THE HON'BLE MR. JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL No.1023 of 2008 JUDGMENT: This appeal under Section 23 of the Railway Claims Tribunal Act, 1987 is filed by the applicants against the order dated 03.10.2005 in O.A.A. No.105 of 1999 on the file of the Railway Claims Tribunal, Secunderabad Bench, Secunderabad, whereunder and whereby the application filed by the appellants claiming compensation of Rs.4,00,000/- for the death of one D.Rama Rao (hereinafter the deceased) in an untoward incident, was dismissed. 2. The appellants herein are the applicants, and the respondent herein is the respondent, before the Tribunal. For the sake of convenience, the parties will be referred to as they are arrayed before the Tribunal. 3. The facts of the case in brief are: On 22.03.1999, the deceased, along with his nephew Siva Prasad, travelled from Nidubrolu to Vijayawada by Train No.8690 Bokaro Steel City/Tatanagar Express by purchasing two journey tickets. During the journey, the deceased fell down from the train in between Nidubrolu and Modukuru Railway stations at KM 377/18-20, resulting in his death. Siva Prasad, who accompanied the deceased, was inside the compartment and he had no information of the accident and, further, he lost the two tickets, which were kept with him. 4. The respondent Railways filed a written statement denying the averments made by the applicants in their application. The respondent stated that the Key man had noticed the dead body of a male aged 60 years at KM 377/20-22 on the down line between Nidubrolu and TSunder Railway stations on 22.03.99; and the applicants, taking advantage of the presence of the dead body on the track, tried to show it as an untoward incident; that from the nature of injuries mentioned in the inquest report, it cannot be said that the deceased fell down from the train; that the journey between Nidbrolu and Vijayawada is about 1 hour and 25 minutes and, hence, it is impossible that Siva Prasad, who accompanied the deceased, failing to notice the missing of his uncle within such a short time. 5. On the basis of the above pleadings, following issues were settled for trial:- i. Whether the applicants are dependents of the deceased D.Rama Rao? ii. Whether the deceased was a bonafide passenger of the train No.8690 Alleppy-Bokaro Steel City Express on 22-3-99 travelling from Nidubrolu to Vijayawada? iii. Whether the deceased died as a result of an untoward incident of accidental fall from the train between Nidubrolu and Modukuru Railway stations? iv. To what relief? 6. Learned counsel for the appellants/applicants contended that the death of the deceased in an untoward incident was established beyond doubt, and that the Key man found the dead body of the deceased by the side of the track and the police registered a case and further, AW.2’s evidence is clear that he purchased two tickets for himself and the deceased and, therefore, the applicants are entitled for compensation. 7. On the other hand, learned Standing Counsel for the respondent/Railways contended that as the applicants failed to prove that the deceased was a bonafide passenger travelling in the said train with a valid ticket, the Tribunal rightly dismissed the application and that the order needs no interference by this Court. 8. There cannot be any dispute that in order to claim compensation under Section 124-A of the Act, the first condition precedent to be proved by the applicants is that there was an untoward incident happened and in that incident, the deceased died; and the second condition is that such a person must be a passenger travelling in the train with a valid ticket. If these two requirements are proved, then the applicants are entitled to compensation. If the respondent-Railways wants to resist the claim application, then it has to prove that no such untoward incident had happened or that the deceased was not a bonafide passenger or that the case of the Railways falls under any one of the exceptions provided under proviso to Section 124-A of the Act. 9. It is not in dispute before this Court that the death of the deceased in an untoward incident is established beyond preponderance of probabilities. The Key man, who is an employee of the Railways, noticed the dead body of the deceased lying by the side of the track. The Key man immediately informed to the Station Superintendent, who in turn informed the same to the police. The police held inquest over the dead body of the deceased and thereafter sent it to post-mortem examination. The doctor, who conducted autopsy opined that the deceased died due to injuries received by him, as seen from Ex.A-3, which is the post-mortem report. So, from the evidence available on record, it is clear that the deceased died in an untoward incident. 10. Now the question that falls for consideration before this Court is as to whether the deceased was a bonafide passenger? 11. No doubt, the police at the time of inquest did not find any ticket on the wearing apparels of the dead body. AW2 in his chief examination deposed that in the early hours of 22-03-1999, with a view to go to Vijayawada for purchase of Car spare parts and to attend some other personal works, he accompanied the deceased to Nidubrolu Railway Station; that the deceased was going to Vijayawada in connection with family matter to the house of his cousin by name G.Venkateswarlu; that he purchased two train journey tickets from Nidubrolu to Vijayawada for both of them and boarded train No.8690 Alleppy –Bokaro Steel City/Tatanagar Express in II Class General Compartment; that the said two journey tickets were kept with him and while travelling, the deceased was standing near the door as there was no place inside the compartment and he slept on the floor inside the compartment in the early hours; that he did not observe what had happened to the deceased, and when he reached Vijayawada, he did not find the deceased and thereafter he went to Undavalli i.e., to the house of G.Venkateswarlu and informed him about missing of the deceased; that subsequently, he got information through newspaper that one male person aged about 60 years fell down from the running train in between Nidubrolu and Modukuru Railway Station, and on that, he went to the police station and enquired about the deceased. The evidence of AW.2 remained unchallenged, as there was no cross- examination by the counsel appearing for the Railways before the Claims Tribunal. Once a fact has been stated by a witness and if the same was not denied or disputed or not even cross-examined, the facts stated by the said witness are said to be proved. From the evidence of AW.2, it is clear that he purchased two tickets one for himself and another for the deceased. It would clearly go to show that the deceased was a passenger travelling in the train carrying passengers with a valid ticket, and because he was sleeping on the floor of the compartment, it might not be possible to find out the whereabouts of the deceased. Therefore, there is nothing unusual for AW.2 in not informing the police about the incident when he reached the destination. The Tribunal, on trivial grounds, rejected the evidence of AW.2. As the evidence of AW.2 remained unchallenged, the Court has no option but to accept the same as true and correct unless such evidence is highly improbable. There is no improbability in the evidence of AW.2 for disbelieving the same. There is no other evidence to rebut the evidence of AW.2. The evidence of AW.2 has to be accepted as true and correct. Hence, it is clear that the deceased was a bonafide passenger. Therefore, the applicants are entitled to compensation. 12. Hence, the impugned order is set aside and the respondent- Railways is directed to pay compensation of Rs.4,00,000/- with simple interest at 9% per annum from the date of Award till the date of realisation. Out of the said amount, the 1st applicant is entitled for compensation of Rs.2,00,000/- and applicants 2 and 3 are entitled to Rs.1,00,000/- each. 13. Accordingly, the Civil Miscellaneous Appeal is allowed. There shall be no order as to costs. ____________ 23-09-2011 Prv