IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL MISCELLANEOUS APPEAL No.1211 of 2008 Date: 14.09.2011 Between: Gudivada aRamamurthy and another .....Petitioners AND The Union of India, rep. By its General Manager, S.C Railway, Secunderabad. ....Respondent THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL No.1211 of 2008 JUDGMENT: 1. This Civil Miscellaneous Appeal, is directed against the order, dated 12.06.2006, in O.A.A.No.3 of 2000, on the file of the Railway Claims Tribunal, Secunderabad Bench, Secunderabad, whereunder and whereby, the application filed by the applicants under Section 16 of the Railway Claims Tribunal Act, 1987, read with Sections 124-A and 125 of the Railways Act, 1989, for grant of compensation of Rs.4,00,000/- for the death of the deceased Sri G. Venkateswarulu, in an untoward incident of accidental fall from the train, was dismissed by the Tribunal. 2. The brief facts that are necessary for disposal of the present appeal may be stated as follows: The appellants / applicants filed the claim application stating that the deceased along with one G. Ramachander, who purchased two tickets for travel from Tuni to Srikakulam Road, kept them with him, boarded train No.7046 East Coast Express in II Class and while travelling accidentally fell down between Simhachalam North and Pendurthi railway stations due to jerks and speed of the train, sustained injuries and died on the spot. 3. The respondent railways administration filed its written statement denying the averments made in the application and stated that no untoward incident, much less a consequent death, had been reported and only a dead body was seen beside the railway track. 4. On the above pleadings, the following issues were framed by the Tribunal: 1. Whether the applicant is dependent of the deceased Gudivada Venkateswarulu? 2. Whether the deceased was a bona fide passenger of the train No.7046 Hyderabad – Howrah East Coast Express travelling from Tuni to Srikakulam on 10.10.1999? 3. Whether the deceased died as a result of an untoward incident of accidental fall from the train between Simhachalam North and Pendurthi railway stations? 4. To what relief? 5. The Tribunal after considering both oral and documentary evidence, dismissed the application filed by the applicants. Aggrieved by the same, the present appeal is filed by the applicants. 6. Now the point for determination is whether the order of the Tribunal is correct, proper and legal and whether the appellants / applicants are entitled to compensation as prayed for? 7. The learned counsel for the appellants contended that the evidence of A.W.1 would clearly go to show that the deceased was a bonafide passenger and that he died in an untoward incident and hence he prays to set aside the impugned order. 8. On the other hand, the learned counsel for the respondent contended that there is no evidence to show that the deceased was a bonafide passenger in a passenger train and hence he prays to dismiss the appeal. 9. There cannot be any dispute that in order to claim compensation under Section 124-A 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 deceased died; and the second condition is that such a person must be a bona fide passenger travelling in the passenger train with valid ticket. If these two requirements are proved, then, the burden shifts to the Railway administration to establish that the case falls under anyone of the exceptions provided under proviso to Section 124-A of the Act. In so far as the bonafide passenger is concerned, no oral evidence is adduced on behalf of the applicants to show that the deceased had purchased a valid ticket and boarded the train. Admittedly, no one was present at the time of purchasing the ticket by the deceased. Even the applicants have not produced the documentary evidence to show that the deceased was a bonafide passenger. One G. Ramachander who had accompanied the deceased was not examined. The Court may presume that the evidence, which could be, and is not produced, would, if produced, be unfavourable to the person who withholds it. When relevant evidence is withheld it may be presumed that, if produced it could have gone against the party withholding it. Therefore, the applicants miserably failed to establish that the deceased was a bonafide passenger travelling in a passenger train with valid ticket. 10 With regard to the untoward incident is concerned, the dead body of the deceased was found lying by the side of the railway track between Pendurthi and Simhachalam. There is no medical evidence to show that the injury sustained by the deceased could be possible due to fall from a running train. This aspect of the case has not been proved by the applicants to show that the deceased died in an untoward incident. When two aspects are not established beyond preponderance of probabilities, the Tribunal has rightly dismissed the claim application of the applicants. There are no merits in the appeal. Hence, the impugned order needs no interference. 11. Accordingly, the Civil Miscellaneous Appeal is dismissed. There shall be no order as to costs. ______________ K.C.BHANU,J Date:14.09.2011. Gk. THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL MISCELLANEOUS APPEAL No.1211 of 2008 Date: 14.09.2011 Gk.