the recovery of the ticket and the inconsistency in the statement of the applicant witness No.2 who claims to be an eye witness namely, Pramod Kumar on grounds that instead of reporting the incident to the police he rushed to the village to inform the appellants that the claim has been rejected. The Tribunal in fact has held these inconsistencies to be so eloquently expressive of falsehood that it was sufficient to even reject the documentary and oral evidence. If one were to look for an illustration for the term ‘perversity’ he needs only to make reference to paragraph 15 of the award. No reason has been assigned by the Tribunal to reject the documentary evidence supporting the untoward incident which manifestly supports that the dead body was that of the son of the claimant. Neither the Railway has chosen to raise objections that the dead body was not that of the son of the claimant nor have they led any evidence in that direction or to prove that Bijay Bind the deceased was yet alive or that the claimant had no son by that name and thus the claim was based upon fraud. In these uncontroverted circumstances, this Court fails to understand the material that was present before the Tribunal, to doubt the claim set forth. The circumstance that the F.I.R., the inquest and the

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postmortem report did not name the deceased and which identity finds mention only in the final report submitted by the police are not circumstance which reflect any fraud. Again no evidence was led by the Railways nor there is any other material to prove that the report submitted by the police is collusive.

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The other ground assigned by the Tribunal for questioning the conduct of the witness Pramod Kumar, is that he had surfaced after 8 years. A similar objection came up for consideration before the Supreme Court in the case of Union of India versus Prabhakaran Vijaya Kumar and Ors. reported in ( 2008)9 SCC 527 and was rejected on grounds that unless it is proved that the witness was interested and that his evidence was motivated the credibility of any such evidence cannot be doubted. Even in the present case there is absolutely no evidence on record to demonstrate that the said witness is a interested witness rather the Tribunal itself has approved the testimony of this witness in paragraph 9 when it held that the witness was steadfast fast and consistent even during his cross examination.

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It is rather incomprehensible that even when there are uncontroverted documentary and oral evidence supporting the factum of accident leading to death of a person, the inquest carried out by the police, the post mortem done and the dead body being

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handed over to the claimant on his identification of his son by his face and by his clothes, are matter of record yet the Tribunal has proceeded to reject the claim on conjectures of inconsistencies in statements and oral testimony of the claimant and his witness even when there is no evidence to prove that the dead body belonged to some person other than the deceased son of the claimant.

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The provisions relatable to compensation under Section 124A of the Act is beneficial legislation and should be applied in a liberal manner with wider interpretation and not in a narrow and pedantic manner as is reflected in the judgment and award under challenge.

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For the reasons aforesaid, the judgment and award impugned is set aside the claim set forth by the claimant, is allowed with the interest quantified 9% being payable to him from the date of filing of the claim application until the date of its realization.

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This appeal is allowed.

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(Jyoti Saran, J)

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Bibhash/-

Gauri Shankar Bind and Ors. v. the Union of India

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Gauri Shankar Bind and Ors. v. the Union of India

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