ash 1 fa-1471.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.1471 OF 2010 Shri Altaf Ali Raza Shah. .. Appellant Vs Union of India. .. Respondent -- Shri P.G. Sawant i/by Shri Vaneet Khosla for the Appellant. Shri T.J. Pandian for the Respondent. -- CORAM ; A.S. OKA, J DATED : 6TH MAY, 2011 P.C. . This First Appeal was taken up for final disposal on earlier date and submissions of the learned Counsel appearing for the parties were heard. However, an order was not passed because the Advocate for the Respondent sought time to take instructions regarding amicable settlement. However, the learned Counsel for the Respondent has not received any instructions on this aspect till today. 2. This appeal arises out of the Judgment and Order passed by the Railway Claims Tribunal on a claim application under Section 124A of the Railways Act, 1989 (hereinafter referred to as “the said Act”). 3. The Appellant is the Claimant. The Appellant claims to be the husband of the deceased Jannatunisa Altaf Raza Shah. The case made out in the Claim Petition is that the deceased was travelling by a suburban local train on 18th January, 2005. Due to excessive rush, she accidentally fell down from a running local train near Kalwa Railway Station. It is ash 2 fa-1471.10 contended that the deceased was possessing a valid second class ticket which was lost in the accident. The case made out is that it was an untoward incident within the meaning of sub- clause (2) of sub clause (c) under Section 123 of the said Act. The Claim Petition was contested by the Respondent by filing a written statement. The learned Member of the Tribunal held that possibility that the deceased was knocked down by the some train cannot be ruled out and, therefore, the case of untoward incident cannot be accepted. The learned Member noted that the Appellant claims to have married the deceased on 17th December, 2004 and the only proof of marriage was an invitation card. The learned Member observed that the invitation card can be printed in any press and the photographs produced by the Appellant were not clear. The learned Member observed that the case of the Appellant was not that the deceased was earning. Therefore, the claim application was dismissed by the impugned order. 4. The learned Counsel appearing for the Appellant has taken the Court through the additional compilation containing pleadings, notes of evidence and documents. He submitted that the burden was on the railways to prove that it was a case of knockdown and that the deceased was not possessing a valid ticket. He submitted that the Tribunal has taken a hyper- technical view. 5. The learned Counsel appearing for the Respondent supported the impugned Judgment and Order. He submitted that there is overwhelming documentary evidence on record to show that it was a case of knockdown. He submitted that the Appellant has not established his ash 3 fa-1471.10 relationship with the deceased and in any case, there is nothing on record to show that the deceased was a bona fide passenger. 6. I have given careful consideration to the submissions. In the Claim Petition filed by the Appellant, a specific case was made out that the deceased was holding a valid second class ticket issued from Mumbra Railway Station for traveling upto Thane and the said ticket was lost in the said untoward incident. It is true that in the written statement, the case made out by the Appellant has been denied. It must be noted that the case of the Respondent is of a knockdown. It must be also noted here that apart from the evidence of the Appellant, one Mrs. Nazia Rafik Sheikh was examined by the Appellant who deposed that she had accompanied the deceased to Mumbra Railway Station. She stated that she had seen the deceased purchasing a second class ticket for travelling upo Thane. She was cross-examined by the Advocate for the Respondent. In the cross examination, what is brought on record reads thus:- “I had come to Mumbra Station with the deceased. The deceased had purchased the railway ticket for her journey in my presence. I do not remember the exact fare of the ticket.” 7. Thus, even in the cross examination, it was brought on record that the witness had seen the deceased purchasing the ticket at Mumbra Railway Station. The Tribunal has commented upon the answer given by the witness that she was unable to remember the exact fare of the ticket . The untoward incident is of January, 2005 and the witness deposed in October, 2007. There was no reason to discard the evidence of Nazia Rafik Sheikh. It ash 4 fa-1471.10 is true that she has stated that she has not seen the deceased boarding the train but the fact remains that the deceased had purchased the railway ticket at Mumbra railway Station and she was found dead on railway track near Kalwa railway station. Therefore, there is no reason to discard the case made out by the Appellant that the deceased was traveling by a suburban railway local train and that she accidentally fell down from the train. The Tribunal has made a reference to Memo of CNC, Kalwa. The Tribunal has made a reference to DRM’S report which records the case of knock down. It must be stated here that none of the Authors of the said documents are eye witnesses. None of the said persons have been examined by the said Respondent. Therefore, only on the basis of the said documents, the Tribunal could not have jumped to the conclusion that it was a case of knockdown. Thus, what is established is that the deceased was a bonafide passenger and while traveling by a suburban train, she fell down from the suburban train which led to her death. 8. The only other issue is regarding the relationship between the deceased and the Appellant. It is true that according to the case of the Appellant, his marriage with the deceased was solemnized on17th December, 2004. The marriage certificate, photographs taken in marriage and invitation card were produced before the Tribunal and were taken on record. The marriage certificate gives all particulars such as the date of Nikah, etc. The Appellant was cross-examined by the Advocate appearing for the Respondent. Perusal of the cross-examination of the said witness shows that there is hardly any challenge to the factum of marriage pleaded by the said ash 5 fa-1471.10 witness in the affidavit in lieu of examination-in-chief. In fact, not even a suggestion was given to the Appellant that the case of marriage was false and the documents produced by him were fabricated. Only because the untoward incident occurred within a period of one month from the date of marriage, the case of marriage could not be disbelieved especially when the fact of marriage is not challenged in the cross-examination of the Appellant. In my view, the Tribunal has taken a hyper technical view. The Tribunal ought to have allowed the claim petition by granting compensation of Rs.4,00,000/- as per Rules. This is a case where interest at the rate of 6% per annum from the date of filing of the Claim Petition will have to be granted. 9. Hence, I pass the following order :- (a) The impugned Judgment and Order dated 24th March, 2009 is quashed and set aside. (b) The Respondent is directed to pay compensation of Rs. 4,00,000/- to the Appellant with interest thereon at the rate of 6% per annum from the date of filing of the Claim Petition till the deposit of the said amount. (c) Time of 12 weeks is granted to deposit compensation amount with the Tribunal. (d) Appeal is allowed with no order as to costs. ( A.S. OKA, J )