M.M.DAS, J. FAO NO. 138 OF 2009 (Decided on 27.10.2011) A. CHAIN PATRA & ANR. ……..Appellants. .Vrs. UNION OF INDIA ……… Respondent. RAILWAYS ACT, 1989 (ACT NO.24 OF 1989) – S.123(c) (2), 124-A. For Appellants - M/s. R.P.Mohapatra, D.Mohapatra & N.Nayak. For Respondent - M/s. A.K.Mishra, S.K.Ojha, N.R.Pandit, H.M.Das & A.K.Sahoo M.M. DAS, J. This appeal has been filed against the judgment by which nil award has been passed by the Railway Claims Tribunal, Bhubaneswar in O.A. No. 150 of 2005. An application for compensation was filed by Shri A. Chain Patra and his wife Smt. A. Sibalaxmi Patra for the accidental death of their son against the railways. During pendency of the case, on account of death of the mother of the deceased, Shri A.Rajat Kumar Patra was substituted in her place. 2. The case made out by the claimants-appellants in their claim application was that on 18.10.2004, the deceased A. Prabhat Kumar Patra after purchasing a general class railway ticket was travelling from Bhubaneswar to Berhampur Railway Station by Bhubaneswar-Palasa Train. He accidentally fell down from the running train near North Cabin of Balugaon Railway Station and sustained injuries to which he succumbed instantaneously for which a U.D. Case bearing No. 07 of 2004 dated 19.10.2004 was registered by the GRP, Nirakarpur. Post-mortem was conducted on the body of the deceased at M.K.C.G. Medical College, Berhampur. On receiving the notice, the respondent-East Coast Railway filed its written statement challenging the maintainability of the case and denying that the deceased accidentally fell down from the train on the alleged date and place. It was further pleaded by it that the said incident does not come under “untoward incident” in terms of the provisions of Section 123 (c) of the Railways Act. It also contended that the deceased was not a bona fide passenger and prayed for dismissal of the claim application. 3. The Tribunal, on the respective pleadings of the parties, framed issues and the parties led evidence both oral and documentary in support of their respective cases. The issues framed by the Tribunal are as follows: 1. Whether the applicants prove that their deceased son, Prabhat Kumar Patra accidentally fell down from Bhubaneswar-Palasa train on 18.10.2004 near North Cabin of Balugaon Station and died instantly? 2. Whether the respondent prove that the deceased was not a bona fide passenger and the alleged incident does not come within the purview of “untoward incident”? 3. What order? What relief? 4. The Tribunal on analyzing the evidence adduced before it and the documents produced, with regard to Issue no. 1 came to the conclusion that it cannot be believed that the victim fell down from the running train and died on the spot instantly and the said incident cannot be termed as an “untoward incident” in terms of the provisions of Section 123(c) of the railways Act. The Tribunal further took support of the fact that the dead- body was detected much after the alleged time of incident which makes the case of the claimants to be improbable, for his above conclusion. With regard to Issue no. 2, the Tribunal, by observing that even though the appellant no. 2, who was examined as witness on behalf of the claimants, stated that on 18.10.2004, he purchased a journey ticket for his brother and handed over the same to his brother (the victim), but since no such ticket was filed or recovered from the possession of the deceased, the statement appears to be an after thought in absence of any corroborative evidence, came to the conclusion that in the instant case, the applicant has not been able to establish that the victim sustained injuries while travelling in a train and died as a result of such injuries. It, therefore, concluded that the evidence on record did not establish that the victim was a bona fide passenger and the applicants fail to establish that the victim sustained injuries, on account of which he died, due to falling down from any train. Thus finding, the Tribunal dismissed the claim application. 5. Learned counsel for the appellants submitted that it is settled in law that in an accident of the nature involved in the present case, it is not required that the ticket should be found from the possession of the deceased or produced before the Tribunal and if oral evidence is adduced that the deceased was a bona fide passenger who fell down from the running train and succumbed to the injuries sustained, such evidence if not contradicted and believable, the court should hold that the deceased was a bona fide passenger who died on account of injuries sustained due to falling down from the running train. He further submitted that the learned Tribunal has gone wrong in disbelieving the evidence adduced on behalf of the appellants-claimants as well as discarding the statement contained in the final report submitted by the police, showing that the victim fell down from the running train, on the ground that such statement is based on hearsay evidence. 