THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL MISCELLANEOUS APPEAL No.1007 OF 2011 12.09.2011 Between The Union of India rep. by the General Manager, South Central Railway, Secunderabad …Appellant And Bidare Maremma & others. …Respondents THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL MISCELLANEOUS APPEAL No.1007 OF 2011 JUDGMENT: 1) This Civil Miscellaneous Appeal by the Railways is preferred aggrieved by the order, dated 06.12.2007 in O.A.A No.403 of 2003 on the file of the Railway Claims Tribunal, Secunderabad Bench at Secunderabad, whereunder and whereby the application filed by the respondents/applicants claiming compensation of Rs.4,00,000/- for the death of Bidare Saidappa (hereinafter referred to as ‘the deceased’) in an untoward incident, was allowed. 2) The applicants filed the O.A.A. stating that on 02.06.2003, while the deceased along with his relatives was travelling in train No.6529 Udyan express, with a valid ticket from Narayanapet to Bangalore, he slipped and fell down accidentally between Molagavalli – Nancherla railway stations, sustained severe injuries and died on the spot. 3) The railways filed written statement denying the averments in the application and stated that as per the message issued by on duty Assistant Station Master, Molagavalli to GRP/Guntakal, acting Keyman had seen one person dead at KM 457/0-1 between Nancherla and Molagavalli and reported at about 15.10 hrs, on 03.06.2003 and this message clearly explains that only a body was noticed by the Keyman and there is no report of fall from train by any person who had witnessed the incident. Train No.6529 Udyan Express leaves Narayanpet Road at 21.40 hrs and the body was found by Keyman at about 15.00 hrs the next day i.e., 03.06.2003 and that as per the time table in force, as many as 15 to 20 pairs of express/passenger trains apart from goods trains passed through the place of incident i.e., KM 457/0-7 and there is no report of a body found lying by any of the driver/guard of other trains to any of the railway authorities and that it being a very busy route, the dead body could not have gone unnoticed by any of the drivers of other trains including the trains which passed through during the day light hours of 03.06.2003 till the body was found by Keyman at about 15.00 hrs and reported to the railway authorities. The death might be due to the reasons not connected with fall from train and so, the incident does not fall under the provisions of Section 123 (c) of the Railways Act, 1989, and so the railways are not liable to pay the compensation. 4) The Claims Tribunal, after considering the evidence on record, allowed the claim application as stated above. Challenging the same, the present Civil Miscellaneous Appeal is filed by the Railways. 5) Now the point for consideration is whether the order of the Claims Tribunal is correct, legal and proper? 6) Learned standing counsel appearing for the appellant- Railways contended that the deceased was not a bona fide passenger travelling in the train and that due to his own negligence, the incident had happened and hence, the applicants are not entitled to any compensation. 7) On the other hand, the learned counsel for the respondents/ applicants contended that the evidence of A.W.1 would clearly go to show that the deceased came to railway station at about 9.00 p.m. on 02.06.2003, and one Mahaboob Basha working as Goods-Clerk, who was also examined on behalf of the appellant, stated that he issued the tickets during his duty hours between 8 to 18 hours, and that the deceased died in an untoward incident, and that the defence of negligence on the part of the deceased, is not available to the railways, and considering these aspects, the Claims Tribunal rightly granted the compensation and there are no grounds to interfere with the same. 8) There cannot be any dispute that in order to claim compensation under Section 124A of the Railways Act, 1989, the first condition precedent to be proved by the claimants 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 traveling in the passenger train. Untoward incident includes accidental falling of any passenger from a train carrying passengers. If these two requirements are satisfied, then the burden shifts to the respondent/railways to establish that no untoward incident had happened or that the case of the claimants falls under any one of the clauses mentioned in Section 124A of the Railways Act, 1989. 9) Insofar as the aspect whether the deceased is a bona fide passenger or not is concerned, it is contended by the railways that the deceased was not a bona fide passenger. But, the evidence of one Mahaboob Basha, who is working as Goods-Clerk, would clearly go to show that he only issued the tickets to the deceased during his duty hours. When once a witness has stated a fact and the same has not been denied or disputed, it can be inferred that the said fact is admitted. Therefore, it is clear that the deceased was a bona fide passenger travelling in a passenger train. 10) Coming to second aspect whether the deceased died in an untoward incident or not, it is not in dispute that the deceased died in an untoward incident. The contention of the railways is that due to negligence of the deceased only, the incident had happened. There cannot be any dispute that the applicants need not prove negligence on the part of the railway administration in order to claim compensation in view of the fact that Section 124-A of the Act is in the nature of no fault liability. If the applicants show that the deceased accidentally had fallen from the running train, then it can be said to be an untoward incident. Even if it is assumed that there is negligence on the part of the deceased, that cannot be a ground to deny the compensation, unless the case of Railways falls under anyone of the defences available to the railway administration under proviso to Section 124-A of the Act. It is not a case where the case of railway administration falls under anyone of the exceptions to proviso to Section 124-A of the Act. Therefore, the Tribunal, after considering the material on record, rightly granted compensation to the respondent. There are no grounds to interfere with the impugned order. 11) Accordingly, the Civil Miscellaneous Appeal is dismissed. No order as to costs. _______________ K.C. BHANU, J Date: 12-09-2011 ES