MISC. APPEAL No.346 OF 2008 Against the judgment, dated 25.03.2008 passed by the Railway Claims Tribunal Patna Bench, Patna, in Claim Application No. O.A. 9900059. DUKHIYA DEVI WIFE OF ISHWAR CHANDRA RAI, RESIDENT OF VILLAGE-BADHUWA BARI, P.S. KADWA, DISTRICT-KARIHAR. (Appellant) Versus 1. THE UNION OF INDIA, 2. THE GENERAL MANAGER, N.F. RAILWAY GAUHATI. (Respondents) FOR APPELLANT Mr. Pravin Kumar Gupta-I Adv. FOR RESPONDENTS 2 Mr. Anil Singh Adv. P R E S E N T THE HON'BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the parties. 1. This Miscellaneous Appeal is directed against the order dated 25.3.2008, passed by the Railway Claims Tribunal Patna Bench, Patna, in Claim Application No. O.A. 9900059, by which he has rejected the claim of the appellant as the claimant has failed to prove that her husband Ishwar Chandra Rai was a bonafide passenger and died out of an untoward incidence. 2. The case of the claimant that her husband Ishwar Chandra Rai, while traveling as a bonafide passenger by 123 Up Passenger Train from Katihar 2 to Bonali got injured by the untoward incidence and succumbed to injury. 3. The claim case was resisted by the Railway and it was denied that the deceased was neither a bonafide passenger nor died out of the untoward incidence, and it was asserted that the deceased himself was responsible for being pushed out as heavy rush in the compartment to his own criminal act which has been causing that death, and denied any accident in between the Sonaily and Dendkheda Station at 605/7-5 Kilometers. 4. On the pleading of the parties, four issues were framed (i) Whether the claimant is the sole dependent of the deceased? (ii) Whether the deceased Ishwar Chandra Rai died about to the untoward incidence as disclosed in Section 123 © of the Railway Act? (iii) Whether the deceased was a bonafide passenger? and (iv) Whether the relief claimed is entitled.5 5. While considering Issue Nos. 1, 2 and 3 together. It was held that the evidence of the witnesses are doubtful as there is difference between the evidence of the witnesses and report of Railway, the witnesses have executed that the deceased fell down from the Train, whereas, the first 3 information report based on the information of the Station Master, Barsoi, mentions the name of the deceased as unknown and the deceased died out of the strike by engine and further held, though, the ticket no. 27113 found from the pocket of the deceased but the said ticket number is against the report of commercial supervisor, Katihar, and hence held that since the ticket number found from the pocket of the deceased was reported, it was not issue on that day and further the day is not specifically visible on the Train and hence disbelieved the ticket on this pocket and held that the deceased was neither a bonafide passenger nor he died out of untoward incidence, and further held that the informant have not produced herself before the Tribunal for further cross-examination nor has proved the heirship for dependency and hence is not liable for compensation. 5. The learned counsel for the appellant, however, contended that the occurrence took place between Sonaily and Dendkheda Stations and first information report has been lodged on the basis of the Assistant Station Master, Station Manager, Sonaily at about 3 to 10 minutes and the ticket 4 was also found in the pocket of the deceased. However, at the time of accident, itself, the deceased was alive and was sent Katihar for treatment, when he succumbed to injury and the inquest report also mentions the ticket found in the pocket of deceased and these evidences are itself the evidence or document of the Railway, which has been marked as Exhibits R, R-1, R-2 and R-3 and the inquest report has been marked as Exhibit A-3. However, in the document of the Railway itself in information given by Assistant Station Master which is argued excepts that the occurrence took place and the deceased suffering, and further contended that the evidence of the witnesses also supports the case of the claimant about the death of the deceased while travelling in the Train. 6. The learned counsel for the Railway, however, contended, that a ticket found in the pocket of the deceased but the Railway Authorities have issued certificate that the said ticket was not shown and on that day there is specific mention in the certificate issued by commercial supervisor that the Ticket No. 27113 was never issued and it has further been reported on that 5 day on 30.05.1998, as per the D.T.C. record only 49 tickets were sold bearing no. 71119 to 71168, in the said certificate of Railway, and hence in the contention that any ticket was found in the pocket cannot be a basis to hold that the deceased was a bonafide passenger and further the witnesses who has come to the depose have rightly been disbelieved because they have stated that accident took place due to fall from the Train. Where as, the First information report has been lodged on the basis of the report of the Station Master, who has stated that the accident took place due to strike by the Train to the deceased by the Railway and hence this itself shows that the deceased was not a bona fide passenger or was not travelling on the Rail, rather was outside to the Train and further though the witness states that he inform the Station Master and other, but the name of the deceased was not found either in the report of the Assistant Master in the Fardbayan and hence the evidence of the witnesses requires to be disbelieved. 