THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL No. 867 of 2008 JUDGMENT: 1. This appeal has been preferred by the claimants challenging the order dated 22.11.2005 in O.A.A. No.170 of 2000 on the file of the Railway Claims Tribunal, Secunderabad Bench at Secunderabad, whereunder and whereby, the claim application filed by them under Section 16 of the Railway Claims Tribunal Act, 1987 read with Sections 124A and 125 of the Railways Act, 1989 (for short ‘the Act’) to grant compensation of Rs.1,60,000/- for the injuries sustained by claimant No.1 (hereinafter referred to as ‘the injured’) in an untoward incident, was dismissed as abated. 2. The claimants’ version is that while the injured was travelling from Vijayawada to Tenneru by train No.D-113 Vijayawada- Machilipatnam as a passenger in general compartment on 16.05.2000 holding II class monthly season ticket, fell down accidentally from the train due to jerk of the train when the train restarted at Satyanarayanapuram railway station at about 14.30 hours and sustained injuries. Hence, the claim application. 3. The respondent-railways have denied the submissions of the claimants and have stated that fall of the injured from the train is not an untoward incident and it may be due to self-inflicted injuries. They have also denied that he was a bona fide passenger of the said train on that day and, therefore, he is not entitled for any compensation. 4. On the above pleadings, the following issues were settled by the Tribunal: 1) Whether the Applicant was a bona fide passenger of train No.D-113 Vijayawada-Machilipatnam passenger on 16.05.2000? 2) Whether the Applicant has sustained injuries on account of fall from the train? 3) Whether the applicant is entitled to claim compensation as prayed for? 4) To what relief? 5. On behalf of the claimants, the injured himself was examined through his affidavit dated 21.11.2001 and the documents filed by them were marked as Exs. A1 to A9 and on behalf of the railways none were examined. 6. The Tribunal on the ground that personal cause of action does not survive after the person’s death and dismissed the claim of the claimants. 7. Now the point for determination is whether the order of the Tribunal is correct, proper and legal? 8. There cannot be any dispute that in order to claim compensation under Section 124A of the Act, two conditions are to be satisfied. The first condition precedent to be proved by the claimants is that there is an untoward incident happened and in that incident, the claimant sustained injuries; and the second condition is that such a person must be a bona fide passenger travelling 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 under Section 124-A of the Act. 9. Sustaining of injuries by claimant No.1 is not in dispute. He was holding second-class monthly season ticket and was travelling from Vijayawada to Tenneru by Vijayawada to Machilipatnam train in general compartment. As a result of the jerk of the train, he accidentally fell down and his right leg went under the wheels of the train and was amputated. When the two requirements are fulfilled, the claimant-injured is entitled for compensation. During the pendency of the claim application, the injured died, therefore, the Tribunal came to the conclusion that action of the injured comes to an end because of his death. The legal Maxim “Actio Personalis Moritur cum Persona” has no application in case of untoward incident. There cannot be any dispute that a personal right of action dies with the person. In the facts of the case, the representatives of a deceased person claim damages from the person through whose delict or in an untoward incident, the death was occasioned. Therefore, the Tribunal ought to have granted compensation to the legal heirs of the injured in view of Item No.24 of schedule attached to the Railway Accident and Untoward Incidents (Compensation) Rules, 1990. In case of amputation of one foot resulting in end bearing, the amount payable is Rs.1,20,000/-. 10. Under the circumstances, the appeal is allowed and the claimants are granted a sum of Rs.1,20,000/- towards compensation with simple interest at 6% per annum from the date of this Order. There shall be no order as to costs. K.C.BHANU,J Dt. 30.03.2011 lvl THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL No. 867 of 2008 Dt. 30.03.2011