IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD DATE. 27-01-2011. PRESENT THE HON'BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CIVIL MISCELLANEOUS APPEAL No.878 OF 2003 Between: Sundarapilli Kanthamma and another. --- Appellants/ Applicants. AND The Union of India, Rep. by its General Manager, South Central Railway, Railway NIlayam, Secunderabad. --- Respondent/ Respondent. The Court made the following: THE HON'BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CIVIL MISCELLANEOUS APPEAL No.878 OF 2003 ORDER: 1. This Civil Miscellaneous Appeal filed under Section 23 of the Railway Claims Tribunal Act, 1987, (for short, ‘the Act’) is directed against order dated 18-11-2002 passed in O.A.A. No.203 of 1999, on the file of the Railway Claims Tribunal at Secunderabad (for short, ‘the Tribunal’), where under and whereby application filed by the appellants for compensation was dismissed. 2. The appellants are the applicants and the respondent is the respondent in O.A.A. No.203 of 1999. For the sake of convenience, the parties hereinafter will be referred as they are arrayed before the Tribunal. 3. The applicants filed O.A.A. No.203 of 1999 before the Railway Claims Tribunal at Secunderabad claiming compensation of Rs.4,00,000/- on account of death of the husband of the first applicant and father of the second applicant namely S. Jarugulu, aged 50 years, on the following grounds : Four days prior to the accident in question, the deceased left for Kakinada from Eluru for visiting his relatives and on the evening of 02-06-1999, he informed his relatives that he was going to Rajahmundry by train on his personal work. On 03-06-1999 he went to the railway station at Rajahmundry and purchased a ticket to go to Powerpet and boarded Rajahmundry – Vijayawada passenger i.e., train No.162 and while traveling he slipped and fell down accidentally from the train which was running at 5-50 hours at KM 486/37 between Eluru and Vatlur railway stations and sustained injuries and died on the spot and in the process his ticket was lost and one China Venkateswarlu witnessed the incident and as such they (the applicants) are entitled for the compensation claimed. 4. The respondent filed his written statement denying the alleged accident totally and further claiming that an unknown male dead body aged about 45 years was found lying at KM 486/37 between Eluru and Vatlur railway stations by a night patrolling man who reported about the same to the Station Superintendent, Eluru, and later inquest was conducted over the dead body but the dead body was not referred for postmortem examination. It is also claimed that if the deceased was sitting at the door steps of the train and fell down, it would amount to his own negligence and Criminal act and as such he was not a bona fide passenger of the train. Further it is claimed that the applicants are not entitled for any compensation. 5. Basing on the pleadings, the following issues were framed by the Tribunal for trial and disposal : 1. Whether the applicants are the dependents of the deceased Sundarapilli Jarugulu? 2. Whether the deceased was a bona fide passenger of train No.162 Rajahmundry to Vijayawada passenger, traveling from Rajahmundry to Powerpet on 03-06-1999? 3. Whether the deceased died as a result of an untoward incident of accidental fall from the said train at KM 486/37 as alleged? 4. To what relief? 6. On behalf of the applicants, the first of them got examined herself as AW.1 and their relative was examined as AW.2 and Exs.A-1 to A-6 were marked. On behalf of the respondent, the night patrolling man namely Y. Babu Rao was examined as RW.1 and Ex.R-1 was marked. Considering the evidence on record, the Tribunal came to the conclusion that the deceased was not a bona fide passenger having a valid ticket to travel in the train and hence dismissed the claim. Challenging the same the present appeal is filed. 7. In order to dispose of the Appeal, the following points are to be examined and decided : 1. Whether there is sufficient evidence to the effect that the deceased happened to be a passenger of the train and if so he happened to be a bona fide passenger of the train? 2. Whether the applicants are entitled to the compensation claimed? 3. Whether the Tribunal considered the evidence properly and arrived at a correct conclusion and whether its order is sustainable or not? 8. It is the contention of learned counsel for the applicants that there is circumstantial evidence from the wife of the deceased i.e., AW.1 and also their relative AW.2 with regard to the deceased going to Kakinada and from there to Rajahmundry by the train and further to the effect that the Gangman at Eluru while doing patrolling duty found the dead body by the side of the railway line at about 6-30 a.m. on 03-06- 1999 and those circumstances coupled with the inquest report prove that the deceased traveled by the train and that non filing of the railway ticket is not a ground to dismiss the appeal. In support of their claim, learned counsel for the applicants has submitted a decision in Dasari Laxmi Vs. Union of India[1], wherein it was held : “When a passenger fell down from train while boarding and succumbed to his injuries, whether in absence of material to indicate that deceased was a ticket less traveler, it could be concluded that he was a bona fide passenger”. 9. It is the contention of the learned counsel for the respondent that unidentified dead body was found in between Vatlur and Eluru railway stations on the early morning of 03-06-1999 and it was cremated by the railway department and no postmortem examination of the dead body was done and therefore there is no basis to say that he received anti mortem injuries or postmortem injuries and further his wife i.e., the first applicant said to have identified the deceased on the basis of a photo given by the concerned police, but such a photo is not filed before the Court to accept it. Further, it is not established that the deceased was a bona fide passenger of the train. Further the Tribunal correctly considered the matter and there is no reason to interfere with its order. 10. Point No.1: The applicants have to establish that the deceased traveled in the train as a bona fide passenger. The evidence of AW.1 and AW.2 is about certain circumstances which took place prior to the accident in question. Therefore, their evidence is material only to establish what transpired prior to the accident. Conspicuously, S. China Venkateswarlu, who according to the applicants witnessed the incident, has not been examined to establish it for which adverse inference is to be drawn. Further, RW.1 Y. Babu Rao, who was working as Gangman at Eluru, deposed that while he was doing patrolling duty on 03-06-1999, he found an unknown male dead body at 6-30 a.m. at KM 486/37 between Eluru and Vatlur railway stations and he informed about it to the Station Master, Eluru. Further, the Station Master, Eluru, in turn sent a message to Y. Tirupathaiah CW.1 Head Constable at Eluru and on that basis Crime No.33/1999 under Section 174 Cr.P.C. was registered by CW.1. Ex.A-1 is copy of the F.I.R. The evidence of RW.1 may establish the factum of finding the dead body only. The evidence of CW.1 establishes the question of receiving the message and registering the case and not more than that. It is also surprising as to why the dead body was not sent for postmortem examination. Ex.A-2 which is a copy of the inquest report reveals that the deceased received a deep injury on the back side of his head, fracture of his left leg at its elbow and crush injury of his left leg foot and fracture below the knee of his right leg and so on. The inquest report can be made use of with regards to establishing the nature of injuries and cause of death and not more than that. Further no belongings of the deceased were seized at the place of accident. Further if the deceased had fallen down from the running train, he must have rolled on the track leading to receiving of multiple injuries all over his body. Further, it is quite possible that the deceased received injuries in a different way and his dead body was found at the railway lines which is also not sufficient to prove that he fell down from the running train and sustained injuries. 11 Therefore, sufficient evidence was not pleaded before the Tribunal to establish that the accident took place while the deceased was traveling in the train as a bona fide passenger. The contentions raised on behalf of the applicants are not sufficient and not tenable to uphold their claim. The Tribunal rightly considered the matter and dismissed the claim petition. There are no merits in the appeal. Accordingly, the appeal is dismissed. There shall be no order as to costs. __________________________ G. KRISHNA MOHAN REDDY, J. Date: 27-01- 2011. DSH/TSK [1] 2004 ACJ 103