7. Hence, on the respective submissions of the parties the question for consideration, whether the deceased was a bona fide passenger and died 6 out of the untoward incidence. However, the Tribunal has held that the claimant neither appear before the Tribunal for cross-examination nor any evidence produced about her dependency nor any certificate has been filed with support or prove or an inference can be drawn that the claimant is the heir or dependent of the deceased. However, the finding has not been challenged in the memo of appeal. However, on perusal of the record, it appears that a petitioner for amendment under Order 1 Rule 10 of the Civil Procedure Code, was filed on behalf of one Sampatia Devi for adding Sampatia as the mother of the deceased and one Sunil Kumar the son of deceased as dependent on deceased by the same layer who was representing the appellant Dukhiya Devi. However, the prayer was allowed by order dated 26.09.2007 and a direction was issued for amendment in the petition but amendment not made. Sampatia Devi or the Sunil Kumar son of deceased was not made party and the case proceeded and impugned order was passed in absence of Sampatia Devi and Anil Kumar. However, it is pertinent to mention here that the Claim Petition filed on behalf of Most. Dukhiya Devi 7 and in the Claim Petition the sole claimant has been shown to be Most. Dukhiya Devi. 8. Dukhiya Devi did not turn up in the case to depose or lead any documentary evidence or any reliable evidence for being the heir of deceased and even on amendment Sampatiya Devi and Sunil Kumar not amended and added, creates doubt about the bonafide of the claim petition. 9. Hence having regard to the fact, the case of the claimant that deceased Ishwar Chandra Rai while travelling on the Train bearing no. 123 Up Passenger on 30.05.1998, fell down from the Train due to pushed out by the heavy rush of the passenger. However, the Railway denied this allegation and asserted that he died out of the criminal act as well as the deceased himself being responsible. However, the documentary evidence adduced by the Railway, itself mentions that he died due to fall from the Train that one unknown person fell down by a dash by the engine, but the person was sent to Katihar by 104 Passenger by the S.D.O. Barsoi, and a ticket was recovered from the passenger bearing ticket no. 97113, the said ticket has been marked as Exhibit-3 (97113), the inquest report also 8 mentions about the ticket recovered from the deceased. However, the Railway has filed a certificate issued by commercial supervisor in which a certificate has been issued by commercial supervisor on 30.05.1998, the Railway ticket bearing no. 71119 to 71168 was only sold and no ticket as such of the ticket number mentioned was sold from Katihar. However, the accident of the deceased has been admitted in the document of the Railway Authorities and even fact stated that a ticket found in his pocket which is marked as Exhibit A-5 which shows the ticket from Katihar to Bonali and may apparent on the said ticket. However, the date also appears to be partly though not bearing in the rail and having regard to the fact that since the ticket was found just after the accident, in the pocket of the deceased, when he was still alive that it was being sent to Katihar as per report of the Station Superintendent, Sonaily and the inquest report also mentions, however, no Railway Authority has came forward to depose that this Railway tickets were not the genuine Railway tickets and the Railway has not come to prove that the said Railway found is not a genuine or 9 is a false ticket and merely a certificate has been issued. Hence under these facts and circumstances, when the Railway record itself suggest that the accident took place by the Trail and further that a ticket was found in the pocket of the deceased and hence it can well be inferred that the deceased was a bona fide passenger and died out of the untoward incidence, however, though, the issued was framed, whether the Dukhiya Devi is the dependent on the deceased. 10. However, having regard to the fact then affidavit filed on behalf of the Dukhiya Devi but Dukhiya Devi did not turn up for cross- examination and no evidence at all either a certificate or any document to suggest the Dukhiya Devi is the dependent of the deceased and no evidence having raised and this finding of the Tribunal has not been challenged and hence it is not challenge that Dukhiya Devi is the heir and dependent of the deceased. Moreover, having regard to the fact that a petition was filed by one Sampatiya Devi by the same lawyer, claiming to be mother and Sunil Kumar as son of deceased allowed to be added as party not complied and even not brought on record creates bonafide of 10 the claim petition. Though the issue was also framed whether the Dukhiya Devi was sole dependent. However, specifically an amendment petition filed that Sampatiya Devi is mother and Sunil Kumar son of deceased dependent on him and even allowed but Sampatiya Devi and Sunil Kumar were not added as party and case was decided without adding Sampatiya Devi and the son of the deceased Anil Kumar the son of the deceased, hence under the facts and circumstances, creates doubt about the bonafide of the appellant as heir and dependent of deceased and in absence of Sampatiya Devi and Sunil Kumar, having not established the heir or dependant of deceased and on this ground appellant is not entitled to claim and hence the Appeal is dismissed. (Gopal Prasad, J) The Patna High Court The 15th day of November, 2010 N.A.F.R./Cp:3/Safik