1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR Appeal against Order No. 114 of 2004 Union of India, through the General Manager, South Central Railway, Secunderabad. .... Appellant. [Org. Respondent on R. A.] Versus 1. Parwatibai wife of Nagnath Supare, aged 50 years, occupation  Household, resident of Vasantnagar, Nanded. 2. Kailash son of Nagnath Supare, aged 28 years, occupation  service, resident of Vasant Nagar, Nanded. 3. Amol son of Nagnath Supare, aged 20 years, occupation  Education, resident of Vasant Nagar, Nanded. .... Respondents. [Org. Applicant on R. A.] ***** Mr. P.S. Lambat, Advocate for the Appellant. ***** CORAM : A.H.JOSHI, J. Dated : 21st November,2006. 2 ORAL O R D E R: 1. Heard learned Advocate Mr. P.S. Lambat at length. This is an appeal by Union of India through South-Central Railways challenging the Judgment and Award passed by Railway Claims Tribunal on 18th October, 2002 in Claim Application No. 90/OAII/RCT/NGP/99. 2. One Rajesh son of Respondent Nos. 1 and 2, and brother of Respondent No.3 died on 27th July, 1998. According to the claimants, said Rajesh had boarded the train No. 1604-Down Passenger at Nanded after buying a ticket for travelling to Aurangabad, and fell down from the door of the train due to jerk near Deulgaon Awchar railway line which is near Manwat Road Railway Station. He sustained grievous injuries, and remained lying there in the same injured and unconscious position. 3. On 28th July, 1998, Police Sub-Inspector Mr. Mule on getting report about the incident, shifted Rajesh to General Hospital, Parbhani, then to Guru 3 Gobindsinghji Memorial Hospital, a Govt. Hospital, Nanded, where he died on 29th July, 1998. 4. The claimants filed the Claim Petition claiming a sum of Rs.5,00,000-00 on account of death of Rajesh in the said untoward incident. 5. The claim Petition was opposed by Railways who denied that Rajesh was travelling in the said train, that he fell down, that he fell down due to the jerk, and alleging that the entire story of accident was fabricated. It was further pleaded that since no railway ticket was found on the person of the deceased, it was not a case of bona fide passenger, and prayed for dismissal of the Claim Petition. 6. The respondents led evidence in support of the claim by filing medical papers, police papers which consisted of Inquest Panchanama, Accidental Death Report, Station Diary entry, and affidavits of Respondent No.2  Kailash, Subhash Lalpa Bodkhe, who was a fellow passenger and one Laxmikant Dattatray Sangewar, who too was a fellow passenger. 4 7. In the Written Submissions, emphasis was laid on the point that since witnesses of spot Panchanama, lodgment of FIR etc., were examined, the incident was not proved, and that there would be no presumption that the accident was caused due to untoward incident. 8. The Railway Claims Tribunal decided the case by Judgment and Order dated 18th October, 2002. Tribunal found that it was proved that deceased Rajesh had boarded the train after buying a ticket. Due to the fall from the train, he had suffered skull fracture. Tribunal further found that : [i] it was recorded in the police papers that Rajesh had fallen from the train; [ii] evidence of AW 2 corroborates the claimants' evidence; [iii] the police papers were not disputed by the Railways; [iv] Railways did not lead any oral evidence, or bring any other evidence. In the result, the Tribunal found that the claimants had proved the case. 5 9. In this appeal, which was initially heard for admission, this Court had called for record, which is received. 10. Today, this Court has heard oral submissions of learned Advocate Mr. P.S. Lambat at length and perused the record. 11. Learned Advocate Mr. Lambat gave emphasis on following submissions :- [a] that, it was not proved that the doors of railway bogie were open; [b] that, normally the trains ply with doors shut and with all care and caution that no untoward incident takes place; [c] that, now-a-days, it is an ill-hatched practice that whenever any casualty of death occurs, people lodge claim against Railway establishment, and claim and receive the amount of compensation; [d] since a valid ticket was not found with the passenger, the case that the deceased was a bona fide passenger is not proved; 6 [e] untoward incident is a question of fact, and it is not duly proved in present case; and [f] it was not imperative for Railways to refute and rebut, whatsoever, of the police papers. 