THE HON’BLE SRI JUSTICE K.C.BHANU C.M.A.No. 328 of 2006 JUDGMENT: This appeal, at the instance of the Union of India, represented by its General Manager, South Central Railways, Secunderabad, is directed against the order dated 31-01-2006 in O.A.A.No.48 of 2000, on the file of the Railway Claims Tribunal, Secunderabad Bench at Secunderabad, (for brevity ‘the Tribunal’). 2. Brief facts that are necessary for disposal of this appeal are that on 23-12-1999, the deceased-Nayeem Basha Khan purchased a train ticket and boarded the train No.429 at Somadevarapalli to go to Guntur and soon after it moved, he accidentally slipped and fell from the running train and sustained grievous injuries and got shifted to Kambam hospital for treatment and from there to Government Hospital, Guntur. However, he succumbed to injuries on 24-12-1999. Hence, wife and daughter of the deceased have filed O.A.A.No.48 of 2000, and the parents of the deceased have filed O.A.A.No.282 of 2000, being dependents of the deceased, under Section 16 of the R.C.T. Act, 1987 read with Section 124-A of the Railways Act, 1989, for the accidental death of the deceased attributing it as an untoward incident. 3. The respondents filed written statement denying the averments made in the application. It is stated that as per the inquiries, it is reported that one male person, while attempting to enter into train while it was in motion, fell, run over and his both legs cut, and therefore, it was due to the negligent act of the deceased only. Hence, since it was an accidental fall, the railways have no liability to pay any compensation at all. 4. Based on the above pleadings, the following issues were framed by the Tribunal: 1. Whether the Applicants are the dependents of the deceased? 2. Whether the deceased was a bona fide passenger of train No.429 traveling from Somadevarapalli to Guntur? 3. Whether the deceased died as a result of an untoward incident of accidental fall from the train? 4. To what relief? 5. After considering the oral and documentary evidence, the Tribunal on 31-06-2006 allowed both the applications by a common order, awarding compensation of Rs.4.00 lakhs granting 60 days’ time to Railways to deposit the same, failing which, it is ordered that the amount would carry interest @ 6% per annum from the date of due till payment. Aggrieved by the order passed in O.A.A.No.48 of 2000, the appellant-Union of India has filed this appeal. 6. Heard the learned standing counsel for the appellant and the learned counsel for the respondents and perused the record. 7. Learned standing counsel for the appellant-Railways contended that the deceased tried to board the running train and died, that there was negligence on the part of the deceased resulting in his death and hence, applicants are not entitled for compensation. 8. On the other hand, the learned counsel for the respondents- applicants contended that the defence of negligence on the part of the deceased resulting in his death is not available to the railway administration under the Railways Act, 1989 and therefore, he prays to dismiss the appeal. 9. For the purpose of claiming compensation under Section 124-A of the Act, two requirements have to be satisfied, firstly, there must be an untoward incident whereunder person died. Untoward incident includes a person falling from the running train accidentally. Secondly, a person who died or sustained injuries must be a bona fide passenger traveling in the train carrying passengers with a valid ticket. If these requirements are proved, then the applicants are entitled for compensation. If the Railways want to resist the claim, it has to prove that no untoward incident had happened or deceased was not a bona fide passenger traveling in a train carrying passengers with a valid ticket or its case falls under anyone of the exceptions as provided under proviso to Section 124-A of the Act. 10. It is not in dispute that the deceased died in an untoward incident while trying to board the running train. After receiving injuries, he was shifted to the hospital where his statement was recorded. The statement of the injured falls under Section 32 (1) of the Indian Evidence Act, 1872. As the maker of the statement died subsequently, it is admissible under law. When a statement made by a person either verbal or written as to the cause of his death or as to any of the circumstances resulting in his death, in case, the cause of that person’s death comes into question is admissible under Section 32 (1) of the Indian Evidence Act, 1872. The statement of the deceased would clearly go to show that he slipped accidentally and fell down. Therefore, the death of the deceased in an untoward incident was established beyond the preponderance of probability. 11. It is not in dispute that the deceased was having a valid ticket to travel in a train carrying passengers. As the two requirements are proved, it is needless to observe that the applicants are entitled for compensation. 12. The defence of the negligence on the part of the deceased resulting in his death is not available to the Railway administration under the Railways Act, 1989, as the said provision is in the nature of no fault liability. If the railway administration wants to resist the claim stating that their case falls under any one of the exceptions as provided under proviso to Section 124-A of the Act, then the burden to prove and establish the same is on the railways. No such evidence was adduced by the railway administration to show that the present case falls under any one of those exceptions as provided in the proviso to Section 124-A of the Act. 13. Further, the Tribunal has not given any finding with regard to the issue No.1. Ex.A-4 is the original legal heir certificate, issued by the Mandal Revenue Officer, which clearly shows that the applicants are the dependents and legal representatives of the deceased, but unfortunately, ExA-4 was not discussed in the judgment passed by the Tribunal. Hence, the appellants are entitled for compensation as they are dependents of the deceased. 14. There are no grounds to interfere with the award granted by the Tribunal and therefore, the appeal is devoid of merit and the same is liable to be dismissed. 15. In the result, the appeal is dismissed. No costs. ____________________ 27th September 2011 kvr