IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE TWENTY FIFTH DAY OF AUGUST TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL No. 70 OF 2010 Between : Smt Durga Ben …APPELLANT A N D Union of India. …RESPONDENT THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL MISCELLANEOUS APPEAL No. 70 of 2010 JUDGMENT: This Civil Miscellaneous Appeal is directed against the order, dated 29.12.2009, in O.A.A.No.508 of 2006, on the file of the Railway Claims Tribunal, Secunderabad Bench, Secunderabad, whereunder and whereby, the application filed by the appellant/applicant claiming compensation of Rs.4,00,000/- consequent on the death of Prem Kishore Bhatt (hereinafter referred to as the ‘deceased’), was dismissed. 2. The appellant in the C.M.A. is the applicant, and the respondent in the C.M.A. is the respondent, before the Tribunal. For better appreciation of facts, the parties hereinafter are referred to, as they are arrayed before the Tribunal. 3. The brief facts are that, on 19.02.2006, the deceased boarded train No.2656, Navjeevan Express by purchasing a ticket in order to go Ahmedabad. While the deceased was travelling in the passenger train, due to sudden jerk and speed of the said passenger train, the deceased accidentally slipped and fell down between Vetapalem and Chirala Railway Stations and died instantaneously. Hence, the claim application. 4. The respondent/Railways filed written statement denying the averments made in the application. It is stated that the dead body was found by the side of the track; that there was no witness who saw the deceased travelling in the train or his falling from the train; that no ticket was seized from the dead body of the deceased; that the name of Praveen Kumar (A.W.2) was brought into application to adduce false evidence; that the deceased was responsible for his own death and hence, it prayed to dismiss the appeal. 5. Basing on the above pleadings, the following issues are framed for trial. “1. Whether the applicant was dependent of the deceased? 2. Whether the deceased was a bona fide passenger? 3. Whether the deceased died as a result of an untoward incident? and 4. To what relief?” 6. During trial, on behalf of the applicant, A.Ws.1 and 2 were examined and Exs. A.1 to A.3 were got marked, and on behalf of the respondent, R.Ws.1 to 3 were examined, and Exs.R.1 to R.4 were got marked. Ex.C.1 was marked through the Court. 7. After considering the evidence, the Tribunal dismissed the claim application on the ground that the applicant was not the dependent of the deceased; and that the deceased was not a bona fide passenger travelling in the passenger train. Aggrieved thereby, this appeal is preferred by the applicant. 8. Learned counsel appearing for the appellant/applicant contended that the Tribunal came to a wrong conclusion that the deceased was not a bona fide passenger; that the applicant was not shown to be dependent or legal heir of the deceased; that the evidence of A.W.2 would clearly go to show that the deceased purchased a ticket and boarded the train; that Exs.A.2 and A.3 certified copies of Ration card and Election Card respectively, would go to show that the deceased was none other than the husband of the applicant; that the inquest report and DRM’s report would go to show that the deceased had fallen from the unknown train and died and hence, he prays to set aside the impugned order. 9. On the other hand, learned Standing Counsel appearing for the respondent/Railways contended that there is absolutely no evidence to show that the applicant was the legal heir or dependent of the deceased; that the evidence of A.W.1 is contrary to the objective finding recorded by police during the course of investigation; that if really the deceased purchased a ticket, the same would have been available with the deceased as some other documents were found on the wearing apparels of the deceased; that the certified copy of Ex.C.1 would clearly go to show that the deceased was resident of Gujarat and he was working as a Priest in Jain Mandir in Chennai and used to visit his native place Gujarat; that whereas the documents filed by the applicant would go to show that the applicant was resident of Rajasthan State; that the Tribunal after considering the evidence on record rightly dismissed the claim application and hence, there are no grounds to interfere with the impugned order. 10. There cannot be any dispute that in order to claim compensation under Section 124 A of the Railways Act, 1989 (for short, ‘the Act’), the first condition precedent to be proved by the applicants 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 travelling in the passenger train. If these two requirements are satisfied, then the burden shifts to the railways to establish that no untoward incident had happened or that the case of the applicants does not fall under any one of the clauses mentioned in Section 124 A of the Act. 11. It is not in dispute that the deceased died as a result of falling from the unknown train. Police found the dead body of the deceased between Vetapalem and Chirala Railway Stations by the side of the track. The inquest report would go to show that the deceased Bhatt Premkishore Mohanlal had fallen from the unknown train, sustained injuries and died on the spot. During the course of inquest, police seized the driving licence, photo card, which contained the name and address of the deceased as Bhatt Premkishore Mohanlal, B/H, Old Telephone Exchange, Deesa, District B.K, Palampur. Police also noticed telephone book containing the telephone numbers. There cannot be any dispute that the objective findings of the Investigating Officer during the course of inquest are admissible under law. If that is taken into consideration, the driving licence of the deceased would clearly go to show that the deceased was a resident of Gujarat State. 