IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD DATE. 22-03-2011. PRESENT HON'BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CIVIL MISCELLANEOUS APPEAL No.260 of 2008 Between: Union of India, Rep. by its General Manager, South Central Railway, Railway NIlayam, Secunderabad. --- Appellant AND Hari Setti and another Respondents The Court made the following: HON'BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CIVIL MISCELLANEOUS APPEAL No.260 of 2008 JUDGMENT: This Civil Miscellaneous Appeal filed under Section 23 of the Railway Claims Tribunal Act, 1987 (for short, “the Act”) is directed by the appellant/respondent against order dated 10-12-2007 passed in O.A.A. No.218 of 2002, on the file of the Railway Claims Tribunal, Secunderabad Bench at Secunderabad (for short, ‘the Tribunal’) where under and whereby application filed by the respondents/applicants under Section 16 of the Act read with Section 124-A of the Railways Act, 1989, claiming compensation of Rs.4 lakhs to the respondents-applicants following the death of one Bideshi Setti, who is the son of the respondents-applicants, was allowed. 2. The appellant is the respondent and the respondents are the applicants in O.A.A. No.218 of 2002. For the sake of convenience, the parties hereinafter will be referred as they are arrayed in the Tribunal. 3. The facts of the case as set out by the applicants are as follows : On 10-04-2002 the deceased traveled by U.P.Konark express train from Balugaon to Mumbai CST with ticket No.14169 and in between Yeshwanthapur and Raghunathpalli Raiway stations at K.M.No.286/29-31 the deceased slipped and fell down and received serious injuries and died on the spot on 11-04-2002 and he was a bona fide passenger of the train and hence the application was filed. 4. The respondent filed its written statement denying the pleas taken by the applicants and asserting that there is no eye witness to the incident and prayed to dismiss the application. 5. On the strength of the pleadings, the Tribunal framed the following issues for trial and disposal : 1) Whether the applicants are dependents of the deceased Bideshi Setti? 2) Whether the deceased was a bona fide passenger of Konark express train traveling from Balugaon to Mumbai CST on 10-04-2002? 3) Whether the deceased sustained injuries and died on account of an untoward incident of accidental fall from the train between Yeshwanthapur and Raghunathpalli Rly.Stations on 11-04-2002? 4) To what relief? 6. On behalf of the applicants, the first of them got himself examined as A.W.1 and got marked Exs.A-1 to A-4. On behalf of the respondent, two witnesses were examined as R.Ws.1 and 2 and got marked Ex.R.1 and in addition to them, two witnesses were examined as C.Ws.1 and 2. 7. Examining the material available, the Tribunal upheld the claim of the applicants and awarded the amount apportioning Rs.2 lakhs each with a direction to deposit the amount within 60 days from the date of receipt of a copy of that order, failing which to carry interest at the rate of 6% p.a. from the date of receipt of copy of the order till the date of realization of the amount. Hence, aggrieved by the same, the present Civil Miscellaneous Appeal has been preferred. 8. There is no dispute about the question of dependency decided under issue No.1. Therefore, the points which are mainly to be examined are as to (1) Whether the deceased was a bona fide passenger of the train; (2) Whether the case falls within the ambit of the exceptions provided under Section 124-A of the Railways Act and the applicants are entitled for compensation and (3) Whether the Tribunal examined the matter properly. 9. POINTS: It is the main contention of learned counsel for the respondent that even though A.Ws.1 and 2 say that a train ticket was seized from the deceased and it was preserved, no steps were taken to cause production of that ticket, for which adverse inference is to be drawn and it is also his claim that the deceased died because of his own negligence and careless act which would fall within the ambit of Section 124-A of the Railways Act,1989 and therefore the applicants are not entitled to any compensation but the Tribunal failed to examine the matter properly and therefore its order is to be set aside. 10. With regards to the question of ticket under the second issue framed by the Tribunal, it is observed that CWs.1 and 2, who are retired Head Constables of GRP/Jangaon and of the FRP/Jangaon respectively, deposed that the ticket was seized from the dead body at the time of inquest over the dead body and the same was preserved and therefore it proves that the deceased was holding a valid ticket to travel by the train. It is a well established principle of law that the respondent/railways has to prove that such a person was not bona fide passenger of a particular train. Therefore, the railways should have taken necessary steps to cause production of relevant records to disprove the claim of the applicants that he was a bonafide passenger at that time or to establish their claim that he was not a bonafide passenger of the train. Therefore, the circumstances prove that he traveled by the train holding a valid ticket. 11. With regards to the question of the case falling under the exceptions provided under Section 124-A of the Railways Act, Section 123 (c) of the Railways Act, 1989 is as follows : “Untoward incident” means – (1) (i) the commission of a terrorist act within the meaning of sub-section (1) of section 3 of the Terrorist and Disruptive Activities (Prevention)Act, 1987 (28 of 1987) ; or (ii) the making of a violent attack or the commission of robbery or dacoity ; or (iii) the indulging in rioting, shoot-out or arson, by any person in or on any train carrying passengers or in a waiting hall, cloak room or reservation or booking office or on any platform or in any other place within the precincts of a railway station : or (2) the accidental falling of any passenger from a train carrying passengers”. Section 124-A of the Railways Act, 1989 provides : “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 dependant 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.” 12. On the other hand, in a decision of the Supreme Court reported i n UNION OF INDIA Vs. PRABHAKARAN VIJAYA KUMAR AND OTHRS[1], considering various aspects the Supreme Court observed under similar circumstances : “14. In our opinion, if we adopt a restrictive meaning to the expression ‘accidental falling of a passenger from a train carrying passengers’ in section 123 (c) of the Railways Act, we will be depriving a large number of railway passengers from getting compensation in railway accidents. It is well-known that in our country there are crores of people who travel by the railway trains since everybody can not afford traveling by air or in a private car. By giving a restrictive and narrow meaning to the expression we will be depriving a large number of victims of train accidents (particularly poor and middle class people) from getting compensation under the Railways Act. Hence, in our opinion, the expression ‘accidental falling of a passenger from a train carrying passengers’ includes accidents when a bona fide passenger, i.e., a passenger traveling with a valid ticket or pass is trying to enter into a railway train and falls down during the process. In other words, a purposive, and not literal, interpretation should be given to the expression. 16. The accident in which Abja died is clearly not covered by the proviso to section 124-A. The accident did not occur because of any of the reasons mentioned in clauses (a) to (e) of the proviso to section 124-A. Hence, in our opinion the present case is clearly covered by the main body of section 124-A of the Railways Act, and not its proviso. 17. Section 124-A lays down strict liability or no fault liability in case of railway accidents. Hence, if a case comes within the purview of section 124-A it is wholly irrelevant as to who was at fault.” 13. So by virtue of the above decision, such acts of the deceased should not be brought within the ambit of the exceptions provided under Section 124-A of the Railways Act and even such persons also fall within the ambit of the main limb o Section 124-A of the Railways Act, 1989. Ultimately, the applicants are entitled to the compensation as claimed. 14. The Tribunal considered the matter properly and arrived at correct conclusions and there are no reasons to interfere with the same. 15. In the result, the Civil Miscellaneous Appeal is dismissed. There shall be no order as to costs. ________________________________ JUSTICE G. KRISHNA MOHAN REDDY Dated: 22-03-2011. VJL [1] 2008 ACJ 1895