HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA CIVIL MISCELLANEOUS APPEAL No. 785 OF 2008 DATED 22nd DECEMBER, 2011 BETWEEN Union of India,rep. by The General Manager, South Central Railway, Secunderabad …….Appellant and Smt. P. Manjula and ors …… Respondents HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA CIVIL MISCELLANEOUS APPEAL No. 785 OF 2008 JUDGMENT: This Civil Miscellaneous Appeal under Section 23 of the Railway Claims Tribunal Act,1987 is filed by the appellant-railway aggrieved by the Award dated 09.05.2008 passed in OAA.No. 413 of 2003 on the file of the Railway Claims Tribunal, Secunderabad Bench, at Secunderabad. The respondents-applicants filed an application under Section 16 of the Railway Claims Tribunals Act, 1987 read with Section 124-A and 125 of the Railways Act claiming compensation of Rs.4.00 lakhs on account of death of one P.Shiva Bhagavan Rao in an alleged untoward incident of accident that occurred in between Peddapalli and Kottapalli raiway stations on 4.10.2003. The appellant-railway contested the aforesaid claim application of the respondents-applicants alleging that the deceased was not a bona fide passenger and that the death of the deceased was not due to accidental fall from a train to treat an untoward incident and therefore they are not liable to pay any compensation. Based on the aforesaid pleadings, the Tribunal framed the following issues for trial. 1. Whether the applicants are the dependants of the deceased. ? 2. Whether the deceased was a bona fide passenger of the train in question ? 3. Whether the deceased died as a result of an untoward incident of accidental fall from the said train ? 4. Whether the applicants are entitled to claim compensation of Rs.4,00,000/- 5. To what relief ? To prove the claim, on behalf of the respondents/applicants, AWS. 1 and 2 were examined and Exs.A.1 to A.5 were marked. On behalf of the appellant/railway, R.W.1 was examined and Exs.R.1 and R.2 were marked. The Tribunal, after due consideration of the evidence on record, came to a conclusion that the deceased was a bonafide passenger, and accordingly allowed the application of the respondents/applicants awarding compensation of Rs.4,00,000/- with interest at 9% per annum from the date of petition till realization. Hence, the present appeal. The learned Standing Counsel appearing for the appellant-railway submitted that the deceased was not at all a bona fide passenger as he was not possessing a valid ticket at the time of alleged travel in as much as no ticket was found from his dead body. He contended that there is no witness or evidence to establish that the death of the deceased was due to falling from a moving train. He therefore pointed out that it is merely an act of negligence on the part of the deceased, amounting to self inflicting injury as contemplated under Section 124 of the Railway Act. Heard. Perused the case file. The evidence of A.W.2 who was the brother in law of the deceased would disclose that the deceased has purchased ticket on 4.10.2003 at Peddapally railway station to catch Balharshah— Bhadrachalam fast passenger to go to Kothapalli to attend a job work. Further in the inquest, it has been clearly mentioned in Column No. XX that the dead body of the deceased was dragged by the train upto 50 yards. On the other hand, the appellant-railway stated that the dead body of the deceased was found by one C.V.Raman who was travelling by upline Engine No. 24430. According to them, as no ticket was found from the dead body of the deceased, he could not be treated as a bona fide passenger. As the dead body was dragged to 50 yards, there was every possibility of clothes getting torn and losing the ticket in the process and as such an inference can be drawn to that effect having regard to the facts and circumstances of the case. The Tribunal following the decision of the High Court of Madhya Pradesh reported in AIR 2006 MP 201, and the decision of the High Court of Kerala in Md. Kunju Vs. Union of India (2005 III ACC 415) held that the deceased was a bona fide passenger in the circumstances stated supra. Further, following the decision in Gullipalli Lakshmikanthamma Vs. General Manager, SC Railways ( 2003 ACJ 1592) held that an inference can be drawn to the effect that the deceased is a bona fide passenger having regard to the realities and realistic and pragmatic approach of the question involved. Further, the Tribunal opined that when an averment or allegation is made against a person, the burden lies on the person who made such allegation to prove the same. Following the decision of this Court in Union of India Vs. Borra Vijayalakshmi {2005(2) ALT 20} the Tribunal held that the railway had not discharged its burden by adducing any evidence to show that the deceased was not a bona fide passenger. On the other hand the evidence of AW.2, which was not contradicted by the Railways, clearly establishes that the deceased was a bona fide passenger. The next issue to be considered is as to whether the death of the deceased was due to accidental fall in an untoward incident as defined under Section 123 (c) of the Railways Act. It is the case of the appellant-railway that the inquest report says that the deceased died due to hit and run over by a train and therefore the incident fell under one of the exceptions to Section 124-A of the Railways Act. Ex.R.2-report of the Divisional Railway Manager discloses that the deceased while crossing the track was hit by the train. However, if the deceased was really hit by the train and run over, it was not known as to why the Railways had not adduced the evidence of the train driver to show that the deceased was hit by the train. The evidence of RW1 was only to the extent of finding the dead body on the track and there was no whisper as to whether the death of the deceased was due to hit by train while crossing the track. As such, non examination of the driver is fatal to the case of the Railways. On the other hand, it is not in dispute that the dead body of the deceased was found noticed and recovered by the railway staff which prima facie discloses that the death of the deceased occurred on account of an accident. There is thus no direct witness to the accident occurred in the case on hand. In those circumstances, the Tribunal following the decision of this Court in N.Buchilingam Vs. Union of India {2004 (6) ALD 302}, wherein it was held that an untoward incident takes in its fold several contingencies and unless it is pleaded and proved that victim concerned had an intention to sustain injury on his own accord, the exception carved out in Section 124-A of the Railways Act cannot be applied as was held in the case of Union of India Vs. VM Ranganadham (2007 ACC 666). Though the Railways pleaded that the deceased was hit and run over by the train, it has not adduced any evidence to prove its pleadings. On the other hand, as admittedly the way in which the dead body of the deceased was found on the railway track prima facie discloses that the death of the deceased occurred on account of sustaining injuries out of an accident, and, in the absence of the evidence on the part of the Railways that the death of the deceased was due to hit and run over by the train out of an attempt to commit suicide, and further that there were no factors to indicate that there was any attempt on the part of the applicants to present a fictitious claim, by no stretch of imagination it cannot be held that the deceased died in an untoward incident while travelling by train No. 324 passenger. As the finding arrived at by the Tribunal that the deceased being a bona fide passenger, lost his breath in an untoward incident is found to be in consonance with the evidence brought on record, the quantum of compensation awarded by the Tribunal to the respondent/applicants at Rs.4.00 lakhs as per Rules is also unassailable. For the foregoing reasons, I do not see any ground to interfere with the well reasoned award passed by the Tribunal. The Civil Miscellaneous Appeal fails and is accordingly dismissed. There shall be no order as to costs. --------------------------------------------- JUSTICE ASHUTOSH MOHUNTA Dated 22nd December,2011. Msnro