Calcutta High Court (Appellete Side)
Anima Sarkar (Dolui) vs Union Of India on 2 February, 2026
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IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Ananya Bandyopadhyay
FMA 1169 of 2021
Anima Sarkar (Dolui)
-Vs-
Union of India
For the Appellants : Mr. Navin Mittal
For the Respondent : Mr. Dhiraj Trivedi
Mr. Arijit Majumdar
Mr. Sukanta Chakraborti
Heard on : 11.12.2024, 18.07.2025, 02.09.2025,
Judgment on : 02.02.2026
Ananya Bandyopadhyay, J.:-
1. The instant appeal had been preferred against the judgment and order
dated 19th September, 2019 passed by the Learned Railway Claims
Tribunal, Kolkata Bench in Claim Application No. OA/IIU/2013/0380.
2. The victim succumbed to an accident which occurred on 15.03.2013, while
he was travelling from Ex Chandrakona Road to Midnapore through a local
train with a valid second class railway ticket. The claim application further
stated during such journey the victim had accidentally fallen from the
train which was over-crowded due to a sudden jerk at KM Post No. 128/26
in between Godapaisal and Midnapore and extraneously expired on the
spot. The Kharagpur GRPS UD case No. 27/13 dated 15.03.2013 was
registered against such accident as aforesaid.
3. The appellant being the wife of the deceased victim filed an application
before the Railway Claims Tribunal seeking compensation of Rs. 4 lakh +
2Advocate fee + costs etc. along with interest 18% per annum from the date
of the accident. The aforesaid Railway Claims Tribunal thereby disposed of
the claim application being OA/IIU/2013/0380 vide order dated
19.09.2019.
4. Being aggrieved by such dismissal, the appellant had filed the instant
appeal.
5. The Learned Advocate representing the appellant submitted that the
Learned Railway Claims Tribunal did not consider the inquest report, the
complaint, Post Mortem Report and the final police report which concurred
the fact of the deceased to be a passenger of the train and to have
sustained severe injuries consequently to his fall on the railway line
resulting in his death. The Learned Advocate representing the appellant
relied on the following judgments:
a. Dola Rani Saha Vs. Union of India1,
6. The Learned Advocate representing the respondent/Union of India urged
the deceased victim was not a bona fide passenger as per Section 2(29) of
the Railways Act, 1989 since the appellant could not prove the deceased to
be in possession of a valid railway ticket since the same was not recovered
from the possession of the deceased body, though certain documents in
respect of his joining his duty were recovered. It was further agitated that
the accident did not result from the negligence of the railway authorities as
the inspection and track fitness certificate issued by SSP (P.Way) Kharida
confirmed that the railway track at KM Post No. 128/26 to be in proper
1
(2024)8 S.C.R. 391
2
Civil Appeal No. 4945 of 2018
3
Civil Appeal No. 1184 of 2003
3condition on 15.03.2013 eradicating the possibility of sudden jerk or shock
that could have contributed to the accident.
7. The Learned Advocate representing the respondent/Union of India further
submitted that the deceased was recklessly leaning outside of the
compartment of the moving train and contributed to the occurrence of the
accident which was endorsed by the findings of the postmortem doctor in
the postmortem report. The self-inflicted injury in view of Section 124 of
the Railway Act, 1989 debarred the appellant from seeking compensation
with respect to an accident which was caused by the negligent act on the
part of the victim.
8. The investigating report under Section 174 of the Cr.P.C. specially stated
“no foul play could be detected behind the death of deceased. If any foul
play detected in future, the case may be re-opened”. The investigating
Officer in column 9 being opined of the police officer as to the cause of
death indicated in specific terms the injury sustained by the victim
consequent to a fall from a moving train. The facts denoted in the report of
the Investigating Officer corroborated the statements of the inquest report
which was further fortified by the opinion of the doctor conducting the post
mortem. The final report furnished under Section 174 Cr. P.C. endorsed as
follows:
“During investigation I rushed to the spot along with CI 592 Durgapath
Tudu and dead body currier. On arrived at P.O. I found the dead body
lying up and down line in between Mid railway to Godapiasal. The line
is cutting and dashed by the train due to sudden knock down or fall
down from the train. I took photograph of the dead body from different
angle and sent the dead body to Kharagpur S.D. Hospital after holding
inquest report over the dead body to ascertain the actual cause of death
with all connective purposes.
Collect the P.M. report from Kharagphur S.D. Hospital in which autopsy
Surgeon Dr. Ashok Kr. Biswas opined that the cause of death due to
severe blood loss and brain injury leading to neurogenic and hypertonic
shock vide P.M. report No. 126 dated 16.03.2013.
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During investigation on the basis of which one Smt. Anima Sarkar wife
late Biswa Ranjan Sarkar of Digha Anandpupr, Ghatal, Dist Paschim
Medinipur came to P.S. 16.03.2013 and identified the deceased though
his photographs as her husband namely Biswa Ranjan Sarkar (47),
son of Chittaranjan Sarkar of Digha Anandpupr, Ghatal, Dist Paschim
Medinipur to also handed over the following supported documents to
her claim
1) Certificate of Anima Sarkar from Mohanpur Gram Panchayat Ghatal
2) Department I. Card of Biswa Ranjan Sarkar.
