THE HON’BLE SRI JUSTICE C.V. RAMULU C.M.A. No. 1051 of 2005 JUDGMENT: This civil miscellaneous appeal, under Section 23 of the Railways Claims Tribunal Act, is directed against an order made in O.A.A. No. 244 of 1999 dated 5.8.2005, whereunder the application filed by the claimants/applicants seeking compensation of Rs.4.00 lakhs in view of death of one N. David Raju while trying to board Train No.7047 – Kakinada-Secunderabad Gouthami Express, was dismissed. For the purpose of convenience, the parties are referred to, as arrayed in the O.A.A. Appellants are applicants-claimants. Respondent is the respondent in the O.A. It is the case of 1st applicant that on 3.8.1999 her husband-David Raju, accompanied by his colleague Badeti Satyanarayana Vara Prasad APRC 832, went to Tadepalligudem from Eluru, on duty, to handover a prisoner in Sub-Jail in Tadepalligudem, and while returning on the same day from Tadepalligudem to Eluru, David Raju and his colleague boarded Train No.7047 Kakinada- Secunderabad Gautami express, after purchasing tickets. After boarding the train, David Raju fell down and the train passed to some distance on platform No.3 and stopped. Due to dragging by the train, David Raju sustained multiple injuries and died on the spot. This was an untoward incident of accidental fall by the deceased. Therefore, claimants prayed for compensation of Rs.4.00 lakhs. Respondent filed written statement, denying the allegations. It was further stated that the enquiries revealed that when Train No.7047 was leaving the platform, one male person came running and tried to get into the running train and fell down and killed; so, this is not a case of accidental fall from train and it will not attract the definition of ‘untoward incident’ as defined under the Act. On the basis of the above pleadings, the following issues were framed for trial: 1. Whether the applicants are dependents of the deceased Nethala David Raju? 2. Whether the deceased was a bona fide passenger of train No.7047 Gautami express traveling from Tadepalligudem to Eluru on 3.8.99? 3. Whether the deceased died as a result of an untoward incident of accidental fall from the train at Tadepalligudem Railway station? 4. To what relief? On behalf of the claimants, AWs 1, 2 and 3 were examined and documents Exs.A-1 to A-5 were marked. On behalf of the respondent, none was examined and no document was marked. After detailed consideration of oral and documentary evidence, the Tribunal gave a finding that the claimants are the dependents of the deceased David Raju, but he was not a bona fide passenger. In so far as issue No.3 was concerned, the Tribunal held that in case any passenger falls without taking precaution and undertakes risk in boarding or alighting running train, it attracts one of the exceptions of self-inflicted injury as shown in proviso to Section 124-A of the Railways Act; where the evidence on record is to the effect that the accidental fall is due to self-inflicted injury, it cannot be treated as untoward incident and thereby it absolves the liability of the railway administration. Thus holding, the O.A.A. was dismissed. Aggrieved thereby, the present appeal is filed. It is the contention of the learned counsel for the appellants that once the Tribunal came to the conclusion that the claimants are the dependents of the deceased and the deceased died in a railway accident and that he was accompanied by AW-2 at the time of accident and AW-2 claimed that he purchased tickets, merely because tickets were not produced, the Tribunal ought not to have held that the deceased was not a bona fide passenger and the accident occurred was not an untoward incident and that the said finding is contrary to the evidence available on record and also the judgment of the apex Court. Therefore, the same is liable to be set aside. Per contra, learned counsel for the respondent supported the order passed by the Tribunal and stated that absolutely there was no negligence on the part of the Railways. It was the negligence of the deceased due to which he had fallen down and died in the accident. Therefore, the Tribunal rightly came to the conclusion that falling of the petitioner while boarding the running train cannot be said to be an untoward incident apart from holding that he was not a bona fide passenger. I have given my earnest consideration to the respective submissions made by the learned counsel on either side and perused the impugned order and other material made available on record. The question that falls for consideration in this appeal is, whether it can be said that David Raju-husband of 1st applicant died on 3.8.1999 as a result of untoward incident and accidental fall from the Train No.7047 at Tadepalligudem Railway Station and whether he was a bona fide passenger or not? The accident as such is not