IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.556 of 2009 1. Anita Devi, W/o Late Gauri Mahto. 2. Deepak Kumar, son of Late Gauri Mahto. 3. Arti Kumari, daughter of Late Gauri Mahto. 4. Puja Kumari, daughter of Late Gauri Mahto. All 2 to 4 are minor and under the guardianship of the Appellant No. 1. All are resident of Village- Rampur, P.S. Warish Nagar, District- Samastipur. ………………..Applicants/Appellants. Versus Union of India, through the General Manager, Eastern Central Railway, Hajipur. …………...Respondent/Respondent. For the appellants :- Mr. Pravin Kumar Gupta, Advocate. For the respondents: - Mr. Mahesh Prasad, Advocate. ----------- 5. 08.11.2010. This Miscellaneous Appeal is directed against the order dated 12. 11. 2008, the claim of the claimant has been rejected by the Railway Tribunal regarding death of Gauri Mahto by untoward incident as bonafide passenger. 2. The claimants claim before Railway Tribunal under Section 125 of the Railway Act 1989 and Section 16 of the Railway Claim Tribunal Act, 1986, is that they are wife and children of deceased Gauri Mahto who died while travelling as a bonafide passenger due to untoward incident on 25. 05.2008, in between Teghara to Bachchwara Railway station. It is further asserted that there was heavy crowd in the train and due to heavy crowd there was pull and push and further due to jerk in the train the deceased fell down and died on the spot. 3. The Railway countered the claim and 2 asserted that it is not a case of untoward incident, deceased had been fallen down from the running train in between Teghara to Bachchwara Railway Station. As per station diary entry of the Barauni Junction, a man was ran over near Gate No. 16 and in the accident it has been stated that ticket was lost since ticket was found in possession and hence, the deceased can not be said to be a bonafide passenger. 4. On pleading of the parties the Tribunal framed four issues; (1) whether the claim of the claimant is valid; (2) whether there is untoward incident at the time and place of occurrence; (3) whether the deceased was a bonafide passenger; (4) whether the plaintiff is entitled to get relief. 5. The claimant has produced four witnesses, A.W.1 Anita Devi, A.W.2 Damodar Sahani, A.W. 3, Nanku Mahto, A.W.4, Sitaram Mahto, documentary evidence adduced on behalf of the claimant Ext. A affidavit of Anita Devi, A/1 affidavit of Damodar Sahani, A/2 affidavit of Nanku Mahto, Ext.A/3 is affidavit of Sita Ram Mahto, A/4 is photograph of the deceased, A/5 is F.I.R./Final Report, A/6 is Post Mortem Report. 3 6. The Railway Tribunal in support of submission has proof Ext. R copy of the Station Diary, but no oral evidence has been adduced. On considering the evidence of the parties and submission made thereon, the Tribunal disbelieve the evidence of the witnesses on the ground that A.W.1 is wife of deceased and is not an eye witness to the occurrence and further in view of her evidence that she did not enquire whether her husband purchased a ticket or whether last rites performed. The Tribunal further disbelieve the evidence of A.W.2 on the ground that he has stated date of death on 24th and year of the accident is 2004, whereas occurrence took place on 25. 05. 2003 on the groiund that A.W.2 is near and dear of deceased. The Tribunal further disbelieve the evidence of A.W.3 that, though, this witness has stated that he informed the family member of the deceased and Post Mortem of the deceased was done on 26. 05. 2003, but in Post Mortem report mentioned the deceased as unknown and further disbelieve the evidence of A.W.4 on the ground that he did not participate in the last rites and statement of Sitaram Mahto A.W.4 that he did not participate in the last rites but his mother has participated and hence, disbelieve the four witnesses, though, witnesses in their evidence stated to have been informed the mother of the deceased on 25th itself, but mother of the 4 deceased could not identify the deceased and to depose that she did not come forward and dead body was not identified till post mortem on 25.03.2003 and further that since no ticket has been filed before the Tribunal and hence held that A.W.3 has been set up and his reliability is baseless to hold that deceased was a bonafide passenger. 7. The Tribunal however, considered the Ext. R, the document of railway that on 6.30 P.M. the Controller of Sonepur informed on control phone that one person has been ran over, and post mortem report suggest that nature of injury mentioned therein is not possible by fall from the train, as per post mortem report suggest both hands and both legs had been cut or amputate. Hence held that claimant has failed to proof that deceased was a bonafide passenger and died out of the untoward incident as a bonafide passenger and witnesses 1 to 3 does not appear to be reliable. 