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1. This appeal under Section 23 of the Railway Claims Tribunal Act, 1987 is at the instance of a claimant and is directed against the order dated September 8, 1998 passed by the Calcutta Bench of the Railway Claims Tribunal in Accident Claim Application No. 2067 of 1997 by which the tribunal rejected the claim of the appellant.

2. The appellant, as the mother of the injured victim, filed a claim for the injury suffered by her son for throwing of stone on a running train being No. 5621 near New Jalpaiguri Station on 25th October, 1996. According to the appellant, while travelling in the sleeper class of the said train, the victim suffered an injury in his right eye because of throwing of stone by some miscreants near the New Jalpaiguri Station, as a result, he was admitted to the Railway Hospital at Katihar. He was discharged on 26th October, 1996 from that Hospital and was readmitted to the Military Hospital at Jhansi on 28th October, 1996. From the certificate of the Eye Specialist, it appears that he became total blind in his right eye and thus, disfigured. It was alleged in the application supported by affidavit that there was an attack by a mob on the train near the New Jalpaiguri Station and the coach in which he was travelling was hit by thousands of stones. A supporting affidavit had been filed by one P.N. Gogai who was a fellow passenger and he has confirmed that there was a mob-attack on the train.

5. The Tribunal below came to the conclusion that there was nothing on record to show that there was a mob attack on the train on that particular date except the affidavits affirmed in support of the claim. The Tribunal was of the view that if thousands of stones were thrown at the coach, there would have been other cases of injury among the fellow passengers and as such, it was a case of an isolate incident of stone throwing and such incident could not come within the definition of 'untoward incident' as provided in Section 123 (c) of the Railways Act, 1989.

6. The Tribunal, thus, dismissed the application although it expressed its sympathy to the victim for the loss of his right eye.

7. Being dissatisfied, the claimant has come up with the present appeal.

8. Mr. Paul, the learned advocate appearing on behalf of the appellant, vigorously contended that in spite of specific direction given by the Tribunal, the Railway having failed to affirm affidavit disputing the allegation of the claimant that there was a mob attack on the train, the Tribunal below erred in law in not drawing adverse inference against the Railways for not affirming such affidavit.

11. Therefore, the first question that falls for determination in this appeal is whether the learned Tribunal below erred in law in disbelieving the case of mob-attack on the train when the Railway Authority did not come forward with any affidavit disputing such fact in violation of the specific direction given by the tribunal to file such affidavit.

12. It appears from record that the Tribunal passed explicit direction upon the Railway Authority to state by affidavit whether there was any incident of mob-attack on the train on a particular date but in spite of such direction, the Railway Authority did not affirm affidavit denying such fact. We have already pointed out that the claim of mob attack was supported also by the affidavit of a co-passenger.