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2002 DIGILAW 439 (ORI)

NIRUPAMA SETHI v. UNION OF INDIA

2002-07-19

A.K.PATNAIK

body2002
A. K. PATNAIK, J. ( 1 ) THIS is an appeal against the order dated 21-5-2001 of the Railway claims Tribunal, Bhubaneswar Bench in o. A. No. 57 of 2000 filed under Section 23 of the Railway Claims Tribunal Act, 1987. ( 2 ) THE appellant filed an application O. A. No. 57 of 2000 before the Railway Claims tribunal, Bhubaneswar Bench for compensation against the respondent. The case pleaded in the said application was that on 7-2-2000 the appellants husband late udayanath Sethi boarded train No. 213 cuttack-Puri Shuttle from Vani Vihar Passenger halt and he fell down and died. The railway filed written statement contesting the case of the appellant. No issues were framed by the Tribunal on the pleadings of the appellant and the railways and by the impugned order dated 21-5-2001, the Railway claims Tribunal, Bhubaneswar Bench held that while Section 124-A of the Railways Act, 1989 was applicable to the case, no compensation was payable under the said section by the railway administration if the passenger dies or suffers injuries due to his own criminal act and in this case, the deceased passenger was trying to entrain the train when the train was already in running condition and, therefore, the railways cannot be held responsible for the injuries sustained by him which resulted in his death. The Tribunal has further come to the finding that when the deceased-husband of the appellant boarded the train on 7-2-2000, he did not have in his possession the ticket and instead, the ticket was issued on 7-4-2000. ( 3 ) MR. Tapan Kumar Mohanty, learned counsel for the appellant submitted that questions as to whether the deceased husband of the appellant was responsible for the accident or whether the accident took place otherwise are questions of fact and can only be decided after issues are framed by the Tribunal on the pleadings of the parties and evidence led on behalf of the parties. He further submitted that similarly, the question as to whether the deceased husband of the appellant had a ticket when he was travelling in the train on 7-2-2000 when the accident occurred or a ticket was subsequently obtained on 7-4-2000 again is a question of fact which has to be decided by the Tribunal after framing issues on the pleadings of the parties. Mr. Mr. Mohanty referred to the provisions of Rule 21 of the railway Claims Tribunal (Procedure) Rules, 1989 which provides for framing and determination of issues by the Tribunal. ( 4 ) MRS. P. Mohanty, learned counsel appearing for the respondent, on the other hand, submitted that the railways are not liable for compensation to the appellant as her deceased husband was himself responsible for the accident as he boarded the train when the train was in motion. She further submitted that the deceased husband of the appellant did not possess a ticket. She referred to the provisions of Section 124-A of the Railways Act, 1989 to show that for the purpose of Section 124-A, passenger includes a person who has purchased a valid ticket for travelling by a train carrying passengers on any date or a valid platform ticket and becomes a victim of an untoward incident. She also referred to the provisions of the proviso to Section 124-A of the Railways act, 1989 to show that no compensation is payable under the said provision if a passenger dies or suffers injuries due to his own criminal act. ( 5 ) THE appellant had filed an application claiming compensation on account of the death of her husband. Her case in the said application appears to be that her husband while travelling in the train on 7-2-2000 fell down from the train and for this untoward incident, the appellant is entitled to compensation under Section 124-A of the Railways act, 1989. The reply of the railways in the written statement appears to be that the deceased-husband of the appellant did not possess a valid ticket for travelling and was, therefore, not a passenger who was entitled to compensation under Section 124-A of the railways Act, 1989. The further reply of the railways in the written statement appears to be that since the deceased-husband of the appellant boarded a train while the train was in motion, the railway was not liable for compensation under Section 124 of the Railways act, 1989. ( 6 ) ON the aforesaid pleadings of the parties, therefore, material propositions of facts and law on which the parties are at variance arise for determination by the Tribunal and the Tribunal will have to first frame such material propositions of facts and law as issues and thereafter, determine the said issues after recording the evidence adduced by the parties. This would be clear from Rule 21 of the Railway Claims Tribunal (Procedure) rules, 1989 which reads thus :"21. Framing and determination of issue (1) After considering the reply, the tribunal shall ascertain upon what material propositions of fact or of law the parties are at variance and shall thereupon proceed to frame and record the issues upon which the right decision of the case appears to it to depend. (2) In recording the issues, the Tribunal shall distinguish between those issues which in its opinion concern points of facts and those which concern points of law. (3) After framing the issues, the Tribunal shall proceed to record evidence thereon which each party may desire to produce. "it will be clear from the aforesaid provisions of Rule 21 of the Railway Claims Tribunal (Procedure) Rules. 1989 that the Tribunal will have to first frame issues both of facts and law and if there are issues of facts, the tribunal shall have to proceed to record evidence and thereafter, record its findings on the issues of facts and law. ( 7 ) IN the present case, the aforesaid mandatory provisions of Rule 21 of the Railway claims Tribunal (Procedure) Rules, 1989 have been totally ignored by the Railway claims Tribunal and the impugned order dismissing the application of the appellant has been passed without framing any issue either of fact or law and without recording any findings on such issue. ( 8 ) FOR the aforesaid reasons, the impugned order dated 21-5-2001 is set aside and the case is remanded back to the Railway claims Tribunal, Bhubaneswar Bench for framing and determination of issues in accordance with law and, in particular, in accordance with the procedure laid down in rule 21 of the Railway Claims Tribunal (Procedure) rules, 1989. The Misc. Appeal is accordingly allowed. Appeal allowed.