1 fa.1450.05 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1450 OF 2005 Sayed Hasan Abbas s/o Tawakkal H. Kazmi and anr. ... Appellants Versus The Union of India. ... Respondent ----- Mr. T.J.Mendon for the Appellants. Mr. A.N.Samant for the Respondent. ----- CORAM : A.S.OKA, J. DATE : 18 th April, 2011. ORAL JUDGMENT: 1 Heard the learned counsel appearing for the parties. 2 The appeal takes an exception to the judgment and order dated 12 th April, 2004 passed by the learned Members of the Railway Claims Tribunal on a claim made by the Appellants under Section 124-A of the Railways Act, 1989 (hereinafter referred to as “the said Act”). By the impugned order, the claim petition has been dismissed by the learned Members of the Tribunal. 2 fa.1450.05 3 I have heard the learned counsel appearing for the Appellants and the learned counsel appearing for the Respondent. I have perused the record of the case. 4 In the claim application filed by the Appellants, it was stated that on 1 st September, 2001, as usual, the deceased alongwith Mr.Jaigam Kazmi left for work. It is stated that they boarded local train at Govandi Railway Station. It is stated that the deceased who was the son of the Appellants fell down at about 09:30 am from suburban local train. It is stated that the deceased succumbed to the injuries sustained due to the accident. 5 The claim petition was opposed by the Respondent – Railways by filing a reply. It is contended that there was no report of the alleged accident lodged with the station master at Chembur. It is stated that the deceased was not a bona-fide passenger. 6 The Appellant No.1 examined himself by filing affidavit in lieu 3 fa.1450.05 of examination-in-chief. The Appellants also examined the said Mr.Jaigam who filed his affidavit in lieu of examination-in-chief. The ticket purchased on the same date by the deceased was produced on record, which shows that the ticket was issued at 10:00 am. The ticket was produced by the Appellant No.1 alongwith the medical papers and police papers. There was no evidence adduced by the Respondent. The learned Members of the Tribunal framed various issues. The learned Members of the Tribunal held that the Appellants were the dependents of the deceased within the meaning of Section 123 (b)(i) of the said Act. The Tribunal found that the ticket bearing No.55000 was issued at 10:00 am and the claim petition records that accident occurred at 09:30 am. The Tribunal pointed out that both the witnesses stated that the untoward incident occurred at 08:30 am. Therefore, the Tribunal came to the conclusion that the ticket was issued after the alleged incident. The learned Members of the Tribunal found that there were discrepancies in the evidence of the witnesses as regards number of the ticket inasmuch as the Appellant No.1 stated that the number of the ticket was 55000 and the witness Mr.Jaigam stated that number of the ticket was 5000/-. 4 fa.1450.05 Therefore, the learned Members of the Tribunal disbelieved the case made out by the Appellants and dismissed the claim petition. 7 The submission of the Appellants is that perusal of the cross- examination of the witness Jaigam shows there was no serious challenge to his version in the examination-in-chief. It appears that an application dated 27 th October, 2003 was filed by the advocate for the Appellants purporting to be an application for seeking leave to serve interrogative to the Respondent. Clause Nos.2 to 5 of the said application read thus: “2) What are your instructions to the Head Booking Clerks and your Booking Window Clerks for Issue of Tickets with regards to Card and Auto Printing Tickets with reference to Date, Month and Time of issue of Ticket ? 3) What are your instructions for calibration (Change) of printing Time (if any) and at what interval of time the same is done on the Card and Auto Tickets? 4) Railway Administration to produce records and statement of Booking window for issue of tickets on 01/09/2001 between 8 to 9 A.M, 9 to 10 A.M. and 10 to 11 A.M. 5) Railway Administration to produce records and statement of Govandi Booking Office of 01/09/2001 showing the time of issue of ticket No.55000.” 5 fa.1450.05 8 Based on the said application, additional written argument was filed by the Appellants on 9 th December, 2003. It was contended that as per the procedure adopted by the Railways, if ticket is issued between 09:00 am and 10:00 am, the same will show time as 10:00 hours. It is contended that in the claim application, it is disclosed that the accident took place at 09:30 hours, which is confirmed by the medical papers. It was submitted in the additional written submissions that there was no reply filed to the application dated 27 th October, 2003, which was duly served to the Respondent. 9 It must be noted here that on the said application, on 4 th November, 2003, while granting time to the Respondent to file reply, the Tribunal directed the Respondent to submit relevant rules on the subject on the next date, which was fixed as 17 th December, 2003. On 17 th December, 2003 and 10 th February, 2004, the matter was adjourned. On 14 th February, 2004, the learned Members of the Tribunal rejected the said application on the ground that the same was not in proper form and was filed belatedly. The said order dated 17 th February, 2004 is 6 fa.1450.05 completely inconsistent with the earlier order dated 4 th November, 2003. If the application was not in proper form, time could have been granted to file a fresh application. Moreover, there does not appear to be compliance with the direction issued on 4 th November, 2003 to the Respondent to produce the relevant rules. In view of the said order dated 4 th November, 2003, the application could not have been rejected on the ground that it was belatedly filed. The order dated 17 th February, 2004 shows that the final arguments were heard on that day. In fact, the additional arguments of the Appellants on the basis of the said application were filed on record on 9 th December, 2003. 10 In the circumstances, the order dated 17 th February, 2004 is illegal and the said order will have to be set aside. Consequently, the impugned judgment and order will have to be set aside and the claim petition will have to be remanded to the Railway Claims Tribunal so that appropriate order can be passed on the aforesaid application. 11 Hence, I pass the following order: 7 fa.1450.05 i. The impugned judgment and order dated 12 th April, 2004 is quashed and set aside. The order dated 17 th February, 2004 passed on the application filed by the Appellants on 27 th October, 2003 is quashed and set aside ; ii. The original Application No.2001-120 as well as the application dated 27 th October, 2003 made therein are restored to the file ; iii. The learned Members of the Tribunal will decide the said application dated 27 th October, 2003 and only thereafter, will proceed with the final hearing of the claim application. If the said application dated 27 th October, 2003 is allowed, the Tribunal will give an opportunity to both the parties to adduce further evidence ; iv. The claim petition shall be decided as expeditiously as possible and in any event within a period of six months from the date on which the writ of this judgment is received by the Tribunal ; v. The appeal is partly allowed on above terms with no order as to costs. [ A.S.OKA, J ]