8. Learned counsel for the appellant has contended that Tribunal has misdirected in disbelieving the evidence of the witnesses and once it is established that the accident due to untoward incident by fall from the train then it shall deem that the deceased was a bonafide passenger and was travelling on valid ticket as not apprehended by railway authority and probably of ticket lost in the accident can not be ruled out and 5 further there was evidence that deceased was travelling along with ticket and was travelling along with them and it is on railway to prove that deceased was not a bonafide passenger. 9. Learned counsel for the respondent Railway, however contended that so far documentary evidence is concerned, there is Ext. R/1 is the extract portion of the Station Diary entry by Controller Shri C.P. Bhakth, Station Master, Barauni that Train Controller, Sonepur has informed that one person has been ran over at Gate No. 16 at Teghara to Bachchwara Railway Station and this information has been given to G.R.P. R.P.F., Barauni and has been received by G.R.P.F. and Rail Police, Barauni Junction has instituted U.D.Case No. 7/03 mentioned that on the basis of the report of Shri C.P.Bhakth, Station Master, Barauni, F.I.R. was lodged . However, in the Final Form, Rail S.I. Barauni, orally ordered to file that deceased Gauri Matho died due to fall of the train and it has also mentioned that I.O. A.S.I, Mohan Ram of Barauni P.S. identified the deceased by the photograph. However, it has been contended that this Final Form by the Police is not reliable as there is no contemporaneous document to suggest that the deceased fall from the train and if death is not due to fall or while travelling as a bonafide passenger then the 6 claimants are not entitled and as per report of the Station Master Ext. R, it appears to be a case of ran over and if a person (deceased) not being a passenger and was ran over on railway track by accidental run over by the train then dependent heirs of deceased are not entitled to compensation. It has further been contended that A.W. 2 and 3 in their evidence claims that they were known to the deceased and deceased fall down and they claimed that they went to the deceased place of residence or even informed his mother, but neither mother nor any family member identify on 25th or even on 26th till the post mortem was done and the dead body was identified through photograph as well as by the clothes and though it is stated that information was given to the mother, but the mother has not come to identify the deceased nor come to depose and hence Tribunal has rightly held that plaintiff is neither bonafide passenger nor died due to untoward incident. 10. Hence on the respective submissions of the party, the question for consideration whether the deceased was a bonafide passenger and died out of the untoward incident. 11. However, the case of the claimant that the deceased died while travelling as a bonafide passenger due to untoward incident by falling from the train. Ext.R/1 suggest that information was received by the 7 Station Master that a person has been ran over. However, this information that a person has been ran over at Gate No. 16, but this fact though, established that deceased was ran over, but does not establish that the deceased died due to fall from the train or while travelling as a bonafide passenger and Ext. R/1 only suggest that a person has been ran over on the track and photograph of the deceased marked as Ext. A/4 shows that both legs and hands of the deceased has been amputate by ran over by the train and argument in advance that when a person fell down from running train may be thrown away and there is hardly any probability is falling on the track to be ran over. 12. However, A.W.1 is the wife and she has stated she was at naihar at the time of accident and on information she came from naihar and then identified photograph of the dead body of the deceased at the police station and hence her evidence is not at all relevant either on issues like bonafide passenger or untoward incident. However, A.W. 2 and 3 have come to suggest that they were travelling along with deceased in the compartment in which the deceased fall and they were intimate to the deceased. However, conduct of this two witnesses that they came to Samastipur after occurrence and then they attempted to inform the mother of the deceased as P.W.2 claims to be vegetable 8 vendor and the mother of the deceased also was a vegetable vendor, but he could not meet the mother and so informed one person having tea stall in the neighbour of the place where mother of the deceased used to sale vegetable. Even though A.W. 2 stated that he informed the mother on 26.05.2003, but the post mortem report suggest that the dead body was not identified and the dead body was cremated and the wife could only identify the deceased by photograph of the deceased. However, the claimant has deposed that she was at naihar and she informed by the mother at her naihar and then she came and went to the police station and was identified the photograph of the deceased as well as his clothes and claim petition has also been filed after a year. 13. However, cross-examination of the evidence of the witnesses of 2 and 3 as stated that they did not pull chain to stop the train after falling down and A.W. 3 has stated that he did not inform the family member, but has stated that he informed C.R.P.F. at Samastipur and has stated that deceased left his sit at Barauni Junction and came at darwaja and next stoppage was Samastipur and due to jerking and crowd the victim was thrown out from the running train. However, A.W. 2 has stated that he went to inform and Tribunal has disbelieve the evidence of A.W. 2 and 3. 