THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL No. 280 of 2009 JUDGMENT : This Civil Miscellaneous Appeal is directed against the order dated 05.11.2007 in O.A.A.No.294 of 2001 on the file of the Railway Claims Tribunal, Secunderabad Bench at Secunderabad, whereunder and whereby, the claim application filed by the appellant/applicant claiming compensation of Rs.4,00,000/- for the injuries sustained by him in an untoward incident, was dismissed. 2. The appellant in the appeal is the applicant, and the respondent in the appeal is the respondent, before the Tribunal. For better appreciation of facts, the parties hereinafter are referred to, as they are arrayed before the Tribunal. 3. The applicant filed the claim application stating that on 06.07.2001 while he was travelling by train No.418 passenger from Pedakurapadu to Guntur in general compartment, he fell down from the running train at Pedakurapadu railway station at 7:50 hours and sustained injuries. Hence, the claim application. 4. The respondent/railways filed its written statement denying the averments made in the claim application. It is stated that no untoward incident as alleged had occurred involving the train in question; that as per the version of Guard of train No.418 passenger, the train was stopped for 16 minutes for the purpose of crossing at Pedakurapadu railway station; that after the train had started at 8:03 hours and when the train was in motion, a boy aged about 20 years came running from L.C. Gate and at the fouling movement, he attempted to catch the ongoing train, resulting in his fall; that the applicant did not board the train at the station, where it was stopped for about 16 minutes for the purpose of crossing; that the incident is not covered by Clause (b) of proviso to Section 124-A of the Railways Act, 1989 (for short, ‘the Act’) and hence, it prayed to dismiss the claim application. 5. During trial, on behalf of the applicant, A.W.1 was examined and Exs. A1 to A6 were got marked, and on behalf of the respondent, R.Ws.1 to 3 were examined and Exs.R.1 was got marked. 6. The Tribunal, after considering the oral and documentary evidence, dismissed the claim application. Challenging the same, the applicant filed the present appeal. 7. Learned Counsel for the appellant/applicant contended that the applicant was a bona fide passenger travelling in a train carrying passengers with a valid ticket; that while he was standing at the door of the compartment, due to jerk of the train he accidentally slipped and fell down from the running train and sustained injuries in an untoward incident and hence, he prays to set aside the impugned order. 8. On the other hand, learned Standing counsel for the respondent/railways opposed the same on the ground that the applicant has not produced any ticket to show that he was a bona fide passenger; that it is not a case of sustaining injuries in an untoward incident; that the evidence on record would clearly go to show that when the train was stopped at level crossing and later while it was moving, the applicant trying to board a running train, sustained injuries, and the claims Tribunal rightly dismissed the claim application and there are no grounds to interfere with the impugned order hence, he prays to dismiss the appeal. 9. 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 or sustained injuries. 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 a train carrying passengers with a valid ticket. If these requirements are proved, then the applicant is 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. 10. With regard to the first aspect whether the applicant is a bona fide passenger or not, is concerned, the applicant has not produced any ticket to show that he was travelling in a train carrying passengers with a valid ticket. He categorically stated that on 06.09.2001 while he was travelling by train No.418 passenger from Pedakurapadu to Guntur in Second Class General compartment with a ticket bearing No.57922, he accidentally slipped and fell down from the running train and sustained injuries. That statement of A.W.1 remained unchallenged. No suggestion was given to A.W.1 that the ticket bearing No.57922 produced to travel from Pedakurapadu to Guntur is in valid. Once a fact has been stated by a witness and the same has not been denied or disputed in the cross-examination, it can be inferred that such fact has been admitted. From the evidence of A.W.1, it is clear that he was a bona fide passenger travelling in a train carrying passengers with a valid ticket. This aspect of the case has been completely overlooked by the claims Tribunal. 