THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY C.M.A.No.931 of 2007 JUDGMENT: This Civil Miscellaneous Appeal is filed under Section 23 of Railways Act, 1989 being aggrieved by the order made in O.A.A.No.50 of 2003 dated 30.8.2007 on the file of the Railway Claims Tribunal, Secunderabad Branch, Secunderabad, whereunder the claim of the applicants therein was allowed awarding compensation of Rs.4.00 lakhs in their favour. The Appellant is the respondent and the respondents are applicants. For the sake of convenience, the parties hereinafter will be referred to as they arrayed in the application. It is pleaded in the application as follows: The applicants are the wife and children of the deceased Panuganti Mallaiah. On 10.1.2003 at 4.00 a.m. the deceased went to Jammikunta on personal work informing the first applicant that he would go by Bhagyanagar Passenger and will return back on the same night. On the same day, in the afternoon, the first applicant received information that her husband died in a train accident and that his body was lying at Raghavapuram Railway Station. Hence, she filed application for the compensation as per the provisions of Railways Act, 1989. The respondent-Railway denied the claim of the applicants emphasizing that the deceased was not a bona fide passenger of the and therefore, the incident would not fall within the ambit of Section 123(c)(2) of Railways Act, 1989. Based on the above pleadings, the Tribunal below framed the following issues: 1. Whether the deceased was a bona fide passenger at the time of accident? 2. Whether the deceased died of injuries sustained in an untoward incident, if so, what amount of compensation the applicant is entitled to? On behalf of applicants, the first of them and two others were examined and Exs.A1 to A5 were marked. On behalf of Respondent- Railways, R.W.1 and R.W.2 were examined and Ex.R1 and R2 were marked. Examining the material available on record, the Tribunal allowed the application awarding the compensation of Rs.4.00 lakhs in favour of the applicants and directed the Respondent-Railways to deposit the said amount within 60 days from the date of receipt of the order, failing which to carry interest at 6% p.a. from the date of receipt of the order till realization. Questioning the said order, the Respondent-Railways preferred the present appeal. The main contention of the learned counsel for appellant- Railways that there is no basis to say as to by which train the deceased traveled and relevant original journey ticket was not filed before the Tribunal and the dead body of the deceased was lying at KM 276/26-28 between Ramagundam-Raghavapuram Railway Station, and it appears that he got self-inflicted injuries within the meaning of exceptions provided under Section 124-A of the Railways Act, 1989, therefore applicants are not entitled for any compensation and the Tribunal failed to appreciate the matter properly. No dispute is raised with regard to the findings arrived at by the Tribunal below. Therefore, it has to be mainly examined as to whether the deceased was a bona fide passenger of the train and the case falls within the ambit of exceptions provided under Section 123 (c)(2) of Railways Act, 1989 and whether the order passed by the Tribunal below is valid or not. The circumstances of the case make it very clear that there was no eye witness to the incident. A.W.1 who is the wife of deceased stated that her husband while leaving the house, had informed that he would go to Jammikunta by Bhagyanagar passenger and A.W.2 who is an Auto Driver, stated that deceased boarded his auto and he dropped him at the Railway Station and A.W.3 stated that the deceased had asked him some money as debt to meet his family necessities and that he would come by Bhagyanagar Express on the relevant date. As per the F.I.R. issued by Deputy Station Superintendent, Bellampally, one male dead body was lying at KM 276/26-28 between Ramagundam and Raghavapuram Railway Stations. As per the inquest report, the deceased accidentally fell down from the train and it does not speak that any ticket was seized from his wearing apparel. Since no ticket was found from the wearing apparel of the deceased, I am of the view that it is a serious one. It is the claim of the applicants that the ticket might have been lost in the process of accident, but no assumptions can be accepted in order to establish the fact as per law. The circumstances would amply show that the deceased traveled by some train and received injuries and died at the place where his dead body was found. Section 2 clause 29 of the Railways Act, 1989, defines ‘passenger’ to mean a person traveling with a valid pass or ticket. Section 124-A of Railways Act, 1989 reads as under: “124-A Compensation on account of untoward incident: When in the course of working a railway an untoward incident occurs, then whether or not there has been any wrongful act, neglect or default on the part of the railway administration such as would entitle a passenger who has been injured or the dependent of a passenger who has been killed to maintain an action and recover damages in respect thereof, the railway administration shall, notwithstanding anything contained in any other law, be liable to pay compensation to such extent as may be prescribed and to that extent only for loss occasioned by the death of or injury to, a passenger as a result of such untoward incident: Provided that no compensation shall be payable under this section by the railway administration if the passenger dies or suffers injury due to (a) suicide or attempted suicide by him; (b) self-inflicted injury; (c) his own criminal act; (d) any act committed by him in a state of intoxication or insanity; (e) any natural cause or disease or medical or surgical treatment unless such treatment becomes necessary due to injury caused by the said untoward incident”. Section 123(c)(2) of the Railways Act, 1989 provides, accidental falling of any passenger from a train carrying passengers. Therefore, there should be some basis to say that the deceased traveled by some train holding a valid ticket. Whether he was traveled by train as a bona fide passenger or not can be ascertained basing upon relevant circumstantial evidence taking into consideration the evidence of witnesses, examination on both sides, relevant inquest report, relevant F.I.R., relevant post-mortem examination report and relevant ticket issue register. The Respondent-Railways should not ask for proof which is impossible to be proved. If the deceased had traveled by train purchasing only a general ticket, which is said to be lost, it is impossible to establish the said fact based upon the ticket issue register. In other words, if he traveled in a reservation compartment, then the same can be ascertained on the basis of some register. By virtue of Sections 54 and 55 of Railways Act, 1989, it is to be presumed that the deceased traveled by a train holding valid ticket as per law, which is always rebuttable by virtue of relevant factors. Therefore, for the purpose of establishing as to whether the deceased traveled in a reservation compartment or not, holding a valid ticket, the matter is to be remanded to the Tribunal below with a direction to give opportunity to the parties to do so. In the result, the impugned order passed by the Tribunal below is set aside and the matter is remanded to the Tribunal with a direction to take necessary steps to ascertain whether the deceased traveled by train holding valid journey ticket with reference to relevant ticket issue register and also giving opportunity to the applicants to rebut such evidence. In the circumstances, there shall be no order as to costs. Further, as the matter has become old, the Tribunal is directed to dispose of the matter within three months from the date of receiving a copy of this order. _________________________ G.KRISHNA MOHAN REDDY, J Date: .4.2011 DA THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY C.M.A.No.931 of 2007 .4.2011