IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.551 of 2009 1. Juli Mandal, wife of Late Pradip Mandal. 2. Bishwanath Mandal, S/o of Late Pradip Mandal. Both are resident of Bania Tola, P.O. & P.S. Katihar, District-Katihar (Bihar). ………Applicants/Appellants. Versus Union of India, through the General Manager, N.F. Railway,Guahati. …………Respondent. For the appellants :- Mr. Pravin Kumar Gupta, Advocate. For the respondent :- Mr. Anil singh, Advocate. ----------- 5. 28.09.2010. This Miscellaneous Appeal is directed against the order dated 17. 11. 2008 by the Railway Claims Tribunal, Patna Bench in Claim Application No. O.A. 9900044 by which the Tribunal has rejected the claim petition. The claimants are wife and son of the deceased. 2. The case of claimant is that deceased Pradip Mandal while traveling as a bonafide passenger on 01.01.1998 by Train No. 501 UP passenger train from Katihar to Karhagola fell down from the train due to heavy rush and succumbed to injury during the treatment at Sadar Hospital, Katihar. 3. The railway contested the claim and denying the claim on the ground that deceased himself responsible for being fallen down from the train due to his negligence which is self-inflicted injury causing the death and further denied that any untoward incident 2 occurred at railway station and in fact the deceased himself was responsible for the act for which he was died and denied that the applicants are legally dependent and denied other facts in the petition for claim and further asserted that incident come under the ambit of Section 124 A of the Railway Act. On the respective submissions four issues were framed; (1) whether the accident took place due to untoward incident and is covered under Section 124 A of the Railway Act. (2) Whether the deceased was a bonafide passenger. (3) Whether the defendants are entitled to bonafide compensation under Section 124 A of the Railway Act. (4) Whether the plaintiff is entitled to any relief. 4. On the issues framed, the claimant adduced evidence Ext. A Juli Mandal is the wife of the deceased, Ext. AW.1 is evidence of Diresh Sah, Ext. A/2 is the affidavit of the Fard Beyan by Deepak Kumar Mandal, Ext. A/3 is First Information Report, Ext. A/4 is the Inquest Report, Ext. A/5 is the copy of letter of Senior Inspector, Railway P.S. Katihar and Ext. A/6 is the death certificate. 3 5. However, the Tribunal after considering the evidence on the issues framed held regarding Issue No. 1 to 3 that evidence of A.W. 1 and 2 are not reliable and claimants have not been able to proof that the deceased was a bonafide passenger died on untoward incident and was a bonafide passenger nor able to establish that she was legally dependent and while deciding Issue No. 4 held that the claimant is not entitle to any claim. 6. Learned counsel for the appellant has contended that lower appellate court mainly taken into consideration the oral evidence and disbelieve the evidence of witnesses on minor contradiction and even disbelieve the document like letter of the Medical Officer, Sadar Hospital, Katihar, dated 01.01.1998 without any reasonable and valid ground merely holding that these documentary evidences are not natural and submits that the impugned order suffers from conjecture and surmises and the learned Tribunal did not relied upon evidence and take adverse inference for not filing various documents and did not go into the merit of the evidence on record, hence evidence recording by the Tribunal is not sustainable. 7. Learned counsel for the respondent further contended that Tribunal has well considered the 4 evidence in detail of the file orally and documentary evidence and come to adduce finding after well considered in the evidence. Hence taking consideration of the evidence of the parties, the question for consideration whether the deceased was a bonafide passenger and whether he died due to untoward incident. 8. However, the case of the claimant that the deceased died by falling down from the train and succumbed to injury while travelling as bonafide passenger. However, the Railway has taken plea in his written statement that the deceased himself was responsible for being fell down from the train due to his negligence which is deemed to be self-inflicted and which comes under Section 124A of the Railway Act as attempt to suicide. However, taken further stand the applicant took to pull the allegation and taken plea under Section 124A of the Railway Act. 9. However, during argument, learned counsel for the Railway has took stand that the claimant was not at all travelling in the train, the Tribunal while considering did not taken into consideration the stand of the railway in the written statement. However, Ext. A/5 is the letter of the Senior Inspector of Railway P.S. Katihar, addressed to the 5 Medical Officer, Sadar Hospital, Katihar, dated 01.01.1998, where there is specifically mentioned that a unknown passenger falling