3) Departmental certificate of Biswa Ranjan Sarkar (Original) issued
from SP Paschim Midnapore
Till date no foul play detected behind the death of the deceased. On
completion of investigation consult the case with my superior I/C Khp
GRPS who pleased to advised me to submit final report in this case.
Hence I submitted final report in this case no foul play would be
detected behind death till date, if any foul play detected later on the
court may kindly be re-opened”.
9. In the decision of the Hon’ble Supreme Court held in Union of India
Vs. Rina Devi4 observed as follows:
16.4 In Pushpa (supra) a hawker died in the course of boarding a
train. It was held that he was not entitled to compensation as it was
a case of ‘self inflicted injury’. The relevant observations are :
“Such an attempt by a hawker has been viewed by the trial Court as
something amounting to criminal negligence on his part and also an
effort to inflict injuries to himself. The trial Court reasoned that if the
deceased had to sell his goods by boarding a train, he should have
ensured to do so only when it was quite safe for him to get on to the
train or otherwise he could have avoided catching the train and
waited for another train to come. It also hinted that there was
absolutely no compulsion or hurry for the deceased in the present
case to make an attempt to somehow or the other board the train
while it was gathering speed.” 16.5 In Shyam Narayan (supra),
same view was taken which is as follows :
“6(ii) I cannot agree with the arguments urged on behalf of the
appellants/applicants in the facts of the present case because there
is a difference4
Civil Appeal No. 4945 of 2018
5between an untoward incident and an act of criminal negligence.
Whereas negligence will not disentitle grant of compensation under
the Railways Act, however, once the negligence becomes a criminal
negligence and self-inflicted injury then compensation cannot be
granted. This is specifically provided in the first proviso to Section
124-A of the Railways Act which provides that compensation will not
be payable in case the death takes place on account of suicide or
attempted suicide, self inflicted injury, bona fide passenger’s own
criminal act or an act committed by the deceased in the state of
intoxication or insanity.” 16.6 We are unable to uphold the above
view as the concept of ‘self inflicted injury’ would require intention to
inflict such injury and not mere negligence of any particular degree.
Doing so would amount to invoking the principle of contributory
negligence which cannot be done in the case of liability based on ‘no
fault theory’. We may in this connection refer to judgment of this
Court in United India Insurance Co. Ltd. versus Sunil
Kumar34 laying down that plea of negligence of the victim cannot be
allowed in claim based on ‘no fault theory’ under Section 163A of the
Motor Vehicles Act, 1988. Accordingly, we hold that death or injury
in the course of boarding or de-boarding a train will be an ‘untoward
incident’ entitling a victim to the compensation and will 34 2017 (13)
SCALE 652 not fall under the proviso to Section 124A merely on the
plea of negligence of the victim as a contributing factor. Re: (iii)
Burden of Proof When Body Found on Railway Premises – Definition
of Passenger :
17.1 Conflict of decisions has been pointed out on the subject.
As noticed from the statutory provision, compensation is payable
for death or injury of a ‘passenger’. In Raj Kumari (supra)
referring to the scheme of Railways Act, 1890, it was observed
that since travelling without ticket was punishable, the burden
was on the railway administration to prove that passenger was
not a bonafide passenger. The Railway Administration has
special knowledge whether ticket was issued or not. 1989 Act
also has similar provisions being Sections 55 and 137. This view
has led to an inference that any person dead or injured found on
the railway premises has to be presumed to be a bona fide
passenger so as to maintain a claim for compensation. However,
Delhi High Court in Gurcharan Singh (supra) held that initial onus
to prove death or injury to a bona fide passenger is always on
the claimant. However, such onus can shift on Railways if an
affidavit of relevant facts is filed by the claimant. A negative onus
cannot be placed on the Railways. Onus to prove that the
deceased or injured was a bona fide passenger can be
discharged even in absence of a ticket if relevant facts are shown
that ticket was purchased but it was lost. The Delhi High Court
observed as follows :
“3(ii) In my opinion, the contention of the learned counsel for the
appellants/claimants is totally misconceived. The initial onus in
my opinion always lies with the appellants/claimants to show
6that there is a death due to untoward incident of a bona fide
passenger. Of course, by filing of the affidavit and depending on
the facts of a particular case that initial onus can be a light onus
which can shift on the Railways, however, it is not the law that
even the initial onus of proof which has to be discharged is
always on the railways and not on the claimants. I cannot agree
to this proposition of law that the Railways have the onus to
prove that a deceased was not a bona fide passenger because no
such negative onus is placed upon the Railways either under
the Railways Act or the Railway Claims Tribunal Act & Rules or
as per any judgment of the Supreme Court. No doubt, in the facts
of the particular case, onus can be easily discharged such as in a
case where deceased may have died at a place where he could
not have otherwise been unless he was travelling in the train and
in such circumstances depending on the facts of a particular case
it may not be necessary to prove the factum of the deceased
having a ticket because ticket as per the type of incident of death
can easily be lost in an accident. I at this stage take note of a
judgment of a leaned Single Judge of this Court in the case
reported as Pyar Singh Vs. Union of India 2007 (8) AD Del. 262
which holds that it is the claimant upon whom the initial onus lies
to prove his case. I agree to this view and I am bound by this
judgment and not by the ratio of the case of Leelamma (supra).”
