At, In the High Court of Bombay at Nagpur
By, THE HONOURABLE MR. JUSTICE A.P. BHANGALE
For the Appellants: M.W. Harshulkar, Advocate. For the Respondents: R1, P.S. Lambat, Advocate.
This appeal is to challenge the legality and validity of the impugned judgment and order dated 22.11.2002 passed in Claim Application No. 11/OA II/RCT/NGP/01 whereby the learned Judicial Member of the Railway Claims Tribunal dismissed the Claim Application on the ground that deceased Mukesh was not bonafide passenger of Howrah-Bombay Mail on 5.9.2000(8002 up) while it was running from Rajnandgaon to Gondia. It was alleged that said Mukesh Patale while travellling on 5.9.2000 by Howrah-Bombay Mail from Rajnandgaon to Gondia accidentally fell down at Gudma railway station and died on the spot. Dependents of said Mukesh had filed claim application for compensation on the ground that Mukesh met with untoward incident, as according to them
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e had accidentally fallen down from the train. The Tribunal held that Mukesh was not bonafide passenger on 5.9.2000 on Howrah-Bombay Mail and that there was no evidence to believe that he was travelling by second class mail/express ticket from Rajnandgaon to Gondia by said Howrah-Bombay mail (8002 up). Learned advocate on behalf of the appellant submitted that there was some clerical error in the affidavit of father of the applicant because of which number of the railway ticket was mentioned differently than its actual number and the Tribunal was misled by the affidavit. According to the learned advocate for appellant, litigant ought not suffer on account of mistake committed by advocate appearing for litigant. It is further submitted that claimants had again approached the same Tribunal with prayer for review of the impugned judgment dismissing the claim. However, on the ground that Tribunal cannot seat as appellate court over its own decision, the review application No. 11/OA II/RCT/NAG/03 in claim application No. 11/OA II/RCT/NAG/01 was dismissed. Thus, aggrieved by dismissal of the claim petition as well as review petition, the claimants filed this appeal challenging the said orders. During the pendency of the appeal it is contended that this court has sought information at the instance of learned advocate for the appellant regarding the number of railway ticket issued on the relevant date and according to the claimants, on the basis of the information furnished on behalf of the railway administration it is now case of the appellant that victim was bonafide passenger while he was travelling from Rajnandgaon to Gondia on a passenger ticket issued on behalf of the railway administration.Learned advocate on behalf of the railways supported the impugned judgment and order on the ground that there was no evidence to prove that the victim was bonafide passenger and met with an untoward incident. Although, it is repeatedly maintained on behalf of the appellant that victim was bonafide passenger, the learned advocate for the appellant however, prayed for remand of the case to the Tribunal.It thus appears from the record and proceedings that although certain documents have been listed on behalf of the railway administration, no care was taken by the Tribunal to call upon the other side to admit or deny those documents so as to mark them as exhibits. The main documents such as FIR, spot panchanama, inquest panchanama, P.M. report were not put to other side so as to take an endorsement from the other side regarding admission or denial of genuineness thereof. The basic principle of natural justice is that when any document is produced in judicial or quasi judicial proceedings, the party producing documents along with the list may file it in the court and then opposite party may be called upon to admit or deny genuineness thereof so as to curtail the unnecessary evidence on record and to ensure that decision in the case is just and fair. In the present case, it does appear that evidence was adduced by affidavit which also bears verification by deponent. However, when the deponent rely upon his affidavit as his evidence, it is essential that such deponent ought to be offered to the opponent for cross-examination by the opposite party and the record of the evidence must indicate that witness was indeed offered for cross-examination to the opposite side. Learned advocate for the respondents contended that there is no practice to make an endorsement in note sheet. It appears that note sheet may constitute a faithful record of what happened in the court or Tribunal but legal principles in Evidence Act as to how the evidence is recorded, whether it was allowed to be led on the basis of affidavit and furthermore whether deponent was allowed to be cross-examined on the basis of contents in the affidavit is essential not only for Tribunal’s record but also for the Appellate Court to know whether proceedings were indeed judicial and just in nature. It is always desirable that Tribunal presided over by judicial members who are normally experienced having served as judicial officers, dealing with claim for any untoward incident ought to take care to see that evidence is recorded before the Tribunal according to law and in conformity with the rules of fair play and natural justice. If Tribunal offers evidence to be led on the basis of affidavit, deponents ought to be offered for being cross-examined.If documents are listed and produced on behalf of either claimants or opponents, the opposite party or side ought to be called upon to admit or deny genuineness of documents. Because admitted documents need not be normally proved and evidence can be taken only in respect of disputed documents so as to prevent waste of judicial time opportunity of hearing be given to other side. In the present case, it is found that important documents such as FIR, spot panchanama, inquest panchanama, post-mortem report were produced but no endorsement was taken from the advocate representing opponent side as to whether documents are admitted or denied. The evidence by way of affidavit was allowed but proceedings do not mention as to whether deponent was offered for cross-examination to the advocate representing the other side. Care must be taken mentioning in the proceedings as to who had produced or filed documents, when and on which date, whether each witness was offered for cross-examination and if re-examined by whom. In the present case, after affidavit of deponent Dashrath Urkudaji Patale the record of the proceedings did not indicate as to whether cross-examination was conducted by advocate representing the railway administration. Page marked as A-34 only mentions “on oath” and then three lines typed with signature purportedly by Dashrath U. Patle. This is sorry state of affairs. Tribunal has dismissed the claim case in which the compensation to the tune of Rs.4,00,000/- is claimed by the claimants; although there was no record of legal evidence. This was careless approach.For all these reasons, the impugned order dismissing the claim application No.11/OA II/RCT/NGP/01 as well as the order dismissing the review application No.11/OA II/RCT/NAG/03 passed by the Railway Claims Tribunal, Nagpur, are quashed and set aside. The Railway Claims Tribunal, Nagpur, shall in view of observations above, allow the parties to lead evidence in accordance with law and then to decide the claim application on merits.Learned advocates representing the parties shall attend the Railway Claims Tribunal, Nagpur, on 23.9.2013 at 11.30 a.m.R & P be sent back.
"2013 (6) ALL MR 152" == "2013 (6) MAH.L.J 335" == "2014 (1) BCR 799,"