1 1 FA.862.11 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 862 OF 2011 The Union of India. ... Appellant Versus Lilabai Ramchandra Kanji. ... Respondent ----- Mr. Arjun H. Patil for the Appellant. Mr. Mohammed Husain for the Respondent. ----- CORAM : A.S.OKA, J. DATE : 27 th July, 2011. ORAL JUDGMENT: 1 The submissions of the learned counsel appearing for the parties were heard on the last date. 2 The Appellant – Union of India has taken an exception to the judgment and order dated 2 nd March, 2009 passed by the learned Member of the Railway Claims Tribunal on a claim application made by the Respondent under Section 16 of the 2 1 FA.862.11 Railway Claims Tribunal Act, 1987 (hereinafter referred to as “the said Act”). 3 The claim was made claiming compensation under Section 124-A of the said Act. The claim was made by the Respondent on account of death of her son Prakash Patni in an untoward incident within the meaning of clause (2) of Section 123 (c) of the said Act. It is alleged that on 8 th January, 2004, the deceased was travelling by Gandhidham Express from Surat to Mumbai Central. He accidentally fell down from the running train in between Billimora and Amalsad railway stations. Therefore, the compensation of Rs.4,00,000/- was claimed. The claim petition was opposed by the Appellant by filing written statement. The written statement is of denials. By the impugned judgment and order, the Tribunal has accepted that the deceased was a bona-fide passenger and he died as a result of an untoward incident. Therefore, the compensation of Rs.4,00,000/- was granted with interest at the rate 3 1 FA.862.11 of 9% per annum from the date of the order till the date of payment. 4 The learned counsel appearing for the Appellant submitted that there was no evidence to show that the deceased fell down from the running train. He submitted that there was no evidence to show that the deceased was holding a valid ticket. He submitted that the deceased was not a bona-fide passenger and hence, the claim application was not maintainable. He submitted that the Respondent admitted in the cross-examination that her husband is not traceable for last four years. He submitted that there is nothing on record to show that the husband of the Respondent is not alive and therefore, the Respondent is not entitled to the entire compensation of Rs.4,00,000/-. The learned counsel appearing for the Respondent supported the impugned judgment and order. He submitted that the husband of the Respondent is not being heard to be alive for last seven years and more. He relied upon affidavit dated 18 th July, 2011 of the Respondent in which it is stated that the 4 1 FA.862.11 Respondent will obtain a declaration from the competent Court that her husband is dead. 5 I have given careful consideration to the submissions. The case made out by the Respondent – claimant in the claim application was that the deceased was holding a valid ticket. The case made out is that the ticket was lost in the accident. The Respondent filed her affidavit in lieu of examination-in-chief. The Respondent stated that she herself purchased a railway ticket and handed over to her son. She stated that the deceased was carrying a valid ticket and the said ticket and other articles possessed by the deceased were lost. There is no challenge in the cross-examination made by the Respondent that the said articles were lost. Reliance is placed on the admission that the Respondent had not purchased any ticket. The Tribunal has recorded a finding that the deceased was lying on the railway track for considerable time and subsequently, his body was taken for the postmortem. Therefore, 5 1 FA.862.11 the Tribunal rightly observed that in such situation, loss of ticket cannot be ruled out. In the light of the evidence of the Respondent, the said finding is fully justified. 6 The body of the deceased was found on the railway track. There is no evidence adduced by the Appellant to show that the deceased was knocked down while he was attempting to cross the track. There is no evidence adduced to show that the deceased was negligent while travelling by train. Therefore, the Tribunal has accepted the case of accidental fall from the train. No fault can be found with the findings of the Tribunal. 7 In the cross-examination, the Respondent admitted that she has not heard about her husband for four years. This fact was not disclosed in the claim application. Under Sub-Clause (2) of Clause (b) of Section 123 of the said Act, the parents are included in the definition of dependents. Section 125 provides that any 6 1 FA.862.11 application by a dependent for compensation shall be for the benefit of any other defendant. Therefore, the present claim petition will have to be treated as one filed even for the benefit of the husband of the Respondent. It is contended that for a period of seven years and more, no one has heard about the Respondent's husband and therefore, he shall be presumed to be dead. However, there is no declaration to that effect granted by the competent Authority/ Court. Hence, time deserves to be granted to the Respondent to obtain such declaration. Therefore, a limited modification will have to be made to the impugned order. 8 Hence, I pass the following order: i. Clause (i) of the operative part of the impugned order stands confirmed ; ii. The Tribunal will permit the Respondent to withdraw 50% of the amount payable under the impugned judgment and order ; 7 1 FA.862.11 iii. The balance 50% amount shall be invested in fixed deposit in any nationalized bank till the further orders ; iv. If the Respondent produces a declaration by a competent Court/ Authority that her husband is dead, the Respondent shall be entitled to withdraw the balance amount ; v. If such declaration by the competent Court/ Authority is not produced by the Respondent within a period of two years from today, the balance amount with interest accrued thereon shall be paid over to the Appellant ; vi. The appeal is partly allowed on above terms with no orders as to costs ; and vii. Civil Application No.3411 of 2010 does not survive and the same is disposed of. [ A.S.OKA, J ]