IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY SIXTH DAY OF MARCH TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL MISCELLANEOUS APPEAL No.1010 OF 2005 Between: Union of India, represented by General Manager, South Eastern Railway, Calcutta. ..... APPELLANT AND Golekh Chandra Samal and another ....RESPONDENTS The Court made the following: THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL MISCELLANEOUS APPEAL No.1010 OF 2005 JUDGMENT: This Civil Miscellaneous Appeal, under Section 23 of the Railway Claims Tribunal Act, 1987, is directed against the order, dated 27.07.2005, in O.A.A.No.185 of 1999, on the file of the Railway Claims Tribunal, Secunderabad Bench, Secuderabad, whereunder and whereby, the appellant was directed to pay compensation of Rs.4,00,000/- to the respondents within 60 days from the date of the order. 2. The brief facts that are necessary for disposal of the present appeal may be stated as follows: The deceased, Prashant Kumar Samal, is the son of respondent Nos.1 and 2. He went to Secunderabad from Bhubaneshwar for securing a job. On 09.11.1998, he purchased a ticket and travelled in train No.7046, Hyderabad to Howrah East Coast Express in II class general compartment. On the intervening night of 09.11.2001, at about 23:00 hours, the deceased slipped from the train and fell at Km No.763/11-12 between Ponduru and Dusi Railway Stations and as a result he died on the spot. 3. The appellant - railways filed a counter, denying the untoward incident and stated that no such untoward incident as stated in the application has happened and the respondents herein were put to strict proof of allegations. 4. Basing on the allegations, the following issues had been settled for trial by the Tribunal: “1. Whether the deceased was a bona fide passenger of train No.7046 Hyderabad – Howrah East Coast Express travelling from Secunderabad to Bhubaneshwar on 09.11.1998? 2. Whether the deceased died as a result of an untoward incident of accidental fall from the train as alleged? 3. Whether the Applicants are dependants of the deceased? 4. To what relief?” 5. To substantiate their case, AW.1 was examined and Exs.A1 to A7 & A7A were got marked, on behalf of the applicants. On behalf of respondent, RWs.1 to 3 were examined and Exs.R1 to R3 were got marked. A Court witness was also examined as CW.1. 6. The Tribunal after considering the evidence available on record came to the conclusion that the deceased died in an untoward incident, while he was traveling in Hyderabad – Howrah East Coast Express; that the deceased was a bona fide passenger and that the respondents are the dependants of the deceased; and accordingly, held that the appellant is liable to pay the compensation. Challenging the same the present appeal is filed. 7. Now the point for determination is whether the order of the Tribunal is correct, legal and proper? 8. Learned counsel for the appellant contended that the position of the dead body would disclose that it was not a case of accidental fall from the running train; that the dead body was found on the railway track, which was not in use; and that the evidence of CW.1 coupled with RWs.1 and 2 would clearly go to show that it is not a case where the deceased died due to untoward incident and hence, he prays to set aside the impugned order. 9. On the other hand, learned counsel for the respondents contended that the Tribunal after elaborate consideration of the evidence available on record, rightly found that the deceased died in an untoward incident; that though the dead body of the deceased was found near the railway track, which was not in use; the ticket seized from the pocket of the deceased would clearly go show that the deceased was a bona fide passenger traveling in the train and hence, there are no grounds to interfere with the impugned order. 10. Under Section 124 (A) of the Act, the initial burden is upon the respondents to show that the deceased died in an untoward incident and that he was a bona fide passenger. As seen from the evidence of RW.3 and CW.1, the dead body of the deceased was found near the track, which was not in use, but admittedly the unused track was situated by the side of a railway track, which was in use. If really the deceased was not a bona fide passenger traveling in the train from Hyderabad to Howrah, the police would not have seized the ticket from the body of deceased. On finding of the dead body of the deceased, the police conducted inquest on the dead body. During inquest the police seized the ticket bearing No.38284 from Hyderabad to Bhubaneswar via Khazipet, which was blood stained, from the clothes of the dead body of the deceased and the same was noted in Ex.A2 - inquest report. So, the evidence of CW.1, who is the Head Constable who conducted the inquest, would clearly go to show that the deceased was a bona fide passenger traveling in Hyderabad to Howrah East Coast Express. The inquest mediators opined that the deceased died as a result of falling from the running train. 11. There cannot be any dispute that the opinion of the inquest mediators is admissible under Section 174 of the Code of Criminal Procedure, 1973, as to the apparent cause of the death of the deceased. Further, Ex.A7 is the letter sent by one of the passengers to respondent No.1 stating that the deceased had fallen accidentally from the running train. No doubt, RWs.1 and 2 stated that the dead body was found by the side of the track, which is not in use, but according to Ex.R3 - sketch of the Ponduru R.S. Yard, dead body was situated at a distance of four meters to the down line, which is admittedly in use. Further, the findings are based on the proper appreciation of evidence available on record. Ex.A2 - Inquest report would clearly go to show that the nature of injuries sustained by the deceased were due to accidental fall from the train. If really it is a case of negligence, the injuries sustained by the deceased would have been different. So, considering these aspects, the Tribunal held that it is a case of untoward incident and the deceased was a bona fide passenger in the train. None of the findings recorded by the Tribunal is shown to be perverse or incorrect. Hence, the impugned order does not suffer from any infirmities so as to call for interference by this Court. Hence, the appeal is devoid of merit and is liable to be dismissed. 12. Accordingly, the Civil Miscellaneous Appeal is dismissed. There shall be no order as to costs. _______________ K.C. BHANU, J March 26, 2010 MD