IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD DATE. 04-02-2011. PRESENT THE HON'BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CIVIL MISCELLANEOUS APPEAL No.3677 OF 2004 Between: A. Kutumba Rao 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.3677 OF 2004 ORDER: 1. This Civil Miscellaneous Appeal filed under Section 23 of the Railway Claims Tribunal Act, 1987, is directed against the dismissal order dated 13-07-2004 passed in O.A.A. No.140 of 1998, on the file of the Railway Claims Tribunal at Secunderabad (for short, ‘the Tribunal’), challenging the same, the present Appeal is filed by the appellants. 2. The appellants are the applicants and the respondent is the respondent in O.A.A. No.140 of 1998. For the sake of convenience, the parties hereinafter will be referred as they are arrayed in the Tribunal. 3. The case of the applicants is as follows : The deceased and his brother Muralimohan Rao attended marriage function of their cousin at Guntakodur village and while they were returning to Gudivada from Guntakodur, they purchased a general railway ticket bearing No.22832 and boarded in the general compartment of train No. D-103, Narsapur – Gudivada passenger and when the train was halting at platform No.1, Gudivada railway station at about 11-30 a.m. the deceased slipped and fell down accidentally due to jerks of the train and went underneath the wheels of the train and his head was cut and separated from his body and he died on the spot. Further, the ticket bearing No.22832 was handed over to the parents of the deceased by the police concerned but it was misplaced subsequently. 4. The respondent filed written statement through it’s Chief Claims Officer denying the pleas of the applicants and further contending that the case would not come under the purview of Section 123 (c) of the Railways Act, 1989. Further, it is contended by the respondent as follows : The train arrived at platform No.1 of Gudivada railway station at 11-20 am. on 21-05-1998 and it was reported that when an empty rake of the train was being taken back after 11-45 a.m. on that day from the platform No.1 to plot form No.2 of the railway station, a male person aged about 40 years went underneath the wheels of the train from the off side as a result of which his body was cut into pieces, which was witnessed by the train shunting staff who reported the matter to the Assistant Station Master there, who in turn reported the matter to the concerned police. Further, no journey ticket was found with the dead body. Therefore, he was not a bona fide passenger of the train and ultimately pleaded to dismiss the application. 5. On the strength of the pleadings, the Tribunal framed the following issues for trial : 1. Is it proved that deceased was a passenger traveling in train No.D-103 Narsapur – Gudivada passenger on 21-05-1998? 2. Is it further proved that deceased accidentally fell down and suffered injuries and died as a result thereof? 3. Is it proved that incident is covered under Section 124-A of the Railways Act, 1989? 4. Who are all the dependents of the deceased? 5. What compensation? 6. On behalf of the applicants, the first of them got herself examined as AW.1 and the younger brother of the deceased got examined as AW.2 and got marked Exs.A-1 to A-5. Ex.A-1 is copy of relevant F.I.R., Ex.A-2 is copy of relevant Inquest Report, Ex.A-3 is copy of relevant postmortem report, Ex.A-4 is his death certificate and Ex.A-5 is no objection Certificate. On the other hand, one D. Subramanyeswara Rao, Assistant Station Master, Gudivada railway station was examined as RW.1 and got marked Exs.R-1 to R-6. Ex.R- 1 is relevant entry dt. 21-05-1998 of Control Order Book, Ex.R-2 is Extract of Station Diary, Ex.R-3 is concerned message, Ex.R-4 is message of Station Superintendent, Gudivada, Ex. R-5 is ticket issue particulars and Ex.R-6 is a copy of control message. 7. In order to dispose of this 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 bona fide passenger of the train No. D-103, Narsapur – Gudivada passenger? 2. Whether the applicants are entitled to the compensation claimed? 3. Whether the Tribunal considered the evidence properly and arrived at correct conclusion and whether its order is sustainable or not? 8. It is the contention of learned counsel for the applicants that AW.2 gave very good evidence with regards to the accident and it is very significant that as per the inquest report a ticket bearing No.22832 was seized from the dead body which circumstances uphold the claim of the applicants and reject the claim of the respondents and the Tribunal failed to appreciate the material available properly and arrived at incorrect conclusions and hence the order of the Tribunal is liable to set aside and compensation as pleaded is to be awarded in favour of the applicants. 9. On the other hand, it is the contention of learned counsel for the respondent that the Tribunal rightly rejected the claim of the applicants and it is pertinent to note here that no ticket was produced before the Tribunal or this Court and there is no material to substantiate that the deceased actually traveled in the train as a bona fide passenger and on the other hand, the evidence of RW-1 clearly upholds the claim of the respondent that much later to the halting of the train and while it was being shunted the deceased came underneath the train which resulted in cutting of his body into two pieces and by virtue of exceptions provided under Section 124 of the Railways Act, 1989, no compensation can be awarded in respect of such cases. 