IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU C.M.A.No.1135 OF 2006 Date:15.09.2011 Between:- Reddi Vara Lakshmi and others ..Appellants And Union of India, represented by its General Manager, South Central Railways, Secunderabad. .. Respondent JUDGMENT:- This Civil Miscellaneous Appeal, under Section 23 of the Railway Claims Tribunal Act, 1987 is directed against the order, dated 02.05.2006, in O.A.A.DDR.No.1474 of 2005 on the file of the Railway Claims Tribunal, Secunderabad Bench, Secunderabad in rejecting the claim application at the threshold without deciding the claim on merits. 2. The claim application filed by the applicants was rejected at the threshold on the ground that Section 124-A of the Railways Act, 1989 (for short, ‘the Act’) has no application when a person tried to cross the unmanned level crossing. It is the specific case of the applicants in the application that on 30.10.2004, while the deceased was crossing the unmanned level crossing/railway track in L.C.Gate No.113/KM 104/4-5 in between Bhimavaram Town and Undi Railway Station, a passenger train bearing No.D-131 hit him and the deceased Reddy Chandraiah @ Tatarao sustained severe injuries and died on the spot. 3. Learned counsel for the appellants/applicants placed reliance on a decision of the High Court of Orissa reported in Parikhita Behera and another vs. Divisional Railway Manager, South Eastern Railway and others[1], wherein at para No.21, it is held as under: “Regard being had to the materials on record and the provisions of law as discussed above, we find that in the instant case where a railway line crosses the high way and public path, reasonable protection must be taken to reduce the damage to the public to the minimum. The railway authorities for years together cannot keep their eyes closed or ignore the recurring accident due to unmanned level crossing. For more than two decades the railway authorities cannot remain unconcerned, not taking effective steps in manning the level crossing at the spot in question. The facts convince us that the railway authorities were negligent in keeping the unmanned level crossing open which became an accident spot and suitable steps ought to have been taken. It is also not appreciated as to why the railway authorities have backed out after giving promises and making assurance to pay suitable compensation to the parents of the victim. Minimum expectation was betrayed. The human aspect cannot be overlooked for this bureaucratic attitude to deal with life and liberty of human being, which is well protected by the Constitution of this country. The facts of the case convince us that the writ petitioners are well justified to move this writ court for the apathy shown by the railway authorities as the stand taken by them is found to be not only misconceived but a deliberate attempt to add salt to the injury. The relief of compensation is found to be well justified.” He also relied upon a decision of the Hon’ble Supreme Court in Union of India vs. Bhagwati Prasad (D) and others[2] whereinat para No.3, it is held as under: “The question that arises for consideration, therefore, is whether an application filed before a Claims Tribunal for compensation in respect of accidents involving the death or bodily injury to persons arising out of the use of motor vehicle and the claim is made both against the insurer, owner and driver of the motor vehicle as well as the other joint tortfeasors, if a finding on hearing is reached that it is solely the negligence of the joint tortfeasor and not the driver of the motor vehicle then would the Tribunal loose the jurisdiction to award compensation against the joint tortfeasor.” and prays to set aside the impugned order and award compensation to the applicants. 4. Learned Standing Counsel for the respondent/Railway administration contended that since the deceased was not a passenger, Section 124-A of the Act has no application for claiming compensation and hence, he prays to dismiss the appeal. 5. In the first cited decision, the relatives and dependants of deceased therein moved writ jurisdiction for the relief of compensation. Second cited decision relates to a motor accident. Both the decisions have no application to the present facts of the case. 6. 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 train carrying passengers with a 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 or the case falls under anyone of the exceptions as provided under proviso to Section 124-A of the Act. 7. The term ‘passenger’ has been defined in the explanation to Section 124-A of the Act, which reads thus: “(i) a railway servant on duty; and (ii) a person who has purchased a valid ticket for travelling, by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident.” 8. According to the case of the appellants, while the deceased was crossing the unmanned level crossing/railway track with his motor cycle, the incident has taken place. On their own pleading, the deceased was not a passenger travelling in a train carrying passengers with a valid ticket. Therefore, the question of claiming compensation under Section 124-A of the Act does not arise. Hence, the Tribunal rightly rejected the application; that the impugned order needs no interference by this Court and the appeal is liable to be dismissed. 9. Accordingly, the Civil Miscellaneous Appeal is dismissed with a liberty to the appellants to avail the remedies available to them under law. There shall be no order as to costs. _​_____________________ JUSTICE K.C.BHANU 15th September, 2011 AMD THE HON'BLE SRI JUSTICE K.C.BHANU C.M.A.No.1135 OF 2006 Date:15.09.2011 AMD [1] 1998 ACJ 1019 [2] AIR 2002 SUPREME COURT 1301