IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.771 of 2009 1. BAGESHWARI DEVI, wife of Late Paras Nath Singh. 2. Poonam Devi, W/O. Late Ram Nath Singh. 3. Kanhaiya Kumar Singh, Minor son of Late Ramnath Singh Under guardianship of his mother Poonam Devi. All resident of village – Manupur, P.S. – Dighwara, District – District – Saran ………. Applicant …… Appellants. Versus THE UNION OF INDIA, through the General Manager, East Central Railway, Hajipur …….. Respondent …. Respondent. ----------- For the Appellant :- Mr. Anuradha Singh, Advocate. For the Respondent :- Mr. Arvind Ujjwal, Advocate. 09/ 20.09.2010 Heard learned counsel for the appellants and the respondent. This miscellaneous appeal is directed against the order dated 17.09.2009 passed by the Railway Claim Tribunal, Patna Bench in Claim Case No. OA 00078 of 2004 by which he has rejected the claim of the claimant regarding the death of the deceased holding that the deceased was neither a bona fide passenger nor died due to the untoward incidence rather held that he died while the deceased slept on the track and was run over by the train and hence not liable for compensation and further held that certificate which has been filed by the family members have not been attested by the competent authority which suggest that the claimant is neither dependent nor legal heir of the deceased to claim the compensation. The claimant in the claim petition before the Railway Claims Tribunal stated that the deceased Uday Kumar Singh while traveling by the train bearing no. 654 Down DMU train with a valid 2 ticket, met with the untoward incidence when the deceased fell down from train due to heavy rush and crowd at Dighwara railway station and died out of the injury sustained by the said untoward incidence and the claimant is the mother of the deceased as the deceased was unmarried at the time of accident. The railway countered the claim denying the untoward incidence on the ground that in paragraph no. 6 of the claim petition, the claimant has himself admitted that while the train was about to stop, his son fell down and from this fact it is apparent that victim died while he attempted to get down from the running train and hence, no negligence on the part of the railway can be alleged. It has further been asserted that according to the statement of the train guard and driver, one person came and at once jumped over before the train and slept over the railway track by which the train ran over on the deceased and hence the accident comes under the Exception (2) Ka, Kha and Gha to Section 124 (A) of the Railways Act 1989 and even challenged that the victim was not a bona fide passenger and the claimant is not entitled to compensation being the heir of the deceased or being the mother of the deceased. However, on the rival pleadings of the parties, the Tribunal framed four issues which are as follows :- (i) Whether the claim of the claimant is valid? (ii) Whether the death of the deceased at and around the place and time of occurrence was due to untoward incidence and 3 especially whether the incident comes under any of the proviso A, B, C of Section 124 (A)? (iii) Whether the deceased was a bona fide passenger? (iv) Whether the claimant is entitled for the relief? Both the parties adduced oral and documentary evidence. The oral evidence adduced on behalf of the claimant are AW 1 Punam Devi, AW 2 Ajay Kumar Singh, AW 3 Nagendra Rai, AW 4 Niranjan Kumar Singh. The documentary evidence adduced on behalf of the claimant is Ext. A affidavit of Punam Devi, Ext. A-1 affidavit of Ajay Kumar Singh, Ext. A-2 affidavit of Nagendra Rai, Ext. A-3 affidavit of Niranjan Kumar Singh, Ext. A-4 copy of Fist Information Report, Ext. A-5 copy of Fardbeyan, Ext. A-6 copy of the inquest report, Ext. A-7 copy of the death certificate. The witnesses for railway are RW-1 Ram Naresh Prasad and R.W.-2 Mahesh Rawat. The documentary evidence adduced on behalf of railway are Ext. R-1 affidavit of Ram Naresh Prasad, Ext. R-2 affidavit of Mahesh Rawat, Ext. R-3 extract copy of the station diary and Ext. R-4 copy of the guard general. However, the post mortem report is also on the record but has not been marked as exhibit. An affidavit field by Punam Devi on 24.02.2009 is also on lower court record and the order sheet dated 24.02.2009 also mentions the filing of petition on 24.02.2009 in 4 which it has been specifically mentioned that the post mortem report of the deceased, death certificate, identity card issued by the Election Commission of the claimant and identity card issued by Government Middle School of the brother of deceased have been filed on behalf of the claimant/appellant and all are true photo state copies of genuine / original document and prayer was made on behalf of the appellant to make as