IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.282 of 2009 BHOLA PRASAD, SON OF LATE LUXMI PRASAD, RESIDENT OF WARD NO. 11, BHABHUA, P.O. & P.S. – BHABHUA, DISTT. – KAIMUR. ………. APPLICANT / APPELLANT. Versus THE UNION OF INDIA, THROUGH THE GENERAL MANAGER, EASTERN RAILWAY, 3-KOELAHGAT STREET, KOLKATA. ………… RESPONDENT / RESPONDENT. ----------- 03/ 12.10.2010 This miscellaneous appeal is directed against the order dated 04.03.2009 passed by the Railway Claim Tribunal, Patna Bench in Claim Case No. 0A 9900271 by which he has rejected the claim of the claimant regarding the death of the deceased by the alleged untoward incidence while traveling as bona fide passenger on the train. The case of the claimant is that his son Manoj Prasad, while traveling from Bhabhua Road railway station to Sasaram Road railway station on 19.10.1998 with a valid ticket, fell down from the train due to excessive crowd in between Muthani railway station and Bhabhua road station and lost his ticket during the accident and claims that the accident took place while the deceased was traveling as bona fide passenger due to the untoward incidence. 2 The claim of the claimant was countered by the railways and objection raised that no untoward incidence occurred and since the victim fell down in between Bhabhua to Muthani railway station and hence the claim is covered under the explanations 2 of Section 124-A of the Railways Act and the claimant has to establish that the death is not covered under proviso 2 Section 124 (A). On the respective submissions of the parties the Tribunal raised four issues:- (i) Whether the claim of the claimant is valid? (ii) Whether the deceased died out of the untoward incidence and whether it comes under the proviso 2 or the alleged untoward incidence comes under the proviso 2 Section 124 -A? (iii) Whether the deceased was a bona fide passenger? (iv) Whether the claimant is entitled for relief? The claimant adduced evidence both oral and documentary. The oral evidence adduced are on behalf of 3 the claimant is A.W. 1, the claimant Bhola Prasad and A.W. 2 Dineshwar Prasad. The documentary evidence adduced is Ext. A the affidavit of Bhola Prasad, Ext. A-1 affidavit of Dineshwar Prasad, Ext. A-2 inquest report, Ext. A-3 FIR/final report, Ext. A-4 copy of the memo dated 29.10.1998, Ext. A-5 is the photo copy of post mortem report, Ext. A-6 death certificate, Ext. A-7 receipt regarding the receiving of the dead body, Ext. A-8 is the certificate of dependency, Ext. A-9 is the Ration Card, Ext. A-10 is the identity card of the Election Commission. No evidence either oral or documentary adduced by the railway and hence after considering the oral evidence and the submission, Tribunal held that in the evidence of the witnesses A.W. 1 and A.W. 2 there is contradiction and it is not proved that the deceased was traveling with a valid ticket and further held that the date of occurrence also not established and a grave suspicion and further the ration card indicated Manoj Kumar as the grand maternal son (Nati) of the card holder Laxmi Sah whereas Manoj Kumar has been shown to be son of Bhola and Bhola is shown as the son of Laxmi and hence held that since the deceased was shown as grand maternal son 4 (Nati) i.e. maternal grand son whereas the claimant has proved the deceased as grandson of Laxmi Sah (Pota) and hence disbelieved the claim as the claimant is the heir or dependent of the deceased. Learned counsel for the appellant, however, contended that the witnesses have deposed that claimant was traveling on the train when he met with the accident and fell down and even the father has deposed that the son was traveling and even deposed that he went to the station who got him over the train and even his son got the ticket at the ticket counter but in cross-examination A.W. 1 has stated that he did not go out up to the ticket counter and hence had not seen him really purchasing the ticket and hence the Tribunal disbelieved the evidence and held that witness has not established that the deceased has really taken the ticket. Learned counsel for the appellant, however, contended that the witnesses have supported the prosecution case that the deceased boarded the train after purchasing the ticket and merely because a ticket has not been found when the FIR was lodged, and the inquest report would not be sufficient to establish that the 5 deceased was not traveling on the train and did not die due to untoward incidence and even the receipt of the receiving the dead body by the claimant and certificate of dependency and hence the finding recorded by the Tribunal is not sustainable and if the railway on whom the onus lies to prove that the victim was not traveling as bona fide passenger and hence contended that the finding recorded by the Tribunal that no untoward incidence and was not bona fide passenger is not sustainable either in law or in fact required to be set aside and has contended that the burden was on the respondent to prove that the deceased was not a bona fide passenger and has relied upon decision reported in 2008 (1) PLJR 627 (Smt. Akhtari Begum Vs. Union of India) as well as 2008 ACJ 1895 (Union of India V. Praphakaran Vijaya Kumar and Others) that the deceased was a bona fide passenger and died out of the untoward incidence. Learned counsel for the railway, however, contended that the Tribunal has considered the evidence and gave its finding disbelieving the claim of the claimant as the claimant has failed to prove that he was a bona fide passenger and the accident comes under the definition of 6 untoward incidence. On respective submission of the parties the question for consideration is whether the deceased was a bona fide passenger and died out of the untoward incidence. However, the claim of the claimant is that his son deceased was traveling on the train from Bhabhua railway station to Sasaram railway station on a valid second class