12. The submission of learned Advocate that now-a- days, it has become an ill-hatched practice that in case of any death, people lodge Claim Petitions against Railways is amazing, however, no such incidence is shown. Though such eventuality may not be totally ruled out, submitting that such is the conduct of most claimants, seems to be a submission based on hypothesis, making a mountain from the mole. There could be such a rare case once in a blue moon. Fact remains that nobody was interested, when in absence of any of the family members  claimants being involved in the process of lodgment of Accidental Death Report, the death report due to fall from train came to be lodged at the behest of some uninterested person. 13. After re-appreciation of evidence on record and testing submissions of learned Advocate Mr. P.S. Lambat, this Court reaches observations and conclusions 7 as follows:- 14. No suggestions have come forward from Railways as to establishing the nexus of the deceased with Deulgaon, near Manwat Road Railway Station. The distance between Nanded and Manwat Road is quite far, i.e., over 100 kms., and there are no circumstances suggested by Railways as to why and how the deceased Rajesh should be found lying in injured status just by the side of the railway track. 15. Learned Advocate Mr. Lambat though advanced submissions full of ingenuity, has not been able to come out of the finding of the Tribunal that the Railway has not disputed the police papers and has also failed to lead any evidence. 16. In the midst of submissions of learned Advocate for appellant, Court had queried the learned Advocate Mr. Lambat to explain if some Travelling Ticket Inspectors were on duty in the train and where the possibility of the doors of train not remaining open was ruled out, learned Advocate Mr. Lambat ventured to argue that on all trains, Travelling Ticket Inspectors 8 are not present. 17. This Court cannot be left without judicial notice that the Railway as well as State police have got sufficient investigating machinery and a possibility of death being otherwise than by way of railway accident would never go unexplored. Whenever a case of death on a railway track takes place, it would be unjust to assume that the cause of death would go uninvestigated. It would be equally improper to presume that the railway would simply ignore to such death incident, leaving it to total hypothesis that the claim for compensation by dependents of deceased would be imaginary or false. 18. In the aforesaid background, on perusal of evidence by affidavit, what it reveals after cross- examination is that the claimants have proved that deceased Rajesh was travelling on Train No. 1604-Down Passenger, he had boarded at Nanded and fell down from the train near Deulgaon Awachar near Manwat Road Railway Station. This Court finds that witnesses Subhash and Kailash were cross-examined. The fellow passenger 9 witness Subhash was not even suggested that either he was not travelling on the said train, or that Rajesh was travelling without ticket. Leave apart diligent investigation to reveal truth be it otherwise, namely that death of Rajesh on account of his accident near railway track was some other thing than an untoward incident in a railway journey, even suggestions to that effect have not been given to the witnesses. This Court is constrained to believe that in accidental death cases, police investigation is carried out by State police. These incidents are not left as accepted on face value of accident. Police always investigate such matters to unveil if there is some other offence behind it. 19. In the present case also, police had investigated and they could trace it to a railway accident. The Police investigation papers were, thus, a record of official acts done by public servants, and some value of preponderance could have been shattered by Railway by a positive investigation, had they done it. As is rightly found out by the Tribunal, the Railway did not choose to challenge the evidence, and has left the Tribunal to rely the witnesses of the 10 claimants. In such case also, had the evidence, that had come before the Court, been so grossly unworthy that it would not raise any preponderance of proof, Tribunal could have conveniently declined to believe their testimony. In the case on hand, Tribunal has recorded a finding that the claimants' evidence results in proving their claim. 20. It is in this background, the question, that arises before this Court, is what exercise has remained to be done which normally a Court of Appeal does after admitting the case for final hearing. In Civil Law, second view of evidence upon re-appreciation cannot be available just for the sake of asking. The party disputing preponderance of proof has to show total lack of probability of what is sought to be suggested by the evidence. Thereafter, the conclusions reached are liable to be shown to be illegal, contrary to evidence etc. In the present case, neither of the grounds raised in appeal lead to any such possibility. All that has been done by the appellant is that a dispute about very existence of fact of accident is raised, without discharging the burden which the Railways have undertaken to shoulder, but preferred not to lead any 11 evidence. 