IN THE HIGH COURT OF JUDICATURE AT PATNA M.A. No.374 of 2010 RAM CHARITRA MANDAL, SON OF LATE BECHAN MANDAL, RESIDENT OF VILLAGE-BARI JAMIN (MOHANPUR), POLICE STTION-JAGDISHPUR, DISTRICT-BHAGALPUR, (APPLICANT IN THE TRIBUNAL) ……………..Appellant Versus 1. UNION OF INDIA THROUGH THE GENERAL MANAGER, EAST RAILWAY KOLKATA, 2. THE GENERAL MANAGER, EAST RAILWAY KOLKATA, 3. THE DIVISIONAL RAILWAY MANAGER, EAST RAILWAY, PATNA…….. (RESPONDENTS IN THE TRIBUNAL)………. ……………………….Respondents FOR APPELLANT MR. NARAYAN SHARMA ADV. MR. NAGENDRA PRASAD YADAV ADV. FOR RESPONDENTS MR.ANIL SINGH ADV. ----------- /4/ 28.10.2010 Heard learned counsel for the parties. 2. This Miscellaneous Appeal is directed against the order dated 28.01.2009, passed by the Railway Claims Tribunal, Patna Bench, Patna, by which it rejected the claim application of the claimant on the ground that there is nothing on the record to proof the nexus of the claimant with the deceased to establish his dependency and further that the applicant has not established his photograph in the claim application and the thumb impression has not been verified. 3. The claimant has filed an 2 application for claim under Section 125 of the Railway Act, 1998. The case of the claimant that On 20.08.1997 the deceased, Bechan Mandal, boarded train after purchasing second class passenger ticket for journey from Jamalpur to Sabour on Train No. 416 Down. When the Train reached Sabour Station, he took steps to alight but during the process of alighting he fell down on the stone chips on account of sudden jerk in the train and the train started without raising any alarm/whistle and the person succumbed to injury in the incident. 4. The Railway appeared and filed the written statement, stating that the deceased succumbed due to self inflicting injury and there is no evidence for negligence on the part of railway and the claimant has made the story for his convenience. However four issues were framed i.e. (i) Whether the claim application of the applicant is maintainable? (ii) Whether the deceased 3 died out of the untoward incidence at the relevant date, time and place? (iii) Whether the deceased was a bonafide passenger? and (iv) Whether the claimant are entitled to receive compensation. 5. However, two witnesses have been examined in this case, who are the appellant, Ramcharitra Mandal AW-1, and he filed his affidavit which marked as Exhibit A, and Vinod Kumar AW-2, and his affidavit marked as Exhibit A/1. Some document also filed are photocopy of death certificate and Post Mortem Report. 6. However, the records, certified copy of the F.I.R., Charge-Sheet, copy of the protest petition and document filed in the written statement are on record but has not been taking into consideration. However, there is no oral or documentary evidence on behalf of the State. The impugned order the Tribunal rejected the claim application on the ground that some documents have been filed by the applicant alongwith the claim application but they 4 have not been proved in evidence and not marked and further held, thus, no documentary evidence is on record to substantiate the version as set out in the claim application or as brought out in oral testimony of AW-1 and AW-2 and further held that there are some other anomalies that the applicant has not fixed his photograph on the claim application and the L.T.I. has not been identified or verified and hence rejected the claim application on technical grounds without going into the contents of the oral evidence or the document on records and further held in that dependency certificate has not been filed. 7. Learned counsel for the appellant, however, contended that the Tribunal did not go into the question of the evidence adduced on behalf of the appellant either oral or the documentary though has mentioned in the impugned order itself that the documents have been filed. There are some documents which are public 5 in nature, like certified copy of the F.I.R. and the certified copy of the charge-sheet as well as the death certificate and those documents are document requires to have been marked as exhibit to have been taken into evidence but same has neither been marked nor have been considered by the Tribunal and hence those evidences requires consideration and may be adduced in evidence or taken into evidence and other documents are also public in nature like inquest report and the post mortem report which itself have been filed in oral evidence. 8. Learned counsel for the respondent, however, contended that since the document has not been adduced in evidence and no witness has proved the document, the Tribunal has rightly not marked or considered. Further the Tribunal has considered that the L.T.I. has not been verified and no document has been placed. The Tribunal has rightly rejected the claim application. 6 9. Hence, on respective submissions of the parties, the question for consideration is that the impugned order is sustainable and whether the appellants are entitled to receive compensation. 10. However, from perusal of the record, it appears that two witnesses examined i.e. AW-1 and AW-2. However, the Tribunal has not at all considered the evidence of AW-1 and AW-2 and given no reason to reject the claim application, the evidence has wrongly been rejected on the ground that no documentary evidence has been placed, however, there is no law that the oral evidence be out right rejected, if there is no documentary evidence and further the strict application of evidence A.C.J. and C.P.C. is not required before the Tribunal. 