IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.308 of 2009 PYARI DEVI, Wife of Late Raj Kumar Ray, resident of Mohalla – Gulzarbagh Colony, P.S. – Alamganj, District Patna. …… Applicant ….. Appellant. Versus THE UNION OF INDIA through the General Manager, East Central Railway, Hajipur. ……… Respondent ……. Respondent. ----------- For the Appellant :- Mr. A. N. Mishra, Advocate. Mr. Braj Nandan Singh, Advocate. For the Respondent :- Mr. Sunil Kumar Ravi, Advocate. 05/ 17.09.2010 Heard learned counsel for the appellant and the respondent. 2. This miscellaneous appeal is directed against the order dated 08.04.2009 passed by the Railway Claim Tribunal, Patna Bench in Claim Application No. OA 00095 of 2004 by which the claim of the claimant has been rejected regarding the death of the deceased Raj Kumar Ray. 3. From perusal of the records, it appears that the claimant filed a claim petition before the Railway Claim Tribunal stating therein that on 22.04.2003 the deceased Ram Kumar Ray proceeded from Bakhtiarrpur Junction to Patna Junction by Danapur-Sahebganj Intercity Express bearing no. 3235 Up and there was heavy rush and while 2 the deceased proceeded to answer the call of nature, due to sudden change of track, resulted serious jerk and jolt caused the victim to fall down near Guljarbagh station, received serious injury by which he succumbed to injury and hence the wife of the deceased claimed for compensation. 4. The railway appeared and filed the written statement countering the claim of claimant. The Railway took the stand that Railway is not responsible for the accident. An additional written statement also filed denying the allegation of heavy rush or mismanagement or fell due to jerk and asserted that it seems that the deceased committed suicide by jumping from the compartment and hence comes under the purview of Section 124 (A) proviso (b) and further that no ticket has been annexed to show that deceased was a bona fide passenger. 5. On rival contentions of the parties four issues were framed which are as follows:- (i) Whether the claim application of the applicant was maintainable? (ii) Whether the deceased was a victim of an untoward incident at the relevant time and place and 3 whether the incident was covered under proviso (b) of Section 124 (A)? (iii) Whether the deceased was a bona fide passenger at the time of alleged untoward incident? (iv) Whether the applicant/dependents were entitled to receive compensation as claimed for? 6. The claimant adduced evidence before the Tribunal. The oral evidence adduced by the claimant A.W. 1 Pyari Devi and A.W. 2 Ram Prasad Choudhary. 7. The documentary evidence adduced as Ext. A affidavit of Pyari Devi, Ext. A-1 affidavit of Ram Prasad Choudhary, Ext. A-2 copy of First Information Report, Ext. A-3 Copy of Inquest Report, Ext. A-4 copy of postmortem report, Ext. A-5 copy of death certificate. 8. No oral evidence was adduced on behalf of the railway. However, two documents were marked as exhibits on their behalf are Ext. R copy of station diary and Ext. R-1 affidavit of Shashi Bhushan Sinha. No witness was adduced on behalf of the respondent. 9. On considering the oral and documentary evidence the Tribunal held that the victim was neither bona fide passenger nor was a victim of untoward incidence. 4 However, the Tribunal disbelieved the witnesses on ground of the minor contradictions. 10. The learned counsel for the appellant, however, contended that the Tribunal disbelieved the witnesses due to minor contradictions as the witnesses though have stated that victim was traveling with the witness and had ticket and even stated that the witnesses tried their level best to stop the train after fall but having stated in cross- examination that he did not see the victim falling from the train and hence held that the witnesses cannot be believed as they did not see the victim falling from the train and hence held a contradiction in the evidence of A.W. 2 and further held that A.W. 1 is not a witness of the occurrence as she is the claimant and was not traveling along with the deceased and further held that there was no ticket found with the deceased in the inquest report. 11. Learned counsel for the appellant, however, stated that the learned Tribunal restricted itself in holding on both the issues as he did not take into consideration the evidence of the respondent Railways even Ext. R 1, the report of the reporter where it has been mentioned that one man fell down by 3235 UP and his body was ran over and 5 even the document the FIR was drawn on the report of the railway P.P. Patna, Shahebganj who has reported the Station Superintendent, Guljarbagh and the inquest report prepared by the railway P.S. Patna Shahebganj and the post mortem report suggest the death by fall. In such circumstance, these are the irresistible evidence to support the fact that the victim was traveling on the train and fell down from the train to get injury and succumbed to injury. 12. The appellant has placed reliance on decision reported in 2008 (1) PLJR 627 (Smt. Akhtari Begum Vs. Union of India), 2008 (3) PLJR 711 (Smt. Kaushalaya Devi & Ors. Vs. Union of India Thr. General Manager, North Eastern Railway, Gorakhpur, U.P.) and AIR 2007 Rajasthan 38 (Union of India Vs. Hari Narayan Gupta & Anr.) that the burden lies on the respondent railway to prove that the deceased was not a bona fide passenger and further contented that the claimant has not to prove the negligence and reliance has been placed upon a decision reported in 2008 (2) TAC 777 SC. 13. Learned counsel for the respondent, however, contended that there is variation in the pleading though have claimed in the claim petition that there was heavy 6 rush in the train but the affidavit filed by the witnesses shows that there was no rush and further there is no eye witness to the occurrence as none has stated to have seen the victim falling down from the train and hence it may be deemed that the claimant may have committed suicide and hence there are many other probabilities of having jumped from the train and hence has committed suicide. It has further been contended that since the victim has not proved any negligent on the part of the railway, so railway will not pay. It has further been contended that in the evidence it has been pleaded that the case does not fall under the untoward incidence and further it covers Section 124 (A) and (D) of the Railways Act. 14. However, on respective submission the question for consideration is whether the appellant was bona fide passenger and the accident took place due to the negligence. 15. However, the case of the claimant that the claimant was traveling on the said train. However, A.W. 2 has stated that he was traveling along with the deceased and while the deceased fell down due to jerk, received serious injury. However, in his evidence at paragraph 4 7 have stated that there was crowd in the train but the crowd was lessening at Gulzarbagh. 