exhibit and this fact mentioned in order dated 24.02.2009 but it appears that the same has not been marked though the documents are relevant but no order passed on the said petition. However, after considering the oral and documentary evidence, the claim case was rejected holding that the deceased was not a bona fide passenger and he died out of jumping before the train and lying on the railway track and the train having been run over. It has further been held that the claimant has not been able to show any valid reasons for not producing the document of heirship. Learned counsel for the appellants, however, contended that the witness A.W. 2 has stated in his affidavit that he got a ticket and see off of the deceased at Chapra Junction. The inquest report also suggests and mentions about the ticket though in torn stage with the deceased and hence from these two evidence itself can well be inferred that the claimant has prima facie established that the victim was traveling as a bona fide passenger with a valid ticket and further contended that if the victim was not traveling with the valid ticket, the onus lies on the railway to prove that the victim was not bona 5 fide passenger and was not traveling with a valid ticket. However, the railway has not adduced any evidence to suggest that the victim was traveling without ticket and was not a bona fide passenger and has placed reliance upon a decision reported in 2001(3) PLJR 755. Learned counsel for the appellant, further, contended that the witnesses have stated that the victim fell down and A/2 the affidavit of Nagendra Rai mentions that he was traveling in the bogie and evidence of AW 3 Nagendra Rai is that the deceased fell down from the train and further the inquest report also mentions that the occurrence took place due to falling and crushing from the train and hence contended that these two evidence prima facie show that the deceased was traveling on the train and fell down from train and sustained injury and succumbed to it. Further that there are both oral and documentary evidence to suggest that the claimant was mother of the deceased and the victim was unmarried and hence liable to get compensation. It has further been contended that a petition was filed on 24.02.2009 before the Tribunal during pendency of claim to mark as exhibit photo copy of the identity cards and submits that apparently the records itself show that the deceased was the son of Late Ram Naresh Prasad and the claimant was the wife and Ramnath Prasad itself establish the claimant as the mother of the deceased and hence is liable to get the award. Learned counsel for the railway, however, contended that the ticket found with the deceased was damaged and was not legible ticket number to suggest that he was bona fide passenger on the date 6 of occurrence that there is evidence of the railways guard and driver that a person aged 23-24 years while the train reached at Dighwara jumped before the engine and fell on the track with his body on the railway track and the train ran over and hence contended that the case comes under the exception of Section 124 A and hence the claimant is not liable and further the documentary evidence has been filed to suggest that the deceased was heir and liable to compensation. Hence, on the rival contention of the parties, the question for consideration whether the deceased was a bona fide passenger, whether the accident took place due to untoward incidence and whether the claimant is liable to get compensation. However, the case of the claimant is that the deceased while traveling on the train when reached at Dighwara fell down while getting down from train, got injured and succumbed to injury in an untoward incidence. The deceased was unmarried and the claimant being mother of the deceased is liable to claim compensation. However, in the evidence Punam Devi has claimed to be the mother of the deceased and has stated that the deceased Udai Kumar Singh was unmarried and in the family besides her there is mother in law and another son Khanaiya. A 2 is the affidavit by Nagendra Rai in which he has stated that he was sitting in the same bogie with the deceased was traveling from Chapra and while he was attempting to get down there was some crowd, in the mean time, the deceased fell down in the crowd. 