THE HON’BLE SRI JUSTICE C.V.RAMULU CIVIL MISCELLANEOUS APPEAL No.1108 of 2005 JUDGMENT: This civil miscellaneous appeal is directed against the order dated 22.08.2005 passed in O.A.A.No.263 of 1998 on the file of the Railway Claims Tribunal, Secunderabad Bench, Secunderabad, whereunder the application filed by the appellants herein under Section 16 of the Railway Claims Tribunal Act, 1987 read with Sections 124-A and 125 of Indian Railways Act, 1989, claiming a compensation of Rs.4,00,000/- for the death of the husband of the first appellant, was dismissed. Appellants are the claimants and respondent is the South Central Railways. It appears, the appellants have filed an application in O.A.A.No.263 of 1998, before the Railway Claims Tribunal, Secunderabad Bench, Secunderabad, claiming a compensation of Rs.4,00,000/- for the death of Thota Bandaiah (hereinafter referred to as ‘the deceased’), who is the husband of the 1st appellant and the father of appellants 2 to 7. For the sake of convenience, the parties are referred to as arrayed in the said O.A.A. It was the case of the claimants before the Railway Claims Tribunal that the deceased purchased a ticket bearing No.61814 dated 14.04.1998 at Kazipet to travel from Kazipet to Bellampalli by Ramagiri passenger train, and during the said journey, when the train reached Mandamarry, due to heavy rush inside the train, the deceased accidentally fell down from the running train, which resulted in his death and, hence, claimed a compensation of Rs.4,00,000/-. The respondent filed counter denying the allegations made by the claimants and stated that as per the postmortem report, the approximate time of the death of the deceased was 36 to 48 hours prior to the commencement of postmortem examination on 14.04.1998, by which it was clear that the death of the deceased had occurred earlier to 6.00 a.m. on 12.04.1998, but not in any case on 14.04.1998. It was also stated that the train number is not mentioned in the application and the alleged ticket purchased by the deceased is a planted one. It was further stated that as the Keyman of Mandamary Railway Station reported at 12.00 noon that he noticed the dead body of a male at KM No.247/21-23, it cannot be said that the death of the deceased was due to a fall from the train. On the basis of the above pleadings, the following issues were settled for trial: “1.Is it proved by the petitioner that Thota Bandaiah was a passenger traveling on 14.4.98 in Ramagiri passenger train and suffered injuries in an untoward incident and died as a result thereof? 2. Is it proved by the respondent that death is due to a cause other than a fall as pleaded? 3. To what relief?” On behalf of the applicants, applicant No.1, as AW.1, filed sworn affidavit and she was cross-examined. She also filed documents Exs.A1 to A7. On behalf of the respondent, none was examined. However, the First Information Report was marked as Ex.C1, the message given by the Deputy SS of Bellampalli Railway Station to the police was marked as Ex.C2 and the inquest report was marked as Ex.C3. After detailed consideration of the entire material on record, the Railway Claims Tribunal, having found that the applicants have not discharged the burden so as to shift it on the respondent to say that it falls within the exceptions of the proviso to Section 124-A of the Railways Act, dismissed the O.A.A. by the impugned order dated 22.08.2005. Aggrieved thereby, the present civil miscellaneous appeal is filed. Heard the learned counsel on either side and perused the impugned order and other material made available on record. At paragraph 6 of the impugned order, the Railway Claims Tribunal held as under: “No doubt the applicants may be the dependents of the deceased Bandaiah, what is required to be established in this case is whether he was a bonafide passenger by Ramagiri passenger train on 14.4.98 and that during the journey he met with an accident which is an untoward incident. The Applicant No.1 was not an eyewitness to the incident. According to the AW1 her husband left Mandamarri at 9 a.m. on 13.4.98 to go to Kazipet and while leaving he informed that he would return by 14.4.98, while so she got information on 14.4.98 at 12.30 p.m. through the neighbours that the dead body of her husband was found by the side of the track which is at a distance of 2 kms., to her house, so on that she immediately along with her family members rushed to the spot and identified her husband. As seen from the record, the FIR was registered on 14.4.98 at 12.20 hrs., on the memo sent by the Dy.SS, Bellampalli R.S. who got information by 12 noon. The inquest was held at 13.10 hrs., on the same day at 4 p.m. As per the autopsy opinion the death might have occurred 36 to 48 hrs., prior to the commencement of postmortem i.e., at 4. p.m. on 14.4.98. The evidence of AW1 is conflicting with the evidence on record. Though the inquest report shows that the ticket bearing No.61814 from Kazipet to Bellampalli was recovered from the pocket of the deceased which is attributed as a planted one for the reason that the journey between Kazipet and Bellampalli was short distance. The circumstances throw any amount of suspicion and doubt in the case. It is not known how AW1 could see that the deceased traveled by Ramagiri passenger when the inquest report shows that he might have fallen down from unknown train and the dead body was lying at KM No.247/21-23 quite away from the Rly. Station. The evidence led in by the applicant is not inspiring confidence as to how the deceased died on account of accidental death by a fall from the train so as to attract it as an untoward incident. Merely because the dead body of a person is found lying on the railway track, it cannot be said that the death of the deceased was on account of an accidental fall from the train. The applicants have not discharged the burden so as to shift it on the respondent to say that it falls within the exceptions of the proviso to Sec. 124A of the Railways Act. In view of the discussions and findings the issues are answered against the Applicants.” From the aforesaid findings, it is seen that the evidence of AW.1, the wife of the deceased, is conflicting with the evidence on record. Further, there is no other evidence on record as to at what point of time, the deceased had fallen from the train, and at what point of time, the train Ramagiri passenger had passed through KM No.247/21- 23 on 14.04.1998. The Tribunal has dismissed the application on the ground that the applicants have not discharged the burden so as to shift it on the respondent to say that it falls within the exceptions of the proviso to Section 124A of the Railways Act. A close examination of the impugned order would indicate that proper evidence was not let in on both sides, but only on the basis of the evidence available on record, which is not sufficient for either parties to prove or disprove the accident and the claim, the Tribunal dismissed the O.A.A. Even the age of the deceased was also not properly discussed. Since there is no proper evidence either to believe or disbelieve that the deceased traveled by Ramagiri passenger train on 14.04.1998, I am of the considered opinion that this is a fit case to set aside the impugned order and remand the matter for re-consideration. Accordingly, the impugned order dated 22.08.2005 passed in O.A.A. No.263 of 1998 is set aside and the matter is remanded to the Railway Claims Tribunal, Secunderabad Bench at Secunderabad, for fresh consideration, after giving opportunity to both parties to lead both oral and documentary evidence if necessary. The civil miscellaneous appeal is allowed to the extent indicated above. No order as to costs. _____________ C.V.RAMULU,J 12.08.2010 v v