IN THE HIGH COURT OF JUDICATURE AT PATNA
MA No.282 of 2009
BHOLA PRASAD, SON OF LATE LUXMI PRASAD, RESIDENT
OF WARD NO. 11, BHABHUA, P.O. & P.S. - BHABHUA, DISTT. -
KAIMUR. .......... APPLICANT / APPELLANT.
Versus
THE UNION OF INDIA, THROUGH THE GENERAL MANAGER,
EASTERN RAILWAY, 3-KOELAHGAT STREET, KOLKATA.
............ RESPONDENT / RESPONDENT.
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03/ 12.10.2010 This miscellaneous appeal is directed against
the order dated 04.03.2009 passed by the Railway Claim
Tribunal, Patna Bench in Claim Case No. 0A 9900271 by
which he has rejected the claim of the claimant regarding
the death of the deceased by the alleged untoward
incidence while traveling as bona fide passenger on the
train.
The case of the claimant is that his son Manoj
Prasad, while traveling from Bhabhua Road railway
station to Sasaram Road railway station on 19.10.1998
with a valid ticket, fell down from the train due to
excessive crowd in between Muthani railway station and
Bhabhua road station and lost his ticket during the
accident and claims that the accident took place while the
deceased was traveling as bona fide passenger due to the
untoward incidence.
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The claim of the claimant was countered by
the railways and objection raised that no untoward
incidence occurred and since the victim fell down in
between Bhabhua to Muthani railway station and hence
the claim is covered under the explanations 2 of Section
124-A of the Railways Act and the claimant has to
establish that the death is not covered under proviso 2
Section 124 (A).
On the respective submissions of the parties
the Tribunal raised four issues:-
(i) Whether the claim of the claimant is
valid?
(ii) Whether the deceased died out of the
untoward incidence and whether it comes under the
proviso 2 or the alleged untoward incidence comes under
the proviso 2 Section 124 -A?
(iii) Whether the deceased was a bona fide
passenger?
(iv) Whether the claimant is entitled for
relief?
The claimant adduced evidence both oral and
documentary. The oral evidence adduced are on behalf of
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the claimant is A.W. 1, the claimant Bhola Prasad and
A.W. 2 Dineshwar Prasad. The documentary evidence
adduced is Ext. A the affidavit of Bhola Prasad, Ext. A-1
affidavit of Dineshwar Prasad, Ext. A-2 inquest report,
Ext. A-3 FIR/final report, Ext. A-4 copy of the memo
dated 29.10.1998, Ext. A-5 is the photo copy of post
mortem report, Ext. A-6 death certificate, Ext. A-7 receipt
regarding the receiving of the dead body, Ext. A-8 is the
certificate of dependency, Ext. A-9 is the Ration Card,
Ext. A-10 is the identity card of the Election Commission.
No evidence either oral or documentary
adduced by the railway and hence after considering the
oral evidence and the submission, Tribunal held that in the
evidence of the witnesses A.W. 1 and A.W. 2 there is
contradiction and it is not proved that the deceased was
traveling with a valid ticket and further held that the date
of occurrence also not established and a grave suspicion
and further the ration card indicated Manoj Kumar as the
grand maternal son (Nati) of the card holder Laxmi Sah
whereas Manoj Kumar has been shown to be son of Bhola
and Bhola is shown as the son of Laxmi and hence held
that since the deceased was shown as grand maternal son
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(Nati) i.e. maternal grand son whereas the claimant has
proved the deceased as grandson of Laxmi Sah (Pota) and
hence disbelieved the claim as the claimant is the heir or
dependent of the deceased.
Learned counsel for the appellant, however,
contended that the witnesses have deposed that claimant
was traveling on the train when he met with the accident
and fell down and even the father has deposed that the son
was traveling and even deposed that he went to the station
who got him over the train and even his son got the ticket
at the ticket counter but in cross-examination A.W. 1 has
stated that he did not go out up to the ticket counter and
hence had not seen him really purchasing the ticket and
hence the Tribunal disbelieved the evidence and held that
witness has not established that the deceased has really
taken the ticket.
Learned counsel for the appellant, however,
contended that the witnesses have supported the
prosecution case that the deceased boarded the train after
purchasing the ticket and merely because a ticket has not
been found when the FIR was lodged, and the inquest
report would not be sufficient to establish that the
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deceased was not traveling on the train and did not die due
to untoward incidence and even the receipt of the
receiving the dead body by the claimant and certificate of
dependency and hence the finding recorded by the
Tribunal is not sustainable and if the railway on whom the
onus lies to prove that the victim was not traveling as bona
fide passenger and hence contended that the finding
recorded by the Tribunal that no untoward incidence and
was not bona fide passenger is not sustainable either in
law or in fact required to be set aside and has contended
that the burden was on the respondent to prove that the
deceased was not a bona fide passenger and has relied
upon decision reported in 2008 (1) PLJR 627 (Smt.
Akhtari Begum Vs. Union of India) as well as 2008 ACJ
1895 (Union of India V. Praphakaran Vijaya Kumar and
Others) that the deceased was a bona fide passenger and
died out of the untoward incidence.
Learned counsel for the railway, however,
contended that the Tribunal has considered the evidence
and gave its finding disbelieving the claim of the claimant
as the claimant has failed to prove that he was a bona fide
passenger and the accident comes under the definition of
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untoward incidence.
