THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL No. 507 of 2009 JUDGMENT : 1. This appeal has been preferred by the appellants/claimants challenging the order dated 11.08.2008 in O.A.A. No.395 of 2003 on the file of the Railway Claims Tribunal, Secunderabad Bench at Secunderabad, whereunder and whereby the claim application filed by the appellants was dismissed. 2. The appellants/claimants filed the O.A.A. claiming compensation of Rs.4,00,000/- for the death of one Kandukuri Laxman (hereinafter referred to as ‘the deceased’), who is husband of first appellant and father of second appellant, in an untoward incident. It is their case that the deceased while traveling from Bollaram Bazar to Gundla Pochampally by Train No.625, Suburban train with journey ticket no.35572 accidentally fell down from the running train in the middle of the way and received grievous injuries, and while he was lying on the track, another train no.626 Suburban local came on the same line and hit him, as a result, he died. 3. The respondent/railways filed reply denying the averments made by the applicants and stating inter alia that the deceased was not a bona fide passenger, and that the claimants are not witnesses to the alleged fall of the deceased. It is further stated that there is no report from any co-passenger of train no.625 which runs at about 16.00 hours, regarding the incident, and that as per First Information Report filed by the claimants, the crew of train no.626 gave a memo on 11.1.2003 to the on duty Deputy Station Superintendent, Secunderabad that a male trespasser was hit and killed at KM 608 between Bollaram and Bollaram Bazar, and therefore, the death of deceased was due to getting hit by a train while trespassing the track and it is not an untoward incident, and it attracts the exceptions to Section 124A of the Railways Act, 1989 and therefore, the respondent is not liable to pay any compensation. 4. The Claims Tribunal framed the following issues. 1)Whether the applicants are dependents of the deceased? 2)Whether the deceased was a bona fide passenger ? 3)Whether the deceased died on account of injuries sustained by him in an untoward incident of accidental fall from the train ? 4) To what relief ? 5. The Claims Tribunal, upon appreciation of the evidence on record, held that the deceased was not a bona fide passenger and that that he did not die in an untoward incident, and accordingly, dismissed the claim petition. Challenging the same, the present appeal is preferred by the claimants. 6. The learned counsel for the appellants/claimants contended that the deceased was a bona fide passenger having a valid ticket which is noted in the inquest report; that no untoward incident had happened while the local train was returning from Gundla Pochampally to Bollaram Bazar and this aspect of the case has been completely overlooked by the Claims Tribunal, and therefore, he prays to grant compensation to the appellants/claimants. 7. On the other hand, the learned counsel for the respondent/ railways contended that there was no untoward incident happened while train no.625 was proceeding from Bollaram Bazar to Gundla Pochampally, for which the deceased was having a valid ticket to travel, but having got down from the train, the deceased was crossing the track and at that time the same train, which was returning back as train no.626, hit the deceased, and therefore, it is not a case where the deceased had fallen from the running train accidentally, and considering these aspects, the Claims Tribunal rightly dismissed the Claim Petition and there are no grounds to interfere with the same. 8. There cannot be any dispute that in order to claim compensation under Section 124A of the Railways Act, 1989, the first condition precedent to be proved by the claimants is that there is an untoward incident happened and in that incident, the deceased died; and the second condition is that such a person must be a bona fide passenger traveling in the passenger train. Untoward incident includes accidental falling of any passenger from a train carrying passengers. If these two requirements are satisfied, then the burden shifts to the respondent/railways to establish that no untoward incident had happened or that the case of the claimants falls under any one of the clauses mentioned in Section 124A of the Railways Act, 1989. 9. It is the case of the claimants that the deceased while traveling from Bollaram Bazar to Gundla Pochampally by Train No.625, Suburban train with journey ticket no.35572 accidentally fell down from the running train in the middle of the way and received grievous injuries, and while he was lying on the track, another train no.626 Suburban local came on the same line and hit him, as a result, he died. Police conducted inquest on the dead body of the deceased and found ticket for traveling from Bollaram Bazar to Gundla Pochampally by local train no.625. Admittedly, at Gundla Pochampally, the same train will return to Secunderabad as train no.626. If really the deceased had fallen from the running train no.625 while it was proceeding to Gundla Pochampally from Bollaram Bazar, then it can be said that the deceased was traveling with a valid ticket because ticket number has been specifically mentioned in the inquest report. But, there must a direct or circumstantial evidence to show that the deceased had fallen from train no.625. A.W.1, who is the wife of the deceased, is not an eye-witness so as to speak about the alleged incident. The claimants failed to establish that the deceased had fallen from train no.625 while it was proceeding from Bollaram Bazar to Gundla Pochampally. 10. On the other hand, the railway administration examined Guard of the train as R.W.1, who categorically stated that while train no.626 was returning towards Secunderabad, he received information from the driver of the engine under Ex.R2 to the effect that one person was hit by the train and thrown into bushes. No doubt, driver of train no.626 was not examined, but, at the same time, the message received by the Guard from the driver is marked as Ex.R2, which remained unchallenged. The recitals in Ex.R2 would clearly go to show that a person while crossing the track, came into contact with the engine and he was thrown into bushes. The recitals in Ex.A2-inquest report would also go to show that while the deceased was crossing railway track, the incident had happened. Therefore, from the evidence adduced by the railway administration, it is clear that it is not a case of deceased falling from running train, but it is a case where the deceased was crossing the track while the passenger train no.626 was coming, which cannot be said to be an untoward incident. Further more, the deceased was not a bona fide passenger of train no.626. Therefore, the Claims Tribunal, upon appreciation of the evidence on record in right perspective, rightly dismissed the Claim Application and there are no grounds to interfere with the impugned order. 11. The Civil Miscellaneous Appeal is devoid of merit and is, accordingly, dismissed. No costs. --------------------- (K.C.Bhanu, J.) 11.8.2011 DRK THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL No. 507 of 2009 11.8.2011