11. With regard to the second aspect i.e., sustaining of injuries by the applicant in an untoward incident is concerned, the case of the applicant is that on 06.09.2001 while he was travelling by train No.418 passenger from Pedakurapadu to Guntur, he accidentally slipped and fell down from the running train, sustained injuries and his left leg was amputated below knee and he also sustained fracture to his right leg. The applicant was examined by the railway police. The evidence of A.W.1 was not believed by the claims Tribunal with regard to the manner of taking place the accident, because he has given two inconsistent versions with regard to the incident in question. The incident had taken place in the year 2001. Four or five years thereafter A.W.1 was testifying before the claims Tribunal with regard to the incident. Therefore, some inconsistencies are bound to occur even in case of truthful witness who was made to depose about the incident after lapse of long time. Human memory is not a Video Cassette to reproduce the events as it is. Even in case of a truthful witness, some discrepancies are bound to occur. Whether those discrepancies or inconsistencies would go to the root of the case or not has to be taken into consideration. If the inconsistencies are minor or trivial in nature, undue importance cannot be given to those inconsistencies. 12. The main substratum of the case of the applicant is that having purchased a second class journey ticket, boarded the train, and while he was standing at the door of the compartment, due to jerk of the train he fell down from the running train and sustained injuries resulting in amputation of left leg and fracture of right leg. The main substratum of the applicant’s case from the beginning is one and the same. The evidence of A.W.1 is clear that he sustained injuries in an untoward incident. The railway administration also examined R.W.2 who is the Gateman of Pedakurapadu railway station. He categorically stated that he was on duty at the relevant point of time of incident. According to him, while Train No.418 passenger was passing the level crossing, he noticed a male person aged about 20 years came running from the road and tried to board the running train and fell down. No doubt, his evidence would clearly go to show that the some person tried to board a running train at the level crossing. He admitted that the distance from Pedakurapadu railway station and the level cross gate is about 300 meters. The evidence of R.W.2 would go to show that one male person aged about 20 years tried to board a running train. If that is the case, the applicant would not have purchased a ticket. 13. The evidence of A.W.1 would clearly go to show that he purchased a ticket bearing No.57922 from Pedakurapadu to Guntur. In such is an event, there is no scope or possibility for the applicant to go the railway crossing to board the running train. Even R.W.2 has not categorically stated that a person who is aged about 20 years is the same person who sustained injuries to both legs. He had not identified A.W.1 as the person who tried to board the running train in Pedakurapadu railway crossing. R.W.1 admittedly was not an eyewitness to the incident. He is the Deputy Station Superintendent, Sattenapalli. He had no information about any passenger falling from the train. Therefore, his evidence is not much relevant to the incident. Similarly R.W.3 is Guard of the train and he heard the cries of the passengers stating that one person sustained injuries while boarding the running train. He was also not an eyewitness to the incident. Therefore, no reliance can be placed upon the evidence of R.W.3. There is absolutely no evidence adduced by the railway administration to show that the applicant tried to board a running train at the level crossing when it was stopped. From the evidence of A.W.1 it is clear that he purchased a ticket to travel from Pedakurapadu to Guntur and boarded the train, and while he was standing at the door of the compartment, due to jerk of the train, he accidentally slipped and fell down from the running train and sustained injuries and amputation. Therefore, when two requirements for claiming compensation under Section124-A of the Act are proved, the applicant is entitled to compensation. These aspects have been completely overlooked by the Tribunal. Hence, the applicant is entitled to compensation. As per item No.22 of part –III of Schedule of the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990 (for short, ‘the Rules’), the amount of compensation payable for amputation below knee with stump exceeding 5” is Rs.1,60,000/-. 14. Accordingly, the Civil Miscellaneous Appeal is partly allowed granting compensation of Rs.1,60,000/-. The appellant is also entitled to interest @ 9% per annum from the date of award till realization. There shall be no order as to costs. _______________ K.C. BHANU, J OCTOBER 20, 2011 YVL IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE TWENTIETH DAY OF OCTOBER TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL No. 280 OF 2009 Between : Shaik Ahwak …APPELLANT A N D Union of India …RESPONDENT