IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.112 of 2009 Union of India through the General Manger, East Central Railway, Hajipur……………………Appellant/Respondent. Versus Darshan Devi, wife of Kanhaiya Seth, resident of Mohalla- New Area, Post- Dalmia Nagar, Police Station-Dehri, District-Rohtas…………………………….Respondet/Applicant. ----------- 9. 25. 10. 2010. Heard. This Miscellaneous Appeal is directed against the order dated 16. 12. 2008 passed in Railway Claim Case No. 000177 of 2004 by which the claim of the claimant has been allowed. The claimants are parents of the deceased Dadan Seth. 2. The case of the claimant that their son while travelling by 742 Down train as bonafide passenger with railway ticket met with an untoward incident due to jerk in the train push and pull while the train was crossing Punpun Bridge as a result of which succumb to injury. 3. The Railway Tribunal resisted the claim on the pleading of the party, four issues were framed; 1. Whether the claim application of the applicant is maintain 2. Whether the deceased fell a victim to the alleged untoward incident at the relevant time and place and whether 2 the case is covered within the ambit of proviso (b) & (c) to Section 124A 3. Whether the deceased was a bonafide passenger at the relevant time? 4. Whether the applicant/dependents is entitled to receive compensation, claimed in the claim application? 4. However, during the enquiry proceeding two witnesses were examined as A.W.1 Darshan Devi and A.W.2 Shri Man Narayan. Documentary evidence filed affidavit by Darshan Devi Ext. A, affidavit of Shri Man Narayan, Ext. A/1, copy of Fardbeyan, Ext. A/2, copy of F.I.R./Final Report, A/3, copy of Inquest Report, Ext. A/4, copy of Post Mortem Report, A/5, copy of death certificate, Ext.A/6 and copy of dependency certificate Ext.A/7. 5. However, no evidence either oral or documentary has been filed on the behalf of railway. 6. After considering oral and documentary evidence, Tribunal held while considering Issue Nos. 2 and 3 that Dadan Seth while travelling as a bonafide passenger fell an untoward incident and succumbed to injury. While Issue Nos. 1 and 4 held that application is maintainable and claimants are entitled to compensation and order to pay compensation. 3 7. Being aggrieved by the award of the Tribunal, the railway has preferred this appeal. 8. Learned counsel for the appellant however, contended that only eye witness to the alleged occurrence is A.W.2. However, evidence is not liable to be accepted or relied upon as his evidence is quite contradiction to his statement in the Fardbeyan on the basis of which F.I.R. has been lodged. As in the Fardbeyan, he has mentioned that he did not saw the occurrence, he learnt about the incident that the deceased was lying on the railway track then he came and Fardbeyan was recorded at about 7 P.M. whereas the occurrence took place and hence his claim as eye witness is not relied. 9. Learned counsel for the claimant- respondent, however, contended that A.W. 1 has specifically supported the case and claimed to be eye witness in his evidence and he has specifically stated that whatever he has stated before this Tribunal was stated before the Police and has not supported the averments made in the F.I.R. as F.I.R. may not be reliable as neither proved and hence evidence of A.W. 2 before Tribunal can not be disbelieved for averments made in Fardbeyan. 10. Hence on the respective submissions of 4 the parties, question for consideration whether evidence recorded by the Tribunal is sustainable regarding untoward incident and the deceased being a bonafide passenger while travelling. 11. However, he has stated that accident took place at 6P.M. The inquest report as marked as Ext. A/4 prepared by the Sonenagar Railway P.S.on 02. 04. 2004 at 20.45 and the said inquest report mentioned that ticket was recovered from the possession of the deceased from Dehri and it was mentioned that cause of the death due to fall from the train and this document of railway authority. A.W. 1 has stated in her evidence on affidavit that the victim was travelling, however, she is not eye witness. However, A.W.2, Shri Man Narayn has supported the case Dadan Seth purchased the ticket boarded by train and there was heavy rush and hence unable to get a sit then he fell down due to rush. However, this witness has been cross-examiend and has been added that he has stated in the Fardbeyan as eye witness but the police did not recorded his statement. 12. Though Fardbeyan has been marked as Ext. A/2 and further the signature of the victim has not been proved and this witness in his cross-examination has denied to have stated before the police that he has not eye witness. 5 13. However, having regard to the facts that the inquest report which was earliest with proximate with time of occurrence just after the occurrence shows that the victim had ticket in his pocket. It has also been mentioned that victim fall due to heavy rush of the train and further evidence A.W.2 support the occurrence and hence, having regard to the fact to suggest that victim fall from the train and even ticket found from his pocket and hence these evidence are irresistible evidence to suggest that the victim met with an accident and succumbed to injury while travelling as a bonafide passenger. I do not find any merit to interfere with the finding recorded by the Tribunal and hence this appeal is dismissed. m.p. ( Gopal Prasad, J.)