*THE HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY +CIVIL MISCELLANEOUS APPEAL No.489 OF 2006 %Dated 17-02-2011 C.M.A. No.489 OF 2006 B e t w e e n: #Gattem Rajya Lakshmi and three others. --- Appellants/ Applicants. AND $The Union of India, Rep. by its General Manager, South Central Railway, Railway Nilayam, Secunderabad. --- Respondent/ Respondent. ! Counsel for the Appellants : Mr. Pottigari Sridhar Reddy. ^ Counsel for Respondent. : Mr. J. Ashok Kumar. < GIST : > HEAD NOTE : ? Cases referred : --- IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD DATE.17-02-2011. PRESENT THE HON'BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CIVIL MISCELLANEOUS APPEAL No.489 OF 2006 Between: Gattem Rajya Lakshmi and three others. --- Appellants/ Applicants. AND The Union of India, Rep. by its General Manager, South Central Railway, Railway Nilayam, Secunderabad. --- Respondent/ Respondent. The Court made the following: THE HON'BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CIVIL MISCELLANEOUS APPEAL No.489 OF 2006 JUDGMENT: 1. This Civil Miscellaneous Appeal filed under Section 23 of the Railway Claims Tribunal Act, 1987 (for short, “the RCT Act”) is directed by the Appellants against order, dated 02-03-2006 passed by the Railway Claims Tribunal, Secunderabad Bench, Secunderabad (for short, ‘the Tribunal’) in O.A.A. No.52 of 2000 filed under Section 16 of the Tribunal Act read with Section 124-A of Railways Act, 1989 (for short, ‘the Act’), claiming compensation of Rs.4,00,000/- consequent on the death of one G. Balaraju (Hereinafter referred to as ‘the deceased’) dismissing the claim. 2. The appellants are the applicants and the respondent is the respondent in O.A.A. No.52 of 2000. For the sake of convenience, the parties hereinafter will be referred as they are arrayed in the Tribunal. 3. The facts of the case are as follows : The applicants are the wife and children of the deceased. On 03-02-2000 the deceased aboarded train No.7488 Visakhapatnam - Tirupathi Tirumala Express to go to Tadepalligudem from Nidadavolu to consult an Advocate and in between Nawabpalem and Tadepalligudem railway stations, he slipped and fell down from the train and received injuries and died on the spot due to the jerks of the train. Further, he being a bona fide passenger of the train the applicants who happened to be his wife and children and his dependents are entitled to the compensation of Rs.4,00,000/- 4. The respondent filed his written statement denying the pleas of the applicants and further claiming that the deceased did not produce any ticket and necessary measures were not taken at appropriate time and ultimately the respondent pleaded to dismiss the application. 5. On the strength of the pleadings, the Tribunal framed the following issues for trial and disposal : 1) Whether the applicant is the sole dependent of the deceased Gattam Balaraju? 2) Whether the deceased was a bona fide passenger of train No.7488 Visakhapatnam – Tirupathi Tirumala Express traveling from Nidadavolu to Tadepalligudem on 02-02-2000? 3) Whether the deceased died as a result of an untoward incident of accidental fall from the said train between Navabpalem and Tadepalligudem railway stations? 4) To what relief? 6. On behalf of the applicants, the first of them got examined herself as A.W.1 and got examined Y. Venkata Swamy as AW.2 and got marked Exs.A-1 to A-4 which happened to be relevant copies of F.I.R., Inquest report, M.R.O. Certificate and Postmortem certificate. Further, on behalf of the respondent, DTC showing issuance of tickets between Nidadavolu to Tadepalligudem railway stations was marked as Ex.R-1. 7. Examining the material available, the Tribunal held the first issue in favour of the applicants and the remaining three issues in favour of the respondent and against the applicants and dismissed the claim on the ground that no ticket was found with the deceased and no eye witness was examined and the evidence given by AWs.1 and 2 lack cogency and in the inquest report no mention was made to the effect that the body was dragged over the tracks or sleepers. Hence, aggrieved by the same, the present Appeal has been preferred. 8. It is the contention of learned counsel for the applicants that when the deceased entered the platform for the purpose of aboarding the train it is to be presumed that he did so having purchased a valid ticket and it is for the Railways to prove that he was not a bona fide passenger of the train depending upon the relevant circumstances of the case. 9. Therefore, it is to be mainly examined as to whether substantial evidence is there to the effect that the deceased purchased the ticket and traveled by the train as a bona fide passenger? 10. The evidence of AWs. 1 and 2 is with regards to circumstances prior to the death of the deceased. According to AW.2 he accompanied the deceased to Nidadavolu railway station and gave send off, he did not speak about purchase of any tickets. Further, as per Ex.A-1 on the same day a report was given to the Government Railway Police and consequently the case was registered and further as per Ex.A-2 inquest was conducted over the dead body on the very same day at 01-00 p.m. but no ticket was seized from his wearing apparel. The inquest report can be considered with regards to what injuries were found at the earliest point of time over the dead body and what was the cause of death and seizure of any material objects if any then. There is no good basis to say that he purchased any ticket and traveled by the train. 