ARJUN MAHAKUD vs GM ECOR

OAJlltJ)lS-of2Olg Page 1 BEFORE THE RAILWAY CLAIMS TRIBUNAL BHUBANESWAR BENCH Case No.

OA (llu)/5812019 @: Hon'bte Sri Virendra Kumar Goyal, Member (Judiciat), RCT/BBS Hon'bte Sri Ajoy Kumar Behera, Member (Technicat), RCT/BBS Date of incident: 1211212018 Date of Registration: 1710612019 Date of Judgment: 05106/2074 Ctaim Amount: Rs.

8,00,000/- ln the matter of 1.

ARJUN MAHAKUD, aged about 42 years S/o.

Late Basudeb Mahakud 2. ,l A,1IATA,l AHAKUD, aged about 46 years W/o.

Arjun Mahakud Both are residence of At: Titichapadar, PO: Laxmanpur, PS: Harabhanga, Dist.

Boudh. - Versus - Union of lndia represented through It's GENEML MANAGER, EAST COAST MILWAY, Chandrasekharpur, Bhubaneswar, Odisha.

Appeara,nce: For the Appticants : Sri B.

Beura, Advocate Appticants Respondent For the Respondent: Sri K.C.

Mahapatra, Ld.

Standing Counset.

J_U JG-EMI-N_I 1.

This present ctaim application has been fited by the father of the deceased under section 16 of the Raitway Ctaims Tribunal Act, 1987, ctaiming compensation of Rs.

8,00,000/- (Rupees Eight Lakhs) atong with 12% interest from the date of fiting from Railway Administration for the death of his unmarried son namety Akhit atias Akshay Kumar Mahakud, attegedty in an Untoward lncident invotving fatl from running train.

Subsequentty the mother of the deceased namety Mamata Mahakud, has been aAiUl58pf20lg Page 2 impteaded as party to the original ctaim apptication as Appticant Nos.

2, vide order dated 1610212023.

2.

Brief facts 9f lhe case: - ln the originat claim apptication it has been averred by the Appticant that on the date of incident i.e. on 1211212018 the deceased namely Akhit atias Akshay Kumar Mahakud was travetting by Durg-Puri Express train from Harishankar Road to Bhubaneswar Railway Station with a vatid journey ticket.

During course of journey on the way just ahead of Harishankar Raitway Station, the deceased accidentalty fett down from the said train, sustained injuries on his person and died on the spot. the spot. ln this connection, the GRPS/Tititagarh has registered a UD case No.

48/2018 and took up investigated into the matter.

With regard to ticket, it is further averred by the Appticants that on the date of incident, the deceased was travetting from Harishankar Road to Bhubaneswar raitway station with a vatid journey ticket but the same was lost in the incident atong with bag of the deceased.

3.

Respondent's Replv: On receipt of the notice, the Respondent Raitway appeared and fited its written statement to the original ctaim apptication atong with DRM's statutory investigation report. ln reply, the Respondent Raitway have strongty denied the attegations of the Appticants made in the original ctaim apptication and have hetd that it is a fatse and fabricated case and is therefore not maintainabte both in fact and [aw. lt is submitted that there is no information or any diary entries was made by the on duty SM of HSK, TRKR or KBJ raitway station regarding the incident and atso there is no such report of fatting down from the train by the on duty crew members of the atteged train.

As per DRM's investigation report there is no eye witness to the atteged incident and during inquest one money purse containing Voter lD & Aadhaar card and some cash was recovered but no journey ticket or any travetting authority was found from the possession of the deceased, which proves that the deceased was not a bona fide passenger in the train. ln view of above observations and reasons, the Respondent Raitway has prayed for dismissal of the ctaim apptication and no compensation shoutd be granted to the Applicants.

4.

Applicant's Evidence : ln the evidence, the Appticant No.

2, Smt.

Mamata Mahakud, mother of the deceased, has fited her own examination in chief on OA-0U18-of2OI9 Page 3 affidavit.

A copy of FlR, inquest report, dead body chattan, post mortem report, and final report has been fited atong with the OA.

The Appticant No. ticant No.

2, & another witness namety Manoj Kumar Mahakud, appeared before the Bench as AW1 & AW2 respectivety and they were cross examined by the Ld.

Counsel for the Respondent Raitway Administration.

5.