down from the train causing injuries to his leg. Another document the letter of the Medical Officer did not mark, but the Tribunal is taking into consideration as evidence this document which is on record which has been disbelieve as not natural, the letter of the Medical Officer, Sadar Hospital, Katihar which mentioned that a case was brought to the Hospital by a Constable of the Railway Police, Katihar and now the person is died and further Inquest Report which is also prepared on 01.01.1998 at 12.30 afternoon which mentioned that the deceased died out of the injury by falling down from the train and further F.I.R. is on the basis of the Fard Beyan. However, the letter of the Senior Inspector, Rail Police, Inquest Report of the G.R.P. and first information report of Rail P.S. Katihar, all these documents are the documents by the official of the Railway authority and they have in their documents had mentioned that the victim Pradip Mandal received injury on falling down from the train and there is no reason to disbelieve these documents on the basis of which irresistible conclusion can be arrived at that the victim fallen down from the train while getting into the train or while standing on the door in 6 the train to conclude that the deceased died out of the untoward incident. 10. However, question for consideration whether the said injuries come into any of the exception of Section 124 A of the Railway Act. However, Section 124A provides that no compensation shall be payable under this Section by the Railway administration if the passenger died or suffers injury due to------ (a) suicide or attempted suicide by him; (b) self-inflicted injury; (c) his own criminal act; (d) any act committed by him in a state of intoxication or insanity; (e) any natural cause or disease or medical or medical or surgical treatment unless such treatment becomes necessary due to injury caused by the said untoward incident. 11. However, if the Railway want to take advantage of this exception then it is incumbent on the railway to comply and proof that the case of the claimant comes under these exceptions. However, no evidence has been adduced or anything in the evidence on record to suggest that the case of the claimant covered under any of these exceptions and there is 7 neither any suggestion nor any evidence on the basis of which it can be inferred that it was a case of suicide or case covered under any of the these exceptions. Hence there is no material to suggest that the case is covered under these exceptions. 12. However, once it is established that the victim travelling from the train and fallen down from the train by the untoward incident then in that case since he was travelling on train, but no ticket was found along with him is no ground to disclaim his claim, if the victim was travelling by the train and during the journey he was not apprehended by the Railway Police of railway ticket checking then it shall deem that he was traveling as a bonafide passenger. Hence the learned tribunal have failed to appreciate the burden of proof lie on the respondent not on the applicant and this view has been supported in decision reported judgment A.I.R. 2003 A.P. page 23 and this view also accepted in decision reported in PLJR 2008 (1) page 627. 13. However, the deceased has not found ticket-less by checking on railway staff hence it has to be presumed that the deceased was travelling in train during accident as a bonafide passenger and hence in absence of the evidence by the railway, I find and held that the deceased was a bonafide passenger while he 8 was travelling in the train when met with untoward incident. 14. The next stand taken by the Railway that the deceased died due to his negligence. However, Section 123C of Railway Act is a beneficial legislation and Section 124 A laid down no fault liability in case of railway accident and hence if the case of the claimant comes within the purview under Section 124 A it is wholly irrelevant as to who is responsible for the accident. This view supported in decision reported in 2008 (4) PLJR page 40 Union of India Vrs. Prabhakaran Vijay and others and hence taken into consideration the entire fact and circumstance, I find and hold that finding recorded by the Tribunal apparently on conjecture and surmises, hence the impugned order is set aside. 15. Since it has been held that deceased was a bonafide passenger and died due to the injury received by untoward incident. The appellant who is wife of the deceased stated in her evidence that she is wife of the deceased which has not been challenged by the tribunal and hence she is liable to get compensation to the tune of Rs. 4,00,000/- for the death of the husband and the respondent was directed to pay the amount to the claimant within three months failing 9 which the respondent would be liable to pay interest @ 5% per annum from the date of order to the date of realization. m.p. ( Gopal Prasad, J.)