HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA CIVIL MISCELLANEOUS APPEAL No. 850 OF 2006 DATED 23rd DECEMBER, 2011 BETWEEN I. Vijaya Laxmi and ors …….Petitioner and The Union of India, rep. by its General Manager, South Central Railway Secunderabad. ……Respondent HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA CIVIL MISCELLANEOUS APPEAL No. 850 OF 2006 JUDGMENT: This Civil Miscellaneous Appeal under Section 23 of the Railway Claims Tribunal Act was preferred aggrieved by the Award dated 5.6.2006 passed in OAA.No. 57 of 2001 on the file of the Railway Claims Tribunal, Secunderabad Bench at Secunderabad. The appellants who are the wife and children of the deceased, I.Satyanarayana, filed an application under Section 16 of the Railway Claims Tribunal Act read with Sections 124-A and 125 of the Railway Act claiming compensation of Rs.4,00,000/- on account of the death of the deceased in an untoward incident of accidental fall from a moving train. It was stated in the claim application that the deceased while travelling by Train No.8564 :Bangalore-Visakhapatnam Prasanthi Express on 20.2.2001 from Guntur to Rajahmundry with a valid journey ticket bearing No. 12476042, slipped and fell down at KM 512/6-8, between Bhimadole and Pulla Railway Stations, due to speed and jerks of the train, as a result of which, the deceased succumbed to severe multiple injuries on the spot. The respondent-Railways contested the claim application. While stating that there was no untoward incident in the subject train on the alleged date, they denied that the deceased was a bona fide passenger. Based on the above pleadings, the Tribunal framed the following issues for resolving the dispute. 1. Whether the applicant is the sole dependant of the deceased I Satyanarayana? 2. Whether the deceased was a bona fide passenger of Train No. 8564 Bangalore- Visakhapatnam Prasanthi Express traveling from Guntur to Rajahmundry on 20.02.2001? 3. Whether the deceased died as a result of an untoward incident of an accidental fall from the train between Bhimadolu and Pulla Railway Stations? 4. To what relief? Before the Tribunal, on behalf of the appellants, A.W.1 was examined and Exs.A.1 to A6 were got marked. On behalf of the respondent- Railways, RW.1 was examined, however, no documents were got marked. The Tribunal on a consideration of the evidence on record, while recording a finding that the appellants failed to establish that the deceased was a bona fide passenger and his death was due to the alleged untoward incident of accidental fall, ultimately dismissed the claim application filed by the appellants/claimants. Hence, the present appeal. Heard both sides. The learned Counsel for the appellants/claimants submitted that the Tribunal did not properly consider the evidence of AW.1; and that the Tribunal did not properly appreciate the contents of the inquest report; and that though ticket was recovered from the dead body of the deceased, the Tribunal grossly erred in holding that the deceased was not a bona fide passenger. Per contra, the learned Standing Counsel for the respondent-Railways submitted that in as much as the appellants have failed to prove to the effect that the deceased was a bona fide passenger; and that his death was due to the alleged untoward incident within the meaning of the Act and that the deceased travelled in the subject train; the Tribunal rightly considered the evidence on record and ultimately dismissed the claim application filed by the appellants. Perused the case file. The material on record would reveal that the first appellant-applicant in her evidence deposed that one K. Ashok Kumar, who stated to be the friend of the deceased, travelled along with the deceased on the relevant day from Guntur Railway Station to Vijayawada and when the train halted at Vijayawada, he alighted there, to attend his personal work while her husband continued the journey to Rajahmundry. Though she tried her level best to produce said witness-Ashok Kumar as AW.2, her efforts in this regard remained in vain. Admittedly, it is not in dispute that the dead body of the deceased was found lying at KM 512/6- 8 between Bhimadole and Pulla Railway Stations and the same was reported by the night patrol man K.Sanjiva Rao, R.W.1. Further Ex.A.1 discloses that the information regarding the dead body found lying at the aforesaid place was given by the Dy.S.S., Eluru on 21.2.2001 at 0800 hours. During the inquest, on seeing the ticket found from the pocket of the deceased, the panchayatdars were of the opinion that on the morning of 20.2.2001 at 0800 hours the deceased must have travelled from Guntur to Rajahmundry either in Train No.8564:Prasanthi express or Train No.7239- Simhadri Express. None of the panchayatdars have been examined either by the appellants- applicants or the respondent-Railways to establish as to in which train the deceased would have travelled. There is no direct evidence to the effect that the deceased had travelled in the subject train. This Court in similar circumstances in the case of N.Buchilingam Vs. Union of India {2004 (6) ALD 302} held as follows: “The fact that the dead body was noticed and recovered by the Railway staff near railway track prima facie discloses that the death of the deceased occurred on account of an accident. The nature of incidents