: 1 : USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.913 OF 2009 Union of India .. Appellants V/s. Smt. Sonabai Damodar Alhat & Ors. .. Respondents ..... Mr. T.J. Pandian for the appellants None for the respondents ..... CORAM : R.Y. GANOO, J. DATE : 8TH JULY, 2009. P.C. : 1. Respondent No.1 is the mother of Uttam Damodar Alhat, since deceased. Said deceased died in the course of journey between Kurla and Panvel on 15 th May, 2002. Application for compensation came to be filed by the respondent before the Railway Claims Tribunal, Mumbai Branch, Mumbai being Case No.506 of 2002. The said application was heard and decided by the learned Vice Chairman (J) and by judgment and : 2 : order dated 20 th February, 2009 he directed that amount of Rs.4 lakhs be paid. Being aggrieved by the said order dated 20 th February, 2009, Union of India filed this first appeal. I have extensively heard learned advocate Mr. Pandian on behalf of the appellants. 2. The learned Member has observed that the deceased was a bonafide passenger and that is how the compensation to the tune of Rs.4 lakhs being the maximum compensation payable in the death claim is granted. Learned advocate Mr. Pandian drew my attention to the text of para 10 where the learned Member has observed that as the deceased had a monthly pass from GTB Nagar to Ghatkopar on the day when the accident took place, the deceased had no habit to trevel without ticket and therefore the deceased was treated with ticket and that is how he treated that the deceased was a bonafide passenger. Learned advocate Mr. Pandian with this observation of the learned Member stated in para 10 submitted that the observation that the deceased was in habit of travelling without ticket is without any substance. According to Mr. Pandian the learned Member presumed : 3 : that the deceased was travelling with ticket and treated him as a bonafide passanger and proceeded to grant the compensation. Copies of notes of evidence and relevant documents were supplied to the Court by appellants for Courts perusal. 2. In order to consider whether the observation in para 10 made by the learned Member was proper. I have with the assistance of learned advocate Mr. Pandian perused the text of evidence given by the mother of the deceased by name Sonabai stepped into witness box. She has stated in her examination in chief that the deceased was working at MIDCO Ltd. and he was staying with her at Sion-Koliwada. She had further stated that on 15 th May, 2002, the deceased wanted to go to Panvel in connection with his official work and therefore he came to Kurla Railway station and purchased a Second Class return railway ticket for travelling towards Panvel railway station. She has further stated after the untoward incident, said ticket was recovered from the deceased and handed over by the police to us (her) with his (deceased s) season ticket and other articles but the said ticket is misplaced afterwards. This evidence in examination : 4 : in chief goes to show that the applicant approached the Tribunal with the positive case that the deceased has purchased the ticket and that after the untoward incident, the ticket was returned to her by railway authorities. She admits that the said ticket is lost and that is how it could not produce it before the tribunal. I have perused the cross-examination of this witness and there is nothing on record in the cross- examination to say that the railway administration put up their case that such a ticket was not handed over. It is also required to be noted that before this Court, nothing was pointed out in the nature of record mentioning therein that after the dead body of the deceased was taken charge of, a regular Panchanama was done so as to record as to which articles were seized from the deceased and which articles were handed over to his near relatives. 3. If the Railway Administration would have had conducted the Panchanama and pointed out that certain articles were collected from the deceased person and in those articles no ticket was recovered then there is possibility to say that the word stated by the respondent applicant was false. In the absence of : 5 : record coming from Railway Administration to say as to which articles were seized from the person of the deceased the word of the Respondent that the Railway ticket was returned to her is required to be accepted. It is to be noted that the Special Executive Magistrate, Railway Police, Fort area, Mankhurd Railway, Mumbai passed an order on 27 th November, 2002 observing that the death is accidental and he also ordered that belongings of dead person be given to his legal heirs. This order also does not mention as to which articles were ordered to be returned. 4. All the aforesaid discussion will go to show that the mother of the deceased namely the respondent made solemn statement on oath that the ticket was returned to her by the Railway authority and there is no challenge to this statement either in the cross- examination or there is no material to show that whatever articles were returned to her did not include the railway ticket. If this is be so, I am inclined to observe that the deceased did travel with a proper ticket and the same was returned to the respondent. : 6 : 5. Coming to the observations of the learned Member as set out in para 10 as follows. Considering the existence of the valid pass from GTB Nagar to Ghatkopar and the same was in force on the day of accident, this shows that the deceased had no habit to travel without pass or ticket. I found sound substance in the contention advanced on behalf of the applicants. More over the possibility of loss of ticket during the course of accident cannot be ruled out. Therefore, I have no hesitation to hold that the deceased was a bonafide passanger. 6. This observation was made by the learned Member without appreciating the evidence of Sonabai respondent No.1 who has categorically stated that the ticket was returned to her and there is no material placed by the Railway Administration before the tribunal that the articles which were returned to her did not include ticket. It appears that learned Member failed to appreciate the evidence given by Sonabai and proceeded to pass a very broad observation that the deceased was not in the habit of travelling without pass or ticket. The Railway Administration cannot take the benefit of this observation made by learned Tribunal. In so far as the nature of the accident is concerned, it cannot be said that the : 7 : accident was not an untoward incident as defined in the Railways Act. The Special Executive Magistrate has recorded a finding that the death is accidental. Hence, the case of the respondent comes within the parameters of Railways Act and that the respondent was entitled for compensation. 7. The learned Member has granted compensation. The quantum of compensation granted is proper because the claim is for compensation where death has occurred. For the reasons mentioned aforesaid, I am inclined to observe that no interference is required in the impugned judgment. The first appeal is required to be dismissed. Hence, the order. ORDER . First appeal is dismissed with no order as to costs. . Civil Application No.2593 of 2009 is disposed of in view of the dismissal of the first appeal. There shall be no order as to costs. (R.Y. Ganoo, J.)