On respective submission of the parties the
question for consideration is whether the deceased was a
bona fide passenger and died out of the untoward
incidence.
However, the claim of the claimant is that his
son deceased was traveling on the train from Bhabhua
railway station to Sasaram railway station on a valid
second class ticket and fell down during the traveling due
to the excessive crowd. However, the evidence adduced by
A.W. 1, the claimant who has stated that he went along
with the victim and even asserted that his son purchased
the ticket in his presence though in his cross-examination
stated that he did not go up to the ticket counter and hence
the Tribunal has not established that the victim was not a
bona fide passanger. However, the evidence of this
witness that the deceased went up to the ticket counters.
However, it is really difficult for a dependent in the case
of the death of the passenger to prove whether the
deceased was a bona fide passenger.
However, the FIR mentions that the victim
was traveling on the train by which he fell down and the
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inquest report as also Ext. A-4, the memo dated
29.10.1998 of the station master addressed to the G.R.P,
Bhabhua mentions about a dead body on the Railway
Track at 615/05 Km. On the basis of the said memo the
railway T.T, Bhabhua P.S. Case No. 22 of 1998 was
registered and the inquest report Ext. A-2 was prepared
and after the post mortem as apparent from the Ext. A-5,
the dead body was handed over to the claimant and the
said receipt has been proved as Ext. A-7. However, from
these documents it is apparent that the deceased died out
of the accident and the evidence of A.W. 2 stated that the
deceased was traveling with him and he fell down.
However, the Tribunal disbelieved the evidence of A.W. 1
and A.W. 2 in view of certain contradictions that A.W. 1
has not stated that he saw the victim really purchasing the
ticket though he went to the ticket counter and also
disbelieved the evidence of A.W. 2, in view of the fact that
he stated that he learnt about the name of the deceased
after a month though has stated that the deceased fell
down in between Bhabhua railway station and Mathani
railway station.
However, having regard to the fact that the
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evidence of Ext. A-3 is the FIR, Ext. A-2 is the inquest
report, Ext. A-5 is the post mortem report suggest that the
victim having died out of the accident by the train and Ext.
A-8 is a receipt of the dead body by the claimant
established that the deceased died out of the accident while
traveling on the train and if the accident took place while
traveling on the train, then it is incumbent on the railway
to suggest that the deceased was not a bona fide passenger,
though the inquest report suggests that no ticket was
recovered from the possession of the deceased but in such
a situation the probability of the ticket purchased by the
passenger, having lost can well be appreciated and hence
in such a case if the passenger has not been found to be
ticketless by the checking staff of the railways, the
presumption is that the passenger is a bona fide passenger
and this view is supported in decision reported in 2008 (1)
PLJR 627 (Supra). Hence, it is apparent that the Tribunal
erred in holding that the deceased was not a bona fide
passenger as the Tribunal though only disbelieved the
witnesses but did not take into consideration that the
document are Exhibits. 2, 3, 5 and 7 suggest that the
victim met with the accident while traveling on the train
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and is strong circumstance to suggest that he was traveling
on the train is a bona fide passenger when not found
ticketless by the checking staff and hence was a bona fide
passenger.
So far next point regarding untoward
incidence is concerned, the documents Exts. A-2, A-3 and
A-5 suggest that the victim fell down while traveling on
the train itself suggest that about the untoward incidence
and it is incumbent on the railway to plead and prove that
the occurrence covered under the proviso of 124 (A).
However, respondent adduced no evidence and there is no
material to suggest that the accident covered under the
proviso to Section 124 (A) of the Railways Act and hence
from the nature of the accident and the attaining
circumstance it can well be inferred that the accident took
place due to the untoward incidence.
The next question for consideration is about
the dependency of the claimant however, the ration card
the claimant has been shown to the son of Laxmi Sah and
the deceased to be shown to be grand nephew (Nati).
However, it is a matter of common experience that in the
remote area the grand son even called as grand nephew
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(Nati). Moreover, Ext. A 6 is the death certificate of the
deceased and this is clearly mentioned that the deceased
was the son of Bhola Sah, the claimant but the Tribunal
did not take into consideration this fact but merely on Ext.
A 9 held that there is contradiction as the cut shows the
deceased as the grand nephew (Nati) of Laxmi Sah
whereas the deceased is the grand son (Pota) but did not
take into consideration the death certificate of Manoj
Kumar shows Manoj Kumar as son of the claimant and
hence well be established that the claimant may not the
father of the deceased was a dependent comes under the
definition of the dependent and liable for compensation
and hence it is apparent that the Tribunal has erred in
holding that the appellant was not the dependent as well as
the deceased was not a bona fide passenger or the accident
was not an untoward incidence and hence in view of the
evidence and the other circumstances as discussed above, I
find and hold that the deceased was traveling in the train
as a bona fide passenger with a valid ticket and died out of
the untoward incidence and the claimant is entitled to
compensation being the dependent or father of the
deceased and hence is entitled to compensation regarding
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the death of the deceased to the tune of Rs.4,00000/- and
hence the appeal is allowed and the impugned order is set
aside and the respondent is directed to pay the amount to
the appellant within three months failing which the
respondent would be liable to pay the amount with an
interest @ 5% per annum with effect from the date of this
order in its realization.
Kundan (Gopal Prasad, J.)