7 The witness was cross-examined and has stated that the Sasural of this witness is in the village of Uday Kumar and so he was known to him and has claimed to have seen Uday Kumar falling from the train and hence there is nothing in the evidence to disbelieve. A 3 is the affidavit of Niranjan Kumar Singh who has come to support the case of the claimant that the deceased was traveling from the said train and saw the deceased falling down from the said train at Dighwara. Hence, in view of the evidence of AW 2 that he boarded the deceased after purchasing the ticket and further the evidence that in the inquest report the ticket was found, and to the contrary, no evidence of the railways that the person was traveling on a train and was not caught by the railway ticketless, and no evidence adduced that he was traveling without ticket and hence the presumption is that it is the railway who has to prove that the deceased was not in the train and hence the finding recorded by the Tribunal that since he has not proved that the boy was having ticket and hence the consideration that the boy was not a bona fide passenger is not sustainable. In view of the affidavit as A 1 and the evidence discussed above and the inquest report, it can well be inferred that there is sufficient evidence to infer that the victim was traveling as bona fide passenger. However, the next question for consideration is about the untoward incidence. However, on the one side there is evidence A 2 8 as discussed above, the affidavit of witness examined as AW 3, that he was traveling by the train and fell down and further the endorsement in the inquest report that the death is due to the falling from the train is in specific reference to this deceased. However, to the contrary the railway has also adduced R W 1 Ram Naresh Prasad the driver and Mahesh Rawat express guard, Hazipur and they have stated that one person jumped out at Dighwara on the railway track in front of the track and fell on the track and thereafter the train passed over. However, the nature of injury in the inquest report not suggests as such no injury as stated in the nature of the evidence that he fell on the track or that a person came and sleep over. On the track if such a situation would have arisen, there must be cut injury. However, inquest report does suggest any such cut injury and moreover though it has been the evidence of the railway employee as R 1 and R 2 the affidavit filed by the guard and drover that a person jump before the train but there is no mention of the name of the person and there is no evidence to connect that the person who fall or jump was the deceased. Learned counsel for the appellants, however, contended that when there is no evidence that the deceased was coming from the train and fell down from the train, there is probability that at the time of the reaching of the train one will run and jump before the train and moreover it is not established that the person who jumped over was the deceased and hence in two competing evidence the 9 evidence on behalf of the complainant that the deceased fell down are more reliable to be accepted and hence it can well be inferred that the accident took place due to fall of the deceased from the train while traveling on the said train. Learned counsel for the railway, however, contended that there is no negligence on the part of the railway. However, the claim under Section 124 A is a claim in the nature of no fault liability and in such a circumstance the negligence of the other party has hardly got any relevance and hence there is no merit in the submission about the negligence in either part. However, from oral and documentary evidence, it can well be inferred that the deceased was the son of the claimant and the deceased was unmarried. Having two facts established, both from the oral and documentary evidence which has already been marked as exhibit, the deceased has been shown to be the son of Late Ram Naresh Prasad and the claimant has been shown to be the wife and her evidence has specifically stated that the deceased was her son and she was mother of the deceased, who was unmarried and this fact has not been challenged at all by the parities. However, from perusal of the records it appears that a petition has been filed for marking the evidence, the identity card of the Election Commission or even the Identity Card of the another son of the deceased which find mention the year 2007 but having not been marked. However, even if discarded those evidence it is established 10 that the deceased was unmarried and the claimant was the mother. Hence I find and hold that the claimant was the mother of the deceased and is liable to get compensation for the death of the deceased who died out of the untoward incidence as a bona fide passenger and hence is liable for compensation to the claimant to the extent of Rs.4,00000/- and hence the impugned order is set aside and the Railway is hereby directed to pay compensation for the death of the deceased in an untoward incidence being a bona fide passenger and hence the respondent is directed to pay the amount within two months failing which the claimant would be entitled for interest @ 6% per annum. Hence, the miscellaneous appeal is allowed. Kundan (Gopal Prasad, J.)