MISC. APPEAL No.388 OF 2004 Against the judgment dated 23rd April, 2004, passed by the Railway Claims Tribunal, Patna Bench, Patna in R.C.T. Claim Case No. OA-9800065. 1. PUSHPAWATI WIFE OF LATE JAI NATH TIWARI, 2. SANGITA KUMARI daughter of late Jai Nath Tiwari, under guardianship of her mother Pushpawati, and through her as next friend who has no adverse interest. Both residents of village Mutuk chhapra, Police Station Panchrukhi, District Siwan (Bihar). ……………….(Appellants) Versus UNION OF INDIA, THROUGH GENERAL MANAGER, NORTH EASTERN RAILWAY, GORAKHPUR. …………….(Respondent) FOR APPELLANTS RAM CHANDRA PRASAD ADV. FOR RESPONDENT MR. MAHESH PRASAD ADV. P R E S E N T THE HON'BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad J, Heard the learned counsel for the parties. 1. This Miscellaneous Appeal is directed against the order dated 23rd April, 2004, passed by the Railway Claims Tribunal, Patna Bench, in R.C.T. Claim Case NO. OA-9800065, by which the Tribunal has rejected the claim case of the claimant regarding the alleged death of Amarendra Tiwary in an untoward incidence as a bonafide passenger while travelling from Muzaffzarpur to Siwan. 2. The case of the claimant that they are mother and unmarried sister of the deceased Amarendra Tiwary 2 and Amarendra Tiwary while travelling from Train No. 5207 UP Amarapali Express, fell down at start signal of the Train and succumbed to injury while travelling as bonafide passenger with a second class passenger ticket. 3. The Railway contested the claim that though the diary of a concerned staff mentions the memo of Assistant Station Master that a man fell down near the Cabin in front of Platform No. 2 from Train No. 5207 UP Amarapali Express, but on going to spot some persons standing there said that no such incidence here and a plea has been taken that the deceased was not a bonafide passenger. 4. However, on the pleadings of the parties, the four issues were framed (i) Whether the deceased was a bonafide passenger?, (ii) Whether untoward incidence took place?, (iii) Whether the deceased died due to alleging untoward incidence? and (iv) the amount of compensation and whether The appellant is entitled to compensation. However, the affidavit has been filed on behalf of the claimant and has been cross-examined by the Railway, however, the list of document has also been filed on behalf of the claimant which is on record and the documents filed are certified copy of the G.R.P. Police with First Information Report and final report, Xerox copy of the ticket, certified copy of the letter dated 23.12.1997 sent by Vijay Kumar, Rail P.S. Muzaffarpur to Shukla copy of the inquest report, 3 certified copy of the inquest report, certified copy of the Post Mortem Report, Fardbayan of Doodhnath Tiwary, memo of Station Master dated 21.12.1997, list of document as well as that he has also contended the letter of memo of Station Master, which is mentioned in the list of document. However, the document has been filed but the said document has not been marked as exhibit. 5. However, on consideration of the evidence and material on record, the Tribunal held that the claimants are dependents of the deceased. The Tribunal further held that the deceased Amarendra Tiwary was a bonafide passenger. However, in considering Issue No. 2 and 3, the Tribunal held that the appellants have failed to prove that the deceased Amarendra Tiwary died in an untoward incidence in terms of Section 123 (c) of the Railway Act. 6. The learned counsel for the appellants has challenged the finding recorded by the Tribunal that the deceased did not died out of untoward incidence, however, the Tribunal take into consideration the evidence but as to how a person inside the compartment can fall from the Train unless was negligent by coming closure to the door of the compartment and the claimant has maintained silence about the manner of untoward incidence took place and further referring to Sections 152 and 156 of the Railway Act, held that the appellants 4 may have died out of his own negligence or criminal act for not observing the instruction of Railway to travel on foot slap or roof. 7. The learned counsel for the appellants, however, challenged this finding on the ground that there is no evidence adduced and no material on record to suggest that there was any negligence on the part of the deceased and further neither the Railway has adduced any evidence whatsoever to suggest that the deceased died out of the negligence or any of the exceptions or by his criminal act under Section 154 or Section 156 of the Railway Act, and hence the finding recorded by the Tribunal is based on conjecture and surmises. 8. The learned counsel for the respondent, however, placed reliance upon decisions reported in 2004 A.C.J. 583 (Oriental Insurance Co. Ltd. Vrs. Dhapubai and Ors), 2004 22 L.C.J. 986 and 1984 S.C. 1737 (Union of India and Ors. Vrs. Sunil Kumar Ghosh) and hence the question for consideration, whether the deceased died out of the untoward incidence. 