FA/237/2005 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 237 of 2005 With CIVIL APPLICATION No. 1034 of 2005 In FIRST APPEAL No. 237 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI ====================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================== MANISHA MUKESHBHAI SHAH AND OTHERS Versus UNION OF INDIA ====================================== Appearance : MR YN RAVANI for Appellants. MR RAMNANDAN SINGH for Respondent. ====================================== CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 05/08/2008 ORAL JUDGMENT 1. By way of this appeal, the appellants-original claimants have challenged judgment and order dated 14th November 2003 of Railway FA/237/2005 2/6 JUDGMENT Claims Tribunal, Ahmedabad Bench, passed in Claim Application No.OA0100158, whereby the claim application filed by the claimants was dismissed. 2. The facts in brief, as emerging from record, are as under: 3. The appellants herein are widow, minor son and parents of the deceased, who have made claim of Rs.4 Lacs under Section 124 A of the Railways Act, 1989 before the Railway Claims Tribunal, Ahmedabad Bench on account of death of the deceased allegedly by falling from train while travelling by Virar Shuttle in general compartment on 17-1- 2001. The deceased was travelling from Udhna to Umargam and his dead body was found lying between Km.200/24-26 on railway line near Bulsar railway station. In the said claim application, the respondent has filed written statement and contested the claim made by the applicants. It is averred in said reply that the applicants have not produced valid and genuine ticket on which the deceased was travelling. On such averments, respondent prayed for dismissal of the claim application. 4. After considering the evidence on record, tribunal observed as under in paragraphs 5 and 6: “5. In her cross examination by the learned counsel for the respondent, she has mentioned that her husband was travelling oacccasionally from Udhna to Umargam and eventhough she had not travelled with her husband it would be incorrect to say that her husband had not purchased the ticket. She was informed about the incident by the police. 6. The respondent produced Shri J.P.Gohil, CBC/Udhna as evidence who brought the original DTC (Daily Train Cashbook) to prove that the ticket produced with the application was not issued on the day of the incident, i.e. 17.7.2001. As per his information the said ticket was issued on 5.12.2000.” FA/237/2005 3/6 JUDGMENT 4.1 After considering the evidence on record, tribunal found that the deceased was not a bona fide passenger. More particularly, in view of evidence of Shri J.P.Gohil, Chief Booking Clerk, Udhna, tribunal found that the ticket was issued on 5th December 2000 while the accident has occurred on 17-7-2001, therefore, the claimants failed to establish that the deceased was travelling with a valid ticket. Accordingly, the claim application filed by the claimants was dismissed. Being aggrieved by it, the appellants have filed this appeal. 5. Heard Mr.Y.N.Ravani, learned advocate for the appellants and learned advocate, Mr.Ramnandan Singh appearing on behalf of the respondent. 6. Learned advocate, Mr.Ravani, submitted that the tribunal has committed an error by rejecting the claim of the appellants. He also submitted that since the dead body of the deceased was recovered after a long time, there is likelihood of loss of ticket. He also submitted that since the claimants were not travelling with the deceased, it is difficult for the claimants to prove availability of valid ticket. He also submitted that inquest panchnama shows that the death of the deceased had occurred due to falling from train, therefore, claim could not have been rejected on the ground of non-availability of valid ticket. 7. On the other hand, learned advocate, Mr.Ramnandan Singh has supported the impugned judgment and submitted that since the deceased was not holding valid ticket, claim of the claimants was rightly rejected by the tribunal. He also submitted that in absence of any evidence substantiating the fact that the deceased fell down from train, claim of the appellants was rightly rejected. He, therefore, submitted that the findings of the tribunal may not be disturbed and this appeal FA/237/2005 4/6 JUDGMENT may be rejected. 