12. Learned counsel for the appellant contended that any person can take licence from any State and therefore from the driving licnece, found in the wearing apparels of the deceased, it cannot be inferred that the deceased was a resident of Gujarat State. It may be correct, but at the same time, there must be evidence direct or circumstantial to show that the deceased was actually residing with the applicant as on the date of the incident in a Village of Anadra in Rajasthan State. Such evidence is lacking in this case. To show that the deceased was husband of the appellant, she filed Ex.A.2-certified copy of Ration Card, which would go to show that she is a resident of Anadra Village of Rajasthan. Similarly she filed Ex.A.3 certified copy of Election Card, issued by the Election Commission of India, and her name in that card was shown as Durga Ben and her husband’s name was shown as Prem Kishore. Ex.A.3 was issued on 28.08.2008 i.e., more than two years after filing of the Original Application in the Tribunal. Similarly, it is not known when Ex.A.2 was issued. The original of Ex.A.2 has not been produced. Unless proper explanation was given for misplacing of the original document (Ex.A.2), it ought not to have been marked as an exhibit. No explanation was given by A.W.1 as to the whereabouts of original of Ex.A.2. From Ex.A.2 it cannot be concluded that the applicant was wife of the deceased. 13. As seen from Ex.C.1-case diary the body was handed over to one Rawal Mahesh Kumar. According to A.W.1, after she came to know about the death of the deceased, she came to the place of incident and identified the dead body as that of her husband. If really that is the case, the dead body of the deceased would have been handed over to the applicant. As per the case diary, the deceased was working as Priest in Jain Mandir in Chennai. According to A.W.1 her husband was working as an Electrician. In the cross-examination she admitted that the deceased was businessman. The investigation conducted by police would clearly to show that the deceased was native of Gujarat State, whereas the claim of the applicant is that they were residing together at Anadra Village of Rajasthan State. Though she stated that the dead body was handed over to her after postmortem examination, the obsequies were performed at Chirala itself. Police investigation would clearly go to show that she was not at all present after conducting postmortem examination. On the other hand, according to Ex.C.1, the dead body was handed over to one Rawal Mahesh Kumar but not A.W.1. A.W.1 has not come to the Court with clean hands. In view of contradictory evidence of A.W.1 with that of police investigation, it is clear that the applicant failed to establish beyond preponderance of probability that she is the wife of the deceased and she is entitled to compensation. In the absence of any evidence, except oral assertion of A.W.1 which is quite contrary to the investigation conducted by police, it is not safe to place an implicit reliance on the evidence of A.W.1 to arrive at a conclusion that she is the wife of the deceased. 14. Coming to the aspect whether the deceased was a bona fide passenger or not, A.W.1 has not produced any ticket to show that the deceased was travelling in the passenger train with a valid ticket. No doubt, A.W.2 was examined to speak that the deceased purchasing a ticket so as to go to Ahmedabad and keeping the ticket in his pocket. If the evidence of A.W.2 to be accepted as true and correct, certainly the ticket would have been noticed by police during the course of inquest. All other documents, such as driving licence and telephone book, were found on the dead body of the deceased. So, if really the deceased purchased the ticket and kept it in the pocket, police would have noticed the ticket from the wearing apparels of the deceased. Therefore, the evidence of A.W.2 who is closely related to the deceased, cannot be accepted. The Tribunal has not placed any reliance on the evidence of A.W.2. R.W.2, the Guard of the train, has categorically stated that the train passed at Vetaplam at 15:30 hours and he has neither noticed any untoward incident nor anybody informed about the untoward incident and there was no jerks or jolts to the train at the place of incident during its run. Therefore, from the evidence on record, the Tribunal came to the right conclusion in dismissing the claim application. The findings are based upon proper appreciation of evidence on record. In the absence of any evidence, it cannot be said that the applicant was the legal heir of the deceased and that the deceased was bona fide passenger travelling in the passenger train. 15. Accordingly, the Civil Miscellaneous Appeal is dismissed confirming the order, dated 29.12.2009, in O.A.A.No.508 of 2006, on the file of the Railway Claims Tribunal, Secunderabad Bench, Secunderabad. There shall be no order as to costs. _______________ K.C. BHANU, J AUGUST 25, 2011 YVL