IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE EIGHTH DAY OF SEPTEMBER TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL No.242 of 2005 Between: Union of India rep.by its General Manager, South Central Railways, Secunderabad ..... APPELLANT And Mohd.Abdul Sattar and 3 others .....RESPONDENTS The Court made the following: THE HON'BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL No.242 of 2005 JUDGMENT: The Civil Miscellaneous Appeal, under Section 23 of the Railways Claims Tribunal Act, 1987 is directed against the order, dated 17.12.2004 in O.A.A.No.364 of 2002 on the file of the Railway Claims Tribunal, Secunderabad Bench at Secunderabad, (for short, ‘the Tribunal’), whereunder and whereby, the application filed by the respondents herein claiming compensation for the death of the deceased who died in an untoward incident, was allowed directing the Railways to pay compensation within two months from the date of order, failing which the railways are directed to pay interest @6% per annum from the date of order till the date of realization. 2. The parties hereinafter are referred to as they are arrayed before the Tribunal. 3. The brief facts that are necessary for disposal of the appeal are as follows: The application is filed by the parents of the deceased, who is alleged to have died due to an untoward incident of accidental fall from the train while traveling by train No.572 passenger on 20.10.2002. It is further alleged that the deceased along with his friends was returning from Sivarampally to Yakutpura with valid tickets and due to over crowding in the train he accidentally fell down at Falaknuma railway station between the platform and the train and sustained grievous injuries, due to which he died on the spot. 4. In the written statement the respondent railways has denied that the death was due to accidental fall covered under the definition of an untoward incident and they have alleged that the deceased has fallen down due to the act of the deceased sitting on the footboard and thereby exposing himself to danger. They have further contended that this act of the deceased was a criminal act, which comes under one of the exceptions to Sec.124A of Railways Act and therefore, the applicants are not entitled to any compensation. 5. Basing on the above pleadings, the following issues have been settled by the Tribunal for trial; 1. Whether the applicants are dependents of the deceased Abdul Fayaz? 2. Whether the deceased was not a bona fide passenger of train No.572 passenger, traveling from Sivarampalli to Yakutpura on 20.10.2002? 3. Whether the deceased died as a result of an untoward incident of accidents fall from the train at Falaknuma railway station? 4. To what relief? 6. During trial, on behalf of the applicants, AWs 1 and 2 were examined and Exs.A1 to A6 were marked. On behalf of the respondent, the passenger guard was examined as RW 1 and got marked Ex.R1. 7. The learned counsel for the appellant-railways contended that there was negligence on the part of the deceased as he was sitting on the footboard, and therefore, the legal representatives of the deceased are not entitled to any compensation, and hence prays to set aside the impugned order. 8. On the other hand, the learned counsel for the respondents- applicants contended that there was negligence on the part of the deceased; that when the untoward incident and the bona fide passenger are established, the claimants are entitled to compensation; that therefore, the Tribunal rightly granted compensation and hence, there are no grounds to interfere with the impugned award. 9. There cannot be any dispute that in order to claim compensation under Sec.124-A of the Railways Act, 1989 (for short “the Act”), the first condition precedent to be proved by the applicants is that there is an untoward incident happened and in that incident, the person died or sustained injuries; and the second condition is that such a person must be a bona fide passenger traveling in the passenger train. 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 applicants falls under any one of the clauses mentioned in Sec.124-A of the Act. 10. As per Ex.A5 original ticket, the deceased was a bona fide passenger. Ex.A5 was not denied by the respondent-railways. Therefore, the only ground taken by the railways that there was negligence on the part of the deceased as he was sitting on the footboard, thereby exposing himself to danger, and hence the railways are not liable to pay any compensation. No evidence was adduced by the Railway administration to show that due to negligence on the part of the deceased only the untoward incident had occurred. Therefore, the contention that there was negligence on the part of the deceased cannot be accepted. Further more, no such defence is available to the railway administration. The defences available to the railway administration are enumerated under proviso to Sec.124-A of the Act. The case does not fall under any one of the exceptions as provided above, and so, the railway administration is liable to pay compensation. Therefore, even there is some negligence on the part of the deceased in sitting on footboard, it cannot be a ground to deny the compensation. Considering these aspects, the Tribunal rightly granted compensation and there are no grounds to interfere with the impugned order. The appeal is devoid of any merits and is liable to be dismissed. 11. Accordingly, the Civil Miscellaneous Appeal is dismissed. There shall be no order as to costs. _________________ K.C.BHANU,J Dated: 08.09.2011 Dsr