ResponCent's Evidgnce : The Respondent Railway Administration on the other hand have fited DRM's statutory investigation report atong with other documents in connection with the atleged incident.

The Respondent Raitway did not adduce any evidence.

6. lssues: From the pteadings of the parties, this Tribuna[ framed the foltowing issues for determination: - 1.

Whether the death of deceased was due to any untoward incident as defined uls 123 (C) of the Raitways Act 1989?

Whether the deceased was travetting as a bona fide passenger of the train at the time of occurrence of the untoward incident?

Whether the Appticant entitted to get compensation u/s 124 Aof the Raitways Act 1989?

Whether the Appticants are the dependents of the deceased to receive the compensation as ctaimed?

To what retief the Appticant is entitted to?

7.

F t N D I N G S: We have carefutty gone through the pteadings of the parties, materia[ made avaitable on record, evidence adduced on behatf of the Appticants as wetl as Respondent and heard the arguments of both sides.

Our findings on the aforesaid issues are as under: - 7.1 lssue Nos.

1.

2 & 3: These three issues are taken up together for discussion, being interconnected.

It is the case of the Appticants is that, on 1211212018, white the deceased was travetting from Harishankar Road to Bhubaneswar raitway station by Durg-Puri \J-o( OAiLLDlS-sf2OIg Page 4 express train, on the way just ahead of Harishankar Railway station, due to sudden jerk of the train and push and putt of passengers inside the compartment, he accidentatty fett down from the train, sustained injuries on his person and died on the spot on the same day.

The Ld. y.

The Ld.

Counsel for the Appticants submitted that the AW2 (Manoj Kumar Mahakuda), has deposed in evidence that the deceased had purchased the journey ticket for himsetf to travet to Bhubaneswar railway station in his presence at Harishankar raitway station and he had witnessed the boarding into the train by the deceased. lt is submitted that in the post mortem report the doctor has opined that the cause of death may be due to intracraniat bteeding due to externat injury by a hard object probabty due to accident.

He emphasized that the deceased is a victim of an untoward incident that occurred during course of his journey in the night hours and the Respondent Raitway is tiabte to pay compensation to the dependents of the deceased under the aegis of section 124A of the Railways Act.

7.7. ln rebuttat, the Ld.

Counset for the Respondent Railway submitted that there is no direct witness to the atteged accidental fatt and there was no report of any untoward incident from the on duty crew members and no diary entries has been made by any SM of Harishankar, Tureketa Road and KBJ raitway station. lt is submitted that as no raitway ticket was recovered in possession with the deceased at the time of inquest, it is clearty estabtished that the deceased was not at a[[ travetting in the train.

He added that there was a selective loss of the ticket in this case whereas one adhaar & Voter lD card and money purse containing Rs.

600/-was found on his possession, which gives rise to doubt regarding his being a bona fide passenger of any train.

He summed up his argument that the retiabitity of evidence adduced by the Appticants by way of presenting the AW2 is an afterthought and he is a ptanted witness, therefore his testimony cannot be believed.

He added that after completion of investigation, it is came to the tight that the deceased was working as a driver under ARSS construction company at Piputbahat and when finishing his work he turned to his siding camp beside the Piputbahal iputbahal raitway tack and white he was crossing the raitway tine he was accidentatty dashed against one running goods train and was thrown outside the track. lt is mentioned that the the finat report wherein it is ctearty indicated that the KBJ has submitted \ 1- GROP/ OA-0U18-of2OI-9 Page 5 cause of death of the deceased is due to accidentatty dashed against any running goods train, which cannot be ruled out.

He tastty submitted that the ptace of occurrence is very ctose to the working ptace of the deceased, which atso proves that it is a case of suicide or run over or dashed by any train while trespassing on the raitway track, which are covered under sub Section (a) to (e) of exceptions under Section 124-A of the Raitways Act and prayed for dismissal of the ctaim application.

7.3, The DRM's statutory investigation report shows that based upon the information of Govt.

Hospitat, Kantabanji, the GROP/KBJ has registered a UD case bearing No.

48/2018 dated 1311212018 and conducted enquiry about the case. ln this case there was a setective loss of the ticket whereas one adhaar & Voter lD card and money purse containing of Rs.

500/-was found on his possession, which gives rise to doubt regarding his being a bona fide passenger of any train in question.

Both the AW1 & AW2, are neither the co-passengers with the deceased nor they were an eye witness to the atteged incident.

