IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.707 of 2008 THE UNION OF INDIA, THROUGH THE GENERAL MANAGER, NORTH EASTERN RAILWAY, GORAKHPUR (U.P.). ……….……. (Respondent) Appellant. Versus SUBHASH KUMAR, SON OF SRI NAGESHWAR PRASAD YADAV, RESIDENT OF VILLAGE – SAHUGARH TOLA, POLICE STATION – MADHEPURA, DISTRICT – MADHEPURA. …..………… (Applicant) / Respondent. ----------- 04/ 26.10.2010 Heard learned counsel for both the parties. 2. This miscellaneous appeal is directed against the order dated 18.09.2008 passed by the Railway Claims Tribunal, Patna Bench in Claim Application No. O.A. 9800213 where by he has directed the respondent to pay to the injured applicant a sum of Rs.2,40,000/- (Two lacs and forty thousand) from the date of this order, failing which the applicant will be entitled to the interest @ 9% per annum from the date of order till its realization. 3. The case of the claimant, Subhash Kumar is that while he was traveling as a bona fide passenger from Khagaria to Saharsa railway station by 341 U P on a proper ticket bearing No. 18899 dated 04.12.1997, met with untoward incidence due to push by heavy rush of passengers causing injury and also amputation of right hand through elbow. 2 4. On the claim of the claimant the respondent railway appeared and filed the written statement assailing that the applicant does not come under the definition of untoward incidence under Section 123 (C) of the Railways Act. The claimant has concocted the false story and he was not a bona fide passenger and denied brief particulars of the accident and sustained injuries due to his own fault. 5. On the pleadings of the parties four issues were framed which are as follows:- (a) Whether the applicant was a bona fide passenger of the train No. 341 U P traveling from Khagaria to Saharsa on 04.12.1997? (b) Whether the applicant sustained injuries on account of an untoward incident of accidental falling from the train at Khagaria railway station? (c) Whether the applicant is entitled to claim Rs.3.50 lakhs as compensation on account of the injuries sustained in the alleged incident? (d) To what relief? 3 6. However, on the issues both the claimant and the Insurance Company adduced oral and documentary evidence. The oral evidence adduced on behalf of the claimant is the affidavit of A.W. 1 Subhash Kumar. 7. The documentary evidence adduced on behalf of the respondent as Ext. A flied by Subhash Kumar, Ext. A/1 is the memo issued by the Station Superintendent intimating about the amputation of his passenger of train No. 341 U P, aged about 35 years for doing the needful, Ext. A/2 issued by the rail Police Station on the basis of the reporting of the Station Superintendent on the basis of which the Sanha entry was made, Ext. A/3 is the Sanha entry no. 102 dated 04.12.1997, Ext. A/4 is the true photo copy of Khagaria P.S. Case No. 122 dated 05.12.1997, Ext. A/5 is a photo copy of the ticket, Ext. A/6 is a certificate issued by the Superintendent Sadar Hospital, Khagaria mentioning the victim Subhash Kumar was sent to Patna Medical College Hospital, Patna for better treatment, Ext. A/7 is the prescription of out door patient, Ext. A/8 is the report of Patan Medical College Hospital, Patna, Ext. A/9 is the residential certificate, Ext. A/10 is the certificate of claimant for being handicap, Ext. A/11is the Bihar School 4 Examination Board. 8. However, the railway has also adduced evidence. Ext. R is the affidavit of Md. Roshan Ali. 9. On the documentary evidence adduced on behalf of the railways is Ext. R the affidavit. The impugned order mentions about Ext. A 1 to A 8 and Ext. A and the cross examination of the witness Roshan Ali on behalf of the Insurance Company mentions about the Ext. R but any document has not been marked though the affidavit is on record. 10. However, on considering the oral and documentary evidence the Tribunal hold while considering the issue no. 1 and 2 that Subhash Kumar was a bona fide passenger and was a victim of untoward incidence and as such liable to be compensated for the injury sustained and while deciding issue no. 3 and 4 held that the claimant is entitled to compensation or injury sustained by him and the respondent railway administration is liable to payment and has ordered to pay a sum of Rs.2,40,000/- for untoward incidence by which the claimant has lost his hand. 11. The railway is the appellant and is aggrieved by the award by the Tribunal. The railway has preferred 5 this appeal. 12. Learned counsel for the appellant, however, contended that on the alleged date of the occurrence only 432 tickets were issued from Khagaria to Saharsa bearing ticket no. 81304 to 81736 and has annexed as Annexure – 4 with the memo of appeal alleged to be a certificate issued by one Roshan Ali and has contended that the claimant produced a ticket claiming to be a bona fide passenger bearing ticket no. 18899 and asserted that the said ticket has been issued on that day and has asserted that though issued by the railway much earlier and hence the claimant cannot claim a bona fide passenger on the basis of that ticket. 13. Learned counsel for the appellant, however, contended that the claimant’s claim that he was traveling from the train no. 341 U P. However, the train no. 341 U P from Khagaria to Samastipur whereas the claimant’s claim that he was going from Khagaria to Saharsa and the route of Khagaria to Saharsa is different from the route Khagaria to Samastipur and hence have a different track and hence if he was traveling from Khagaria to Samastipur on a ticket of Khagaria to Saharsa and hence is not a bona fide 6 passenger and further the timing of the train from Khagaria to Saharsa is also different from the timing alleged as the train from Khagaria to Saharsa had come on that day at 11:20 A.M. and departed from 11:30 A.M whereas train which was going to Samastipur was at about 9:20 A.M. It has further been contended that even assuming that the victim having boarded on a wrong train then it was expected that after the train started running the victim may have realized that the train was running from Khagaria to Samastipur and then he might have tried to jump from the running train and received injury and hence it must have been a self inflicted injury covered under Section 124 (A) of the Railways Act and hence received injury or due to his own negligence or a self inflicted injury and hence the railway is not liable to pay the compensation. 