IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.702 of 2009 THE UNION OF INDIA, THROUGH THE GENERAL MANAGER, EAST CENTRAL RAILWAY, HAZIPUR, ……… APPELLANT-RESPONDENT Versus 1. JAYA KUMAR SON OF LATE JOKHAN RAM, 2. PRATIMA KUMARI DAUGHTER OF LATE JOKHAN RAM, BOTH RESIDENTS OF VILLAGE – MAHADEO STHAN, BIHTA, POLICE STATION – BIHTA DISTRICT – PATNA, …….RESPONDENTS-APPLICANTS ----------- 12. 20.09.2010 Heard learned counsel for both the parties. This Miscellaneous Appeal is directed against the order dated 27.07.2009 passed by the Railway Claims Tribunal, Patna Bench in Claim Case No. 0A00205 of 2004 by which, claim of the claimant has been allowed. The case of claimants is that his father Jokhan Ram travelling from Bihta to Dumraon on 29.09.2004 after purchase of valid ticket, by train bearing No. 517 UP (Patna- Buxar Passenger) succumbed to injury due to fall from train by untoward incidence. The son of the deceased came to Bihta Railway Station to see off the deceased. When the deceased did not reach his destination, then his son enquired and learnt that his father has died after falling from the train in between Arrah to Kulharia station and then proceeded and identified the dead body of his father. The claim was contested by the Railway on the ground that victim was not a bonafide passenger and not died out of untoward incidence inquest report of G.R.P. memo shows that he died out of injury by train but has not shows 2 the injury record after fall from train. However, the claim petition was heard by the Railway Claims Tribunal and altogether four issues were framed i.e. (i) Whether the claim of the claimants is valid (ii) Whether the deceased died due to untoward incidence on the date of occurrence, (iii) Whether he was a bonafide passenger and (iv) Whether the claimants are liable for compensation? In support of the claim the claimants adduced three witnesses, AW-1, Jai Kumar, AW-2, Rajesh Kumar and AW-3 Jitendra Kumar. The documentary evidences adduced were the affidavits of AWs 1, 2 and 3, Ex-A/4 is the copy of the information report, Ex-A/5 is the copy of institution of U.D. Case No. 35/2004 dated 01.10.2004 on the basis of the report, Ex/6 is the copy of memo, Ex/7 is the inquest report, Ex-A/8 is the post mortem report, Ex-A/9 is the final form, Ex-A/10 is the death certificate, Ex-A/11 is the identity card of Jai Kumar Kharwar, Ex-A/12 is the identity card of Rajesh Kumar Kharwar and Ex-A/13 is the handicapped certificate of Rajesh Kumar Kharwar. On considering the oral and documentary evidences the Tribunal while considering issues (ii) & (iii), held that the deceased was a bonafide passenger and died out of an untoward incidence, while travelling as bonafide passenger and granted relief to the extent of Rs. 4,00,000/- 3 and hence the claim petition is maintainable. The Railway has preferred this appeal. The learned counsel for the railway however contented that no ticket was found alongwith the deceased and the witnesses, the sons of the deceased and one of the witness, AW-3, claimed to be travelling alongwith the deceased, has not also produced any ticket that he was a bonafide passenger on the date of occurrence with the deceased and hence contends that the claimant has not established that the deceased was a bonafide passenger and further there is no eye witness to the occurrence except AW-3 whose evidence is not reliable as he has not produced ticket to show his bonafide as a co- passenger on the date of occurrence and hence the finding suffer from the defect and the claimant has not been able to prove that the deceased was bonafide passenger and occurrence took place due to untoward incidence. The learned counsel for the respondents however submits that the witnesses have supported the case of the claimants and merely because the ticket has not been found either with the deceased or witnesses, it may not be a ground to disclaim the claim of the claimants regarding the deceased being a bonafide passenger as it is the Railway who has to establish that he was not a bonafide passenger and if the occurrence took place while travelling on the train without 4 the ticket then why the deceased or the witnesses were not caught by the train ticket examiner as a ticketless traveller hence it shall be deemed that they were bonafide passengers. However, in this regard the learned Tribunal has considered the evidences of two witnesses as well as the documentary evidence. The witness, AW-1, has stated in his evidence that his brother Rajesh Kumar had accompanied his father upto Bihta Railway Station to see him off whereas his father had purchased the ticket. However in cross examination he was stated that he was not following his father but no cross examination is on the point on his affidavit that his brother Rajesh Kumar had come to his father to see off him. Aw-2 is Rajesh Kumar who has stated that he had gone to see off his father and his father purchased ticket at Bihta Railway Station. However there is no cross examination on this point. AW-3, Jitendra Kumar, has stated that he was travelling alongwith deceased and while he was travelling one passenger standing before him thrown out of the train due to jerk and has stated that on 13.08.2004 he has made the statement about the accident in an enquiry by some authority. In his cross examination he has stated that his statement was recorded by the railway police on 30.09.2004, however, he has stated that he did not inform about occurrence, on the date of occurrence though has stated that 5 he was travelling alongwith his father (deceased). Hence, from the evidence it is apparent that the deceased was see off by AW-2 and AW-3 was following with deceased and had saw him falling from train. However the learned counsel for the respondents contended that two sons of the deceased were not travelling alongwith the deceased and the third witness, AW-2, has not produced the ticket, however, there is no cross examination whether he was having a ticket and merely because he did not produce the ticket in Court or proved in evidence is no ground to disbelieve his evidence when he has specifically stated in cross examination that he was travelling with the deceased on the date of occurrence. Even the documentary evidence Ex-7 inquest report mention fall from train and hence suggests that on the report of the Railway Authority itself U.D. Case was lodged is apparent from Exhibits 5 and 6 and even the inquest report mentions that the deceased fell down from the train, as disclosed by the claimants. The post mortem report also suggests that the death is due to fall and the final report also suggests that the death is due to fall and hence the evidence of the witnesses as well as the documentary evidence suggests that the deceased was travelling by the train and due to untoward incidence the deceased died. However AW- 1 has specifically have stated 6 that AW-2 went to see off his father and AW-2 saw that his father purchased ticket and then boarded the train and AW-3 in his statement stated that deceased fell down due to jerk and hence this evidence has not been rebutted nor any evidence adduced by the Railway to rebut this evidence and the documentary evidence Exhibits A/5, A/6 & A/7 are document of Railway authority to suggest that death was due to fall from train. Hence these evidences cannot be discarded merely because the ticket was not found with the deceased of the witness did not produce his ticket for travelling on the date. However it is incumbent upon the Railway to prove that the deceased was not travelling with the valid ticket or was not a bonafide passenger. Hence I do not find any merit to interfere with the impugned order. This Appeal is dismissed. Safik (Gopal Prasad, J.)