10. There is no doubt that the applicants happened to be the parents of the deceased therefore what remains is how far the evidence of AW.2 is acceptable. It is the evidence of AW.2 that he along with the deceased went to Guntakodur village to attend marriage of their cousin on 21-05-1998 and later having purchased necessary tickets they boarded train No. D-103 Narsapur – Gudivada passenger and when the train was halting at the first platform of the railway station at Gudivada the deceased slipped and fell down due to heavy rush of passengers there and came underneath the train which resulted in cutting of his body into two pieces. It is also his evidence that he informed about the incident to the station authorities immediately after the incident. It is not his evidence that soon after the accident he raised hue and cry which attracted the attention of the other passengers and the Station authorities. Therefore, it is to be deemed that he did not raise any such alarm. Therefore his evidence should not be accepted being unnatural. 11. On the other hand, the evidence of RW.1 discloses that he found a photograph and address of the deceased and on that he informed to the relatives of the deceased about the death of the deceased. His evidence also discloses that the train arrived on platform No.1 of Gudivada railway station at 11-10 hours and the incident was informed by RW.2 after 35 minutes of the arrival of the train. RW.2 corroborated his evidence. 12. Ex.A-1 provides that the Station Superintendent gave a report to the concerned railway police at 12-30 noon on 21-05-1998, whereas the incident took place at 11-00 a.m. to the effect that the dead body which was cut into two pieces was found lying on the track. Ex.A-2 provides that the concerned authorities conducted inquest over the dead and the ticket of the dead body was seized in the presence of mediators and then it was opined that the deceased died of cut injuries. Ex.A-4 provides evidence of conducting postmortem examination over the dead body. Ex.R-4 issued by the Railway Authorities provides that one male person aged about 40 years suddenly crossed Road 1 track while D-103 passenger rake over ahead was backed to Road 2 and cut into two pieces. No dimension of the incident is given therein. Ex.R-5 addressed by halting agent, Guntakodur railway station to the Chief Claims Officer, S.C.R. provides that tickets bearing Nos.22833 to 22844 were sold on 21-05-1998 for travel to go to Gudivada from Guntakodur. Ex.R-6 issued by the duty A.S.M. of the Gudivada railway station is in consonance with the claim of the respondent. 13. Much emphasis is to be given to the effect that in the First Information Report, it was reflected that the incident took place at 11- 00 a.m. When a respectable railway authority like Station Master gave the report to the police, much importance and significance has to be given to it. It clearly falsifies the claim of the respondent that at 11-45 a.m. while the train was under shunting process the deceased came underneath the train as a result of which his body was cut into pieces. Further, when it is to be believed that the incident occurred at 11-00 a.m. it is to be accepted that the incident took place when the train reached the railways station and before it was halted. Further, what is noted in the inquest report that ticket with No.22832 was recovered from the dead body and what is stated in Ex.R-6 that the same ticket along with other tickets were sold on the relevant day makes it amply clear that the deceased purchased the ticket and traveled by the train unless there is evidence to the contra which is absent here. There is absolutely no basis that the deceased committed suicide by going underneath the train one way or the other and then the train ran over him and he died. The issue can be established on the basis of circumstantial evidence though the evidence of AW.2 examined as direct witness is rejected. Then, it is for the respondent to establish that he was not a bona fide passenger of the train. When the evidence of RWs. 1 and 2 is not acceptable and that there is no other supporting evidence in respect of their claim what is to be inferred is that the deceased happened to be a bona fide passenger of the train. Even though the ticket was not filed before the Court no adverse inference need to be gathered in the circumstances of the case. 14. In a decision reported in Union of India Vs. Prabhakaran Vijaya Kumar and others[1] it was held : “Whether the deceased died due to accidental falling from the train is covered within the definition of ‘untoward incident’ and the Railways are liable to pay the compensation.” The decision cited supra is applicable to the facts and circumstances of the case. In the result, the Civil Miscellaneous Appeal is allowed by awarding compensation of Rs.4,00,000/- to the applicants with interest at the rate of 6% p.a. from the date of this order till the date of realization of the amount with proportionate costs. __________________________ G. KRISHNA MOHAN REDDY, J. Date: 04-02- 2011. DSH [1] 2008 ACJ 1895