BANSHI RAM AND ANOTHERversusUNION OF INDIA THRU G.M. N.E. RAILWAY

    HIGH COURT OF JUDICATURE AT ALLAHABAD

     FIRST APPEAL FROM ORDER No. - 3822 of 2012

Banshi Ram And Another
                                                   .....Appellant(s)
                              Versus
Union Of India Thru G.M. N.E. Railway
                                                   .....Respondent(s)

Counsel for Appellant(s)         : Komal Mehrotra, Kamal
                                   Kumar
Counsel for Respondent(s)        : Om Prakash Mishra, Santosh
                                   Kumar Tiwari

Court No. - 54
                 HON'BLE ANIL KUMAR-X, J.

1. Heard Sri B.D. Mishra, holding brief of Sri Kamal Kumar,
learned counsel for the appellant, and Sri Santosh Kumar Tiwari
and Sri Om Prakash Mishra, learned counsel for the respondents.

2. Learned counsel for the appellant submitted that this Hon'ble
Court may graciously be pleased to modify the order dated
27.07.2012 and enhance the compensation awarded by the
Railway Claims Tribunal, Gorakhpur Bench, Gorakhpur, in
Claim Case No. OA/II/275/06/GKP, Banshi Ram and Another
Vs. Union of India through G.M., N.E. Railway, Gorakhpur,
wherein the learned Tribunal had wrongly deducted an amount of
Rs.2,00,000/- from the total compensation of Rs.4,00,000/- and
awarded only Rs.2,00,000/- instead of Rs.4,00,000/- as
compensation for the death of their son, in the interest of justice.

3. Learned counsel further submitted that his deceased son,
Dinesh Ram, after purchasing a valid railway ticket, boarded
Train No. 5212, Jan Nayak Express, and was returning home
from District Motihari, Bihar, on 27.07.2006. During the journey,
when the train was running near Khadda Railway Station in
District Kushinagar, Dinesh Ram unfortunately fell from the train
on 28.07.2006 while returning from the toilet of the train due to
heavy rush and jerking of the train. He sustained grievous injuries
and died on the spot. He, along with his wife, Jasmati Devi, filed
a claim petition before the Railway Claims Tribunal, Gorakhpur.
The same was allowed, but an amount of Rs.2,00,000/- was
deducted from the total compensation of Rs.4,00,000/- on the
ground that, after the death of claimant No. 1, Jasmati Devi, there
was no evidence to establish that the appellant was her legal heir.
It was submitted that a substitution application was filed after the
death of claimant No. 1, Jasmati Devi, and the same was also
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allowed. However, it was held by the learned Tribunal that the
appellant had failed to prove, by producing any evidence such as
a Will or other document, that he was the legal heir of deceased
Jasmati Devi, despite the submission that no one except the
appellant was the sole surviving legal heir of deceased Jasmati
Devi. It was submitted that the reason assigned by the learned
Tribunal for reducing the compensation by Rs.2,00,000/- and
refusing to pay the remaining amount of Rs.2,00,000/- merely
because the appellant was unable to prove himself to be the legal
heir of his deceased wife, Jasmati Devi, is unsustainable.
Therefore, this appeal is liable to be allowed by partly modifying
the award passed by the learned Tribunal.

4. Per contra, learned counsel for the respondents submitted that
the finding recorded by the learned Tribunal, refusing to pay the
entire amount of compensation on the ground that the appellant
was unable to prove himself to be the legal heir of the deceased,
does not warrant any interference.

5. Heard learned counsel for the appellant and perused the
judgment passed by the learned Tribunal.

6. It was observed by the learned Tribunal that the claimant had
not pleaded anywhere in his petition that he was the sole legal
heir of his deceased wife, Jasmati Devi, and, hence, in the
absence of any evidence supporting the claimant's status as her
legal heir, he was not entitled to the entire amount of
compensation. It is also to be noted that the substitution
application filed by the appellant/claimant seeking his
substitution as the legal heir after the death of his wife, Jasmati
Devi, was allowed by the learned Tribunal. The findings so
recorded are perverse and contrary to the order allowing the
substitution application. It is trite law that substitution
proceedings in any case are primarily governed by Section 2(11)
of the Code of Civil Procedure. A person is substituted in any
legal proceeding only when he is able to establish, and the Court
finds, that he is a person who, in law, can represent the estate of
the deceased. Once the substitution application filed by the
claimant seeking his substitution as the sole legal heir after the
death of his wife, Jasmati Devi, was allowed, the same, in itself,
meant that the applicant was held to be a representative of
deceased Jasmati Devi within the meaning of Section 2(11) of the
Code of Civil Procedure. It is also apparent that there was no
dispute regarding the matrimonial relationship between the
appellant and his deceased wife. Hence, there was no reason for
deducting the amount of compensation payable to the appellant.

7. Accordingly, the appeal is allowed in part. The impugned
order/award dated 27.07.2012 passed by the Railway Claims
Tribunal, Gorakhpur Bench, Gorakhpur, in Claim Case No.
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                                        OA/II/275/06/GKP is modified to the extent that the appellant
                                        shall be entitled to the entire compensation amount of
                                        Rs.4,00,000/-, instead of Rs.2,00,000/- awarded by the learned
                                        Tribunal. The respondents are directed to pay the remaining
                                        amount of Rs.2,00,000/- to the appellant in accordance with law.
                                        There shall be no order as to costs.
                                        September 25, 2026
                                        Mukesh
                                                                                    (Anil Kumar-X,J.)




Digitally signed by :-
MUKESH SRIVASTAVA
High Court of Judicature at Allahabad