21. This Court cannot lose sight of the very scheme of enactment of the Railway Claims Tribunal Act, 1987. Bare look at the enactment reveals that the Tribunal was constituted to exercise the jurisdiction which was formerly vesting in the Civil Court. While divesting jurisdiction of Civil Court and vesting it in the Tribunal upon its constitution, legislators had in their mind the need of special knowledge and expertise to be deployed. By Sections 4 and 5 of the Railway Claims Tribunal Act, 1987, the Railway Tribunal has been constituted with special features and special powers, whereby the status of the Tribunal is raised from that of the Civil Court to a specially equipped forum. 22. It shall be useful to refer to various Sub- sections of Section 5 which throw due illumination on this aspect which is noted as below :- [a] As to Chairman, Sub-section (1) of Section 5 lays down as follows:- 5. (1) A person shall not be qualified for appointment as the Chairman unless he- 12 (a) is, or has been, a Judge of a High Court; or (b) has, for at least two years, held the office of a Vice-Chairman. [b] As to Vice-Chairman, Sub-section (2) of Section 5 lays down as follows:- 5. (2) A person shall not be qualified for appointment as the Vice-Chairman unless he- (a) is, or has been, or is qualified to be, a Judge of a High Court; or (b) has been a member of the Indian Legal Service and has held a post in Grade I of that service or any higher post for at least five years; or [c] has, for at least five years, held a civil judicial post carrying a scale of pay which is not less than that of a Joint Secretary to the Government of India; or (d) has, for at least five years, held a post under a railway administration carrying a scale of pay which is not less than that of a Joint Secretary to the Government of India and has adequate knowledge of rules and procedure of, and experience in, claims and commercial matter relating to railways; or (e) has, for a period of not less than three years, held office as a Judicial Member or a Technical Member. [c] As to Judicial Member, Sub-section (3) of Section 5 lays down as follows:- 5. (3) A person shall not be qualified 13 for appointment as a Judicial Member unless he- (a) is, or has been, or is qualified to be, a Judge of a High Court; or (b) has been a Member of the Indian Legal Service and has held a post in Grade I of that service for at least three years; or [c] has, for at least three years, held a civil judicial post carrying a scale of pay which is not less than that of a Joint Secretary to the Government of India. [d] As to Technical Member, Sub-section (4) of Section 5 lays down as follows:- 5. (4) A person shall not be qualified for appointment as a Technical Member unless he has, for at least three years, held a post under a railway administration carrying a scale of pay which is not less than that of a Joint Secretary to the Government of India and has adequate knowledge of rules and procedure of, and experience in, claims and commercial matters relating to railways. On the top of it, Sub-Sections (5) and (6) read as follows:- 5. (5)Subject to the provisions of sub- section (6), the Chairman, Vice-Chairman and every other Member shall be appointed by the President. (6) No appointment of a person as the Chairman shall be made except after consultation with the Chief Justice of India. 14 23. Section 18 of the said Act excludes applicability of Civil Procedure Code to ensure expeditiousness of disposal, and as to the nature of having Sub-section (2) of Section 18 is eloquent enough which reads as follows:- 18. (2) The Claims Tribunal shall decide every application as expeditiously as possible and ordinarily every application shall be decided on a perusal of documents, written representations and affidavits and after hearing such oral arguments are may be advanced. Scheme of Sub-Section (2) of Section 18 reveals that the application of rules of proof of fact by primary evidence has been relaxed, as what is contemplated is ordinarily every application shall be decided on a perusal of documents, written representations and affidavits and after hearing such oral arguments as may be advanced. The exact purport of the scheme of Sub-section (2) of Section 18 is to permit proof of facts with aid of expertise of the Judicial Member of the Tribunal and Technical Member of the Tribunal on the basis of their experience in the field and testing the evidence referred to in Sub- section (2) of Section 18 on the parameters which 15 appear to the Tribunal to be conscionable. 