IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.244 of 2009 1.BACHCHI DEVI wife of Sri Ram Briksha Sao 2.RAM BRIKSHA SAO son of late Haruni Sao Both residents of village Maya Bigha, P.O.Baruane, P.S. Bhadaur, Dist. Patna..(Applicants)-Applicants Versus 1.THE UNION OF INDIA through General Manager, East Central Railway, Hajipur, District Vaishali …(Respondent)----Respondent Ist Set 2.SARITA DEVI wife of Sri Sanjeet Kumar, resident of village & P.O. Ajgara, P.S.Pandarak, Dist. Patna ..(Applicant)—Respondent 2nd Set ----------- For the applicants :M/S Satish Kumar Agrawal Shanti Pratap Harendra Pandey,Advocates For the respondent no.1:Mr.Rakesh Kumar Tiwary For the respondent no.2:Mr.Sidhendra Narayan Singh. ------ 6. 12.10.2009 Heard learned counsel for the appellants, learned counsel for the Railways and learned counsel for the respondent no.2. The Miscellaneous Appeal has been filed against the judgment and order dated 28.1.2009 passed in Claim Application being O.A.No. 00109 of 2004 by Railway Claims Tribunal, Patna Bench, Patna by which the claim application filed by the applicants has been dismissed and the respondent no.2 Sarita Devi has been granted leave to file a separate claim application for compensation for the death of her husband in the railway accident. The short facts relevant in the present matter are that the son of the appellants, 2 namely, Subodh Kumar who was aged about 22 years died as a result of accident while he was traveling as a bonafide passenger by 3288 Down train on 7.6.2004 at Barh station. Upon his death claim application was filed by the appellant no.1 but the names of appellant no.2 and respondent no.2 were added in ink as the dependants of the deceased Subodh Kumar. The appellants are the parents of the deceased Subodh Kumar while respondent no.2 is the widow. The appellants claimed to be wholly dependant on the earnings of the deceased who was stated to be engaged in repairing works of computers and maintained the entire family. Before the Tribunal the claimant examined two witnesses, namely, A.W.1 Kashi Sao and A.W.2 Kishore Sao whose affidavits were marked as Ext. A and Ext.A-1 respectively. No documentary evidence was adduced on behalf of the applicants in support of their claim as none of the documents had been marked in the case although some documents had been filed. Sarita Devi, respondent no.2 was examined as Court Witness No.1 on her appearing on the 3 direction of the Tribunal and her affidavit was marked as Ext.C. On a consideration of the evidence on the record the Tribunal has come to the conclusion that there was no evidence on the record to support the averments made by the applicant Bachchi Devi that her 22 year old son was the only bread earner in the family and his parents were totally or even partly dependant on him and his earnings. The Tribunal also found that the respondent no.2 Sarita Devi was not even an applicant. It further found that the applicant-appellant no.1 and her husband appellant no.2 have shown their reprehensible and unworthy conduct and tried to deprive the widow of the deceased of her legitimate claim by raising a plea that she had remarried three years later on 25.2.2007 and hence she was not entitled to any compensation. It thus observed that they have not come with clean hands and further that the widow of the victim would have the first charge as a claimant in terms of the provisions of Section 123(b) of the Railways Act which defines “dependant”. 4 For all the aforesaid reasons the claim application was dismissed but at the same time the Tribunal granted leave to the respondent no.2 Sarita Devi to file a separate claim application. Learned counsel for the appellants submits that the Tribunal had wrongly proceeded in the matter and had come to the conclusions which are contrary to law. It is submitted by him that the appellants being wholly dependant upon the deceased son were entitled to compensation in terms of the provisions of Section 123(b) of the Railways Act, 1989. It is further vehemently argued by learned counsel that the respondent no.2 was not at all entitled to any compensation having admittedly remarried on 25.2.2007. Learned counsels for the respondent Railways and respondent no.2 Sarita Devi, on the other hand, submit that the Tribunal has rightly held that the appellants were not entitled to any compensation since they could not produce any evidence, oral or documentary, on the record to show that they were fully or partly dependant upon the deceased. They 5 further support the finding of the Tribunal that the appellants had not come with clean hands and not entitled to any relief. On a consideration of the aforesaid submissions and the materials on the record this Court does not find any force