8. In support of his submissions, learned advocate, Mr.Ravani has relied upon decision of the Madhya Pradesh High Court in the case of Raj Kumari and Another v. Union of India reported at 1993 ACJ 846. In the said case, it is held that if the deceased does not hold a valid ticket, presumption has to be drawn in favour of the deceased that he was a bona fide passenger, who lost his life in railway accident. However, in the present case, ticket was produced on record, which was of back date. Accordingly, it is clear that this is not a case of non- availability of valid ticket but the ticket of some other date was on record. Therefore, aforesaid decision of the Madhya Pradesh High Court will not be helpful to the appellants. 8.1 Mr.Ravani has also relied upon decision of Division Bench of this Court rendered in First Appeal No.2256 of 2002. From perusal of said decision, it is clear that in said case appeal was preferred by railway was dismissed. In said decision, it was observed by Division Bench of this Court as under: “..........It is the contention of Railway Authority that no ticket was found from the deceased and report Ex.15 also reflects the same thing and as the ticket was not found, it is the contention of the Railway Authority that person was travelling in a train without ticket and he was unauthorised occupant in the train. #. Mr.Nagarkar, learned advocate for the appellant has vehemently urged that the evidence led by the railway authority in the form of report, which is at Ex. 15 made by the Assistant Station Master and further that as found from the panchnama, there was no ticket found when the inquest panchnama was drawn and accordingly, the claimants were not entitled to any compensation, as he was not authorised occupant in the train. FA/237/2005 5/6 JUDGMENT ##. As found from the evidence of Premilaben, it is clear that her husband was a contractor and her husband has a contract at Rajkot for the construction of dam. She has also deposed that her husband used to travel in a train after purchasing the ticket. In the cross-examination, this part of the deposition is not challenged. Panchnama also shows that one bus ticket was recovered from the deceased. However, no further description was found from the said panchnama. The fact remained that when the deceased was found on a railway track, one S.T. ticket was recovered. P.M.Note and inquest report suggest that the death was due to fell down from the train. When the S.T. bus ticket was found, it is clear that deceased whenever travelled by bus or train, he was used to purchase ticket and that evidence is unchallenged by the railway authority. In our view, the Tribunal has rightly accepted the case of the applicant and awarded compensation.” 8.2 In said decision, First Appeal preferred by Railway was dismissed and findings arrived at by the tribunal were not disturbed on the ground that the claimant has deposed in the case before the tribunal that her husband was used to travel in train after purchasing the ticket and nothing was challenged in her deposition. Not only that, nothing was found in panchnama in that case. However, in the present case, invalid ticket was found and that has been relied by the claimants also. Therefore, ratio of aforesaid decision of Division Bench of this Court will also be of no assistance to the present appellants. 8.3 Lastly, learned advocate, Mr.Ravani has relied upon decision of Railway Claims Tribunal, Ahmedabad Bench dated 14-11-2003 delivered in Claim Application No.OA0200097 and allied matters. However, in that case because of burning of train on 27th February 2002, number of claimants have claimed compensation and it was not possible for them to prove the aspect with regard to availability of genuine ticket. In my view, considering the facts of that case, it can be said to be an FA/237/2005 6/6 JUDGMENT exceptional case and ratio laid down therein cannot be followed in the facts of the present case. 9. I have considered the submissions made on behalf of the parties and also gone through the judgment of the trial Court and other relevant documents as well as judgments cited before me. Considering the issues framed and after considering the evidence on record, tribunal found the claimants failed to establish that the deceased was travelling with a valid ticket and, accordingly, the claim application filed by the claimants was dismissed. I am in complete agreement with the reasonings given and finding arrived at by the tribunal while passing impugned order. Even otherwise, scope of interference by this Court in the impugned order is very limited. No other evidence is shown to me to take a contrary view. Therefore, I do not find any reason to interfere with the impugned judgment. 10. For the reasons stated herein above, the appeal deserves to be dismissed and the same is dismissed with no order as to costs. 11. In view of dismissal of appeal, Civil Application No.1034 of 2005 for stay would not survive and the same is disposed of accordingly. (K.S.Jhaveri, J.) /malek