IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE SEVENTH DAY OF FEBRUARY TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL MISCELLANEOUS APPEAL No.976 OF 2004 Between: Shaik Mahaboob Basha and another .....APPELLANTS AND The Union of India ....RESPONDENT The Court made the following: THE HON’BLE SRI JUSTICE K.C. BHANU CIVIL MISCELLANEOUS APPEAL No.976 OF 2004 JUDGMENT: This Civil Miscellaneous Appeal, under Section 23 of the Railway Claims Tribunal Act, 1987, is directed against the order, dated 19.12.2003, in O.A.A.No.232 of 1999, on the file of the Railway Claims Tribunal, Secunderabad Bench, Secunderabad, whereunder and whereby, the application filed by the appellants claiming compensation of Rs.4,00,000/- consequent on the death of their minor son, Shaik Mohammed (hereinafter referred to as, ‘the deceased’), in an untoward incident of accidental fall from the train, was dismissed. 2. The brief facts that are necessary for disposal of the present appeal may be stated as follows: On 02.02.1999, the deceased along with his paternal uncle, Shaik Sadeq Valli, was travelling in train No.7429, Rayalseema Express, from Yerraguntla to Cuddapah by duly purchasing separate tickets bearing Nos.99745 and 99746 respectively in general compartment. Both of them were standing at the door due to heavy crowd and when the train passed Yerraguntla railway station, the deceased fell down at Km No.290/3-4 due to sudden jerk of the train and died on the spot. His uncle got down at Kamalapur railway station and came to the scene of offence along with others. The Railway police registered a case in Crime No.8 of 1999 and the Head Constable held inquest over the dead body of the deceased. Hence, the claim petition. 3. The respondent – railways filed written statement denying the averments made in the application and pleaded that there is no cause of action for the applicants to file the application, as the incident does not fall within the ambit of Section 124A of the Railways Act, 1989, (for short, “the Act”). It further denied that the deceased was travelling with his uncle in train No.7429, Rayalaseema Express, by purchasing tickets and that the deceased fell down due to jerks of the train. It is further stated that no passenger had fallen down on account of alleged jerk of the train; that on enquiries it was revealed that at Km 290/4-3 a male dead body was found on 02.02.1999 at about 08:30 hours by the Key man and he reported the same to the Station Superintendent, Yerraguntla; that in the event of falling of a person from the train by standing at the door, it amounts to a criminal act and self inflicted injuries, which is one of the exceptions to an untoward incident; that the deceased was not a bona fide passenger traveling in the said train; that the ticket is only a planted one; that if really the uncle of the deceased was accompanying the deceased and witnessed the incident, he could have pulled the alarm chain and brought to the notice of Guard of the train and therefore, the railways are not liable to pay any compensation. Hence, the respondent – railways prays to dismiss the claim petition. 4. Basing on the above pleadings, the following issues are framed by the Tribunal: “1) Whether the applicants are the only dependants of the deceased S. Mohammed? 2) Whether the deceased S. Mohammed was a bona fide passenger of the train in question? 3) Whether the incident resulting in death of the deceased cannot be termed as an untoward incident? 4) To what amount, if any, the applicants are entitled to as compensation? 5) Relief?” 5. During trial, AWs.1 to 3 were examined and Exs.A1 to A11 were got marked, on behalf of the applicants. On behalf of the respondent, RWs.1 to 3 were examined, but no documents were marked. CW.1 was examined as a Court witness and Ex.C1 was got marked through him. 6. The Tribunal, after considering the evidence on record, came to the conclusion that the death of the deceased has not been established, as the post-mortem report has not been filed and therefore, the claim is not proved and accordingly, dismissed the claim application. Challenging the same, the present appeal is filed by the applicants. 7. Learned counsel for the appellants contended that the tickets which are in serial number have been filed to show that the deceased boy was travelling in the said train; that the deceased died in an untoward incident; that the Key man also reported about the laying down of the dead body to the Station Superintendent; that therefore, these circumstances clearly indicate that the deceased died in an untoward incident and hence, she prays to set aside the impugned judgment. 