IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU C.M.A.No.1031 OF 2006 Date:06.04.2011 Between:- Tadam Suresh ..Appellant/Applicant And The Union of India, rep.by its General Manager, South Central Railway, Secunderabad. .. Respondent/Respondent JUDGMENT:- The Civil Miscellaneous Appeal, under Section 23 of the Railways Claims Tribunal Act, 1987 is directed against the order, dated 07.09.2006, in O.A.A.No.229 of 2003 on the file of the Railway Claims Tribunal, Secunderabad Bench at Secunderabad, (for short, ‘the Tribunal’), whereunder and whereby, the claim of the appellant/applicant under Section 16 of the Railway Claims Tribunal Act read with Section 124-A and 125 of the Railways Act, 1989 (for short, ‘the Act’) with regard to grant of compensation of Rs.1,00,000/- for the injuries sustained by him in a railway accident that took place on 18.09.2002 was dismissed on the ground that there is no evidence to show that the applicant was a bona fide passenger in a passenger train travelling from Secunderabad to Jangaon and that he sustained a fracture by falling from a running train and dismissed the claim. Challenging the same, the present appeal is filed. 2. The brief facts that are necessary for disposal of the present appeal are as follows: On 18.09.2002, when the applicant was travelling from Secunderabad to Bhongir by Train No.7202 Golconda Express, the train took a sudden jerk at Bhongir Station, and as a result, he suddenly fell down and sustained injuries on his head and he was immediately shifted to Gandhi Hospital. He was a resident of Aler, Nalgonda District. He was discharged on 02.10.2002 and the second class journey ticket from Secunderabad to Jangaon was lost after the accident. 3. The respondent-Railways denied the case of the applicant stating that he was neither a bona fide passenger of the train nor the injuries sustained by him are in an untoward incident of accidental fall entitling him to compensation under the Act. As per the Guard of the train, no untoward incident was reported. 4. Basing on the above pleadings, the following issues have been framed by the Tribunal:- 1. Whether the applicant was a bona fide passenger of Train No.7202 Golconda Express, travelling from Secunderabad to Jangaon on 18.09.2002? 2. Whether the applicant sustained injuries on account of an untoward incident of accidental fall from the said train? 3. Whether the applicant is entitled for compensation of Rs.1 lakh? 4. To what relief? 5. On behalf of the applicant, A.Ws.1 and 2 were examined and Exs.A-1 and A-2 were marked. On behalf of the respondent, R.W.1 was examined and no documents were marked on its behalf. 6. Now the point for determination is whether the order of the Tribunal is correct, proper and legal? 7. Learned counsel for the appellant contended that the evidence of A.W.1 would clearly go to show that A.W.1 purchased a ticket to travel from Secunderabad to Jangaon in a passenger train and when the train was coming to Bhongir station, due to sudden jerk, he accidentally fell down and as a result, he sustained injury and that A.W.2, who is the Doctor, who treated the applicant, deposed that the applicant was in coma for about one year. Therefore, he prays to grant compensation as prayed for. 8. On the other hand, learned Standing Counsel appearing for the respondent vehemently contended that the appellant failed to establish that he was a bona fide passenger travelling in a passenger train and that no evidence either oral or documentary is filed to establish that the appellant had fallen from the running train and the Tribunal, after considering the evidence on record, rightly dismissed the claim and there are no grounds to interfere with the same. 9. Two requirements are to be satisfied in a claim for compensation for the injury sustained by the claimant. One is that a person sustained injury in an untoward incident and secondly, he must be a bona fide passenger travelling in the passenger train with a valid ticket. In the case of schedule injuries, there is no difficulty in granting compensation. But in this case, as seen from the evidence of A.W.2, the appellant sustained a fracture on the left franto parietal region of the head. He was admitted in the hospital on 18.09.2002 and discharged on 02.10.2002. There cannot be any dispute that any fracture in the body would be united or healed but sometimes, there may be a mal- union of fracture leaving deformity or disability. A.W.2, who is the Doctor, who treated the claimant, did not testify that there was a mal- union of fracture and because of that mal-union, there was a deformity. As seen from the evidence, there was a hemiperisis, that is weakness in right side of the head. A.W.2 estimated the disability at 25%. He has not stated any reasons for the estimation of 25% of the disability. Simply because the Doctor has estimated the disability, that does not mean his evidence has to be accepted as a gospel truth. The evidence of a Doctor has to be appreciated like that of any other evidence. If the evidence of Doctor is found to be not acceptable or does not contain any reasons for estimation of the disability, the evidence needs to be rejected. The evidence of doctor does not contain any reasons for estimation of percentage of disability. Therefore, the evidence of A.W.2 cannot be accepted with regard to the estimation of the disability. 10. But the fact remains the appellant sustained fracture of left franto parietal of the head. He has taken treatment for about 14 days as an inpatient. He must have suffered lot of pain and suffering because of the said fracture. Even after discharge from the hospital, the pain and sufferings suffered by the appellant and mental agony must be continued for a considerable length of period. He must have incurred expenditure for treatment, purchase of medicines, fees to the Doctor etc. Similarly, he must have taken extra nourishment with a hope that the fracture sustained by him would leave no disability. So, considering these aspects, the appellant can be granted a reasonable compensation, as it was not a schedule injury. 11. Coming to the first aspect as to whether the appellant sustained head injury in the railway accident namely untoward incident, he has not produced any ticket to show that he was a bona fide passenger. But the evidence of A.W.2 would clearly go to show that he came to the Secunderabad Railway station to purchase a ticket and having purchased the ticket worth about Rs.35/- to travel in the passenger train to go to Jangaon, he boarded the train and while the train was reaching Bhongir, he slipped accidentally and fell from the train. That statement of A.W.1 remained unchallenged. Once a fact has been stated by witness and the same is not denied or disputed in the cross examination, it can be said that such a fact is admitted. Therefore, once the evidence of A.W.1 is to be accepted as true and correct, it is clear that he was a bona fide passenger travelling in a passenger train and that he fell down from the train accidentally. It is not the case of the railway administration that the case falls under anyone of the clauses to proviso to Section 124-A of the Act. There is no contra evidence adduced by the railway administration. No doubt, no message is given by the Deputy Station Superintendent, Bhongir to the G.R.P. to show that the appellant fell down from the passenger train but that cannot be a ground to disbelieve the evidence of A.W.2. In the first instance, he was taken to the nursing home of A.W.2 where he categorically stated that he had sustained injuries by accidentally falling from the passenger train. Ex.A-1 is the summary of the case sheet maintained by the Department of Neuro Surgery, Gandhi Medical College Hospital. So the earliest document maintained by the hospital authorities would clearly go to show that the appellant sustained injuries by falling from a running train. So, basing on Ex.A-1 coupled with the evidence of A.W.2, it can safely be presumed that the appellant sustained fracture on the head while travelling in the passenger train and sustained that injury in an untoward incident. Therefore, the Tribunal ought to have awarded some reasonable amount towards compensation. 12. Considering the nature of fracture, the period of treatment as an out patient and other facts and circumstances of the case, an amount of Rs.40,000/- is just and reasonable towards compensation. Hence, an amount of Rs.40,000/- (Rupees forty thousand only) is granted to the appellant towards compensation with simple interest at 6% p.a. from the date of this order till the date of realization. 13. The Civil Miscellaneous Appeal is partly allowed to the extent indicated above. There shall be no order as to costs. _​_____________________ JUSTICE K.C.BHANU 6th April, 2011 AMD THE HON'BLE SRI JUSTICE K.C.BHANU C.M.A.No.1031 OF 2006 Date:06.04.2011 AMD