6. Mr. Mishra, learned counsel appearing for the respondent vehemently urged that the appellants having not produced any material before the Tribunal showing that the deceased was a bona fide passenger, the incident cannot be said to be an “untoward incident” as defined in the Act and therefore, the Tribunal is right in rejecting the claim application. 7. The question as to whether in absence of the ticket, if evidence on record is available to show that a ticket was purchased for the deceased for travelling in the train, it should be held that the deceased was a bona fide passenger and the claimants should be held to be entitled to compensation, was examined by this Court in the case of Sakhia Naik and another –v- Union of India, 2005 (II) OLR 445. In the said case in 2 similar circumstance where the claim for compensation was rejected by the Tribunal on the ground that the deceased was not a bona fide passenger, this Court following the views expressed in an earlier judgment of this Court in the case of Union of India, represented by General Manager, Eastern Railway –v- Jshna Kanhar, 2001 ACJ 871 as well as agreeing with the views expressed by the Andhra Pradesh High Court in the case of Union of India, Secunderabad –v- B. Kaddekar and others, 2002 (3) TAC 320 (AP), held that even in absence of a ticket the question as to whether or not the deceased was a bona fide passenger can be proved by oral evidence. In the facts of the said case, this Court finding that there was ample evidence that the deceased was a bona fide passenger also held that accidental fall from a train comes within the definition of “untoward incident” and, therefore, the claimant should be entitled to compensation. 8. In the case of Union of India –v- Prabhakaran Vijaya Kumar and others, 2008 ACJ 1895, the Supreme Court analyzing the evidence in the said case and taking note of the fact that it is a well settled position of law that if the words used in a beneficial or welfare legislation are capable of two constructions, the one which is more in consonance with the object of the legislation and for the benefit of the person for whom it was made, should be preferred, in other words meaning that the beneficial or welfare statutes should be given a liberal and not a strict interpretation, referring to various earlier decisions of the Supreme Court and various texts on interpretation of statutes as well as English and American decisions, overruled the contentions of the Railway which was the appellant before the Supreme Court and dismissed the appeal confirming the compensation awarded. 9. Examining the facts of the present case, it would be seen that the oral evidence given by the appellant no. 2 that he purchased a ticket for his brother (the deceased) for travelling in a train from Bhubaneswar to Berhampur and his brother boarded the said train having not been controverted in any manner by the Railways, the learned Tribunal has erred in law in disbelieving the said statement given by the appellant no. 2 on oath. The statement appears to have also been corroborated by the investigation report of the GRP produced before the Tribunal. Hence, the Tribunal should not have held that the deceased was not a bona fide passenger and did not die on account of the injuries sustained due to falling down from the running train. The incident is, therefore, clearly an “untoward incident” as defined in the Act and the appellants-claimants are found to be entitled to compensation. The judgment and award impugned in this appeal is, therefore, unsustainable and is accordingly set aside. 10. As a consequence, the respondent shall pay a sum of Rs. 4.00 lakhs (Rupees four lakhs) as specified in schedule of the Railway Accident (Compensation) Rules, 1990 along with 6% interest per annum from the date of filing of the claim application before the Railway Claims Tribunal, Bhubaneswar, being O.A. No. 150 of 2005. The amount of compensation along with interest till the date of deposit shall be deposited before the Railway Claims Tribunal, Bhubaneswar within a period of eight weeks from today and on such deposit being made, the same shall be disbursed in favour of the appellants-claimants. 11. The FAO is accordingly allowed, but in the circumstances, there shall be no order as to cost. Appeal allowed. 3