9. However, having regard to the facts and circumstances of the case the Tribunal has already held that the deceased was a bonafide passenger at the time of the incidence and this finding has not been challenged either by preferring an appeal or even by a cross appeal filed by the Railway and hence the Railway cannot be allowed to challenge the finding that the 5 deceased was a bonafide passenger. However, the documentary evidence filed in the case, is the memo of the Station Master which mentions that one person has been fell down from train near cabin in front of Platform No. 2 and on the basis of which a First Information Report was lodged which is on record and the inquest report also prepared mentions the death of a person due to fell from the Train as reported by the person present there. However, the Railway has taken a plea in the written statement that thought, the Assistant Station Master has reported, but on going to the spot and asking from the person standing there, it was reported that no such accident happened. However, the defense taken is only in the pleading, the Railway has not adduced any evidence with regard to the pleading nor any person on behalf of the Railway has been adduced in evidence to support the pleading and no opportunity was given to the claimant to cross-examine. The assertions or much less there is no evidence at all with regard to this part that after report on going to spot it was reported that no such accident happen and the mere pleading has no significance. However, there is no mention when the Assistant Station Master reported and when who went to inquire about accident and who told that no such accident happen, particularly it cannot be expected that when a passenger met with accident at the Railway Station, the person concerned who saw the 6 occurrence will remain there for long to make a statement. However there is no mention when Station Master got information and when he went to verify if the duration is long there may not be probable that the person who met with an accident and the person who seen the occurrence will remain there. However the inquest report is also on record which mentions the person fell from the Train and succumbed to injury. The post mortem report also suggests about the death of the person and the evidence of the claimant also supports that without she learnt then came and identified the deceased by his clothes and the photograph and hence there is evidence that the deceased died out of the accident fell from the train due to untoward incidence. However it has strongly been contended that the claimant has died out of the negligence on his part coming under any of the exceptions under Section 124 (a) of the Railway Act. However when there is no evidence that how the deceased fell down and there is no factual matrix to suggest or infer that the case comes within any of the exceptions to Section 124 (a) of the Railway Act. Hence, it is apparent that the Tribunal has proceeded to come to a finding that it is not an untoward incidence or it comes under any of the exception is only a conjecture and surmises and a supposition that the deceased may have died out of an untoward incidence and hence is not sustainable in law. 7 10. The learned counsel for the appellant, however, placed reliance upon 2004 A.C.J. 583 (supra), however, it was a reference to a full Bench decision itself concluded that the accidental fall would include a passenger trying to board a Train or any other like accident and hence they would be covered by untoward incidence as a specified in Section 123 (c) of the Railway Act. However, under the facts and circumstances of the case, there is nothing on record to suggest that the deceased has done act to infer that he was negligent or his act come under the definition of any of the exceptions of Section 124 (a) of the Railway Act, and hence the decisions reported in 1984 S.C. 1737 (supra) and 2004 22 L.C.J. 986 (supra) not applicable to the facts and circumstances of the case, and hence the finding recorded by the Tribunal that the deceased does not die out of the untoward incidence is hereby set aside and held that the deceased died out of the accident falling from the Train and comes under the definition of the untoward incidence and hence in result the claimant is entitled to receive compensation to the extent of Rs. 4,00,000/- (four lakhs) from the Railway. The ralilway is directed to pay the amount within three months, failing which the claimants shall be entitled to interest of 5% per annum, if the amount is not paid within three months. However, the compensation of Rs. 4,00,000/- (four lakhs) be divided between the two 8 claimants to the tune of half and half would amount be deposited in any of the scheme of the bank as desired by the claimants and as they will be only entitled to withdraw the interest. However, so far the original amount is concerned that can only be withdrawn with due permission of the Court, if the exigency so arise. Hence the impugned order is set aside and the appeal is allowed. (Gopal Prasad J,) The Patna High Court The 10th day of November, 2010 N.A.F.R./Cp:3/Safik