11. However, from the perusal of the record, the evidence, appears that AW- 1 and AW-2 examined on behalf of the complainant and those evidences has not at all been challenged by the Railway and if 7 the evidence adduced on behalf of the AW-1 and AW-2 should not challenged. There is no reason to disbelieve the statement made in the affidavits and if there is no reason to disbelieve and those oral evidence cannot be rejected on mere grounds that a documentary evidence has not been adduced. However, the documentary evidence filed at the time of the filing of affidavit were in the nature of public documents like F.I.R., Charge-Sheet and the death certificate and at least these were documents required to have been marked as exhibits considered by the Tribunal and as these documents need not required to be proved by a formal witness and the Tribunal though have taken into consideration the fact that the documents have been filed but did not take pain to consider those documents as public document to mark as an exhibit and hence the order rejecting the claim application is not at all sustainable. However, no finding is recorded on the issues framed, 8 whether the deceased was a bonafide passenger and whether the deceased died out of the untoward incidence at the relevant date, time and place, merely rejected the claim case on technical grounds without going into the merits of the case and hence the impugned order suffers from apparent illegality and not sustainable. 12. However, taking into consideration the merit of the case that one Bechan Mandal purchased the valid ticket and boarded Train No. 416 down, travelling from Jamalpur to Sabour, at Sabour valley was getting down from the top of the train and suddenly fell and became disabled, AW-1 is Ramcharitra Mandal and he has stated in his written statement that the deceased Bechan Mandal fell down from the train while he was travelling alongwith one Vinod Kumar after purchase of Railway ticket and while getting down at Sabour and fell down and was taken to the Sabour Government 9 Hospital where he succumbed to injury. However, this witness is subjected to cross-examination but none appeared to cross-examine him and similarly the witness Vinod Kumar has stated that he was travelling alongwith Bechan Mandal and Bechan Mandal purchased the ticket from Jamalpur to Sabour and thereafter also supported that Bechan Mandal fell down and got injury and while treatment at Sabour Government Hospital succumbed to injury. The impugned order itself mentions that the documents have been produced before the Tribunal and these are the certified copy of the order which requires to have been marked, hence it can well be marked under Order XLI Rule 27 of the Civil Procedure Code even consider in evidence before the appellate Court itself, however the strict compliance of evidence A.C.J. and C.P.C. not required before the Tribunal. There is the certified copy of the F.I.R. and Charge-Sheet and the F.I.R. has been lodged on the basis of Fardbayan 10 of one passenger Upendra Paswan Chaukidar and has stated that at about 2:00 p.m., the train no. 416 was going from Bhagalpur to Sahebganj and when he was roaming at the Railway station and as soon as the train reached at Sabour an old man fell from the train and become unconscious and taken to the Sabour Government Hospital where he succumbed to injury and after death Upendra Paswan came alongwith him and identified the deceased Bechan Mandal and on the basis of the Fardbayan F.I.R. lodged and final form submitted. However, the witness has neither been cross- examined nor the evidence is challenged, it has also not been challenged that the claimant is not son of the deceased. It is true that some of the documents have been filed but has not been proved. However, there is nothing to say that oral evidence has not been challenged about material on record and there is no reason to disbelieve. 13. However, having regard to the 11 fact that the deceased travelled from Jamalpur to Sabour and fell down from the train succumbed to injury. It can be held that the deceased was a bonafide passenger and died out of untoward incidence by fell from the train while getting down and this fact is supported by the oral evidence as well as the F.I.R. or Charge-Sheet. 14. The claim testified before Tribunal admitting that he is sole dependent of the deceased as his mother has predeceased his father and there is no other dependent. Hence materials are sufficient to infer the appellant as sole dependent when the same has not been challenged. Hence the Tribunal required the evidence on the ground that there is no depending certificate, however having regard to the fact that claim testified admitted that sole dependent’s mother predeceased father and no other dependent has not been challenged the claimant who will be Heard be dependent and the Tribunal misdirected itself to request the 12 petitioner and the finding recorded by Tribunal that is set aside and held that appellant is the dependent of deceased. 15. Hence, having regard to the facts and circumstances of the case, the it is apparent that the deceased died out of the untoward incidence being a bonafide passenger and there is no challenge by the Railways. The claimant is the son of deceased but there is not challenge and hence held that the sole dependent appellant is entitled to Rs. 4,000,00/- (rupees four lacs) as compensation of the deceased which has not been challenged and hence liable for compensation to be paid by the Railway within three months, failing which the appellants having entitled to interest 5% thereof. This Miscellaneous Appeal is allowed. Safik (Gopal Prasad J.)