THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL No. 879 of 2003 JUDGMENT: 1. This appeal, under Section 23 of the Railway Claims Tribunal Act, 1987, is preferred aggrieved by the order dated 21.11.2002 in O.A.A. No.28 of 1999 on the file of the Railway Claims Tribunal, Secunderabad Bench at Secunderabad, whereunder and whereby the claim application filed by the appellant was dismissed. 2. The appellant herein is the applicant, and the respondent herein is the respondent, before the Tribunal. For sake of convenience, the parties are hereinafter referred to, as they are arrayed before the Tribunal. 3. The applicant filed the O.A.A. claiming compensation stating that her husband late K.Nageswar Rao died in an untoward incident occurred on 7.10.1998 at 10.00 AM, while he was travelling in II Class general compartment in train no.7239 Guntur-Visakhapatnam Simhadri express, near KM 477/24-26 between Nuzvid and Vutlur railway stations. 4. The respondent filed written statement denying the averments in the application and stating that the deceased was not a bona fide passenger within the meaning of Section 124A of the Railways Act, 1987 and he did not sustain the injuries in the untoward incident while travelling in the train and hence, prayed to dismiss the claim application. 5. Basing on the above pleadings, the Tribunal framed the following issues. 1) Whether the applicant is the dependent of the deceased K.Nageswara Rao ? 2) Whether the deceased was a bona fide passenger of train No.7239 Simhadri Express travelling from Vijayawada to Eluru on 7.10.98 ? 3) Whether the deceased died as a result of an untoward incident of accidental fall from the train between Nuzvid and Vatlur railway stations ? 4) to what relief ? 6. The Tribunal, after considering the evidence on record, came to conclusion that the deceased was not a bona fide passenger within the meaning of Section 124A of the Railways Act, 1989, and he did not succumb to the injuries because of the untoward incident while travelling in the train, and accordingly dismissed the claim application. Challenging the same, the present appeal is preferred by the applicant. 7. Now, the point for determination is whether the order of the Tribunal is correct and proper ? 8. The learned counsel for the appellant contended that the deceased along with A.W.2 and others, was travelling in the Simhadri express from Vijayawada to Eluru, and the untoward incident occurred due to sudden jerk of the train when the deceased went to toilet and was coming out, and he fell from the train and died as a result of the injuries sustained by him; that the evidence of A.W.2 is very clear that the deceased was a bona fide passenger; that the evidence of R.W.1 would clearly go to show that the time of finding of the dead body by the Key- man was not informed to A.W.2 and that there is every possibility that the untoward incident had taken place at 10.30 AM and therefore, R.W.2 sent the message at 11.00 AM. The learned counsel further contended that column no.15 of the inquest report would clearly go to show that the deceased was travelling in the train and that due to untoward incident, he fell down from the train, sustained grievous injuries and died, and therefore, the Tribunal is wrong in dismissing the claim. 9. On the other hand, the learned counsel appearing for the respondent contended that, if really the deceased was travelling in the train as a bona fide passenger, ticket would have been found with him, but the police did not seize any ticket when they conducted inquest on the dead body; that the First Information Report would clearly disclose that the Key-man informed R.W.1 at about 10.00 AM about finding of the dead body, but, by that time, Simhadri express had not passed through the place of incident, and therefore, it is a false claim; that, considering the material on record, the Tribunal rightly dismissed the claim and there are no grounds to interfere with the same. Hence, he prays to dismiss the C.M.A. 10. Under Section 124A of the Railways Act, when a person dies or sustains injuries, travelling as a passenger in a train, Railways are liable to compensate him. The word ‘passenger’ defined under the said provision reads that a person travelling in the train with a valid ticket. For the purpose of invoking the Section 124A of the Act, the burden is on the applicant to show that the deceased was a bona fide passenger and that he died in an untoward incident while travelling in a train. 