denied. AW-2, who accompanied the deceased, categorically asserted that he had purchased the tickets and the deceased, while boarding accidentally slipped, fell down and died on the spot. This evidence of AW-2 cannot be brushed aside simply because he was a colleague of the deceased and was traveling along with him at the time of accident. Absolutely, there was no iota of rebuttal evidence on this aspect. The whole of the findings recorded by the Tribunal are based on the FIR and the message sent by Deputy SS/Tadepalligudem. Passengers boarding the train on the platforms, while train is in movement, is not unusual. There is no evidence to show that the train picked up a great speed and the deceased ran for a long distance and then tried to board the running train. Therefore, the Tribunal ought to have seen that when an accident occurred in the precincts of the Railway Station, particularly on the platform while boarding the train, it comes within the meaning of ‘untoward incident’. Learned counsel for the appellants relied upon a judgment of this Court in A.A.O. No. 1127 of 1998 dated 25.9.2003 to show that the deceased was a bona fide passenger on the train and drawn attention of the Court to a portion of the said judgment, which reads: “The Tribunal having observed that the evidence of PW-1 that he was present when the deceased purchased the ticket cannot be believed, held that the deceased was not a bona fide passenger. It is no doubt true that the evidence of PW-1 that he took the deceased to the Railway Station on a cycle from his village is hard to believe. But merely because the evidence of PW-1 that he was present when the deceased boarded the train cannot be believed, it cannot be said that the deceased was not a bona fide passenger. Because the deceased slipped while trying to board a moving train, it is clear that the deceased was allowed entry on to the platform. If the deceased did not purchase either a platform or journey ticket, he would not have been allowed entry on to the platform, because it is well known that Railway Authorities would not allow all and sundry to enter the platform, more so after the arrival and before the departure of a train, without a valid journey or platform ticket. The fact that no ticket was found in the clothes and articles found on and near the dead body of the deceased, by itself, cannot be taken as a ground for holding that the deceased was not a bona fide passenger”. Learned counsel for the appellants further relied upon a judgment of this Court in C.M.A. No.1069 of 2009 dated 7.10.2009, wherein it is held: “Even if there is any possibility for treating the ticket held by the deceased, as not valid one, he does not cease to be a passenger, in the context of the extension of benefits, under Sections 124 and 124-A of the Act. What becomes material, in this regard, is the intention of the person, who was traveling in the train. It is only when the person boards the train with a clear intention to travel in it, without purchasing a ticket, that he can be treated as not a passenger. Take for instance a situation, where a person finds that the train in which he has to travel, is about to start, by the time he reached the station, and he does not have the time to purchase the ticket. Though he does not hold the ticket, he may still board the train with an intention to pay the fare to the TTE. Such a person can still be treated as bona fide passenger, both, when he boarded the train without ticket and after he pays the fare to the TTE”. Further, he relied upon a judgment reported in Asharani Das v. Union of India & Anr[1] wherein it was held that “when a person is charged with traveling on a railway without a ticket, burden of proving that the passenger had a ticket is on him alone. But, such principle is not applicable to a case of dead person, who had been proved to have died in course of railway travel and whose body was taken in custody of Railway Police. In such a situation, it is the duty of the Railway Authority to first give evidence that he was without a valid ticket. On such evidence being given, the onus shifts upon claimants to prove that he was a bona fide passenger having a valid ticket”. In the case on hand, since no rebuttal evidence has been adduced on behalf of the respondent, it must be deemed that the deceased was a bona fide passenger. In as much as the evidence of AWs 1 and 2 went unrebutted, the Tribunal ought not to have held on mere assumptions and presumptions that the death of David Raju in railway accident was not an untoward incident. The findings as recorded by the Tribunal in this regard are as under: “The first applicant filed her sworn affidavit reiterating the factual aspects that her husband while returning to Eluru on 3.8.1999 by train No.7047 Gautami Express, he fell down from the train