Kiran Devi vs The Union Of India Through The ...
2023 Latest Caselaw 183 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Miscellaneous Appeal No.29 of 2015
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Kiran Devi W/o Late Umesh Prasad, Resident of Village / Mohalla Saidpura Khagaul, P.S. Khagaul, District Patna.

... ... Appellant Versus The Union Of India through the General Manager East Central Railway, Hajipur ... ... Respondent ====================================================== Appearance :

For the Appellant/s : Mr.Anant Kumar-1, Advocate For the Respondent/s : Mr.Ram Anurag Singh, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD ORAL JUDGMENT Date : 16-01-2023 Heard learned counsel for the appellant and learned

counsel for the Department of Railways.

2. The appellant, in the present case, is aggrieved by and

dissatisfied with the order dated 30.12.2014 passed in Claim

Application No. OA 00024 of 2006 by Hon'ble Member

(Techincal), Railway Claims Tribunal, Patna.

3. Learned counsel for the appellant submits that the

learned Member (Technical), Railway Claims Tribunal, Patna

(hereinafter referred to as the 'Tribunal') has recorded a finding in

the impugned order that the applicant is not able to establish the

identify of the deceased by producing evidence. Taking note of the

fact that the applicant is herself a beneficiary, the learned Tribunal

says that her evidence could have been accepted only if other

supporting documents were submitted.

Patna High Court MA No.29 of 2015 dt.16-01-2023

4. Learned counsel submits that on a bare perusal of

paragraph '8'of the impugned order, it would appear that in

support of her claim the appellant produced a number of

documentary evidences. She had produced the identity card and

ticket, voter ID and the death certificate of her deceased husband

who had died in the said accident.

5. Learned counsel submits that the learned Tribunal has

not recorded any reason as to why the oral evidence of the

applicant duly supported by the documentary evidences could not

be believed. In fact, the submission is that the Tribunal has not at

all considered the fact that the evidence of the applicant had

remained uncontroverted and in the cross-examination the

Railways had not even thrown a suggestion to the applicant that

her statements were not correct.

6. Learned counsel submits that no doubt the burden to

prove the identity of the deceased lies upon the claimant at the first

instance but according to him, the moment the claimant discharges

that burden by producing prima-facie materials before the

Tribunal, in case the Tribunal disputes the said evidence the

burden would lie upon the Railways to adduce reliable evidence to

discard the evidences brought by the claimant. Referring to her

evidence filed on affidavit and the cross-examination, learned Patna High Court MA No.29 of 2015 dt.16-01-2023

counsel submits that in her affidavit the applicant has categorically

stated that she happened to be the wife of the deceased Umesh

Prasad. She has stated in paragraph '5' of her deposition that after

receiving information the family members of her deceased

husband had gone to Rail Police Station, Danapur where they had

identified the victim from his cloths and photographs. She has

further stated in paragraph '6' that on the basis of the memo

prepared by the Railways one UD Case No. 31/2005 was

registered with Rail Police Station, Danapur on 25.12.2005 which

was investigated by police and the occurrence was found true. The

investigation found that in the said accident a person had died after

falling from the Train.

7. Learned counsel further submits that in course of

cross-examination this witness stood by her affidavit. The witness

was never suggested any question so as to take a contradiction and

no suggestion was thrown that her statements on affidavit were

false or wrong. It is submitted that in this manner the

applicant/claimant had discharged her burden. The railways did

not bring any evidence either oral or documentary to controvert the

case of the applicant. In such circumstances, the learned Tribunal

was not justified in rejecting the case of the claimant on the Patna High Court MA No.29 of 2015 dt.16-01-2023

solitary ground that she had failed to establish the identity of the

deceased.

8. Learned counsel for the Department of Railways has

opposed this appeal. It is submitted that the husband of the

claimant allegedly died on 25.12.2005 but the claimant did not

lodge any complaint as regards his missing for at least four days. It

is submitted that the post-mortem report was prepared on

25.12.2005 itself showing that it was of an unknown male aged

about 30 years. According to him, the Railway pass and Identity

Card were not recovered by Rail Police and those documents have

been brought on record later on. Learned counsel, however, does

not dispute that in course of cross-examination of the applicant no

suggestion was thrown to her that her statements were wrong or

false. Learned counsel for the Railways submits that the police

report was not exhibited in this case otherwise that would have

thrown some light on the identity of the deceased.

9. Having heard learned counsel for the parties and on

perusal of the records, this Court finds that the learned Tribunal

has rejected the application on the solitary ground that the

applicant had failed to establish the identity of the deceased. To

this Court, it appears that the applicant had brought herself in the

witness box, deposed on the identity of the deceased, the manner Patna High Court MA No.29 of 2015 dt.16-01-2023

in which the deceased was identified through his photographs

produced by police but on these points no contradictions were

taken from her by the Railways. She has, thus, discharged her

initial burden and in such circumstances it was the Railways who

had to lead evidences either oral or in form of documents in

accordance with rules to demonstrate that the identity of the

deceased could not be established. In Paragraph '8' of the

impugned order, the learned Tribunal has recorded about the

various exhibits which were produced on behalf of the claimant

but then in Paragraph '9' of the impugned order the Tribunal has

refused to accept the rail ticket certified by the Rail Police as

evidence only because the inquest report did not mention recovery

of any ticket.

10. In the opinion of this Court, the circumstances under

which the ticket was certified by the Rail Police was required to be

looked into and it could not have been thrown outrightly only

because the recovery of the said ticket was not mentioned in the

inquest report. Atleast in the cross-examination of AW, no

suggestion was made on behalf of the Railways on this issue and

the claimant has categorically stated that the ticket was with the

police itself.

Patna High Court MA No.29 of 2015 dt.16-01-2023

11. In ultimate analysis, therefore, this Court finds that

the impugned order suffers from non-consideration of the

materials available on the record. The impugned order is,

therefore, set aside. The matter is remitted to the Tribunal to

consider it afresh after giving due opportunities to the claimant as

well as the Railways to place on record all such documentary

evidences which they may be advised to bring and/or to lead oral

evidence, if so desired.

12. After giving such opportunities to the parties, the

Tribunal shall decide the matter on the basis of the materials

available on the record and in accordance with law within a period

of six months from the date of receipt/communication of a copy of

this order.

(Rajeev Ranjan Prasad, J) Tusharika/-

Rajeev/-

AFR/NAFR
CAV DATE
Uploading Date           17.01.2023
Transmission Date