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2014 DIGILAW 491 (GAU)

Bhabastosh Malakar v. Union of India

2014-05-06

N.CHAUDHURY

body2014
Heard Mr. S.S.S. Rahman, learned counsel for the appellant. Also heard Mr. U.K. Goswami, learned Standing Counsel, N.F. Railway. 2. By this appeal under Section 23 of the Railway Claims Tribunal Act, 1987, claimant has challenged the judgment and order dated 18.05.2012 passed by the learned Member (Technical) Railway Claims Tribunal, Guwahati in OA II U-73/2010 dismissing the claim petition. 3. The present appellant as claimant instituted a claim in the Railway Claims Tribunal, Guwahati under Section 16 of the Railway Claims Tribunal Act, 1987 stating that his 18 years old son, Bapan Malakar boarded on Kamakhya Express on 03.02.2010 at Lumding Station and proceeded towards Guwahati but while the train approached near Barahu Railway Station he fell from the train and died on the spot. An unnatural death case was registered by GRPS of Jagiroad Police Station and investigation was held. The Officer Incharge of the GRPS Police Station, Jagiroad and Officer In-Charge of GRPS Guwahati, issued certificate stating that the son of the appellant had fallen down from the train and died on the track. However, the claimant could not produce any valid ticket or pass and no witness was examined to prove that the victim had fallen from the train. At this ground the learned Tribunal passed the impugned judgment and order on 18.05.2012 and rejected the claim holding that the victim was not a passenger within the meaning of Section 2 (29) of the Railways Act. It is this judgment which has been brought under challenge in the present appeal. 4. I have heard Mr. S.S.S. Rahman, learned counsel for the appellant who argues that on the face of the report submitted in the GRP UD Case No. 15/2010, the Sub-Inspector of Railway Police expressed opinion that the deceased fell from the running train of Dibrugarh Kamrup Express on 03.02.2010 and died on the track. Not only the certificate but also the final report of the Incharge of GRPS Police Station mentioned that the victim had fallen from the train but merely relying on a so-called report prepared by Railway the learned Tribunal came to the finding that Kamakhya Express did not ply on that date between Lumding to Guwahati. According to the learned counsel the impugned judgment is vitiated for non-consideration of the relevant materials available on record. 5. The claimant examined himself as witness in this case and submitted affidavit. According to the learned counsel the impugned judgment is vitiated for non-consideration of the relevant materials available on record. 5. The claimant examined himself as witness in this case and submitted affidavit. On the basis of the said affidavit he was cross-examined by the Railway counsel. In course of cross-examination the appellant stated that he was present when the victim had boarded in the train in front of him on 03.02.2010. On this averment no other rebuttal evidence was led by the Railway Authority to discredit this witness. The reports by the police in this case were also brought on record. 6. Learned Tribunal has not considered the said report at all. While it is the finding of the learned trial Court that Kamakhya Express did not ply between Lumding and Guwahait that day, there were other trains on the track and merely because the name of the train was wrongly mentioned by the illiterate claimant the learned Tribunal should not have taken such a technical and pedantic stand so as to reject the claim of the father who lost his son. By definition under Section 123 of the Railways Act when a passenger falls from a moving train it comes within the purview of ‘untoward incident’ and in that event Railway becomes liable to compensate the death. What is admitted in report submitted by the investigating authority has not been considered by the learned Tribunal. After holding that the victim was not a bonafide passenger of the train, the learned tribunal did not decide other issues. While holding that claimant did not examine any witness to prove that victim was moving on the train in question from Lumding to Guwahati, the learned Tribunal failed to note that the claimant himself has deposed an oath before the tribunal that he was present when his son had boarded in the train. Even in the cross-examination he consistently maintained his stand and he could be discredited in course of cross-examination. The finding of the learned Tribunal on this point, therefore, that no oral or documentary evidence was led to prove boarding in the train by the victim is perverse. Atleast the claimant himself had witnessed the occurrence of boarding of the train by his son who subsequently died at Barahu Railway Station. The finding of the learned Tribunal on this point, therefore, that no oral or documentary evidence was led to prove boarding in the train by the victim is perverse. Atleast the claimant himself had witnessed the occurrence of boarding of the train by his son who subsequently died at Barahu Railway Station. The finding of the learned Tribunal is, therefore, vitiated for non-consideration of materials like oral evidence as submitted to the Tribunal and report of the authority of the GRPS. Accordingly the judgment is vitiated. It is set aside. The case is remanded to the learned Tribunal to decide the quantum of compensation to be paid by the Railway Authority. The claimant as well as the Railway Authority shall be at liberty to lead further evidence to prove their respective case on this issue. 7. Appeal is allowed. 8. Impugned judgment is set aside.