16. However, the Tribunal disbelieved the claim on the ground of the affidavit of Ram Prasad A.W. 2 as he has seen the deceased accidentally falling while the train was in moving on round curve and he tried to save the victim at his level best. He tried to stop the train but he could not succeed. However, in the cross examination he has stated that he did not see Raj Kumar falling. However, he has stated that they were sitting in the third part of the compartment and victim went up and the Tribunal disbelieved merely because the witness did not see him falling from the train though has stated he tried to stop the train after the occurrence. The Tribunal disbelieved the witnesses that witnesses did not see the victim on the point of falling but did not consider the fact after fall he tried to stop the train. The Tribunal did not consider the document of R-1, the report of the Reporter who is an authority of the Railway and who has reported that one man fell down from the train. The FIR is Ext. A. 2 which mentions that the Station Superintendent, Danapur stated about the accident at unmanned crossing and the inquest report 8 dated 23.04.2003 prepared at 5:00 P.M and post mortem report show that Raj Kumar was there and hence these are documents of the railway which are contemporaneous document itself which suggest that the victim was traveling on the said train and fell down. It is a matter of common experience that it is difficult for claimant to produce eye witness to occurrence. In train the travelers are of various places and have different destination and persons who saw the occurrence may not remain statue to depose and to infer on the basis of eye witness is difficult to prove but from the attending circumstance itself it can well be inferred whether the deceased was a bona fide passenger. In decision reported in 2008 (1) PLJR 627 (Smt. Akhtari Begum Vs. Union Of India) however, have held that the burden of proof lie on the railway administration and not on the claimant to prove that the victim was not a bona fide passenger and has held that it is difficult for a defendant in a case of death of a passenger to prove whether the deceased was a bona fide passenger specially when the deceased was traveling without reservation or without any other person with him and it is extremely difficult to mention ticket number in the 9 application for claim because the common experience is that hardly any passenger keeps record of ticket number and further held that in accidental fall the ticket purchased by the passengers may also go missing and therefore, in such a case if the passenger having been found ticketless by the checking staff of the railway, it has to be presumed that the passenger is bona fide passenger in decision reported in 2008 (3) PLJR 711 (Smt. Kaushalaya Devi & Ors. Vs. Union of India Thr. General Manager, North Eastern Railway, Gorakhpur, U.P.) where it has been observed that Railways Act provides prosecution of person entering railway stations without valid journey / platform ticket. That makes it abundantly clear that there is a presumption of deceased having ticket and it is on railway administration to prove otherwise. It has further been held that in the absence of contents of the pocket or shirt or trouser of the deceased or deposition by the person to conduct the inquest, it is difficult to believe that deceased was a ticketless traveler and hence held that the deceased was a bona fide passenger if the railway has not been able to establish that he was traveling ticketless. Hence having regard to the facts and circumstances it is established that 10 the victim fell down while traveling on the train he was a bona fide passenger at the time of the said untoward incidence. Hence, I find and hold that the victim deceased was a bona fide passenger. 17. Now the next question for consideration is whether the deceased met with the untoward incidence. However, the untoward incidence defined in Section 123 (2) mentions any accidental falling of the passenger from the train. However, there is evidence that the victim fell down and when in the document filed by the railways Ext. R mention by the authority of the railway that one man fell down by 3225 and run over in UP main line and body line, this itself indicated that the accident was in default. However, the railway has taken the plea that it was a case of negligence. However, the negligence of either party is no ground to reject the claim. However, no material brought on record nor any evidence led nor any circumstance to show that the victim committed suicide and the inference cannot be drawn that the victim committed suicide on the presumption that the victim may have jumped from the running train and hence the exception or the defence taken by the railway is a mere 11 defence in the written statement for which there is neither any evidence nor any circumstance to suggest and hence there is no merit in the submission that the accident is covered by the exception proviso A to Section 124 of the Railways Act. 18. The next question raised for consideration is that the victim has not proved negligence, however, in this regard in decision reported in 2008 (4) PLJR SC 40 (Union of India Vs. Prabhakaran Vijaya Kumar & Ors.) is relevant and it is relevant to refer paragraph 17 of the said judgment where it has been observed that Section 124 A laid down strict liability or no fault liability in case of railway accident and hence if a case comes within the purview of Section 124 A, it is wholly irrelevant to see as to who was at fault and hence when the Supreme Court itself has held that negligence is not the requirement to disentitle the claim and hence there is no merit in the submission that the victim was negligent and hence under the facts and circumstances of the case, I find and hold that the victim was a bona fide passenger and died out of the untoward accident and hence the impugned order is set aside and the claimant is entitled and hence it is apparent 12 that the learned Tribunal erred in holding that the appellant has failed to prove that the deceased was bona fide passenger and the accident was not an untoward accident and hence in view of the evidence and other circumstance I find and hold that the deceased was a bona fide passenger and died and succumbed to injury out of the untoward incidence and accordingly the appeal is allowed and the claimant is liable for compensation to the tune of Rs.4,00000/- regarding the death of the deceased. 19. Hence, the respondent is directed to pay the amount to the appellant within three months from the date of this order failing which the respondent would be liable to pay interest @ 5 % per annum. 20. Hence, the miscellaneous appeal is allowed. Kundan (Gopal Prasad, J.)