9 A.W. 4 has stated that deceased has come to his place and deceased boarded on train at Katihar Junction on 24. 05. 2003, a ticket of IInd class. The Ext. R/1 document of Railways suggest one man ran over but not mentioned whether he was a passenger. Post mortem report suggest that both legs and hands were amputate and dead body lying by the side of the track with multiple injury, hence nothing in the evidence of respondent to infer that victim was a passenger. 14. However, A.W. 2 and 3 have deposed that they were travelling along with the deceased and deceased fall down. A.W. 2 informed the mother of the deceased and A.W.3 has stated that he informed the G.R.P.F. , but there is no corroboration as neither the mother nor G.R.P.F. and even come to depose the mother even not come either to depose nor come to claim even being a class 1 heir and hence nothing to suggest that whether witness informed and there is no corroborative evidence. However, F.I.R. was lodged on the basis of information by Assistant Station Master and hence, there is no dispute that the deceased died due to the accident by rail. However, evidence of A.W. 2 and 3 that the victim was travelling from the train when he fell down from the train. However, A.W. 4 suggest that he boarded the train on 24th after purchasing a bonafide ticket. However, it is true there is 10 no effective cross-examination and there is nothing in their cross-examination to disbelieve witnesses and trial court disbelieve witnesses on the flimsy ground raising doubt that witness No. 4 has not participate in the funeral of the deceased and A.W. 3 has not informed the family member and none of the family members came to identify the deceased till 26th. Hence, ground on which evidence of witness has been rejected does not appear to be as such to disbelieve witnesses on those grounds and lower court has acted on conjecture and surmises to disbelieve the evidence of witnesses on this ground. 15. However, it has been argued that fall from the train may not have injury as such and there is probability that person is thrown and due centrifugal to a distance he may not come on track so that his legs and hands amputated. However, it is difficult to forsee that how the force work on this ground alone, the claim of the claimant can not be disclaimed as it is difficult to say that how natural force acted in the facts and circumstances of the case, when there is no other evidence. 16. However, the fact established that as per Ext. R/1 that victim run over by the train at about time of occurrence and there is no cogent reason to disbelieve witnesses 2 to 4 and hence finding recorded by the trial court is hereby set aside. However, the accident took 11 place due to untoward incident and once it is held that victim was travelling by the said train and fall due to untoward incident then it is immaterial who was negligent and further in view of the fact that once it is established that the victim was travelling on the said train on the ground that decision reported in 2008(1) PLJR 627 regarding bonafide passenger where the passenger has not been found ticketless by the checking staff of the railway which has to be presumes that the passenger is a bonafide passenger and hence having regard to evidence of A.W. 2 and 3 and Ext. R/1 and it can well be infer that the victim fall down from the train while travelling and met with untoward incident and once it is established he is presumed to be bonafide passenger and hence dependent of the deceased is entitled to claim. Hence impugned order is set aside. 17. However, having regard to the facts and circumstance that Tribunal has neither framed any issue nor any documentary evidence has been laid down to establish that claimants are the dependents as wife and children of the deceased particularly when mother of deceased even informed has not come proved either as a claimant nor as witness even to support the claim or even today that victim is the wife of the deceased and hence it requires an inquiry by the Tribunal as no document or reliable evidence has been 12 produced on record, neither any documentary evidence on record to infer that claimant is wife of dependent on the deceased as wife and she claims that she was at naihar and mother of the deceased neither come forward either to support or to claim as a dependent having class 1 heir and particularly the evidence of mother was required. 18. Hence regarding dependency her evidence is also required to support the claim as to whether the claimant was dependent on deceased and hence the case is sent down and refer to the Tribunal to decide on the issue whether the claimants are the dependent or heirs of the deceased. Accordingly, the appeal is disposed of. m.p. ( Gopal Prasad, J.)