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2018 DIGILAW 961 (MP)

Kamla Gangawane v. South-East Central Railway

2018-11-15

SUBODH ABHYANKAR

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JUDGMENT : Subodh Abhyankar, J. 1. This appeal has been filed under section 23 of the Railway Claims Tribunal Act, 1987 by the appellant against the order dated 8.3.2016 passed by the Railway Claims Tribunal, Bhopal Bench ('the Claims Tribunal' for short) in Case No. OA/IIu/BPL/2014/0455, whereby the claim of the appellant has been dismissed at the preliminary stage by holding that the appellant is not a legal guardian of the deceased passenger referring to section 123 of the Railways Act, 1989. 2. Learned counsel for the appellant has submitted that the appellant, being the grandmother of the deceased passenger, had filed the claim under section 16 of the Railway Claims Tribunal Act in which only notices have been issued and no evidence has been led by the appellant before the Claims Tribunal and when the matter was fixed before the Claims Tribunal on 8.3.2016, the court raised a question to the counsel appearing for the appellant regarding the locus of the appellant to file such an application to which the counsel, who had just filed his vakalatnama on that day only, informed the court that the appellant has filed the claim in the capacity of the guardian of the deceased. Although in the claim application of the appellant, it is not even averred that the same is being filed by the appellant in the capacity of the guardian of the deceased, in fact the application has been filed on the ground that the appellant happens to be the only dependant of the deceased passenger. Learned counsel for the appellant has also drawn the attention of this court to section 123 of the Railways Act, 1989 which defines dependant. The same reads as under: "123. Definitions.--In this Chapter, unless the context otherwise requires,-- (a) 'accident' means an accident of the nature described in section 124; (b) 'dependant' means any of the following relatives of a deceased passenger, namely:-- (i) the wife, husband, son and daughter, and in case the deceased passenger is unmarried or is a minor, his parent; (ii) the parent, minor brother or unmarried sister, widowed sister, widowed daughter-in-law and a minor child of a pre-deceased son, if dependent wholly or partly on the deceased passenger; (iii) a minor child of a pre-deceased daughter, if wholly dependent on the deceased passenger; (iv) the paternal grandparent wholly dependent on the deceased passenger. (c) 'untoward incident' means-- (1) (i) the commission of a terrorist act within the meaning of sub-section (1) of section 3 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 1987); or (ii) the making of a violent attack or the commission of robbery or dacoity; or (iii) the indulging in rioting, shoot-out or arson, by any person in or on any train carrying passengers, or in a waiting hall, cloak room or reservation or booking office or on any platform or in any other place within the precincts of a railway station; or (2) the accidental falling of any passenger from a train carrying passengers." (Emphasis supplied) 3. The learned counsel for the appellant has submitted that as per sub-clause (iv) of clause (b) of section 123 of the Railways Act, the paternal grandparent wholly dependent on the deceased passenger can also file such an application and thus, the appellant being the grandmother of the deceased was entitled to file such an application as per section 123(b)(iv). 4. Learned counsel for respondent Nos. 1 and 2 has opposed the prayer and has submitted that it was for the parents of the deceased to file such an application whereas in the present case the grandmother, who has filed the application for claim, has not arrayed the parents of the deceased as a respondent and it is also not clear whether the appellant is the grandmother of the deceased as her identity is also not accepted. 5. Heard learned counsel for the parties and perused the record. 6. On perusal of the record, this court finds that in the impugned order dated 8.3.2016 although the learned Member of the Claims Tribunal has referred to section 123 of the Railways Act, but it is held that in case of death of a passenger when his parents are alive nobody else can be a claimant, which finding is apparently perverse as it is contrary to sub-clause (iv) of clause (b) of section 123 of the Railways Act as reproduced above. So far as the identity of the appellant is concerned, the matter is still to be tried by the Claims Tribunal and the evidence is still to be led by the parties. The objection regarding the identity of the appellant cannot be decided at this stage. 7. So far as the identity of the appellant is concerned, the matter is still to be tried by the Claims Tribunal and the evidence is still to be led by the parties. The objection regarding the identity of the appellant cannot be decided at this stage. 7. In view of the same, the appeal stands allowed and the impugned order dated 8.3.2016 is hereby set aside and the matter is remitted back to the Claims Tribunal to be tried on merits. Needless to say, the objections raised by the respondent before the Claims Tribunal shall be decided in accordance with law. Parties are directed to mark their presence before the Claims Tribunal on 21.1.2019. Office is also directed to remit the original record of the Railways Tribunal to the said Tribunal expeditiously, at the earliest. C.C. as per rules.