JUDGMENT
S.N. Pathak, J.
1. This miscellaneous appeal is directed against the order passed by the Railway Claims Tribunal, Patna, in Application No. OA-72 of 1991. The Union of India through General Manager, Eastern Railway, is the appellant here.
2. One Jamuna Devi, widow of late Ramashray Prasad Yadav filed the aforesaid claim case alleging, inter alia, that her husband was travelling in 383 Up Mokama-Danapur Passenger on 16.4.1990 which caught fire in which Ramashray Prasad Yadav and some other passengers died. Earlier a claim case was preferred by the son of Ramashray Prasad Yadav which was dismissed on the ground that the son was not dependent upon his father and that it was not proved that Ramashray Prasad Yadav was a bona fide passenger in the concerned train. However, the Tribunal, held on the basis of evidence in the instant case that Ramashray Prasad Yadav was a bona fide passenger and, therefore, the Tribunal granted compensation amount of Rs. 2,00,000 to the claimant Jamuna Devi.
3. The impugned order of the Claims Tribunal was challenged on the ground that claim case was barred under Section 11 of the Civil Procedure Code and that it was not proved even in the second claim case that Ramashray Prasad Yadav was a bona fide passenger. The amount of compensation of Rs. 2,00,000 was also challenged and it was submitted that amount of compensation earlier was Rs. 1,00,000 and the amendment changing the amount of compensation was introduced in year 1990 through Notification No. GSR 552(E) dated 7.6.1990. Therefore Rs. 1,00,000 should have been fixed as compensation amount because the rules applicable then provided for the aforesaid amount and not Rs. 2,00,000 which was introduced as the compensation amount through the amendment introduced in June, 1990.
4. So far the bar under Section 11, Civil Procedure Code is concerned, I find that the earlier case was filed by the son of the deceased and the order refusing the prayer of the son of deceased has been attached to the record of the case, which is Annexure 5. Annexure 5 shows that the application of the son of the deceased was rejected on the ground that he was not dependent on the deceased as per definition of dependent in the old Railways Act, 1890. Moreover, it was not proved that Ramashray Prasad Yadav died in the railway accident because there was no evidence except the affidavit of the applicant.
5. However, in the instant case, the appeal was filed by the widow of the deceased and she cannot be deemed to be claiming through her son. So, the second claim case was not between the same parties or between the parties claiming under the parties of the previous case. So, I am of the opinion that principle of resjudicata is not applicable in the facts of the case and, therefore, the second claim case shall not be barred under Section 11, Civil Procedure Code. So far the question whether Ramashray Prasad Yadav was a bona fide passenger of the ill-fated train which caught fire, that was another pertinent question to be decided by the Tribunal. I find that the Tribunal decided this question on the basis of the statement of one Rajeshwar Singh. This Rajeshwar Singh had told the Tribunal that he had recorded the statement of Binay Kumar, an injured person, travelling in the same train which met with an accident. Another witness was examined by the Tribunal who was Ram Jatan Prasad, who said that the deceased was coming to Patna in the Mokama-Shuttle train on 16.4.1990. Since Binay Kumar was not examined, the evidence of Rajeshwar Singh would be hearsay. But the evidence of Ram Jatan Prasad would be relevant to decide the question whether Ramashray Prasad Yadav was a passenger in the ill-fated train. Now, the question is whether the deceased was having a valid ticket to be called a bona fide passenger. In this connection, it was the statement of Binay Kumar who said that he purchased three tickets and he retained one ticket for himself and handed over the two other tickets to one Kumar Dhawan and Ramashray Prasad Yadav. The statement of Binay Kumar was the most crucial and relevant statement to support the fact that the deceased Ramashray Prasad Yadav was a bona fide passenger in the concerned ill-fated train. There is no explanation as to why Binay Kumar who purchased tickets, was not produced for examination in the Tribunal. He was the best witness to say that Ramashray Prasad Yadav was a passenger in the ill-fated train and he was having valid ticket. Moreover, it was the case of the applicant in the instant case that she had cremated the body of her husband in the village. So, the claimant had time to get the body of her husband subjected to post-mortem to prove that her husband died in the accident of the concerned train. Kumar Dhawan, the son of Binay Kumar, was also travelling with Binay Kumar and others and his body was later identified as it has been stated in the impugned order. So, it was not explained as to why the body of Ramashray Prasad Yadav was not subjected to post-mortem in order to show that he was a victim of fire in the accident of the alleged train. So, I am of the opinion that the Tribunal did not base its finding on cogent and conclusive evidence that Ramashray Prasad Yadav was a bona fide passenger in the ill-fated train and he died in the alleged accident. In such a circumstance, I do not think that the claimant shall be entitled to any compensation from the Railways.
6. In the result, this miscellaneous appeal is allowed and the impugned order of the Tribunal is set aside.