IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE SECOND DAY OF SEPTEMBER TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL MISCELLANEOUS APPEAL No.809 OF 2009 Between: Bandaru Laxmi Devi and others .....APPELLANTS AND Union of India ....RESPONDENT The Court made the following: THE HON’BLE SRI JUSTICE K.C. BHANU CIVIL MISCELLANEOUS APPEAL No.809 OF 2009 JUDGMENT: This Civil Miscellaneous Appeal is directed against the order, dated 29.04.2009, in O.A.A.No.124 of 2005, on the file of the Railway Claims Tribunal, Secunderabad Bench, Secunderabad, whereunder and whereby, the application filed by the appellants/applicants claiming compensation of Rs.4,00,000/- consequent on the death of Bandaru Sreeramulu (hereinafter referred to as ‘the deceased’), was dismissed. 2. The appellants in the C.M.A. are the applicants, 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 applicants filed O.A.A. sating that on 05.12.2004, the deceased left from Ganlapenta where he was posted, for Anantapur to hand over a file to the Public Prosecutor at Anantapur; that while returning from Anantapur, the deceased boarded train No.6591, Hampi Express; that the deceased was standing near the door in the general compartment; that due to heavy rush and sudden jerk of the passenger train, the deceased fell down from the passenger train at KM 196/6 between Jangalapalli and Chigincherla Stations, and died instantaneously. 4. The respondent/Railways filed written statement denying the averments made in the claim application. It is stated that no information was given about the ticket, whether it was purchased or not; that the case does not fall within the jurisdiction of South Central Railway, since neither the destination, nor the accident site, nor the place where the ticket was purchased was within the jurisdiction of South Central Railway; that the dead body was found by the Key man and there was a passport issued by SI of Police and Travel authority, dated 04.12.2004 from Kadiri to Anantapur, but no Railway journey ticket was found; that there was no evidence to show that the deceased travelled in the said passenger train; that because the dead body was found near the track, it was presumed in the inquest that the deceased might have traveled in the said passenger train; that the train passed the spot at 00:00 hrs, the dead body was found by the Keyman 10 hours later, and that this manifestly proves that the deceased did not travel by the passenger train and hence, it prayed to dismiss the appeal. 5. Basing on the above pleadings, the following issues are framed by the Tribunal:- “1. Whether the applicants were dependents of the deceased? 2. Whether the applicant was a bonafide passenger of train No.6591 Hampi Express travelling from Anantapur to Ganlapenta on 05.12.2004? 3. Whether the applicant died as a result of an untoward incident of fall from the said train? and 4. To what relief?” 6. On behalf of the applicants, A.Ws.1 and 2 were examined and Exs.A-1 to A-4 were got marked and on behalf of the railways, no oral evidence was adduced, DRM Report was supplied. 7. The Tribunal, after considering the evidence and other material available on record, dismissed the application holding that the deceased was not a bona fide passenger and that his death was not due to untoward incident. Challenging the same, the present Civil Miscellaneous Appeal is filed by the applicants. 8. Now the point for determination is whether the order of the Tribunal is correct, proper and legal? 9. Learned counsel for the appellants/applicants contended that the occurrence of untoward incident is not denied or disputed by the railways; that on the sole ground that the deceased was not a bona fide passenger, the claim application was dismissed; that the evidence of A.W.2 is very clear that the deceased purchased a ticket and boarded the train; that the evidence of A.W.2 remained unchallenged and hence, he prays to set aside the impugned order. 10. On the other hand, learned counsel for the respondent/railways contended that travelling of the deceased by purchasing a ticket is highly improbable in view of the fact that the deceased went to Anantapur on official duty with a warrant to travel in a bus and so, travelling in the train cannot be accepted; that therefore, the Tribunal rightly dismissed the claim application, and hence, there are no grounds to interfere with the impugned order. 11. 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 a passenger train. If these two requirements are proved, then the burden shifts to the railways to establish that no untoward incident had happened or that the case of the Railways fall under any one of the exceptions mentioned under proviso to Section 124 A of the Act. 12. The factual matrix is not in dispute. There is no dispute that the deceased died as a result of multiple injuries sustained by him all over the body. The postmortem report reveals that the deceased sustained multiple injuries all over the body and died. 13. With regard to first aspect of bona fide passenger is concerned, A.W.2 was examined to speak about the deceased purchasing a ticket and boarding the train. It is not in dispute that the deceased went to Anantapur on official duty with a warrant to travel in a bus. While returning, the deceased seems to have purchased a ticket to travel in a train. That aspect was spoken to by A.W.2. The evidence of A.W.2 is very clear that the deceased purchased a ticket and boarded the train. The presence of A.W.2 at the relevant time of the incident is not denied or disputed in the cross-examination. Practically, the evidence of A.W.2 remained unchallenged. If the evidence of A.W.2 was discredited on the ground of improbability or reliability, then it would be a different matter. The Tribunal ought to have placed reliance on the evidence of A.W.2 which is cogent and trustworthy. From the evidence on record, it is clear that the deceased was a bona fide passenger travelling in a passenger train. When the initial burden standing on the applicants was discharged, then the burden shifts to the Railways to show that the deceased was not a bona fide passenger travelling in a passenger train. No rebuttal evidence was adduced by the railways to show that the deceased was not a bona fide passenger. On the ground that the deceased went to Anantapur by bus, the Tribunal came to the conclusion that the deceased ought to have returned to the place of work by bus. If the buses are not available for return journey, there is every possibility for a person to travel in a train. In such circumstances, the deceased necessarily purchases a ticket, as he has no other option. Therefore, there is every possibility for the deceased to travel in a train after purchasing a ticket. The same was witnessed by A.W.2. So, considering these aspects, it can be safely said that the deceased was a bona fide passenger travelling in the passenger train. Therefore, the applicants are entitled to compensation of Rs.4,00,000/-. 14. Accordingly, the Civil Miscellaneous Appeal is allowed setting aside the impugned order, dated 29.04.2009, in O.A.A.No.124 of 2005 on the file of the Railway Claims Tribunal, Secunderabad Bench, Secunderabad and granting compensation of Rs.4,00,000/- to the appellants/applicants. Out of the same, appellant No.1 is entitled to a sum of Rs.1,50,000/- and appellant Nos.2 to 6 are entitled to a sum of Rs.50,000/- each. The appellants are also entitled to interest @ 9% per annum from the date of this award till realization. There shall be no order as to costs. _______________ K.C. BHANU, J SEPTEMBER 02, 2011 YVL