11. There is no system of engaging Ticket Collectors for each and every compartment of every train whereas, one ticket collector is being engaged for two to three compartments of every train to check ticket less travelers/passengers and therefore the ticket less passengers will have every opportunity to escape from being checked by the ticket collectors in several ways, they can avoid the ticket collectors by getting into the lavatories attached to the railway compartments or leaving the trains when they reach their destinations or leaving the trains before the ticket collector could check them or later enter the trains after the ticket collector leaves the trains as the case may be. Even supposing that every passenger of a train is to be presumed to be a law abiding person unless proved otherwise such a presumption is always rebutable. It is to be mainly examined what limitations are available to rebut the presumption. It can be done basing upon objective findings at the time of conducting necessary inquest and opinions arrived at then about cause of death and nature of injuries or production of relevant railway tickets before the concerned at appropriate time and postmortem examinations and evidence of eye witnesses and also concerned railway officials and relevant ticket issuing registers etc., It is quite unjustified if the Railways are expected to place evidence beyond that to rebut the presumption. If the Railways are asked to prove any impossibility to rebut the presumption, it is nothing but mockery of the legislation so enacted in that behalf. Section 2 (29) of the Railways Act, 1989 clearly postulates that a passenger is one who possess valid ticket to travel by a train and therefore the statute mandates that unless a person possess valid ticket to travel by a train, he will not be called as a passenger of the train. The concept of bona fide passenger is only emanated from this provision. From this coupled with other relevant provisions of the Act, it can be gathered that the intendment of the legislation in so defining as to who is to be termed as passenger is only to extend the benefits provided under the Act to such person or his kith and kin whenever he becomes victim of an untoward incident while traveling in a train possessing valid ticket. If it were the intendment of the legislation to extend the benefits provided under the Act to every such victim irrespective of whether he possesses valid ticket or not to travel by train such distinction would not have been made. 12. No doubt, the Act is a beneficial piece of legislation to help such victims of Railway accidents or their kith and kin and the initial burden is on the Railways to prove that such a person was not a bona fide passenger of a train concerned with which does not mean that the benefits are to be extended to every ticket less passenger who becomes victim of a railway accident while traveling in a railway train. The theory of strict liability to pay necessary compensation cannot be applied to such ticket less passengers. When it appears that only to exclude those tickets less passengers from the purview of the benefits provided under the Act, such a distinction has been made. It is the duty of the Tribunals or Courts to see that the law laid down is implemented properly and in true sense taking the interests of not only such victims but also the Railways into consideration. Any interpretation which defeats the intendment of law should not be allowed. Holding that the respondent failed to discharge the burden of proving that the deceased was not a bona fide passenger of the train on the ground of non proving something which is impossible is not permissible. Often it is pleaded in cases like this that deceased boarded a particular train having purchased a valid ticket and due to heavy rush of passengers or due to jerks of the train, he fell down from the train, received injuries and died without any basis. It is nothing but misnomer, visualizing that such circumstances existed and asking the railways to disprove those circumstances. The principle that once relevant evidence is adduced, the question of burden of proof looses its significance and relevant issues are to be decided considering all relevant circumstances do apply here. When the claimants assert that the deceased possessed a valid ticket to constitute “passenger” at the outset they have to show on what basis they made such claim or even otherwise there should some circumstantial evidence to infer it. The Tribunal examined the matte properly and gave reasonable findings and there is no reason to interfere with its order. In the result, the Civil Miscellaneous Appeal is dismissed. There shall be no order as to costs. ___________________________ G. KRISHNA MOHAN REDDY, J Dated: 17-02-2011. Note: Mark L.R. Copy. B/o.Dsh.