THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL No. 960 of 2009 JUDGMENT : This Civil Miscellaneous Appeal is directed against the order dated 16.07.2009 in O.A.A.No.284 of 2004 on the file of the Railway Claims Tribunal, Secunderabad Bench at Secunderabad, whereunder and whereby, the claim application filed by the appellants/applicants claiming compensation of Rs.4,00,000/- consequent on the death of Lunawath Hathiram (hereinafter referred to as ‘the deceased’), was dismissed. 2. The appellants in the appeal are the applicants, and the respondent in the appeal is the respondent, before the Tribunal. For better appreciation of facts, the parties hereinafter are referred to, as they are arrayed before the Tribunal. 3. The applicants filed the claim application stating that on 10.07.2004, the deceased and his friend L.Ramesh went to Secunderabad railway station, purchased two tickets and boarded train No.2714 Satavahana Express in order to go Mahabubabad. The tickets were kept with the deceased. While they were travelling in the said passenger train, the deceased went to wash basin near the door and accidentally slipped and fell down from the running train at KM 228/15-18 between Ghatkesar and Bibinagar railway stations due to speed, jolt and jerks of the train, sustained severe injuries and died. The tickets were misplaced in the accident, as he was dragged by the train and his clothes were torn. Hence, the claim application. 4. The respondent/railways filed its written statement denying the averments made in the claim application. It is stated that the dead body of the deceased was noticed by another train driver passing that way and not by the co-passenger Ramesh; that neither the guard nor any of the passengers noticed the fall though it was before dusk; that no ticket was found on the dead body of the deceased and hence, it prayed to dismiss the claim application. 5. During trial, on behalf of the applicants, A.Ws.1 and 2 were examined and Exs. A1 to A8 were got marked, and on behalf of the respondent, R.W.1 was examined and Exs.R.1 and R.2 were got marked. 6. The Tribunal, after considering the oral and documentary evidence, dismissed the claim application holding that the deceased was not a bona fide passenger travelling in a train carrying passengers with a valid ticket; that he did not die in an untoward incident, the applicants who are the legal heirs of the deceased are not entitled to any compensation. Challenging the same, the applicants filed the present appeal. 7. Learned Counsel for the appellants/applicants contended that the evidence of A.W.2 is very clear that the deceased purchased two tickets for himself and A.W.2 and boarded the train; that while they were travelling, the deceased went to wash basin near the door and accidentally slipped and fell down and that as the deceased was dragged to a distance, the possibility of missing of the ticket after the incident cannot be ruled out; that the death of the deceased in an untoward incident is established and hence, he prays to set aside the impugned order. 8. On the other hand, learned Standing counsel for the respondent/railways contended that the applicants failed to produce any ticket to show that the deceased was a bona fide passenger travelling in a train carrying passengers with a valid ticket; that the dead body of the deceased was found lying by the side of the track; that police after completion of the investigation filed Final Report stating that it was not a case of foul play resulting the death of the deceased and hence, he prays to dismiss the appeal. 9. For the purpose of claiming compensation under Section 124-A of the Act, two requirements have to be satisfied, firstly, there must be untoward incident whereunder a person died. Untoward incident includes a person falling from the running train accidentally. Secondly, a person who died must be a bona fide passenger travelling in a train carrying passengers with a valid ticket. If these requirements are proved, then the applicants are entitled to compensation. If the Railway administration wants to resist the claim, it has to prove that no untoward incident had happened or that the deceased was not a bona fide passenger travelling in a train carrying passengers or that its case falls under anyone of the exceptions as provided under proviso to Section 124-A of the Act. 10. The initial burden is on the applicants to establish that the deceased was a bona fide passenger travelling in a train carrying passengers with a valid ticket and he died in an untoward incident. With regard to the untoward incident, though the railway administration is seriously disputing about the untoward incident, the evidence of A.W.2 is very clear that he was travelling along with the deceased at the time of the incident by boarding the train after purchasing the tickets at Secunderabad railway station. A.W.2 was examined by police during the course of inquest as an eyewitness to the incident. The presence of A.W.2 with the deceased at the relevant point of time of purchasing the ticket is established beyond preponderance of probability. The dead body of the deceased was found lying by the side of the track. Police registered a case and held inquest over of the dead body of the deceased. The inquest mediators opined that the deceased died as a result of accidental fall from the running train when he went to wash basin to wash the face. The Doctor, who conducted autopsy over the dead body of the deceased has categorically stated that the deceased died as a result of crush injury on the head and the same can be possible in a railway accident. If the evidence of A.W.2 is put in the category of wholly reliable, then there is no difficulty in accepting his evidence. There is no other reason to doubt his testimony and certainly an implicit reliance can be placed upon his evidence. If the evidence of A.W.2 is to be accepted as true, correct and trustworthy, it is clear that the deceased purchased a ticket and boarded the train at Secunderabad railway station. Police after completion of the investigation filed Final Report stating that there is foul play resulting in the death of the deceased. When the deceased had accidentally slipped and fell down from the running train and was dragged to a distatnce, there is every possibility of missing of the ticket. R.W.1 might not have observed about a person falling from the train as the incident had taken place during the dusk time. The evidence of A.W.1 is that the deceased died in an untoward incident. Even otherwise R.W.1 was driver of train No.7016, but he does not appear to be true and trustworthy witness, because the First Information Report and Ex.A.4 would clearly go to show that one Raju, who was the driver of train No.7016 Express noticed the dead body of the deceased by the side of the railway track. The said Raju was not examined as a witness. As R.W.1 is not Raju, he cannot be said to be a driver of train No.7016 as stated by him. No implicit reliance can be placed upon the evidence of R.W.1. The evidence of A.W.2 is very clear that the deceased was a bona fide passenger travelling in a train carrying passengers with a valid ticket and he died in an untoward incident. Since the two requirements are established beyond preponderance of probability, under Section 124-A of the Act, the applicants are entitled to compensation of Rs.4,00,000/-. It is not in dispute before this Court that the applicants are the legal heirs of the deceased. Exs.A.2, A.5 and A.8 would clearly go to show that the applicants are legal heirs of the deceased. These aspects have not been considered by the Claims Tribunal in proper perspective and the Tribunal ought to have granted compensation to the applicants. Hence, the impugned order is liable to be set aside and, is accordingly, set aside. 11. Accordingly, the Civil Miscellaneous Appeal is allowed setting aside the impugned order, dated 16.07.2009 in O.A.A.No.284 of 2004 on the file of the Railway Claims Tribunal, Secunderabad Bench, Secunderabad, granting compensation of Rs.4,00,000/-. Out of the same, the appellant No.1/applicant No.1 is entitled to a sum of Rs.1,50,000/-; appellant No.2/ applicant No.2 is entitled to a sum of Rs.1,00,000/- and appellant Nos.3 and 4/applicant Nos.3 and 4 are entitled to a sum of Rs.75,000/- each. The applicants are also entitled to interest @ 9% per annum from the date of this award till realization. There shall be no order as to costs. _______________ K.C. BHANU, J OCTOBER 20, 2011 YVL IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE TWENTIETH DAY OF OCTOBER TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL No. 960 OF 2009 Between : L.Jyoti and others. …APPELLANTS A N D Union of India …RESPONDENT THE HON'BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL No. 960 OF 2009 20.10.2011 YVL