IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.668 of 2008 Ram Kumari Devi, daughter of Late Kapildeo Poddar, Resident of village – Kamalpur, P.S. Khagaria, District – Khagaria. ………………. Applicant / Appellant. Versus The Union Of India through the General Manager North Eastern Railway, Gorakhpur. …………… Respondent / Respondnet. ----------- For the Appellant :- Mr. Pravin Kumar Gupta, Advocate. For the Respondent :- Mr. Ahsaruddin Amanullah, Advocate. 06/ 12.08.2010 This miscellaneous appeal is directed against the order dated 29.07.2008 passed by the Railway Claim Tribunal, Patna Bench in Claim Case No. OA9900064 by which he has rejected the claim petition of the complainant. The appellant is a daughter of the victim and the case of the appellant before the Tribunal is that the deceased Chinta Devi was going from Khagaria to Thana Bihpur with a valid ticket bearing no. 52809 dated 22.04.1998 and while the victim was standing near the gate due to excessive crowd in the train and when the train reached near the Mahesh Khunt railway station the victim fell down sustaining injury by which she succumbed to injury. The claim petition was preferred which has been - 2 - dismissed on the ground that the claimant failed to prove that the victim Chinta Devi died as a bona fide passenger by the untoward accident, disbelieving the evidence of A.W. 1 on the ground of the alleged inherent contradiction in the evidence of the A.W. 1. Learned counsel for the appellant, however, contended that the learned lower court has not properly appreciated the evidence of A.W. 1 and presumed that there is a contradiction as at one time the victim was standing near him and on the other hand that the victim was standing at some distance. However, without any specific evidence what was the meaning of near and what was the meaning of some distance without taking accurate distance and further that the witness stated that there was cut injury in the leg and he informed the station master having not been substantiated and held that the evidence of the witness is contradictory to the material part. It has further been contended that in the inquest report of the deceased there is specific mention that the deceased had the ticket with her bearing no. 52809 dated 22.04.1998 and the final form mentions that the deceased who was having the ticket no. - 3 - 52809 with her which is mentioned in the inquest report was identified with Chinta Devi and both the inquest report and charge sheet are present on the records, are lying on the record of the L.C.R. of the Tribunal and hence contend that the learned Tribunal, without going into those unimpeachable document, merely considered the alleged contradiction of the evidence of A.W. 1 which is a minor variation and held that the victim was not a bona fide passenger and further held that he placed reliance on the evidence of the A.W. 2 that there was over-crowd in the train and when the train was about to reach Mahesh Khunt station, there was some stampede by the passengers who got down at Mahesh Khunt in which the victim fell down when the train was entering into Mahesh Khunt station and hence placed reliance upon decision reported in AIR 2008 Allahabad 124 (Union of India Vs. Vidyawati & Ors.) as well as reported in AIR 2004 Punjab & Hariyana 148 (Smt. Usha Rani & Ors. V. Union of India & Anr.). Learned counsel for the respondent, however, contended that the inquest report mentions the ticket but does not mention the evidence of A.W. 1 that he came on - 4 - the next day, informed the family members but neither the inquest report nor the post mortem report bears the name of the deceased and further contended that the victim was standing near the gate and hence she fell down from the gate deemed to be by her own negligence and has relied upon decision reported by Allahabad High Court itself bearing 2004 (22) LCD 986 (Union of India Vs. Smt. Jameela and Ors.) and contended that since this decision is prior to the decision reported in AIR 2008 Allahabad 124 (Union of India Vs. Vidyawati & Ors.) and since both the judgment are of the Allahabad High Court and since the judgment reported in 2004 (22) LCD 986 (Union of India Vs. Smt. Jameela and Ors.) having been a decision prior to decision reported in AIR 2008 Allahabad 124 (Union of India Vs. Vidyawati & Ors.) and both the judgments are of Division Bench but since AIR 2008 Allahabad 124 (Union of India Vs. Vidyawati & Ors.) has not taken into consideration the earlier judgment reported in 2004 (22) LCD 986 (Union of India Vs. Smt. Jameela and Ors.) and hence the decision reported in AIR 2008 Allahabad 124 (Union of India Vs. Vidyawati & Ors.) is a judgment per - 5 - incurium and not to be relied by this Court in preference to 2004 (22) LCD 986 (Union of India Vs. Smt. Jameela and Ors.) and hence contended that the victim died out of her own negligence and hence not come under the definition of untoward accident and hence taking into consideration the respective submission of the parties the question for consideration is whether the victim was a bona fide passenger and whether the victim died out of the untoward accident and consequently whether the plaintiff can get relief and the order of the Tribunal is sustainable in law. However, the learned Tribunal has held that the appellant Ram Kumari Devi, the claimant though has been added as party by order dated 18.10.2001 and by that order direction was given that the amendment be carried out within three days. However, subsequently another petition was filed for amendment and by order dated 16.09.2004 it was ordered that since the amendment for impleading daughters of the deceased as applicant having already been allowed with a direction to amend within three days and hence the application becomes infructuous. However, by the said order counsel for the appellant was directed to - 6 - carry out the amendment within a week and in pursuance of the order dated 16.09.2004 the name of the claimant was added in view of the amendment on 20.09.2004. However, learned trial court held that the said claimant Ram Kumari Devi has not been able to establish that she is the daughter and neither any affidavit nor Ram Kumari Devi appeared before the Tribunal held that the claimant Ram Kumari Devi has failed to establish herself as the dependent on the deceased as she has not been able to establish relation with deceased. However, it has been observed that several opportunities were given but no evidence regarding it either oral or documentary has been