14. Learned counsel for the respondent – claimant, however, contended that the appellant never came with the defence that the ticket was forged and fabricated or the ticket was not the ticket produced by the victim was not issued on that day nor come with the case about the ticket number issued on that day neither the certificate as Annexure – 4 annexed with the memo of appeal ever 7 produced before the Tribunal like the said Roshan Ali who filed petition before the Tribunal stated about the tickets claimed by the claimant and neither in the written statement nor in the evidence. There is evidence of Roshan Ali or in his affidavit there is common averment disputing the ticket produced by the claimant in the claim petition and proved by the claimant before the Tribunal. 15. Learned counsel for the appellant, however, contended that even if assuming that the claimant has boarded a wrong train and hastened to get down and in which he suffered the injury even then he is liable to get a compensation as negligence either on part of railway or the claimant is no ground to disclaim the claim of the claimant and there is nothing on record or evidence that the claimant ever admitted to commit suicide by jumping from the train and hence it cannot be said to be a self inflicted injury and for that he has relied upon a decision reported in 2008 ACJ 1921 (Thomas V. Union of India) and hence contended that the ticket was never challenged before the Tribunal and from the documents of the railway itself apparent that the accident took place by falling from the train and the ticket was never challenged before the Tribunal and the 8 accident took place due to the untoward incidence and hence the claimant is entitled to claim. 16. Hence, on respective submission of the parties the question for consideration is whether the accident took place due to untoward incidence and whether the claimant was a bona fide passenger. The claimant claimed that while going from Khagaria to Saharsa after purchasing of the ticket to boarded the train to 341 U P and fell down from the train causing amputation of the arms and hence allowed the claim under Section 125 of the Railways Act. However, Ext. A-1 is the report of the station diary which is dated 04.12.1997 at 10:30 hours which mentions that a passenger has got imputed by falling from the train and hence proper steps be taken. The Sanha entry no. 101 dated 04.12.1997 mentions the amputation of a passenger, Ext. A-3 also mentions the fact and Ext. A-4 S.I rail P.S. mentions that the victim was in the state of unconsciousness. Subhash Prasad Yadav is being sent Khagaria Hospital to PMCH Hospital and hence these documents which are contemporaneous to the occurrence suggest that the victim fell down from the train and got injured. A.W. 5 is the photo copy of the ticket which was 9 produced, however, it mentions 04.12.1997 the date about the said ticket in the claim petition. However, in the written statement filed by the railways, this ticket was not challenged. Even one of the witness Roshan Ali filed affidavit on behalf of the railway and even cross examined but there is no whisper challenging the said ticket. However, Annexure – 4 has been annexed along with the memo of appeal in which it has been asserted that this Annexure – 4 has been issued by Roshan Ali mentioning that on that day only 432 tickets were sold which does not include the ticket number produced by the claimant though it has been stated that this ticket number has also been issued by the Railway. However, this is a material out side of the lower court record and not produced at the time of the trial or proceeding and hence cannot be considered at this stage in the appeal and hence on the basis of that ticket and further the documents of the railway itself showing about the falling of the victim from the train and causing amputation of the arms itself established that the plaintiff was a bona fide passenger and get injured causing amputation of the arms by untoward incidence. 17. However, the learned counsel for the appellant 10 has contended that the plaintiff boarded the train no. 341 UP was from Saharsa to Samastipur and hence has boarded the wrong train and hence was not a bona fide passenger as he was not having a valid ticket. However, in the memo of appeal itself, it has been mentioned that the timing of the train could be different and he may have boarded the train and having learnt about the boarded a wrong train on a wrong route may have attempted to fall or jump from the train causing the accident. However, there is no evidence but even if assuming the argument or the submission supposition would be that the victim boarded the train and attempted to get down. Admittedly getting down from a train is not an attempt to suicide and admittedly the incidence or the injury is not a part of attempt to sustain injury nor it is self inflicted injury though it may be a negligence on the part of the victim but it is well settled that the negligence of either the railway or the claimant or the victim is no ground to disclaim the claim of the claimant and this view is supported in decision reported in 2008 ACJ 1921 (Thomas V. Union of India). However, under the facts and circumstances reported in 2008 ACJ 1921 (Thomas V. Union of India) where it has been held 11 that the passenger was attempting to get off the train as he had boarded a wrong train when he fell down and his legs were crushed under the wheels. The defence was taken that the accident occurred due to his own negligence and a question for consideration was whether the negligence of the injured can disentitle him from claiming compensation under section 124-A and it was held that the negligence of either the railway administration or that of the injured is not relevant consideration to disclaim the claimant and held that the passenger has not suffered injury due to any of the reasons stated in exception (a) to (e) of the provision to section 124-A. 18. Hence, having regard to the facts and circumstances, since the occurrence took place and the victim got injured by falling from the train having a valid ticket and the Claims Tribunal has considered the evidence, hence, I do not find any illegality and irregularity in the impugned order to interfere with and hence the appeal is dismissed. Kundan (Gopal Prasad, J.)