IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.186 of 2008 MAMTA KUMARI & ORS . Versus THE UNION OF INDIA THROUGH GENERAL MAANAGER, N.E. RAILWAY, GORAKHPUR. ----------- For the appellants : Mr. T.N.Maitin, Sr. Advocate M/s Yogendra Kumar, Dr.Mrityunjay Kumar Gautam, Ram Naresh Ray and Manish Kumar For the Respondents : Mr.Ahsanuddin Amanullah, Advocate 5 12.3.2010 This appeal is directed against the judgment and order dated 15.1.2008, passed in Claim Tribunal Case No.O.A 9800220, by the Railway Claim Tribunal, Patna by which he has rejected the claim compensation of the appellants. The appellant Mamta Kumari filed a Claim Case before the Railway Tribunal stating therein that her late husband Jay Prakash Prasad died in train accident while he was traveling on 374 Down Passenger train from Ghoghardiha Railway station to Darbhanga Railway Junction. The complainant stated that due to sudden jerk of the train while changing the track near the outer signal of Ghoghardiha Railway Station, the deceased Jay Prakash Prasad lost balance and fell from the train. He sustained grievous injuries on his person. Her husband was taken to the clinic of Dr. Rajeev Mishra and thereafter he was referred to the Primary Health Centre, Ghoghardiha where he succumbed to the injuries on 28.12.1997 at 2 P.M. due to brain hemorrhage excessive bleeding of wound of right leg. The Claim Tribunal vide order dated 15.1.2008 rejected the claim of the appellants. The tribunal held that the documents and evidence of the claimant do not inspire confidence and mere 2 production of ticket cannot be a conclusive proof that the deceased was traveling in the train. Learned counsel for the appellants submits that many documents would prove that the deceased Jay Prakash Prasad was traveling on the fateful date i.e. 28.12.1997 from Ghoghardiha Railway Station to Darbhanga Railway Jn. He submits that the ticket on which the deceased was traveling has been marked as Ex.A/7. He further submits that from perusal of the letter of the driver dated 9.3.1998 as well as letter of the Loco Engineer dated 9.3.1998 which was signed on 9.4.1998 would show that the husband of the appellant no.1 died, as he fell from the train on account of sudden jerk. Further, Ext.A/9 which is death certificate granted by the Circle Officer, Ghoghardiha would show that the deceased died in train accident. Learned counsel has also referred to final report submitted by the police in which it was opined that the deceased Jay Prakash Prasad died on account of train accident. He submits that the Railway has not denied that the petitioner was not traveling by the aforesaid train and he died on account of injuries on 28.12.1997. The F.I.R. was lodged belatedly as appellant no.1 was under believe that the driver and the guard of the train or other functionary of the Railway would have lodged the F.I.R. Counsel for the Railways submits that the order passed by the Tribunal is well considered and the same does not require any interference. He submits that the evidence and documents produced by the claimant are contradictory. He further submits that the claim was 3 filed by the appellant on 9.12.1998, almost after 11 months of the alleged accident. Further more, the F.I.R. was lodged even ten months thereafter on 9.9.1999. The certificate granted by the Doctor of Primary Health Centre, Ghoghardiha is dated 31.1.1998, one month after the death whereas the death certificate is dated 15.1.1998. He submits that as per the claimant, the train left before the arrival of the villagers of the deceased; whereas the letter of the driver dated 9.3.1998 would show that he started the train after arrival of the relatives of the deceased. He submits that the relatives of the deceased lived 2 KM away from the station. As such it is too much to believe that the relatives of the claimant could have arrived within 18-20 minutes of the accident. Further, the certificate granted by the Station Master would show that no untoward incident took place near Ghoghardiha Railway Station. The diary maintained at the Railway station does not show that on account of accident any person fell from the train and deceased sustained grievous injuries. He submits that in one of the documents relied upon by the claimant, the death occurred in Mishra Nursing Home, whereas the certificate granted by the Doctor of Primary Health Centre, Ghoghardiha would show that the death occurred in the hospital. Counsel for the appellant submits that it is not for the claimant to show that the deceased was negligent, but the onus was on the Railway to prove the negligence on the part of the deceased. In support of his contention, he relied upon a decision in the case of Rathi Menon Vs Union of India, reported in 2001 SC 1333 as well as 4 Division Bench judgment of the Andhra Pradesh High Court in the case of Union of India Vs Baburao Koddekar and anr, reported in A.I.R. 2003(AP) 23. Learned counsel for the Railways on the other hand submits that a passenger who stands at the door and fall thereof would be said to have acted negligently. It is not in dispute that the claim has been filed by the appellants after a delay of 10 months on 9.12.1998 and F.I.R. has also been lodged after 18 months of the accident, on 9.9.1999. Further more, there are discrepancies in the documents produced by the complainant. At one place it has been stated that the train left the place of accident before arrival of the relatives of the deceased, whereas the letter of the driver dated 9.3.1998 Ext.A/1 would show that the train started after arrival of the relatives of the deceased. It further appears that no post mortem of the deceased was done. Further more, the certificate issued by the Doctor of Primary Health Centre, Ghoghardiha regarding death of the victim is also dated 31.1.1998 which is after one month of the death. The claimant has produced ticket (Ext.A/7) which in itself would not completely prove that the same was purchased and used by the deceased while traveling. However, the letter of the driver dated 9.3.1998 and the final report submitted by the police would show that the death occurred due to accident. It would appear that the driver and the Guard or any other Railway officials traveling on the train has not been examined. In view of the above, the matter is remitted to the Railway 5 KHAN Claims Tribunal, Patna Bench, for fresh consideration in accordance with law and would try to take evidence of driver or any of the staffs of the railways, which would be vital in either determining the claim of the appellants. The office is directed to send back the original document of OA 9800220 to the Railway Claims Tribunal, Patna Bench along with a copy of this order. With the aforesaid directions and observations, this instant appeal stands disposed of. (S.P.Singh,J)