As per origina[ ctaim application, the deceased had purchased a journey ticket before boarding the train at Harishankar Road raitway station but the said ticket was lost in the atteged incident along with bag of the deceased.

From the affidavit in evidence of AW 2, it is observed that at para No.

2, he has stated that he had seen the deceased purchasing the journey ticket for himsetf at Harishankar Road railway station for travel to Bhubaneswar raitway station but the Appticants have not fited any cogent or concrete evidence to estabtishes that on the date of incident the AW2 had accompanied the deceas the deceased and had seen the deceased purchasing a journey ticket for himself.

Hence, the evidence ted by AW2 is an afterthought and not tenabte in the eyes of law and the testimony of witness AW2 cannot be betieved.

7.4, !n so far as the incident is concerned, the Appticants have come up with the ptea that the deceased in course of his journey by Durg-Puri express train just ahead of Harishankar raitway station, he accidentatty fetl down from the train due to sudden jerk of the compartment and push and putl of passengers inside the compartment, but this is not supported by any tangible evidence and it is rather proved beyond doubt with the direct evidence that, it is a case of dashing against OAJllUlS-of2Olg Page 6 one goods train that had indeed occurred.

More particularty, it is not clear from the documents that how the incident was happened and there is no such report of fatting down of any person from the on duty crew members of the train and atso no diary entries were made by any Station Master of Harishankar, Tureketa Road and KBJ railway stations or from any other railway authorities about the atteged fatting down incident, which ctearty establishes that the atteged incident did not happen.

No documents have been fited by the Appticants to rely upon their ctaim that the deceased had travetted in the train and had died due to an accidental fatl from a running train and also there are no direct witnesses to the atteged fatting down incident at att.

The finat report ctearly indicated that it is an accidentatty dashed against any running goods train, which cannot be ruted out.

Therefore, it is hetd that the deceased was not a bona fide passenger of the train in question.

The evidence at hand ctearty establishes that this was not a case of accidentat fatl from train, which woutd otherwise have come under the ambit of an untoward incident, but it is ctearty a case that woutd come under the exceptions under Section 124 A (b) to (c) of the Raitways Act. tways Act.

The Hon'bte High Court at Calcutta in S.A No.

40612O16, titled "Minati Bhadra & others Vs.

Ditip Kr.

Bhadra & others" vide judgment dated 1911012023 has hetd that when documentary evidence is avaitabte the oral testimony of witness is not sufficient to rebut the probative value.

The testimony of AW1 & AW2 are not sufficient to betie or outweigh the evidentiary vatue of the said documents.

The Appticants has faited to estabtish that on the date of incident the deceased was a bona fide passenger and victim of an untoward incident.

Against the above background, the incident in which death of the deceased was caused cannot be termed as an "Untoward incident" and it is rather a case of criminal act leading to death and is covered by the provision of exception of section 124 A of the Raitways Act.

7.5.

Based on the above discussion, it is ctear from the documentary evidence that the fatting down of the deceased during course of his purported journey from any angte is not estabtished and the deceased is not a victim of any untoward incident and therefore this case does not come under the ambit of section 123 (c) (2) of the Railways Act.

Atso, the attending circumstances in this case clearty point to a OAJllUlS-of-2Olg Page 7 preponderance of probabitity that the death of the deceased arose out of one of the exceptions under proviso of Section (a) to (c) of section 124-A of the Raitways Act 1989. ln the absence of any journey ticket or even an iota of evidence in support of the averments of the Appticants that the deceased was a victim of fatting down from a running train a benefit of doubt cannot be accorded in this case.

We infer that the deceased was neither a bona fide passenger nor a victim of untoward incident, therefore, the Appticants are not entitled to get compensation under section 124-A of the Raitways Act 1989.

These issues are therefore answered against the Appticants.

8. lssue No.

4 & 5: ln view of finding on the issue Nos.

1, 2 &. s.

1, 2 &.

3, which goes against the Appticants, issue Nos.

4 & 5 need not be discussed.

Hence ordered.

9.

O R D E R: The OA is dismissed on merits.

There shatt be no order as to costs.

Pronounced in the open Tribunal to-day on 0510612024. &i'a^a,^s q (Virendra Kumar Gcjyat) Member (Judiciat) Dt:05/0612024 (Ajo[ Kumar Behera) Menlber (Technicat) Dt:0510612024