ticket and fell down during the traveling due to the excessive crowd. However, the evidence adduced by A.W. 1, the claimant who has stated that he went along with the victim and even asserted that his son purchased the ticket in his presence though in his cross-examination stated that he did not go up to the ticket counter and hence the Tribunal has not established that the victim was not a bona fide passanger. However, the evidence of this witness that the deceased went up to the ticket counters. However, it is really difficult for a dependent in the case of the death of the passenger to prove whether the deceased was a bona fide passenger. However, the FIR mentions that the victim was traveling on the train by which he fell down and the 7 inquest report as also Ext. A-4, the memo dated 29.10.1998 of the station master addressed to the G.R.P, Bhabhua mentions about a dead body on the Railway Track at 615/05 Km. On the basis of the said memo the railway T.T, Bhabhua P.S. Case No. 22 of 1998 was registered and the inquest report Ext. A-2 was prepared and after the post mortem as apparent from the Ext. A-5, the dead body was handed over to the claimant and the said receipt has been proved as Ext. A-7. However, from these documents it is apparent that the deceased died out of the accident and the evidence of A.W. 2 stated that the deceased was traveling with him and he fell down. However, the Tribunal disbelieved the evidence of A.W. 1 and A.W. 2 in view of certain contradictions that A.W. 1 has not stated that he saw the victim really purchasing the ticket though he went to the ticket counter and also disbelieved the evidence of A.W. 2, in view of the fact that he stated that he learnt about the name of the deceased after a month though has stated that the deceased fell down in between Bhabhua railway station and Mathani railway station. However, having regard to the fact that the 8 evidence of Ext. A-3 is the FIR, Ext. A-2 is the inquest report, Ext. A-5 is the post mortem report suggest that the victim having died out of the accident by the train and Ext. A-8 is a receipt of the dead body by the claimant established that the deceased died out of the accident while traveling on the train and if the accident took place while traveling on the train, then it is incumbent on the railway to suggest that the deceased was not a bona fide passenger, though the inquest report suggests that no ticket was recovered from the possession of the deceased but in such a situation the probability of the ticket purchased by the passenger, having lost can well be appreciated and hence in such a case if the passenger has not been found to be ticketless by the checking staff of the railways, the presumption is that the passenger is a bona fide passenger and this view is supported in decision reported in 2008 (1) PLJR 627 (Supra). Hence, it is apparent that the Tribunal erred in holding that the deceased was not a bona fide passenger as the Tribunal though only disbelieved the witnesses but did not take into consideration that the document are Exhibits. 2, 3, 5 and 7 suggest that the victim met with the accident while traveling on the train 9 and is strong circumstance to suggest that he was traveling on the train is a bona fide passenger when not found ticketless by the checking staff and hence was a bona fide passenger. So far next point regarding untoward incidence is concerned, the documents Exts. A-2, A-3 and A-5 suggest that the victim fell down while traveling on the train itself suggest that about the untoward incidence and it is incumbent on the railway to plead and prove that the occurrence covered under the proviso of 124 (A). However, respondent adduced no evidence and there is no material to suggest that the accident covered under the proviso to Section 124 (A) of the Railways Act and hence from the nature of the accident and the attaining circumstance it can well be inferred that the accident took place due to the untoward incidence. The next question for consideration is about the dependency of the claimant however, the ration card the claimant has been shown to the son of Laxmi Sah and the deceased to be shown to be grand nephew (Nati). However, it is a matter of common experience that in the remote area the grand son even called as grand nephew 10 (Nati). Moreover, Ext. A 6 is the death certificate of the deceased and this is clearly mentioned that the deceased was the son of Bhola Sah, the claimant but the Tribunal did not take into consideration this fact but merely on Ext. A 9 held that there is contradiction as the cut shows the deceased as the grand nephew (Nati) of Laxmi Sah whereas the deceased is the grand son (Pota) but did not take into consideration the death certificate of Manoj Kumar shows Manoj Kumar as son of the claimant and hence well be established that the claimant may not the father of the deceased was a dependent comes under the definition of the dependent and liable for compensation and hence it is apparent that the Tribunal has erred in holding that the appellant was not the dependent as well as the deceased was not a bona fide passenger or the accident was not an untoward incidence and hence in view of the evidence and the other circumstances as discussed above, I find and hold that the deceased was traveling in the train as a bona fide passenger with a valid ticket and died out of the untoward incidence and the claimant is entitled to compensation being the dependent or father of the deceased and hence is entitled to compensation regarding 11 the death of the deceased to the tune of Rs.4,00000/- and hence the appeal is allowed and the impugned order is set aside and the respondent is directed to pay the amount to the appellant within three months failing which the respondent would be liable to pay the amount with an interest @ 5% per annum with effect from the date of this order in its realization. Kundan (Gopal Prasad, J.)