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2013 DIGILAW 1395 (RAJ)

Khema Devi v. Union of India

2013-08-01

BELA M.TRIVEDI

body2013
JUDGMENT 1. - The present appeal has been filed by the appellants-applicants under Section 23 of the Railway Claims Tribunal Act, 1987, (hereinafter referred to as "the said Act), challenging the order dated 17.04.2002 passed by the Railways Claims Tribunal, Jaipur Bench (hereinafter referred to as "the Tribunal"), whereby the Tribunal has dismissed the claim petition being No. OA-II-42/98 filed by the appellants. 2. The short facts giving rise to the present appeal are that one Parmanand @ Dinesh Kumar, resident of Koliyon Ka Mohalla, Gangapole, Jaipur, allegedly died in the accident which had taken place on 27.08.1998. The appellant No. 1 claiming to be the wife, the appellant Nos. 2, 3 and 4, the children and appellant No. 5 the father of the deceased, filed the claim petition before the Tribunal alleging interalia that the deceased Parmanand @ Dinesh Kumar was travelling alongwith his friends in the train being No. 191 which was going from Jaipur to Sawaimadhopur on 27.08.1998; that the deceased Parmanand fell down from the said train near Sanganer Station; that a result thereof he sustained injuries and succumbed to the injuries. According to the appellants-applicants the deceased died in the said accident as a result of the negligence on part of the respondent, and therefore they were entitled to claim compensation under the Railways Act. The said petition was resisted by the respondent by filing the written statement contending inter alia that the deceased was not a bonafide passenger of the train in question, and that he had met with the accident while getting inside or stepping out of the compartment when the train was in motion. It was also contended that the deceased did not fall within the definition of "passenger" and hence the appellants were not entitled to claim for the compensation under Section 124A of the said Act. 3. The Tribunal on the basis of the said pleadings of the parties had framed the following issues:- "(1) Whether the deceased was a passenger of 191 Kota - Jodhpur Passenger (Train) on 27.8.98? (2) Whether the applicants are dependants of the deceased? (2A) Whether the deceased was travelling on the roof of the train? If so, what would be its effect on the claim of the applicants? (3) Whether the railway administration is no liable to pay any compensation to the applicants? (2) Whether the applicants are dependants of the deceased? (2A) Whether the deceased was travelling on the roof of the train? If so, what would be its effect on the claim of the applicants? (3) Whether the railway administration is no liable to pay any compensation to the applicants? (4) To what amount of compensation, if any, the applicants are entitled? (5) Relief? 4. The Tribunal after appreciating the evidence on record and hearing the learned counsels for the parties, dismissed the claim petition of the appellants-applicants by holding that the identity of the deceased was not established by the claimants. It was observed that in the report No. 31/98 filed under Section 174 of the Cr.P.C., the identity of the person involved was described as Dilip Kumar, resident of Zoravar Singh Gate, Shiv Shakti Colony, Jaipur and that the identity of the said person as Parmanand @ Dinesh Kumar was not established. According to the Tribunal, the 'panchnama' prepared by the Police during the inquest proceedings, disclosed the name of the dead person, as Dinesh @ Dilip son of Kajor Mal and that the name of the Parmanand was not mentioned therein. It was also observed by the Tribunal that in the hospital, the identity of the deceased was given as Dilip Kumar and not as Parmanand, and that in the ration card also the name of Parmanand @ Dinesh Kumar was not mentioned. The Tribunal, thereafter concluded, interalia that the identity of the deceased was so shrouded in mystery that it could not be relied upon, as it was not at all proved that the person so died was Parmamand or Dinesh Kumar or Dilip Kumar and that no concrete proof of identity was available on record. The Tribunal, therefore, held that the deceased was not the bona fide passenger of the train in question, while deciding the issue No. 1. The Tribunal did not decide the other issues in view of the findings recorded on the issue No. 1. 5. The learned counsel Mr. The Tribunal, therefore, held that the deceased was not the bona fide passenger of the train in question, while deciding the issue No. 1. The Tribunal did not decide the other issues in view of the findings recorded on the issue No. 1. 5. The learned counsel Mr. Ajay Shukla for the appellants relying upon the finding recorded by the Tribunal on issue No. 1, submitted that the identity of the deceased was not challenged by the respondent at all, either in its reply or during the course of evidence recorded by the Tribunal and that the Tribunal itself had created doubts on the identity of the deceased, while dismissing the claim petition. According to him, the Tribunal had misread the evidence on record, holding that the deceased was not Parmanand @ Dinesh Kumar. He also submitted that there was no issue raised by the Tribunal as regards the identity of the deceased, and therefore, the appellants were deprived of the opportunity to prove the identity of the deceased. However, the learned counsel Mr. S.C. Purohit for the respondent has submitted that there being contradictory evidence on record and since it was not proved by the appellants-claimants that the deceased was Parmanand @ Dinesh Kumar, the claim petition was rightly dismissed by the Tribunal. 6. The Court having perused the record of the case, more particularly the reply filed by the respondent, has found that there was no issue of identity of the deceased framed by the Tribunal. It appears that the said issue was not framed, probably because no such contention was raised by the respondent in its reply raising dispute with regard to the identity of the deceased. As rightly submitted by the learned counsel for the appellants, the Tribunal itself had created doubts on the identity of the deceased, without framing necessary issue and without affording any opportunity to the appellants to lead the evidence as regards the identity of the deceased. The Court finds some substance in the submission of the learned counsel for the appellants that had the Tribunal framed the issue, the appellants would have led the evidence in this regard. 7. The Court finds some substance in the submission of the learned counsel for the appellants that had the Tribunal framed the issue, the appellants would have led the evidence in this regard. 7. In that view of the matter, the Tribunal could not have dismissed the claim petition of the appellants on the ground that the identity of the deceased was not established by the appellants, when no such issue was framed and when no contention was raised by the respondent. Under the circumstances, the matter deserves to be remanded back to the Tribunal for deciding afresh in accordance with law. It is needless to say that the Tribunal shall be at liberty to frame additional issue, if deemed proper from the pleadings of the parties and if any such issue is framed, both the parties shall be at liberty to lead the additional evidence on such issue. 8. For the reasons stated-above, the impugned order dated 17.04.2002 is set-aside. The case is remanded to the Tribunal for deciding afresh in accordance with law. The appeal stands allowed accordingly.Appeal Allowed. *******