and that his colleague who also followed him on duty had witnessed the occurrence. In support of her evidence AW2 was examined and he was subjected to cross-examination. AW2 deposed that on 3.8.99 he along with the deceased went to Tadepalligudem R.S. at 10 p.m. to return back to Eluru, by the time they reached the platform the train already arrived on platform No.3 and the deceased advised him to occupy seat in the general compartment and that he would get the tickets from the booking counter. While he was waiting in the general compartment the deceased returned after purchasing the tickets and boarded into the train and stood near the door as there was heavy rush inside, in the meanwhile the train started leaving the platform, while so, the deceased slipped and fell down from the running train and when he fell down in the gap between the platform and the train he was dragged to some distance causing him multiple injuries and died on the spot. The train was stopped on pulling the alarm chain. The railway staff and railway police came to the spot and noted down the details as to the mishap occurred. It was elicited in the cross- examination that the deceased went to Tadepalligudem by using bus warrant and for the return journey the bus warrant were not used and their passports were returned to the ARSI. As against the evidence of AW1 and AW2 the respondent has not adduced any evidence. Besides the oral evidence, Ex.A1 FIR, Ex.A2 Inquest Report, Ex.A3 Postmortem Examination Report, Ex.A4 Death Certificate are filed to establish that the deceased after purchasing the ticket boarded into the train and while traveling he fell down from the train”. Further, here it is pertinent to refer to the decision of the Supreme Court in UNION OF INDIA v. PRABHAKARAN VIJAYA KUMAR[2], wherein it was held that: “(11) NO doubt, it is possible that two interpretations can be given to the expression ‘accidental falling of a passenger from a train carrying passengers’, the first being that it only applies when a person has actually got inside the train and thereafter falls down from the train, while the second being that it includes a situation where a person is trying to board the train and falls down while trying to do so. Since the provision for compensation in the Railways Act is a beneficial piece of legislation, in our opinion, it should receive a liberal and wider interpretation and not a narrow and technical one. Hence in our opinion the latter of the abovementioned two interpretations i.e. the one which advances the object of the statute and serves its purpose should be preferred vide Kunal Singh vs. Union of India (2003) 4 SCC 524 (para 9), B.D. Shetty vs. CEAT Ltd. (2002) 1 SCC 193 (para 12), Transport Corporation of India vs. ESI Corporation (2000) 1 SCC 332 etc. (12) IT is well settled that if the words used in a beneficial or welfare statute are capable of two constructions, the one which is more in consonance with the object of the Act and for the benefit of the person for whom the Act was made should be preferred. In other words, beneficial or welfare statutes should be given a liberal and not literal or strict interpretation vide Alembic Chemical Works Co. Ltd. vs. The Workmen air (Sic. AIR) 1961 SC 647 (para 7), Jeewanlal Ltd. vs. Appellate Authority AIR 1984 SC 1842 (para 11), Lalappa Lingappa and others vs. Laxmi Vishnu textile Mills Ltd. AIR 1981 SC 852 (para 13), S.M. Nilajkar vs. Telecom distt. Manager (2003) 4 SCC 27 (para 12) etc. (14) IN our opinion, if we adopt a restrictive meaning to the expression ‘accidental falling of a passenger form 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 railway trains since everybody cannot 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.” Therefore, I am of the opinion that once the accident is not denied and the deceased was a bona fide passenger and died in the railway accident on the platform while traveling in the train after having boarded, it cannot be said that the accident is not an untoward incident as per Section 123(c) of the Railways Act. Further, both the deceased as well as AW-2 were on duty and they were on Uniform as well. For all the above reasons, I am of the opinion that the deceased died in an untoward incident of railway accident on the platform of Tadepalli Railway Station, on 3.8.1999, and he was a bona fide passenger, therefore, the dependents of the deceased, namely, the appellants-claimants are entitled for compensation as prayed for. In the result, the appeal is allowed and the respondents are directed to pay compensation of Rs.4.00 lakhs to the appellants- claimants, with interest at the rate of 9% per annum, from the date of application till the date of realization. No order as to costs. JUSTICE C.V. RAMULU. Date: -7-2010. MVB. [1] . (AIR 2009 Calcutta 205 (DB), [2] 2008(9) SCC 527