8. On the other hand, learned standing counsel for the respondent – railway administration contended that in the absence of proof of cause of death of the deceased, the Tribunal rightly dismissed the same; that unless it is established that the deceased met with death in an untoward incident, the appellants/claimants are not entitled for compensation and hence, he prays to dismiss the appeal. 9. What is untoward incident is defined under Section 124A of the Act. When a person dies or sustains injuries, travelling as a passenger in a train, Railways are liable to pay compensation to the legal heirs of that person. The word ‘passenger’ defined under the said provision reads that a person travelling in the passenger train with a valid ticket. For the purpose of invoking Section 124A of the Act, the burden is on the applicants to show that the deceased was a bona fide passenger and that he died in an untoward incident while travelling in a passenger train. 10. No doubt, AW.2, paternal uncle of the deceased, who is alleged to have been travelling along with the deceased, stated that the deceased had fallen from the running train. But that evidence cannot be accepted in the absence of post-mortem report issued by the competent doctor. Police registered a case under Section 174 of the Code of Criminal Procedure, 1973, (for short, “Cr.P.C.”), about the death of the deceased and also held inquest on the dead body of the deceased. There cannot be any dispute that the purpose of holding inquest under Section 174 Cr.P.C. is to ascertain the apparent cause of the death, as to whether it is an accidental, suicidal or unnatural death. It cannot be conclusive evidence. Therefore, necessarily after the inquest was completed, the dead body must be subjected to necropsy. The doctor, who conducted post-mortem examination on the dead body of the deceased, is the best person to speak about the nature of the injuries found on the dead body of the deceased during conducting post-mortem examination and the opinion as to the cause of the death of the deceased. The post-mortem report is not filed into the Court. Similarly, the doctor, who conducted post-mortem examination, is not examined. There is no evidence to show that the body of the deceased was subjected to post-mortem examination. Mere registration of a crime by the police about the death of the deceased and holding of inquest on the dead body of the deceased do not lead to an irresistible conclusion that the deceased boy had fallen from the running train and died in an untoward incident. The Investigating Officer, who conducted inquest, is not examined to explain under what circumstances he did not send the cadaver of the deceased to the doctor for conducting post-mortem examination. This is a serious lapse on the part of the Investigating Officer in not sending the dead body of the deceased to post-mortem examination. Unless the death is proved beyond preponderance of probability in an untoward incident, the question of claiming damages or compensation does not arise. However, the learned counsel for the appellants placed strong reliance on a decision of the Delhi High Court in Sugan Chand v. Union of India[1], wherein it is held thus: “Coming now to the second ground about post- mortem, it is not the case of any of the parties that the deceased did not die because of his having sustained injuries by falling from the running train. It is even the respondent’s case that the deceased had fallen from the running train and had thus sustained injuries and had died on the spot. That being the position, the Tribunal has clearly erred in observing that the cause of death could not be proved by the appellant. I am, therefore, of the opinion that the findings of the Tribunal being totally perverse cannot be sustained.” That is a case where there was no dispute about the death of the deceased who had fallen from the running train and therefore, in such circumstances, it was held that non-conducting of post-mortem examination is not fatal to the appellant therein. But, in the present case, the respondent - railway administration has categorically denied about the deceased falling from the running passenger train. Therefore, in such circumstances, the death of the deceased must be established by the appellants/claimants. In the absence of any evidence, the Tribunal rightly held that the appellants failed to establish the untoward incident resulting in the death of the deceased. The said findings are not shown to be perverse or contrary to law and they are based upon proper appreciation of evidence on record. Therefore, there are no grounds to set aside the impugned order. 11. Accordingly, the Civil Miscellaneous Appeal is dismissed. There shall be no order as to costs. _______________ K.C. BHANU, J February 07, 2011 MD THE HON’BLE SRI JUSTICE K.C. BHANU CIVIL MISCELLANEOUS APPEAL No.976 OF 2004 February 07, 2011 [1] 2004 ACJ 1715