17.2 In Jetty Naga Lakshmi Parvathi (supra) same view was
taken by a single Judge of Andhra Pradesh after referring to the
provisions of the Evidence Act as follows :
“22. So, from Section 101 of the Indian Evidence Act, 1872, it is clear
that the applicants, having come to the court asserting some facts,
must prove that the death of the deceased had taken place in an
untoward incident and that the death occurred while the deceased
was travelling in a train carrying passengers as a passenger with
valid ticket. Therefore, having asserted that the deceased died in an
untoward incident and he was having a valid ticket at the time of his
death, the initial burden lies on the applicants to establish the same.
The initial burden of the applicants never shifts unless the
respondent admits the assertions made by the applicants. Such
evidence is lacking in this case. Except the oral assertion of A.W.1,
no evidence is forthcoming on behalf of the applicants. The court
may presume that the evidence which could be, and is not produced,
would, if produced, be unfavourable to the person who withholds it.
The best evidence rule, which governs the production of evidence in
courts, requires that the best evidence of which the case in its nature
is susceptible should always be produced. Section 114(g) of the
Indian Evidence Act, 1872 enables the court to draw an adverse
presumption against a person who can make available to the court,
but obstructs the availability of such an evidence. The Claims
7Tribunal, upon considering the material on record, rightly dismissed
the claim of the applicants and there are no grounds in this appeal to
interfere with the order of the Tribunal.”
17.3 In Kamrunnissa (supra), from the circumstances appearing in
that case it was held that there was no evidence that the deceased
had purchased the ticket. In the given fact situation of that case, this
Court inferred that it was not a case of ‘untoward incident’ but a
case of run over. It was observed :
“7. The aforestated report also reveals, that the body of the
deceased had been cut into two pieces, and was lying next to the
railway track. The report further indicates, that the intestine of the
deceased had come out of the body. The above factual position
reveals, that the body was cut into two pieces from the stomach.
This can be inferred from the facts expressed in the inquest report,
that the intestines of the deceased had come out of the body. It is not
possible for us to accept, that such an accident could have taken
place while boarding a train.
8. In addition to the factual position emerging out of a perusal of
paragraphs 7 & 8 extracted hereinabove, the report also reveals,
that besides a pocket diary having been found from the person of the
deceased a few telephone numbers were also found, but
importantly, the deceased was not in possession of any other article.
This further clears the position adopted by the railway authorities,
namely, that the deceased Gafoor Sab, was not in possession of a
ticket, for boarding the train at the Devangere railway station.”
17.4 We thus hold that mere presence of a body on the Railway
premises will not be conclusive to hold that injured or deceased was
a bona fide passenger for which claim for compensation could be
maintained. However, mere absence of ticket with such injured or
deceased will not negative the claim that he was a bona fide
passenger. Initial burden will be on the claimant which can be
discharged by filing an affidavit of the relevant facts and burden will
then shift on the Railways and the issue can be decided on the facts
shown or the attending circumstances. This will have to be dealt
with from case to case on the basis of facts found. The legal position
in this regard will stand explained accordingly.”
10. The respondent authorities could not have expected the complainant to
prove the nature and circumstances leading to the death of the victim.
Both the parties are to rely on the final report furnished by the
investigating authority. The complainant was not present either on the
train nor at the spot of accident, to have vividly narrated the cause of
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accident, the presence or absence of the valid ticket. The police report
categorically mentioned ‘no foul play’ to have been detected to obliterate
the possibility of a self-inflicted injury. The investigating report, the post
mortem report and the final police report in unequivocal terms endorsed
the accident to have occurred while the victim had been the passenger of
the train. The absence of ticket under otherwise proven case will not
deter the complainant from legitimate claim in view of the judgments
cited above.
11. The complainant is entitled to a compensation of Rs. 4,00,000/- along
with interest @ of 6% per annum from the date of filing claim application
till date of its actual realization.
12. The Learned Advocate for the respondent/Union of India is to deposit
the sum of Rs. 4,00,000/- along with 6 % per cent interest per annum
from the date of filing of the claim application before the office of the
Learned Registrar General, High Court Calcutta within six weeks from
the date of passing of this order.
13. On receipt of the said amount, the office of the Registrar General, High
Court, Calcutta shall encash the said cheque and thereafter disburse
the same to the present appellant/claimant on proof of proper
identification of the appellant/claimant subject to payment of ad
valorem Courts fees.
14. The instant appeal and connected applications, if any, are disposed of
accordingly.
15. Copy of the order be sent to the Department as well as the concerned
tribunal as expeditiously as possible.
(Ananya Bandyopadhyay, J.)