HIGH COURT OF JUDICATURE OF ANDHRA PRADESH THE HONOURABLE SRI JUSTICE C.V. RAMULU CIVIL MISC. APPEAL NO. 99 OF 2006 Thursday, the Twenty Sixth day of August, Two Thousand and Ten Between Pulavarthi Lakshmi and others Appellants AND Union of India Through the General Manager, South Central Railway, Secunderabad Respondent JUDGMENT: This Civil Miscellaneous Appeal under Sec. 23 of Railway Claims Tribunal Act is directed against the order made on 22.9.2005 in O.A.A. No. 261 of 1999 on the file of the learned Railway Claims Tribunal, Secunderabad Bench at Secunderabad, whereunder the claim petition filed under Sec. 16 of the Railway Claims Tribunal Act read with Sec. 124-A and 125 of the Railways Act claiming compensation for the death of husband of the first appellant-applicant was dismissed. The appellants are the applicants before the Railway Claims Tribunal, Secunderabad Bench, Secunderabad. For convenience sake, parties are referred to as arrayed in the O.A.A. The application under Sec. 16 of the Railway Claims Tribunal Act read with Sec. 124-A and 125 of the Railways Act was filed claiming compensation of Rs.4.00 lakhs for the death of husband of the first applicant. It is stated that the deceased was attempting to get into the train No.7048 Goutami Express on 21.7.1999 at 5.50 hours at Nidadavolu Railway Station and due to sudden movement and jerks of the train, he fell down and was dragged and cut into pieces, which is an untoward incident of accidental fall from the train. Therefore, they are entitled to claim Rs.4.00 lakhs as compensation. The respondent – Railways filed counter stating that no cause of action had arisen since inquest report shows that the mishap has taken place while alighting from the train when the train was still moving and before it came to a halt and that this fact is clear from the statement of eyewitnesses cited in the inquest report. It is also stated that the incident of accidental fall was not on account of entraining at Nidadavolu but while alighting the train in motion and that the deceased was not a bonafide passenger, as such, the Railways are not liable to pay any compensation. On the basis of the above pleadings, the following issues were settled for trial. 1) Whether the applicant is the dependant of the deceased Pulavarthi Gopalam? 2) Whether the deceased was a bona fide passenger of train No. 7048 Gautami Express traveling from Nidadavolu to Kakinada on 21.7.1999? 3) Whether the deceased died as a result of an untoward incident of accidental fall from the said train while getting into the train at Nidadavolu Railway Station as alleged? 4) To what relief? On behalf of the applicants, the applicant No.1 was examined as AW-1 by filing affidavit dated 19.6.2001 and filed certain documents marked as Exs. A-1 to A-6. But, however, she was not cross-examined. The respondent – Railways have not led any evidence. Though a finding is recorded that the appellants are the dependants of the deceased under Sec. 123(b)(i) of the Railways Act, but since the deceased was not holding a valid railway ticket at the relevant time as noticed above and the opinion by the inquest panchas, shows that while the deceased was trying to get into the train had a fall and died and there was no negligence on the part of the Railways, therefore, the deceased cannot be treated as a bona fide passenger and the incident was not an untoward accidental fall from the train, therefore, the appellants – applicants are not entitled to any compensation. Aggrieved thereby, the present appeal is preferred. Against issues 2 and 3, the Tribunal recorded its findings as under: “…The applicants have not filed any journey ticket nor have led any evidence to prove the purchase of ticket by the deceased. No ticket has been recovered at the time of inquest nor any ticket number is mentioned therein. Though, AW-1 stated in her affidavit that she came to know that her husband purchased a ticket from Nidadavolu to Kakinada, in as much as she is not an eyewitness and her own affidavit is based on hearsay information, not much of reliance can be placed on her deposition. Her testimony that the ticket was lost at the time of accident also cannot be relied upon. In as much as neither there is any circumstantial nor any other evidence led or brought on record to support this contention, it is to be viewed that the deceased was not a bona fide passenger. 8) As far as the fall itself, the FIR, Ex.A1 only mentions that some passengers informed that one male person run over and killed suspecting by train No. 7049 at the end of Road No.1 Platform. The FIR does not give much of help to the applicants to prove the case of accidental fall. The next document to find out as to the fall of the deceased is Inquest Report, Ex.A2. It states in Col. IV “was alive while getting down from running train No. 7048” and again at Col. IX mentions “negligently getting down from train No. 7048” and lastly in Col. XXII it says “person died while negligently getting down from the train” and adds in Col. XXIII that “as per the statements of direct witnesses the accident was caused by the train No. 7048 express”. It is to be noted here that the Inquest Report clears the record about falling down of the deceased from train No. 7048 while getting down from the running train at Nidadavolu Railwy Station. However, in contrast to the original pleadings of the application in para 6 that “while the deceased was attempting to get into 7048 Gautami Express:. While both FIR and Inquest Report, Ex. A-1 and A2 are clear that the fall of the deceased was while getting down from 7048 and that in negligent manner before the train stopped at Nidadavolu Railway Station. The applicant’s case, as per the original pleadings, is that the death of the deceased has