HONOURABLE SRI JUSTICE C.V. RAMULU CIVIL MISCELLANEOUS APPEAL No.1059 OF 2005 ORDER: This Civil Miscellaneous Appeal, under Section 23 of the Railway Claims Tribunal Act, 1987 read with Section 96 of C.P.C., is directed against the order made in O.A.A. No.93 of 2000 dated 09-08- 2005 on the file of the learned Railway Claims Tribunal, Secunderabad Bench, Secunderabad. 2. Appellant herein is the respondent and respondents herein are the applicants in the O.A.A. before the Tribunal. 3. For the sake of convenience, the parties herein are referred to as they arrayed in the O.A.A. before the Tribunal. 4. It appears, applicants filed the application under Sections 124-A and 125 of the Indian Railways Act, 1989 (for short “Railways Act”) read with Section 16 of the Railway Claims Tribunal Act, 1987 claiming compensation of Rs.4,00,000/- for the death of one Bolichetty Ramachandra (hereinafter referred to as “deceased”), who is husband of applicant No.1 and father of applicant Nos.2 and 3. 5. According to the application, on 27-03-1999, deceased travelled from Madras to Yerraguntla by train No.6010 and when it reached Muddanur Railway Station, while he was alighting from the train, due to jerks, he slipped and fell down in between the platform and train, as a result of which, he sustained grievous injuries and died on the spot. Therefore, application was filed claiming compensation of Rs.4,00,000/-. 6. Respondent filed a written statement denying the allegations made and stated that the claim does not fall within the ambit of Section 123(c)(ii) or Section 124-A of the Railways Act. Enquiries revealed that Keyman Sundaraiah reported that he had found a male dead body, aged about 35 years, run over at KM No.315/2-3 at 5-45 hours and the same was reported to GRP/Yerraguntla, who registered FIR No.14/99 for investigation. The Keyman had not seen the deceased falling from train No.6010 arrived at Muddanuru on 27-03-1999 and left within four minutes and no untoward incident was brought to the notice much less pulling alarm chain by anyone. Hence, prayed to dismiss the application. 7. On the basis of the pleadings, the following issues were framed by the Tribunal for trial: 1. Whether the Applicants are dependents of the deceased Bolichetty Ramachandra ? 2. Whether the deceased was a bonafide passenger of train No.6010 Madras – Mumbai express travelling from Madras to Yerraguntla on 27-03-1999 ? 3. Whether the deceased died as a result of an untoward incident of accidental fall from the said train at Muddanur railway station ? 4. To what relief ? 8. On behalf of the applicants, wife of the deceased got examined herself as AW.1 and filed documents Exs.A-1 to A-5. On behalf of the respondent, RW.1 was examined and document R-1 was marked. 9. After detailed examination of the entire evidence, so far as issue Nos.1 and 2 were concerned, it was held that applicants are the dependants of the deceased and the deceased was a bona fide passenger of train No.6010 Madras – Mumbai express travelling from Madras to Yerraguntla on 27-03-1999 and further held that it is an untoward incident, due to accidental fall of the deceased from the train and thus awarded a compensation of Rs.4,00,000/-. 10. Sri B.H.R. Chowdary, learned counsel appearing for the respondent – appellant, fairly conceded that as far as issue Nos.1 and 2 are concerned, there may not be any dispute, but so far as issue No.3 is concerned, Tribunal erroneously found that it was an untoward incident and due to accidental fall from the train, deceased died, and for this absolutely there was no corroborative evidence except the oral statement of AW.1. Therefore, Tribunal ought to have dismissed the application. 11. In spite of service of notice, none appears for the applicants. 12. I have given my earnest consideration to the submissions made by the learned counsel for the respondent and perused the impugned award and other material made available on record. 13. Against issue No.3, Tribunal recorded its finding as under: As per the definition of Sec.123(c)(ii) read with Sec.124A, if a passenger falls from the train resulting either injury or death it amounts to an untoward incident. Applicant No.1 who in her evidence as AW1 reiterated the factual aspects by filing Ex.A1 and Ex.A2 which establishes that the deceased while alighting the train on the early hours of 27-3-1999 at 05-17 hrs., had slipped from the train and fell down. The burden is shifted on the respondent to disprove that the incident was not an untoward incident. Though the train Guard was examined as RW1 by filing Ex.R1 copy of the Rough Journal maintained by the Railway Guard to show that no untoward incident was recorded by him at Muddanur R.S. which evidence is contra to the information covered by Ex.A1 FIR. The FIR was registered on the basis of the death message sent by the SS/Muddanur R.S. to GRP in which it is clearly and categorically stated that a male person aged 35 years was run over and killed by T.No.6010 Mail at Muddanur R.S. RW.1 had no possibility of seeing the incident. The fall of the deceased noticed after the train had left the platform. The evidence of RW1 and Ex.R1 is of no help to discard the clear evidence that the deceased had fallen from the train while he was alighting from the train. RW1 in his affidavit stated that the train No.6010 stopped for two minutes so within 2 minutes the passenger had to pick up his luggage and alight the train and any little delay in alighting the train cannot be attributed as negligence to deny the benefit conferred by the statute. There is no hesitation to hold that the incident as untoward incident. 14. Maybe there was no eyewitness to the incident and the Keyman, who reported the matter, had not seen the accident or the Railway Guard has not reported as to the accident that occurred on 27-03-1999 against train No.6010. But, the fact that deceased was a bona fide passenger and he died while alighting from train No.6010 at the platform is not denied. Once, this is so, in the absence of any rebuttable evidence, it cannot be said that deceased cannot be said to have died in an untoward incident while alighting from the train at Yerraguntla. 15. Therefore, I am of the opinion that the findings recorded against issue No.3, as notice above, by the learned Tribunal cannot be said either arbitrary or illegal requiring interference of this Court under Section 23 of the Railway Claims Tribunal Act. 16. The appeal is devoid of merits and is liable to be dismissed. 17. Accordingly, the Civil Miscellaneous Appeal is dismissed. There shall be no order as to costs. _____________________ C.V. RAMULU, J July 15, 2010. PV