IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE THIRTIETH DAY OF SEPTEMBER TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL No.88 of 2010 Between: K.Mariyamma and 3 others ..... APPELLANTS And Union of India rep.by its General Manager, South Central Railways, Secunderabad .....RESPONDENT The Court made the following: THE HON'BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL No.88 of 2010 JUDGMENT: The Civil Miscellaneous Appeal, under Section 23 of the Railways Claims Tribunal Act, 1987 is directed against the order, dated 22.12.2009, in O.A.A.No.22 of 2005 on the file of the Railway Claims Tribunal, Secunderabad Bench at Secunderabad, (for short, ‘the Tribunal’), whereunder and whereby, the claim of the appellants/applicants under Sections 124-A and 125 of the Railways Act, 1989 (for short, ‘the Act’) with regard to grant of compensation of Rs.4,00,000/- consequent on the death of Karumanchi Brahmaiah (hereinafter referred to as ‘the deceased’) in a railway accident that took place on 25.12.2004 was dismissed. 2. The parties hereinafter are referred to as they are arrayed before the Tribunal. 3. The brief facts that are necessary for disposal of the appeal are as follows: The applicants filed the claim application stating that the applicants are the wife and children of the deceased; that on 25.12.2004, the deceased fell down from Train No.2712 at Kandukuru station while traveling from Ongole to Chirala. The ticket was stated to be lost in the accident. Being dependents of the deceased, the applicants claimed Rs.4,00,000/- towards compensation. 4. The respondent-Railways filed a written statement rejecting the claim of the applicants stating that the body was noticed by a gangman, it was emanating foul smell and there was no basis for the words in para-XV of the inquest report regarding fall from a train. 5. Basing on the above pleadings, the following issues have been framed by the Tribunal:- 1. Whether the applicants were dependents of the deceased? 2. Whether the deceased was a bona fide passenger? 3. Whether the deceased died as a result of an untoward incident? and 4. To what relief? 6. On behalf of the applicants, A.Ws.1 and 2 were examined and Exs.A1 to A5 were marked. On behalf of the respondent, R.Ws.1 and 2 were examined and Exs.R1 & R2 were marked. 7. After considering both oral and documentary evidence, the Tribunal dismissed the claim application. Aggrieved thereby, this appeal is filed by the claimants. 8. Now the point for determination is whether the order of the Tribunal is correct, proper and legal? 9. Learned counsel for the appellants/applicants contended that the evidence of AW 2 is very clear that the deceased was a bona fide passenger traveling in the train carrying passengers with a valid ticket. He further contended that the evidence of AW 2, coupled with the inquest report, post mortem report and DRMs report clearly go to show that there was an untoward incident happened and in that incident, the deceased died, and hence, prays to set aside the impugned order and award compensation. 10. On the other hand, learned Standing Counsel appearing for the respondent/Railways contended that the deceased was not a bona fide passenger traveling in the train carrying passengers with a valid ticket; that he did not die in an untoward incident, and therefore, the Tribunal rightly dismissed the claim application of the applicants; that there are no grounds to interfere with the impugned order, and prays to sustain the same. 11. There cannot be any dispute that in order to claim compensation under Section 124-A of the Act, two requirements are to be satisfied. The first condition precedent to be proved by the claimants is that there is an untoward incident happened and in that incident, the deceased died; and the second condition is that such a person must be a bona fide passenger travelling in the passenger train with valid ticket. If these two requirements are proved, then, the applicants are entitled to compensation. If the Railway administration wants to resist the claim, it has to prove that no untoward incident had happened or the deceased was not a bona fide passenger traveling in a train or the case falls under anyone of the exceptions as provided under proviso to Section 124-A of the Act. 12. There cannot be any dispute that the initial burden lies on the applicants to show that the deceased was a bona fide passenger having valid ticket to travel in a passenger train and that he died in an untoward incident. Under Sec.123(c) of the Railways Act, 1989, the word “untoward incident” defined as under: Sec.123(c) “untoward incident means 1. (i) the commission of a terrorist act within the meaning of sub-section (1) of Section 3 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 1987); or (ii) the making of a violent attack or the commission of robbery or dacoity; or (iii) the indulging in rioting, shoot-out or arson, by any person in on any train carrying passengers, or in a waiting hall, cloak room or reservation or booking office or on any platform or in any other place within the precincts of a railway station; or 2. The accidental falling of any passenger from a train carrying passengers. Therefore, the applicants have to establish that there was an untoward incident and the deceased died in the said untoward incident. 