in the submission of learned counsel for the appellants. At this stage it would be useful to quote Section 123(b) of the Railways Act, 1989, which is as follows : “123(b) “dependant” means any of the following relatives of a deceased passenger, namely:- (i) the wife, husband, son and daughter, and in case the deceased passenger is unmarried or is a minor, his parent; (ii) the parent, minor brother or unmarried sister, widowed sister, widowed daughter-in- law and a minor child of a pre-deceased son, if dependant wholly or partly on the deceased passenger; (iii) a minor child of a pre- deceased daughter, if wholly dependant on the deceased passenger; (iv) the paternal grandparent wholly dependant on the deceased passenger.” From a perusal of the aforesaid provisions it is evident that four categories of persons have been brought under the definition of “dependant” 6 under the provisions of the said Act who shall be entitled to compensation in case of any untoward incident resulting in death of a person who is a passenger of the railways. In the first category are the spouse, son and daughter and in case the deceased passenger is unmarried or is a minor, his parent. In the second category are the parent, minor brother or unmarried sister, widowed sister, widowed daughter-in-law and a minor child of a pre- deceased son, if dependant wholly or partly on the deceased passenger and in the third and fourth categories are minor child of a pre-deceased daughter, if wholly dependant on the deceased passenger; the paternal grandparent wholly dependant on the deceased passenger. So far as the spouse, son and daughter among the first category of persons are concerned, the right to receive compensation arises immediately on the happening of the untoward incident resulting in the death of a railway passenger, whereas the parents would be entitled to compensation only if the deceased passenger is either unmarried or is a minor. In the present matter the deceased Subodh Kumar was married and aged 22 years; hence the appellant parents cannot claim any compensation on the basis 7 of being a parent under category (i) of Section 123(b). So far as their claim as a parent under category (ii) is concerned the said claim could be allowed only if they are able to prove that they were wholly or partly dependant on the deceased passenger. The onus to prove the same is entirely upon the claimants. It has rightly been observed by the Tribunal that they were unable to place on record any credible evidence to prove the said point that they were wholly dependant upon the deceased Subodh Kumar who was only 22 years old and was stated to be doing repairing works of computers. No evidence was brought on the record to show as to the nature and amount of earnings of the said deceased. On the other hand, the elder brother of the deceased aged 32 years at the time of giving his evidence as A.W.2 was also living in the same village and most likely in the same house since it is his statement that he was informed about the death of the deceased and rushed to the place of occurrence and he has come forward as a witness in support of the claim of the applicant-appellants. In such circumstances, it would be difficult to accept the contention of the appellants that they 8 were wholly dependant upon their 22 years old son with respect to whose source of income they have not been able to come forward with any cogent evidence. Thus the conclusion of the Tribunal that they were not dependant wholly or partly on the deceased is not fit to be interfered with in appeal. This Court, however, does not accept the statement regarding the finding of the Tribunal on the basis of the appellants’ unworthy conduct as being sufficient to disentitle them to any claim or relief. The claim in the present matter is under the statutory provisions of the Railways Act, 1989 and if the conditions laid down in the said provisions are satisfied then it is not open to the Tribunal to reject a claim or any relief only by holding that the claimant has not approached the Tribunal with clean hands. It is evident that the appellants have not suppressed the fact that the deceased had died leaving behind his widow and she had been mentioned as one of the dependants in the application though subsequently added by pen. Thus they had certainly not acted fraudulently which may have disentitled them to any relief. Merely by resisting the claim of the respondent no.2 on the 9 ground that she had remarried would not per se disentitle them to compensation if they were otherwise entitled to the same. In view of the aforesaid discussions, this Court does not find any merit in the appeal. It is, accordingly, dismissed subject to the above observations. (Ramesh Kumar Datta,J.) spal/