We
have heard the learned counsel in support of the
appeal and the Additional Solicitor General for the respondent. The
submission of the appellant is that in concluding that the deceased was
not travelling in the train on 5th September 2003, both the High
Court and the Tribunal have overlooked the findings contained in the
final report dated 6th November 2023 submitted by the Investigating
Officer to the Sub-Divisional Magistrate. According to the
submission, the above report also includes an extract from the post-mortem
report which indicated that the cause of death was due to head injuries
resulting from a100
"blunt force impact". The estimated time of death was determined to
be between forty-eight and seventy-two hours before the120 conduct of the post-mortem.
In
support of the claim that compensation ought to be awarded to the
appellant, the learned counsel submitted that it is not necessary to
produce a valid ticket to claim compensation under Section 124A of the Railways
Act 1989, in view of the decision in Union of India vs. Rina Devi.
The law laid down by this Court in successive decisions has clarified
the test by which the amount of compensation under the Railways Act must200 be computed, including the entitlement
of the claimant in case of an increase in the permissible amount. He
submitted that the appellant should be awarded interest as admissible in law.
In
response, the respondent argued that the appellant had not240 provided a reason for the delay in the
discovery of the body of the deceased. It argued that other employees of the
Railways were bound to have chanced upon the body in the days after the alleged
date of death. It supported the judgments of the Tribunal and the High
Court.
Written
submissions have been submitted on behalf of the300 appellant as well as the
respondent. Before turning to the issue at hand, it is necessary to
briefly advert to the judgments of the Tribunal and the High Court. The
Tribunal framed three important issues for consideration. First issue was whether
the deceased was a bona fide passenger of the train in question on the date of
incident. Second issue360 was
whether the incident as alleged in the claim application took place and was
covered within the definition of an untoward incident under Section
123(c) of the Railways Act. Third issue was whether the appellant was entitled
to compensation, and400 what
the relief should be, if any.
The
appellant deposed in support of the claim, together with her cousin, Deepak.
Both witnesses were cross-examined. The railways did not produce either oral or
documentary evidence. After considering the material on record and
hearing the parties, the Tribunal found that no ticket was found with the deceased,
whose body was found on 8th September 2003. Neither the appellant nor her
cousin was eye witness to the death. There was nothing else on480 record to show that the deceased boarded
the train. The Tribunal also found that the appellant was required to produce500 the best evidence but did not do so. The
report of the Investigating Officer was not sufficient to rebut the
presumption under Section 191 of the Railways Act.
The
Tribunal concluded that there was no evidence to prove that the deceased
died as a consequence of falling off the train. It found that compensation
was therefore not payable to the appellant. It later dismissed the application
for review of its judgment on the ground that no new facts were placed on
record which would warrant a review. The Tribunal also observed that the secret
witnesses examined by the Investigating Officer600 were not examined.
On
appeal, the High Court dismissed the appeal against the decision of the
Tribunal. By its judgment dated 7th January 2014, the High Court
held that from the material available on record, it appeared that the body of
the deceased was found lying near the railway track. However, nothing on record
indicated that the deceased was travelling as a passenger on the train. The
post-mortem report indicated that the death took place between forty-eight and
seventy-two hours before the conduct of the post-mortem, which was on 9th
September 2003 at 1:30 pm. From this, it cannot conclusively700 be held that the deceased died on
5th September 2003. The Court held that the report filed by the Investigating720 Officer is not supported by substantive
material. Since he had no personal knowledge regarding the cause of
death, his report cannot be accepted as evidence of the fact that the deceased
was travelling as a passenger on the train in question. The Court therefore
concluded that the appellant failed to establish that the deceased was
travelling as a passenger on 5th September 2003 on the train in
question.
The
High Court later dismissed the review petition preferred by the
appellant.800 It held that the
material facts as well as the questions of law had been considered in
the judgment under review; and the report of the Investigating Officer was
based on a "secret enquiry" conducted by him. The Investigating Officer840 did not disclose the material facts
which led him to conclude that the deceased was travelling in the train.
Further, he was not examined. The opinion of the Investigating Officer, as
recorded in his report, was therefore not substantiated. Therefore,
the High Court concluded that the appellant had not made out a case that there was
an error apparent on900 the
face of the record.
From
the recapitulation of the various judicial pronouncements leading
to the present appeal, it can be seen that the primary issue is whether
the deceased was travelling on the train in question. In Union of India v Rina
Devi, a two-Judge Bench of this Court considered the question of the
party on which the burden960
of proof will lie in cases where the body of the deceased is found on railway
premises. This Court held that the initial burden would be on the claimant,
which could be discharged by filing an affidavit of the relevant1000 facts. Once the claimant did so,
the burden would then shift to the Railways. Significantly, it also held that
the mere absence of a ticket would not negate the claim that the deceased was a
bona fide passenger.
In
the present case, the appellant had duly filed an affidavit
stating the facts and adverting to the report arising from the investigation
conducted by the respondent, which showed that the deceased was travelling on
the train and that his death was1080
caused by a fall during the course of his travel. The burden of proof
then shifted to the Railways, which1100
has not discharged its burden. Therefore, the presumption that the deceased was
a bona fide passenger on the train in question was not rebutted.
Further,
the report of the Investigating Officer indicates the details mentioned in the
post-mortem report. It states that the cause of death was due to an injury
sustained on the head and that all injuries were antemortem and caused
by "blunt force impact". It also states that forty-eight to
seventy-two hours had passed since the time of death.1182
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