THE HON'BLE SRI JUSTICE K.C.BHANU C.M.A. No.859 OF 2006 JUDGMENT: 1 This appeal is directed against the order dated 05.06.2006 passed in O.A.A.No.90 of 2001 on the file of the Railway Claims Tribunal, Secunderabad Bench, Secunderabad whereunder and whereby an amount of Rs.4.00 Lakhs was granted to the respondents 1 to 5 towards compensation for the death of one Yerra Nageswara Rao(hereinafter referred to as ‘the deceased’). 2 Brief facts that are necessary for disposal of the appeal are that on 21.12.2000 while the deceased and the respondents who are his family members were returning from Vijayawada to Rajahmundry by train No.431 Vijayawada – Kakinada Fast Passenger, the deceased had an accidental fall from the train at Godavari Railway station as a result of which he died. It is further stated that as the train started from Godavari Railway station before the deceased alighted they were under the impression that he would alight and return home and that they waited till midnight but he did not return. Then the elder son of the deceased went to Rajahmundry Railway Station and received information about the dead body lying on the track of platform No.1 which was duly identified by them. Their six journey tickets were handed over at the exist of Godavari Railway station. Hence, the respondents 1 to 5 who are the wife, children of the deceased filed the said claim application before the Tribunal seeking compensation of Rs.4 Lakhs from the appellant. 3 The appellant (Railways) contested the said claim petition by filing written statement contending inter alia that the train in question arrived at 8.30 PM at Godavari Railway Station and left after all the passengers detrained there. On the next day i.e. on 22.12.2000 at 9.30 AM the Gang man on noticing a male dead body, which was cut into pieces at the platform had passed on the information to Station Superintendent. Hence, from the circumstances, it can be said that it was not an accidental fall for entitlement of compensation from the Railways and prayed to dismiss the claim petition. 4 On the basis of the above pleadings, the Tribunal framed the following issues: i. Whether the applicants are dependents of the deceased Yerra Nageswara Rao? ii. Whether the deceased was a bona fide passenger of train No.431 Vijayawada – Kakinada Fast passenger travelling from Vijayawada to Kakinada on 21.12.2000? iii. Whether the deceased died as a result of an untoward incident of accidental fall from the train at Godavari Railway Station? iv. To what relief? 5 After considering the entire oral and documentary evidence available before it, the Tribunal allowed the said petition and awarded an amount of Rs.4.00 lakhs to the applicants/respondents as compensation and directed the appellant to deposit the said amount within 60 days from the date of order else interest at 6% p.a. from the due date ill payment will accrue. Aggrieved thereby, the appellant filed this appeal. 7 Now the point for consideration is whether the award passed by the Tribunal is correct, legal and valid? 8 The learned standing counsel for the appellant contended that no untoward incident has taken place on the date of the incident as alleged by the respondents/applicants and that the respondents/applicants failed to produce any valid ticket to show that the deceased was a bonafide passenger travelling in the passenger train and therefore the Railway Administration is not liable to pay compensation to the applicants and hence prayed to set aside the impugned order. 9 On the other hand, the learned counsel for the respondents/applicants contended that the body was noticed by the gangman by the side of the railway track which suggests fall of deceased accidentally from a train, that the body of the deceased was cut into several pieces and that A.W.1 along with the deceased and some others purchased a joint ticket and A.W.1 after getting down in Godavari Station, he handed over the same to the ticket collector and the evidence of A.Ws.1 and 2 would clearly go to show that the deceased was a bonafide passenger. He further contended that the doctor who conducted postmortem examination on the body of the deceased also opined that the injuries sustained by the deceased can be possible in a train accident and hence applicants are entitled to the compensation and there are no grounds to interfere with the impugned award passed by the Tribunal. 10 For claiming compensation two requirements are to be satisfied. In case of death the applicants have to establish that there was an untoward incident happened; and that the deceased was a bonafide passenger travelling in a passenger train. If these two requirements are proved or established then the burden shifts to the Railway Administration to prove that there was no untoward incident happened and that the deceased was not a bonafide passenger. 11 Insofar as the untoward incident is concerned, the Station Superintendent message would go to show that the dead body was noticed on 22.12.2000 at 9.00 AM by the side of railway track of Godavari Railway Station. The police held inquest on the dead body of the deceased. After inquest the dead body was subjected to postmortem examination. The postmortem examination report shows that the deceased sustained multiple injuries on the body. Particularly, the body was cut into pieces. It was only possible when a person fell from a train and came into contact with the wheels of the compartment. No doubt, R.W.1 who is the Guard of the train was examined. He simply stated that nobody had pulled the chain so as to infer that a person fell down from the train. Falling of the deceased from the train might not have been noticed by the Guard. For that reason, it may not be known to R.W.1 about falling of any person from the train. So from the material available on record, the Tribunal rightly held that there is an untoward incident happened. 12 Now the next question is whether the deceased was a bonafide passenger travelling in the train with a valid ticket or not? 13 During the inquest, the police did not find any ticket on the body of the deceased to show that he was a bonafide passenger. But at the same time, A.W.1 who is the wife of the deceased and who was travelling along with the deceased stated that they purchased a joint ticket for six persons at Vijayawada and five of them got down at Godavari Railway station. As the deceased was not found, they thought that he would get down in the next station and that they handed over the ticket to the ticket collector at the railway station. Practically, the evidence of A.W.1 remained unchallenged. Therefore, the initial burden stands on the applicants is discharged and the burden shifts to the Railway Administration to show that the deceased was not a bonafide passenger. The ticket collection register at Godavari Railway Station is the best proof of evidence, which will throw light as to whether any ticket was issued at Vijayawada to travel to Godavari Station for six persons. That register has not been produced by the Railways. Withholding an important document, which will throw light for disposal of the case or for adjudication of an issue, and if it is not produced, an adverse inference has to be drawn under section 114(g) of the Indian Evidence Act, 1872. Under Section 114(g) of the Evidence Act, the Court may presume that the evidence which could be and is not produced would, if produced, be unfavourable to the person who withhold it. When better and relevant evidence is withheld, it is only fair to presume that the party withholding the evidence has some motive for not producing it and that if the evidence is offered, his design would be frustrated. Therefore, there is no contra evidence adduced by the Railways to show that the deceased was not a bonafide passenger. Hence from the evidence of A.W.1 it is clear that the deceased was a bonafide passenger. 14 In view of the above discussion, I find no ground to interfere with the impugned award and the appeal is dismissed as devoid of any merit. No costs. ______________ K.C. BHANU, J 02.09.2011 Kvsn