IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE TWENTY NINTH DAY OF SEPTEMBER TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL NO.1223 OF 2009 Between : Union of India ... APPELLANT A N D Shaik Nazeer and others. …RESPONDENTS THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL MISCELLANEOUS APPEAL NO.1223 OF 2009 JUDGMENT: This Civil Miscellaneous Appeal is directed against the order, dated 04.08.2009, in O.A.A.No.67 of 2005, on the file of the Railway Claims Tribunal, Secunderabad Bench, Secunderabad, whereunder and whereby, the application filed by the respondents/applicants claiming compensation of Rs.4,00,000/- consequent on the death of Shaik Ashraf (herein after referred to as ‘the deceased’) was allowed granting compensation of Rs.4,00,000/- with interest @6% per annum from the date of application till the date of order and @9% per annum from the date of order till the date of actual payment. 2. The appellant in the appeal is the respondent, and the respondents in the appeal are the applicants, before the Tribunal. For better appreciation of facts, the parties hereinafter are referred to, as they are arrayed before the Tribunal. 3. The applicants filed claim application stating that on 22.02.2005 the deceased went to Tirupathi Railway Station along with his colleague Shaik Moula in order to go Ongole by purchasing journey ticket from Tirupathi to Ongole and boarded train No.473 passenger at Tirupathi Railway Station. After some time the train started and the colleague of the deceased Shaik Moula went back from the station for the purpose of his own business. While the train was passing near Padugupadu Railway Station, the deceased had accidentally slipped, fell down from the running train, sustained serious injuries and died instantaneously on 23.02.2005. Hence, the claim application. 4. The respondent/railways filed its written statement denying the averments made in the claim application. It is stated that the claim does not fall under the provisions of Section 123 ( c) (2) or Section 124-A of the Railways Act, 1989 (for short, ‘the Act’); that the deceased was not holding the journey ticket; that in the absence of journey ticket, the deceased cannot be treated as a bona fide passenger and hence, it prayed to dismiss the appeal. 5. Basing on the above pleadings, the following issues are framed for trial: “1. Whether the Applicants are dependents of the deceased? 2. Whether the deceased was a bona fide passenger of train No.473 passenger travelling from Tirupathi to Ongole on 22/23-02-2005? 3. Whether the deceased died as a result of an untoward incident of accidental fall from the said train? 4. To what relief?” 6. During trial, on behalf of the applicants, A.Ws.1 and 2 were examined and Exs. A1 to A7 were got marked, and on behalf of the respondent, no oral or documentary evidence was adduced. 7. The Tribunal, after considering the oral and documentary evidence, allowed the claim application holding that the deceased was a bona fide passenger travelling in a train carrying passengers; that he had accidentally slipped, fell down from the running train and died instantaneously. Challenging the same, the railways filed the present appeal. 8. Learned counsel for the appellant/railways contended that the applicants failed adduce any evidence to show that the deceased was bona fide passenger travelling in a train carrying passengers; that due to negligence on the part of the deceased resulting in his death, the applicants are not entitled to compensation and hence, he prays to set aside the impugned order. 9. On the other hand, learned counsel for the respondents/applicants contended that the evidence of A.W.2 is very clear that the deceased purchased a ticket, which was witnessed by him, and that the deceased died in an untoward incident; that the defence of negligence on the part of the deceased resulting in his death is not available to the railway administration and hence, he prays to dismiss the appeal. 10. For the purpose of claiming compensation under Section 124-A of the Act, two requirements have to be satisfied, firstly, there must be untoward incident whereunder a person died. Untoward incident includes a person falling from the running train accidentally. Secondly, a person who died or sustained injuries must be a bona fide passenger travelling in the train carrying passengers with a valid ticket. If these 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 that the deceased was not a bona fide passenger travelling in a train carrying passengers or that its case falls under anyone of the exceptions as provided under proviso to Section 124-A of the Act. 11. With regard to the untoward incident, it is not in dispute that the deceased died in an untoward incident. The dead body of the deceased was found lying by the side of the track, which was noticed by the Key man, who in turn sent a message to Station Superintendent. Immediately after the incident, police registered a case and held inquest over of the dead body of the deceased in the presence of mediators. The inquest mediators opined that the deceased died as a result of multiple injuries sustained all over the body. The Doctor, who conducted autopsy over the dead body of the deceased opined that the deceased died as a result of multiple injuries. Even, the railway administration is not seriously denying about the death of the deceased in an untoward incident. 12. Coming to the second aspect whether the deceased was a bona fide passenger travelling in a train carrying passengers or not, no doubt the applicants have not produced the valid ticket to show that the deceased was a bona fide passenger travelling in a train carrying passengers. But at the same time, the applicants examined A.W.2, who has categorically stated that on the date of incident he went to Railway Station along with the deceased and saw the deceased purchasing the ticket to travel in a train carrying passengers. Practically the evidence of A.W.2 remained un-challenged. The presence of A.W.2 at the relevant point of time is not denied or disputed by the railway administration. The evidence of A.W.2 with regard to deceased purchasing the ticket is un-controverted and no suggestion was given that he was not present at the time when the deceased was purchasing the ticket. . Once a fact has been stated by a witness and it is not denied or disputed in the cross-examination, then it can be presumed that such a fact is admitted. In the cross- examination except giving a suggestion that he is deposing falsely as he is friend of the deceased, nothing has been elicited to discard the testimony of A.W.2. The evidence of A.W.2 leaves no room to doubt that the deceased was a bona fide passenger travelling in a train carrying passengers with a valid ticket. Even assuming for a moment that there was negligence on the part of the deceased resulting in his death, that defence is not available to the Railway Administration in view of the fact that Section 124-A of the Act is in the nature of ‘no fault liability’. The defences available to the Railway Administration are enumerated under proviso to Section 124-A of the Act. If the railway administration wanted to absolve its liability, it has to show that its case falls under any of the exceptions as provided under proviso to Section 124-A of the Act. Admittedly, the facts of the present case do not fall under any one of the exceptions as provided under proviso to Section 124-A of the Act. Therefore, the Tribunal rightly awarded compensation and there are no grounds to interfere with the same. 13. Accordingly, the Civil Miscellaneous Appeal is dismissed. No order as to costs. _______________ K.C. BHANU, J SEPTEMBER 29, 2011 YVL