that may result in injuries or death of bona fide passengers, involving a train is elaborately dealt with in section 123 of the Railways Act. The term 'accidental fall' referred to in clause (c)thereof, does not require that the accident shall be of a particular nature. Once an individual receives injuries or succumbs to them, the liability of the railways arise. It is saved only under certain circumstances referred under Section 124-A of the Act. As long as the circumstances stated therein are not pleaded or proved, the liability against the respondent to pay compensation subsists. Being the provisions intended for the welfare of the victims of accident or their dependants, Sections 123 and 124-A need to be given a liberal construction. There are no factors to indicate that there was any attempt on the part of the appellants to present a fictitious claim. The fact that the dead body was found at a place hundreds of kilometers away from their residence, the deceased was seen of by P. W. 2 at the railway Station and that tickets were recovered from his body, clearly disclose that the death occurred only on account of accidental fall from the train.” (emphasis added) Further the Tribunal entertained a doubt that if, in the alleged journey, the fall of the deceased was on 20.2.2001 from a morning train, the body cannot remain un-located till 21.2.2001. No sufficient reasons are forthcoming from the material on record as to why the dead body found lying on the Railway track was not informed by anybody till the 0800 hours of 21.2.2001 when it was so done by R.W.1-Night patrol-man. In case of any suspicion regarding the death of the deceased, it is for the police to investigate and file report, or if there is any foul play by the appellants-applicants with an intention to claim wrongful compensation, it is for the respondent-Railways to prove the same. However, during the inquest over the dead body, the inquest panchayatdars did not entertain such a doubt. On the other hand, they opined that the death was due to accidental fall from the train. Ex.A.4, Post-mortem report reveals that the deceased would appear to have died of injury to vital organ of brain and that the approximate time of death was 48 to 72 hours prior to post-mortem. The Medical Officer who conducted post-mortem on the dead body of the deceased did not doubt that death of the deceased was not due to accidental fall from the train. It is true that non-examination of any of the panchayatdars or the inquest officer would fatal to the case of the appellants-applicants. However, it is to be seen that there is no direct witness as to in which train the deceased had travelled. There is no dispute that the deceased was found in possession of a valid journey ticket. In the case of Railway accident, where a passenger died, the claimants would find it extremely difficult, if not impossible, to prove certain facts which are beyond their reach and control. Since the appellants-applicants may not be knowing whether the deceased had purchased a valid journey ticket or not, whether he had travelled in a particular train or not, they would not be in a position to prove the fact that the decease was a bona fide passenger or travelled in a particular train. However, since the Railways appoints Travel Ticket Examiners (TTE) on its behalf to check the valid ticket of the passengers, it has a mechanism for finding out and discovering as to whether the deceased was a bona fide passenger, and whether he had travelled in the subject train. Considering the fact that there is an equal presumption in favour of the Railways that the Railway officers would have discharged his duty of checking the ticket in a bona fide manner, it can similarly be presumed that the ticket collector would have examined whether the deceased possessed a valid ticket or not. Therefore, the Railways has a means through which they can easily prove that the deceased was not a bona fide passenger or he had travelled in the subject train. Therefore, the burden of proof lies on the Railway administration to lead evidence to the effect that the deceased was not a bona fide passenger, but it did not do so for the reasons best known to it. Under the circumstances, in as much as a valid journey ticket was recovered from the dead body of the deceased, it is manifest that the deceased was a bona fide passenger and that he died owing to accidental fall from the train. Nothing is forthcoming from the record to indicate that the claim made by the appellants/applicants was a fictitious one. Further, I do not find any other reason to disbelieve the claim of the appellants/applicants. The Tribunal failed to consider these aspects in the proper perspective and erroneously dismissed the claim application filed by the appellants/applicants under the impugned order. For the foregoing discussion, the order under appeal is liable to be set aside and accordingly the same is set aside. As a sequel there to, the claim application filed the appellants/applicants is allowed and they are entitled to receive the compensation as prayed for with interest at the rate of 6% per annum from the date of petition till the date of payment of the same. There shall be no order as to costs. --------------------------------------------- JUSTICE ASHUTOSH MOHUNTA Dated 23rd DECEMBER, 2011. Msnro