IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.407 of 2009 1. Ganesh Prasad @ Ganesh Prasad Yadav, S/o. Late Prasadi Yadav. ……… Applicant No. 2. 2. Smt. Manjula Devi, W/o. Sri Ganesh Prasad @ Ganesh Pd. Yadav. ……… Applicant No. 3. 3. Anand Kumar, Son of Late Sanay Kumar Yadav @ Sanjay Kumar and Smt. Hira Devi is under the Legal and Natural Guardianship of Appellant No. 1 Grand Father (He was not a party in the Tribunal) All resident of village – Jawaripur, P.S. – Tilka Manji, District – Bhagalpur. ……… Appellants. Versus The Union Of India represented through the General Manager, East Central Railway, Hazipur (Bihar) ……….. (Respondent in Tribunal). ……….. Respondent. ----------- For the Appellant : Mr. Sudhir Kumar, Advocate. Mr. Anant Kumar – I, Advocate. For the Respondent : Mr. Hemendra Pd. Singh, Advocate. 03/ 06.08.2010 Heard learned counsel for both the parites. This appeal is directed against the order dated 30.04.2009 passed by the Railway Claims Tribunal, Patna Bench by which he has rejected the claim of the appellants. From perusal of the records it appears that the claim petition was filed under Section 125 read with Section 16 of the Railway Claim Tribunal Act, 1987 regarding the death of Sanjay Kumar Yadav, husband of Hira Devi as a claimant while traveling on railway. The case of the claimant Hira Devi, in nut shell, is that while the deceased Sanjay Kumar Yadav was 2 coming from Nathnagar to Jamalpur along with Manoj Kumar, after taking the ticket but died in the accident by the train. The father and mother were subsequently added as a party and even a petition was filed for adding one Anand Kumar a minor under the alleged guardianship of the grand father as opposite party no. 2 as the party asserting that Hira Devi the wife of the deceased has married and after her marriage her grand son Anand Kumar is residing with him and he claims himself to be guardian of minor. However, the petition for adding Anand Kumar minor as party to the proceeding was rejected on the ground that there is no mention by Hira Devi about his son Anand Kumar in the original claim petition nor Hira Devi has filed any petition to add Anand Kumar as party whereas the claimant has filed the birth certificate according to which the date of birth is 05.07.2004 which is even prior to the filing of the claim petition on 01.10.2004. The Tribunal has also rejected the claim petition on this ground that this petition for addition of Anand Kumar as party shows that the intention of the appellant is otherwise tainted with fraud that why this Anand Kumar has not been 3 made party and further the dismissal that father and mother are not dependent of deceased under Section 123 (b)(i). Learned counsel for the appellants, however, asserts that the learned Tribunal did not take into consideration the fact that a petition was filed that Hira Devi has been married and hence she was not coming after her marriage and left and Anand Kumar with his grand parents and it has been asserted that Anand Kumar is the son of Hira Devi and deceased and did not consider the misery of life that Hira Devi having married with another person may not be interested due to the various reasons to see her future and several taboos. However, the peculiar situation has arisen that the father is dead. The mother has left the son and has married with another person and the son is left with the grand father and the son though entitled to claim as per Section 123(b)(i) and hence the question for consideration whether that son is entitled for compensation. However, this aspect has not at all been considered and no opportunity has been given to Anand Kumar having filed petition though his next friend and 4 the Tribunal took into consideration that since the victim Hira Devi is not coming to file petition and hence the intention is otherwise does not stand to reason. However, there is a reason for her not coming as values prevalent in society as she has married with another person and the said person may not take her to pursue the matter. Learned counsel for the appellants, further, contended that Section 125 (b) (ii), however, mentions the father and mother also a dependent i.e. the parents are also dependent. However, under the facts and circumstances when the wife has married with and has left the proceeding and not attending the minor boy having not been brought or allowed to be given opportunity to lay his claim though next friend and the minor under Order XXXII Rule 1 of the Code of Civil Procedure can well be represented though the next friend or the Court may have appoint guardian and ad litem. However, the minor has joined as appellant no. 2 under the legal and natural guardians of appellant no. 1, the grand father. However, it is true that the grand father is not a natural guardian. He can only be held to be guardian when declared by the court under the Guardians 5 and Wards Act but under Order XXXII Rule 2, he may pursue his remedy through the next friend, the grand father or court can appoint guardian ad litem. However, the peculiar situation arises in the case that the Railway Acts provides that in case the claimant is minor under Section 125, such person can claim compensation through his guardian. However, the minor has been given a right under Section 125 to pursue his claim. However, the court below rejected the petition but in case, if the minor loses both the father and mother then the claim petition is filed only after someone is declared as guardian and merely because the mother of the victim has not made this appellant as he was minor as a party then this claim cannot be abandoned or at best ought to get an opportunity to establish his claim as son of deceased. Moreover, according to Clause (2) of Section 123 (ii) the parents are also dependents. However, in the peculiar fact and circumstance when the wife has left the matrimonial home and married with another person the minor has not been allowed to be added as a party and then the claim of the parents 6 requires to be looked into but have also been rejected merely on the ground that the intention of the claimant is not clear as they have not made minor as a party at the earliest time and it appears disposal of case on this ground is extraneous consideration without going into the relevant consideration for deciding compensation claim by wife and parents. The learned Tribunal though framed the issue whether the deceased was a bona fide passenger, whether he died at the place in the said rail accident but the Tribunal without going into those questions giving any finding on those issues, has dismissed the claim petition on the ground that there is no mention about Anand Kumar in the original petition. Section 125 (ii), however, also mentions that any application by any dependent for compensation under this Section shall be for the benefit of every other dependent. However, even the claim granted to one of the dependents the said dependent might have covered the responsibility of the other dependent who receive the amount but these aspects not at all considered by the Tribunal. Hence, taking into consideration the fact that the 7 learned Tribunal did not take into consideration the other issues and rejected the petition on the ground that intention of Hira Devi is not pious by giving an option to file a fresh suit neither based on relevant consideration without giving any finding on the issues framed for determination. However, the claim of the party has to be decided on the relevant consideration and hence the impugned order is set aside and the case is remanded back to the Tribunal for consideration afresh in accordance with law. However, since the accident is of the year 2003 it is hereby directed to dispose of the matter without delay and preferably within a year. Accordingly, this miscellaneous appeal is disposed of. Kundan (Gopal Prasad, J.)