filed. However, from perusal of the records, it appears that the issues have been framed by order dated 10.04.2002 and three issues framed were (A) Whether the deceased was a bona fide passenger? (B) Whether the accident covered under Section 123 (c) (2) of the Railway Act, 1989 as an untoward accident? (C) What relief to be granted? However, no issues framed about the fact that whether the claimant is dependent of the deceased and hence the finding has been recorded that Ram Kumari Devi - 7 - is not the dependent and has not established her relation with deceased without framing an issue. Hence the question is whether the finding recorded by the learned lower court is sustainable. The three issues framed by the Tribunal, the first issue is whether the appellant was a bona fide passenger the learned Tribunal looked into the fact taking into consideration the fact the evidence of A.W. 2 and taking into contradiction that the witness stated at one time that the victim was standing near her and on the other time he stated that she was at a little distance. However, the mode of expressing of things in two different manner may not be as when one at a little distance the two are said so proximate that does appear to be proper and further the fact that the inquest report on record though suggests the ticket number (52809) having found with the deceased though the name of the deceased not mentioned in the inquest report or even the post mortem report but the final forms submitted by the police in the case mentions that the dead body that contained the said ticket 52809 was found to be the dead body of the Chinta Devi and further the records also - 8 - mentioned the FIR was lodged on the report of Assistant Station Master. A. W. 2 has stated that he had informed the Station Master about the accident and hence the finding recorded by the Tribunal without taking into consideration these materials which is very much relevant proceeded on considering minor variation in the statement of A.W. 2 to disbelieve her as bona fide passenger and hence is not sustainable in law and hence the finding recorded by the Tribunal that the victim was not a bona fide passenger without taking into consideration these materials is not sustainable. The Tribunal further held that deceased fell down and succumbed to injury due to her own negligence. There is no eye witness to the occurrence. The deceased died which traveling in train standing near the gate and due to the heavy rush of the passenger and push and pull for egress and ingress of passenger she fell down. However, the decision reported in AIR 2008 Allahabad 124 (Union of India Vs. Vidyawati & Ors.) where it has been held that if the passenger is standing on the foot step is entitled for compensation and railway cannot plead that unreserved - 9 - compartment of overloaded and passenger standing on foot step at door is not entitled or construed that it is self inflicted incidence. Learned counsel for the respondent contended that the accident of falling of any passenger who was travelling in a negligent manner shall be deemed to be negligent and hence not entitled to compensation and plea taken that this Division Bench decision reported in 2004 (22) LCD 986 (Union of India Vs. Smt. Jameela and Ors.) is prior decision then AIR 2008 Allahabad 124 (Union of India Vs. Vidyawati & Ors.) is the prior judgment and hence decision reported in AIR 2008 Allahabad 124 (Union of India Vs. Vidyawati & Ors.) is per incurium. However, there is no dispute that both the decisions are of Allahabad High Court and if a subsequent decision not considered the prior decision then the subsequent is per incurium. However, the ratio decided in those cases in the facts and circumstances are not applied to the facts and circumstances of present case to apply the ratio. However, in decision reported in 2004 (22) LCD 986 (Union of India Vs. Smt. Jameela and Ors.) the fact that the accident took place while - 10 - the deceased was travelling in negligent manner standing on the door from where he fell down near Magarwara railway station where the train does not stop. However, under the facts and circumstance of the case, the accident took place near Mahesh Khut station when the train was about to reach the Mahesh Khut station and the excessive crowd in the train and the temptation of the passenger for getting down from the train at a stoppage can well be inferred and hence the fall of the victim due to pull and push of ingress and out gress passengers and so cannot be equated with a self inflicted incidence or negligence hence finding recorded by the learned lower court that the accident took place due to the negligence of the victim when no evidence has led by the railways Tribunal to indicate the manner of negligence and hence finding recorded by the learned Tribunal that the accident of the victim was due to negligence is not sustainable. However, with regard to the issue the bona fide passenger learned counsel for the appellant relied upon a decision reported in AIR 2008 Allahabad 124 (Union of India Vs. Vidyawati & Ors.) that the accident from train is untoward accident, however, this is a case in which it has - 11 - been held that a person falling by train while attempting towards the door of the train is an untoward incidence. However, this is not the fact and circumstance of the case as there is no case that the victim was boarding the train and hence does not apply. Hence, having regard to the fact that the three point raised and hence on the basis of the inquest report and the final form read with the evidence of A.W. 2 it can well be inferred that the victim was travelling on the train with a ticket and hence was a bona fide passenger and death of the victim by the train while the train was reaching to Mahesh Khunt station and hence it cannot be inferred that the deceased acted in a negligent manner causing the death and hence held that died due to untoward incidence. However, the finding recorded by the learned lower court that the victim was not the heir of the deceased without framing any issues and hence there is no evidence. It is true that there is no evidence on record but since the issue has not been framed the claimant cannot be punished for that. Hence, the case is remanded to the Tribunal for decision on the limited point whether sole claimant is the - 12 - heir of deceased to decide after taking the evidence of both the sides preferably within one year and pass order in the light of direction given above. Kundan (Gopal Prasad, J.)