THE HON’BLE SRI JUSTICE K.C.BHANU CMA NO.3401 OF 2004 AND CMAMP NO.444 OF 2010 IN CMA NO.214 OF 2005 DATED:04-10- 2010. Between Union of India rep. by General Manager, South Eastern Railways,Calcutta. … Appellant And 1.P.Eswaramma and four others …Respondents THE HON'BLE SRI JUSTICE K.C. BHANU CMA NO.3401 OF 2004 AND CMAMP NO.444 OF 2010 IN CMA NO.214 OF 2005 COMMON JUDGMENT: Civil Miscellaneous Appeal by the Railways, under Section 23 of the Railway Claims Tribunal Act, 1987, is preferred aggrieved by the order, dated 08.06.2004 in O.A.A No.136 of 1998 on the file of the Railway Claims Tribunal, Secunderabad Bench at Secunderabad. 2. CMA MP No.444 of 2010 in CMA No.214 of 2005 is filed to review the judgment, dated 31-07-2009, in C.M.A.No.214 of 2005 passed by this Court, wherein interest at the rate of 6% per annum from the date of presentation of claim petition till the date of award and thereafter at 9% per annum till the date of realization, was granted. 3. The brief facts are that, claimants filed O.A.A. claiming compensation of Rs.4.00 lakhs stating that on 15-03-1998, P. Hrudaya Raju (hereinafter referred to as ‘the deceased’) went to Parvathipuram to see his brother and give him some medicines and that when he went to the house of his brother, he found that his brother was taken to a private nursing home at Rayagada and that he returned to Railway Station Parvathipuram and after purchasing ticket, boarded 230 Visakhapatnam-Durg passenger in general compartment, but he slipped due to sudden movement of the train at 20.40 hours at Parvathipuram Railway Station and sustained severe injuries. Thereafter, the deceased was admitted in Community Hospital, Parvathipuram, where he succumbed to injuries on the next day at 20.15 hours. Hence, the claim petition. 4. The railways filed written statement denying the averments made in the claim application and stating that there was no untoward incident of accidental fall from the train at Parvathipuram Railway Station, that the deceased was not a bona fide passenger, that the claimants are not the dependents of the deceased and hence, it prayed to dismiss the claim application. 5. Basing on the above pleadings, the following issues have been framed for trial. 1.Whether the Applicants are dependents of the deceased P.Hrudaya Raju? 2.Whether the deceased was a bona fide passenger of train No.230 Visakhapatnam-Durg passenger traveling from Parvathipuram to Rayagada on 15-03-1998 ? 3.Whether the deceased sustained injuries on account of untoward incident of accidental fall from the train and succumbed to injuries on the next day in Community Hospital, Parvathipuram ? 4.To what relief ? 6. During the enquiry, the 1st claimant, who is the widow of the deceased filed her affidavit in support of her case and got marked Exs.A1 to A.5. On behalf of Railways, affidavit of M.Somaraju as R.W.1 was filed and got marked Ex.R1. The Tribunal examined Investigating Officer as C.W.1 and marked Exs.C1 to C5. 7. 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. Challenging the same, CMA 3401 of 2004 is filed by the Railways. Aggrieved by the order of the Tribunal in not granting interest, Claimants filed CMA 214 of 2005. This Court, vide judgment, dated 31-07-2009, partly allowed the appeal granting interest as stated above. Challenging the same, Railways filed CMA MP 444 of 2010 to review the judgment. 8. Now the point for consideration is whether the order of the Claims Tribunal is correct, legal and proper? 9. The learned Standing Counsel appearing for Railways contended that there is no evidence to show that the deceased was a bona fide passenger traveling in the train, that there is evidence, which would go to show that he sustained injuries as negligently he boarded the train, that there is no evidence to show that the claimants are the legal representatives of the deceased and hence, he prays to set aside the order. 10. On the other hand, learned counsel for the claimants contended that on intimation given by the booking clerk, police registered a case and conducted inquest and examined the booking clerk as a witness during the inquest, that the police investigation would disclose that the deceased died while traveling in the train as bona fide passenger, that basing on the identity of the deceased, a telegram was given to the claimant, that by the time the relatives of the deceased came to the hospital, the dead body was buried, that the trial Court upon consideration of evidence on record rightly awarded compensation and there are no grounds to interfere with the same. 11. The initial burden is on the claimants to establish that the deceased died in an untoward incident while travelling in a train as a bona fide passenger. If the Railways take a plea that the deceased died due to his negligence or carelessness, the burden is on the Railways to establish the same. C.W.1 is the Investigating Officer who held inquest on the dead body of the deceased on 17-03-1998 and noticed both the legs of the deceased were cut at the knee level and also found injuries on the left hand. Ex.A2 is the inquest report, which would go to show about the deceased sustaining injuries. There cannot be any dispute that the objective findings of the Investigating Officer during inquest are admissible in evidence. In view of the fact that both the legs of the deceased were cut at the knee level, it can be said that it is a case of ran over by the train. The case of the claimants is that when the deceased was travelling from Parvathipuram to Rayagada in the compartment, there was a sudden jerk, as a result, he fell down and both legs of the deceased were ran over by the wheels of the train. The accident had taken place at Parvathipuram. It is not the case of the Railways that the deceased sustained those injuries in some other manner at some other place. From the nature of injuries, it can be said that it must be caused in a railway accident. The case of the Railways is that there was negligence or carelessness on the part of the deceased in boarding the running train and hence under Section 124-A of the Railways Act, 1989, the claimants are not entitled for any compensation. Mere taking a plea is not evidence. Except taking a plea, absolutely there is no evidence adduced by the Railways to show that the accident had taken place due to negligence or carelessness of the deceased. Therefore, the contention of the learned standing counsel for Railways that there was negligence on the part of the deceased cannot be accepted and it is devoid of merits. 12. Coming to the aspect that no evidence was let in to show that the claimants are related to the deceased, it is pertinent to refer Ex.A5, which is the telegram issued by the police to the wife of the deceased. She also filed Ex.A4 Voters identity card and Ex.A3 certificate issued by the Bank Manager. When A.W.1 has categorically stated that the deceased is her husband, there is no denial of such fact. As a matter of fact, the Tribunal recorded a finding that the Railways have not seriously disputed about the relationship of the deceased with the claimants. From the evidence of A.W.1 and the recitals in Exs.A3 and A5, it is clear that she is the widow of the deceased. Therefore, the claimants are entitled for compensation. Hence, there are no grounds to interfere with the order of the Tribunal and the appeal is liable to be dismissed. 13. In view of the fact that there is no error apparent on the face of the record to review the judgment, dated 31-07-2009, in C.M.A. No.214 of 2005 passed by this Court, CMA MP No.444 of 2010 is liable to be dismissed. However, considering the submission made by the learned standing counsel for Railways, claimants are not entitled to withdraw the interest for a period of two months. 14. Accordingly, both CMA No. 3401 of 2004 and CMA MP No.444 of 2010 in CMA No.214 of 2005 are dismissed. No order as to costs. ________________ K.C. BHANU, J DATED:04.10.2010 Hsd