THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL NO.743 OF 2005 DATED:07-09- 2010. Between Union of India rep. by General Manager, South Central Railway, Rail Nilayam Secunderabad. … Appellant And 1.P.Balaswamy and another …Respondents THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL MISCELLANEOUS APPEAL No.743 OF 2005 JUDGMENT: This Civil Miscellaneous Appeal by the Railways, under Section 23 of the Railway Claims Tribunal Act, 1987, is preferred aggrieved by the order, dated 15-12-2004 in O.A.A No.124 of 1999 on the file of the Railway Claims Tribunal, Secunderabad Bench at Secunderabad. 2. The brief facts are that, claimants who are the parents of Pothulapalli Nagaraju (hereinafter referred to as ‘the deceased’) filed the O.A.A. claiming compensation of Rs.4.00 lakhs stating that their deceased son on 23-04-1999 boarded the train No.7608 Tungabhadra Express by purchasing ticket bearing No.238764 and between Kaukuntla and Devarkadra Railway Stations, he accidentally fell down from the train and received injuries, as a result, he died on the spot. Hence, the claim application. 3. The railways filed written statement denying the averments made in the claim application and stating that the Tungabhadra express passes through Kaukuntla Railway Station at 17 hours, but the body was recovered almost after 16 hours on 24-04-1999 at 9.30 A.M. It cannot be said that the deceased having accidentally fallen down from the train and the claimants are not entitled for compensation as the case is not covered by the definition of untoward incident under Section 123 (c) (2) of Railways Act. 4. Basing on the above pleadings, the following issues have been framed for trial. 1.Whether the Applicants are the only dependents of the deceased Pothulapalli Nagaraju? 2.Whether the deceased was a bona fide passenger of train in question? 3.Whether the incident resulting in death of the deceased cannot be termed as an untoward incident? 4.To what amount, if any, the applicants are entitled to as compensation? 5.Relief? 5. During the enquiry, the 1st claimant filed his affidavit in support of his case and got marked Exs.A1 to A.6. On behalf of Railways, no evidence either oral or documentary was adduced. 6. The Claims Tribunal, considering the evidence on record, came to the conclusion that the deceased died in an untoward incident and therefore, the Railways are liable to pay the compensation, and accordingly, awarded a sum of Rs.4,00,000/- towards compensation and directed the Railways to pay the same at first instance within two months from the date of order, failing which, the claimants are entitled to claim interest at 6% per annum from the date of order till the date of realization. Challenging the same, the present Civil Miscellaneous Appeal is filed by the Railways. 7. Now the point for consideration is whether the order of the Claims Tribunal is correct, legal and proper? 8. The learned Standing Counsel appearing for Railways contended that the deceased sustained injuries and died due to his own negligence, that the Tribunal erred in awarding compensation and hence, he prays to set aside the order. 9. On the other hand, learned counsel appearing for the respondents-claimants contended that no evidence was let in to show that the deceased sustained injuries and died due to his own negligence, that on the other hand, the evidence of the claimant would go to show that the deceased received severe injuries and died by accidental fall from the train, that the ticket was recovered from his shirt pocket, that the findings of the Tribunal need not be interfered with and hence, he prays to dismiss the appeal. 10. Taking place of untoward incident as defined under Section 124A of the Railways Act is not in dispute. It is also not in dispute that deceased was a bona fide passenger travelling with a valid ticket. The only contention raised by the Standing counsel for the appellant is that there was negligence on the part of the deceased and therefore, the appellant is not liable to pay any compensation. When the Railways have taken a plea that there was a negligence on the part of the deceased, the burden is on the Railways to prove the same. Mere taking a plea is not evidence. To substantiate the plea, no evidence was let in and no documents were marked to show that there was negligence on the part of the deceased. Therefore, the Tribunal rightly awarded compensation and the said order does not suffer from any infirmities so as to call for interference by this Court. 11. Accordingly, the Civil Miscellaneous Appeal is dismissed. No order as to costs. _______________ K.C. BHANU, J DATED:07.09.2010 Hsd