11. It is the case of the applicant that the deceased along with A.W.2 and others, was travelling from Vijayawada to Eluru after having darshan at a temple at Vijayawada, and the deceased went to toilet in the train, and while coming out, there was a jerk and as a result the deceased fell down from the train and died. It is the specific case of A.W.2 that each individual had purchased ticket at railway station in Vijayawada. A.W.2 is no other than brother-in-law of the deceased. According to him, he got down at Powerpet railway station and informed the same to Station Master. But, admittedly, he did not give any report to police or Station Master. According to him, he handed over the ticket to the Ticket Collector. When he had not come out from the station, there was no need for him to handover the ticket. On the other hand, on his own showing, he went to Station Master and informed about the incident. If really A.W.2 along with the deceased was travelling in train, certainly, police could have found ticket purchased to travel from Vijayawada to Eluru. But, when police held inquest on the dead body of the deceased, they did not find any such ticket. 12. Time of the death of the deceased is in dispute. The case of the applicant is that the deceased died at 10.30 AM. It is not in dispute that at 10.30 AM, the train Simchalam express passed through the place of incident. But, the evidence of A.W.2 shows that he received information through Key-man about the finding of the dead body at 10.00 AM near Vatlur station and the same has been sent to the concerned police by way of message, which is the First Information Report. The First Information Report would clearly go to show that A.W.2 received information from the Key-man about the finding of the dead body at 10.00 AM. By that time, Simhadri express did not pass through the place of the incident. On the other hand, it is in the evidence that one passenger train and one express train passed through the place of incident prior to 10.00 AM. 13. The learned counsel for the appellant is very much relying upon the admission made by A.W.2 to the effect that Key-man did not inform about the time of finding of the dead body. But, in the First Information Report, A.W.2 categorically stated that at about 10.00 AM, the said Key- man informed him about the finding of the dead body. Therefore, the stray admission in cross-examination cannot be taken advantage by the applicant, especially when the said aspect has been clearly mentioned in Ex.A1-First Information Report. Therefore, there is no other reason for A.W.2 to speak false and immediately within one hour thereafter he sent message to police, who registered the case basing on the message received from A.W.2. The recitals in Ex.A1-First Information Report and the evidence of A.W.2 would clearly go to show that A.W.2 received message from the Key-man about the finding of the dead body at 10.00 AM. If that is so, Simhadri express did not pass through the place of incident by that time. Therefore, the contention that the deceased fell down from Simhadri express at 10.00 AM on the date of the incident, appears to be false and incorrect. 14. The learned counsel for the appellant placed reliance on the recitals in column no.15 of Ex.A2-inquest report. The recitals in column no.15 of inquest report are based upon the information given by some other witnesses. Therefore, column no.15 of inquest report cannot be used as evidence as it is hit by the ‘rule of hear- say evidence’. Further more, the purpose of holding inquest is to ascertain the apparent cause of death of the deceased. A document like inquest report, consists of two parts -one is based upon the information given by the witnesses and the other is based upon the objective findings of the investigating officer. The objective findings are only admissible under law and the information received by the investigating officer through somebody are inadmissible under law. Therefore, the contention that the recitals in column no.15 of the inquest report can be used as evidence, cannot be accepted. Therefore, there is no evidence to show that the deceased died in untoward incident while travelling as bona fide passenger in Simhadri express from Vijayawada to Eluru, and considering these aspects, the claims tribunal rightly dismissed the claim petition. The findings are based upon proper appreciation of the evidence on record, and none of the findings of the claims tribunal is shown to be perverse or contrary to the evidence on record. 15. The Civil Miscellaneous Appeal is devoid of merit and is, accordingly, dismissed. No costs. --------------- 21.04.2010 DRK THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL No. 879 of 2003 Date: 21.04.2010 Between: K.Annamma …appellants And Union of India, rep. by the General Manager, Sough Central Railway, Rail Nilayam Secunderabad …Respondent THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL No. 879 of 2003 21.04.2010