24. The narration and the tests above referred indicate that the jurisdiction of the Tribunal, though carved out and vested in it from Civil Court, is not to be enforced with the procedure liable to be adopted while trying a civil suit. Viewing the situation from this angle, one can find that either the claimant or Railway cannot be permitted to convert the trial before the Railway Claims Tribunal to be a full-fledged suit and has to be akin to summary proceedings. 25. In the present case, the Tribunal has permitted cross-examination essentially being asked for, and satisfied about need thereof. Once the witnesses were tested to cross-examination, and preponderance of probabilities was raised to the level of proof of facts, it was the turn of the Railway Establishment to have brought evidence in rebuttal. 26. Section 23 of the Railway Claims Tribunal Act provides for appeal to the High Court. The said Section 23 does not create any fetter, such as laid down in Section 100, Civil Procedure Code or like Section 30 of the Workmen's Compensation Act and Section 82 of the 16 Employees State Insurance Act requiring that the appeal be entertained only on the substantial question of law. By necessary implication, it would mean that the appeal shall be available on questions of fact as well on the questions of law. The appellant will have to show that case involves grounds where, upon re-appreciation, the possibility of substituting the findings exists, which, in turn, suggests possibility of reversal or modification of order under appeal. Such stage is essentially within the contemplation of Rule 11 of Order 41 of Civil Procedure Code to which provision, recourse can be had for guidance though not as a rule of procedure to be adopted. This Court will have to view exclusion of application of Civil Procedure Code in rightest spirit, and seeking guidance from Rule 11 of Order 41 of Civil Procedure Code should be permitted than abhorred. Considering this, it will have to be held that the scope of appeal is much limited, though as narrow as only on the question of law. 27. The scope of appeal gets further narrowed down when appellant, as in present case, fails to demonstrate even prima facie as to how the fact-finding is erroneous or calls for second opinion, and in the 17 result, existence of a possibility of reversal of impugned order is not shown. Admission of appeal and hearing for empty formality as an exercise in futility cannot be the scheme of right of appeal. Though creation of right of appeal presupposes possibility of error and need for its correction, yet statutory recognition of possibility does not amount to raising a presumption and appellant will have to make out and demonstrate that error and as to appreciation of evidence exists and chances of reversal of fact-finding is to be prima facie demonstrated. 28. In the aforesaid background, this Court finds that no fruitful purpose will be served by admitting the appeal. Normally after admission, this Court hears both sides and is required to assess and re-appreciate the evidence that is available on record, which this Court has already scrutinized. This Court finds that after issuing notice to other side and calling them for hearing, there is hardly any probability of any opinion adverse to such party, i.e., original claimants, being reached. 29. This Court finds that the Claim Petition was 18 filed in 1999, it was decided in October, 2002, appeal has been filed in December, 2003, and it is coming up for admission hearing after calling for record in November, 2006. In the circumstances, this Court is of the view that it will not serve the purpose of justice if the appeal is admitted and the respondents are called to defend, as the statutorily re-formulated right of compensation would be kept in suspended animation. This situation would render Section 24 (a) the Railways Act, 1989, as well as the Railway Claims Tribunal Act, 1987 nugatory, as Railway failed to bring any oral evidence, and preferred to be content with arguments only. 30. In the result, the appeal deserves to be dismissed, and is dismissed. 31. Recently, this Court has decided Civil Revision Application No.129 of 2004 in which learned Advocate Mr. Lambat appearing for Railway has argued in favour of payment of full court fee on Appeal. This Court finds that this appeal is registered as Appeal from Order, and is entertained with payment of Court Fees of Rs.20/-. 19 Office to verify whether different practice is adopted when appeals are filed by Railways and when filed by claimants and take proper steps. JUDGE -0-0-0-0- ||hedau||