13. Admittedly, the dead body of the deceased was cut into pieces and found lying on the track and nobody witnessed the incident. Police registered a case and conducted inquest. As per inquest report, it was noticed that the head was cut off upto the neck and broken, face was badly damaged, the body was found between two tracks, eyes were injured badly, left hand was cut off upto the palm and bent, right leg was cut upto the thigh joint, left leg below the thigh joint was cut off, left thumb was cut off, other parts of the body were also cut and the stomach was broken. The inquestdars did not give any opinion as to the cause of death. The Doctor, who conducted post mortem examination over the dead body of the decease found similar injuries, as noted supra. He opined that the deceased died due to shock, hemorrhage and due to multiple injuries. The Doctor who conducted necropsy is the best person to speak that the injuries found on the deceased could be possible from a fall from a running train. No explanation was given by applicants for non-examination of Doctor who conducted post mortem examination. The suppression of useful and relevant evidence naturally leads to an inference that the evidence if produced would go against the party who withholds its. Simply because the dead body was found lying in between the tracks, it does not mean that the deceased died in an untoward incident. There must be some evidence to show that he has fallen from the train and died. 14. The evidence of interested witness is worthy of credence is to be judged in the background of the case. A witness may be called interested only when her evidence gives benefit to AW 1 from the result of litigation. AW 2, the sister-in-law of the deceased stated that the deceased purchased two tickets, though they both intend to travel to a specific destination. She also stated that both of them boarded the train in separate adjoining compartments because of the rush. It is pertinent to note that after getting down from the train, she did not wait for the deceased to come and she did not find out as to the whereabouts of the deceased. If really she was traveling in the train along with the deceased, she ought to have waited in the station itself for the arrival of the deceased. The conduct of AW 2 is highly unnatural. More so, for about three days she did not enquire about the deceased and did not lodge any complaint to the police. Therefore, the presence of AW 2 at the time of incident is doubtful. For the above reasons, the Tribunal has not placed any reliance on the evidence of AW 2. If the evidence of AW 2 is eschewed for consideration, there is no other evidence to establish that the deceased was a bona fide passenger travelling in the train carrying passengers and died in an untoward incident. 15. The guard of the train RW 2 has categorically stated that he received information from the driver of the train in which the deceased was allegedly traveling that a dead body was lying on the track and he could not stop the train. The evidence of RW 2 remained unchallenged. In view of the evidence of RW 2, it shows that the deceased might have committed suicide by putting his head under the track. There is every possibility when the wheels of the train ran over of a body, the body would be cut into pieces. If a person accidentally falls from a train, the possibility of severance of head from the body would be remote. In such circumstances the possibility of deceased committed suicide cannot be ruled out. Though the applicants claim that the deceased was a bona fide passenger, no ticket was seized by the police during course of inquest. If really the deceased purchased ticket, the police would have noticed the same in the pocket of the clothes of the deceased, which were found intact. 16. There is absolutely no evidence to show that the deceased died in an untoward incident. More over, the applicants have not produced any evidence, other than AW 2 to show that the deceased was a bona fide passenger traveling in the train carrying passengers. Therefore, in the absence of any evidence, it can be said that the Tribunal has rightly held that the applicants are not entitled to any compensation. The impugned order needs no interference. Accordingly, the Civil Miscellaneous Appeal is dismissed. There shall be no order as to costs. _________________ K.C.BHANU,J Dated: 30.09.2011 Dsr