occurred due to accidental fall while getting into the said train at Nidadavolu Station. Therefore, it is to be held that the alleged fall has taken place while the deceased was getting down from the running train in a negligent manner. Once again the conclusions of the panchayathdars in the Inquest Reprot has been upheld in the Final Report of SI/GRP Nidadavolu when he states that the deceased fell down at Nidadavolu Railway Station from a slow motion train No. 7048 and further states in the Case Diary that he has verified the complete investigation in this case made by RPHC 389 which is made to be on correct lines. Although the railways have not led any evidence from their side, the overwhelming evidence on record is that the deceased was not a bona fide passenger and that the alleged fall has taken place while the deceased was getting down from a moving train and not while getting into the train as claimed by the applicant and that the fall has occurred due to negligence of the deceased as told by the eyewitnesses to the Investigating Officer during inquest. In the circumstances, it is held that the applicants have not proved their case that the death of the deceased has taken place while getting into train No. 7048 at Nidadavolu Railway Station and that he was holing a ticket….” Learned counsel for the appellants strenuously contended that the evidence of the first applicant went un- rebutted as she was not cross examined by the Railways. Further no evidence has been let in either oral or documentary by the railways. The Tribunal by taking Ex.A-2 inquest report into consideration, wherein at para No.15 it was stated that the panchas, after seeing the body parts of the deceased, opined that the deceased must have died while alighting the train and not getting into the train, has dismissed the application. This was only an opinion and there was no eyewitness to the incident. In fact, the body was not dragged for more than two to three furlongs and was cut into pieces and found lying all along three furlongs right from Platform No.1 towards Kovvur. It is not the case of the respondents that the deceased committed suicide and simply because the railway ticket was not traceable, it could not have been said that he was not a bona fide passenger. Whether he died while getting into the train or while alighting from the train, the fact remains that it was a railway incident of accidental fall particularly in the absence of any evidence let in by the Railways or the witnesses were cross examined by the railways, the Tribunal ought not to have simply relied on the inquest report, Ex.A-2 and dismissed the application. Learned counsel appearing for the respondents Sri T.S.Venkataramana, strenuously contended that whether a person died while getting into the train or while alighting from the train, can be easily made out from the nature of the accident and lying of the parts of the body. He also contends that proper railway ticket was not found on the body and, therefore, there wan no option for the Tribunal except to hold that the deceased was not a bona fide passenger and it was not an untoward incident of accidental fall from the train to call it as an accident under Sec. 124-A of the Railways Act and the Tribunal has not committed any error calling for interference by this court. The appeal being devoid of merits is liable to be dismissed. 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 placed on record. The facts which are not in dispute are that AW-1 was not cross- examined by the Railways nor the Railways have led any evidence either oral or documentary. Thus their participation in the prosecution of the case is almost absent. It is a fact, as seen from para No.7 of the inquest report, that the body of the deceased was cut into several pieces and was lying all along two to three furlongs from Platform No.1 of the Nidadavolu Railway Station towards Kovvur. Merely because, the pieces of the deceased were lying in a particular manner, it cannot be said that the deceased died while getting down from the moving train. Further the opinion recorded against clause 15 of Ex.A-2 inquest report, that as per the position of the pieces of the body lying on the track, it can be presumed that the deceased while getting down from the railway train and not while getting into the railway train, must have fallen. The accident occurred in the railway station and the train was moving Nidadavolu railway station and since there was sudden movement and jerks of the train, the deceased had fallen down and died, is the case of the applicants – appellants, which went un-rebutted. Further it is a fact that the body was dragged for more than three furlongs and the body was cut into various pieces lying all along three furlongs. Under these circumstances, it cannot be said that the ticket was not found on the body of the deceased and, therefore, he cannot be treated as a bona fide passenger. This approach made by the Tribunal is erroneous. Since the incident occurred at the railway station, Nidadavolu, it must be deemed that he was a bona fide passenger traveling from Nidadavolu to Kakinada, as per the evidence of AW-1, which went un- rebutted and it must be deemed that the deceased died of untoward incident of accidental fall from the train No.7048 Goutami Express on 21.7.1999 at 5.50 hours. As such, the appellants/applicant are entitled for the compensation of Rs.4.00 lakhs. Thus the award passed by the Tribunal is set aside and the appeal is allowed. The respondents are directed to pay compensation of Rs.4.00 with interest at 6% p.a. from the date of application till the award and at 9% p.a. from the date of award till the date of realisation. No order as to costs. _________________ Justice C.V. Ramulu August 26, 2010 MAS