IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD DATE.13-04-2011. PRESENT THE HON'BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CIVIL MISCELLANEOUS APPEAL No.78 OF 2006 Between: B. Sukanya and three others. --- Appellants/ Applicants. AND Union of 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.78 OF 2006 ORDER: In this appeal, order of dismissal dated 17-10-2005 in O.A.A. No.2 of 1999 on the file of the Railway Claims Tribunal, Secunderabad Bench at Secunderabad, is assailed. 2. The appeal is filed under Section 23 of the Railway Claims Tribunal Act, 1987, whereas the said application was filed under Section 16 of the Railway Claims Tribunal Act read with Sections 124- A and 125 of Railways Act, 1989 to pay compensation of Rs.4,00,000/- following death of one B. Mysaiah in the railway accident in question which was dismissed. 3. The claim of the applicants is as follows : They were the wife, daughter, father and mother of the deceased person. On 14-07-1998, the deceased informed them that he would board train No.347 Purna Passenger at Kohir Deccan Station around 10-05 a.m. Further as per relevant inquest report, panchayatdars concluded that the death occurred due to accidental fall from an unknown train which arrived at about 10-05 a.m. at Kohir where as according to them the deceased died by falling from train No.347 Purna Passenger. Hence, the application was filed. 4. The respondent filed written statement denying the claim of the applicants and further pleading that the deceased did not travel by any train at all and the death was not due to any accidental fall from the train No.347 on 14-07-1998. It is further stated that even according to the applicants there is no proof that the deceased had actually traveled by any train and further the Inquest Report also does not confirm the death by fall from any particular train whereas the Inquest Report only opines that the deceased seems to have fallen from an unknown train. It is further contended that the said train left the station at 10-03 hours and the body was reported to have been seen at 23-15 hours and during the gap of more than 13 hours in broad day light, the body was unnoticed, in spite of the fact that many other trains passed through in the section. It is further contended that the post mortem examination conducted between 3-30 p.m. and 4-30 p.m. on 15-07-1998 indicates that the approximate time of death was 14 to 16 hours prior to that examination which does not tally with the claim of the applicants. It is also contended that the deceased was not a bona fide passenger of the train and the ticket appears to be a planted one. 5. The Tribunal framed the following issues on the basis of the pleadings : 1. Whether the applicant was dependent of the deceased Mysaiah? 2. Whether the deceased was a bona fide passenger of train No.347 Purna Passenger traveling from Kohir Deccan to Bidar as alleged? 3. Whether the deceased died as a result of an untoward incident of accidental fall from the said train between Kohir and Zaheerabad railway stations? 4. To what relief? 6. For the applicants, the third of them got himself examined as AW.1 and Exs.A-1 to A-5 were marked and no witnesses were examined and no documents were marked on behalf of the respondent. 7. The Tribunal held the first issue in favour of the applicants and held the issues 2 to 4 against the applicants. 8. It is contended by learned counsel for the applicants that as per the application, the deceased informed his kith and kin that he would travel by Purna Passenger which does not mean that he in fact traveled by Purna Passenger and as per the post mortem report, the death might have occurred about 14 to 16 hours prior to the postmortem examination which would fall within the intervening night of 14/15-07-1998 and even supposing that he traveled by Purna Passenger and fell down from the same train and received injuries, it might be that he died at a later point of time which would tally with the postmortem report and when the deceased fell down, he might have rolled down due to some slope of the track and further it is pertinent to note that at the time of inquest over the dead body, the corresponding ticket was seized and therefore, the circumstances prove that he traveled in the same train or different train holding a valid ticket as a bona fide passenger but no evidence was adduced by the respondent to counter the evidence adduced on behalf of the applicants and the Tribunal dismissed the application basing upon trivial grounds. 9. On the other hand, learned counsel for the respondent contends that it is pertinent to note here that the dead body was at a distance of eight feet from the track which is meant that he did not fall down from the train and it is important to note that the inquest was conducted about 25 hours after Purna Passenger left the station and if at all he fell down from the train during day light, somebody must have noticed the fall as number of trains passed in between during the relevant period and further, the claim of travel of the deceased and fall from the train definitely would not tally with the probable time of death given in the post mortem report and there is no good basis to say that he received injuries at one time and died later and the circumstances prove that the ticket was planted and the case was concocted for the benefit of the applicants and the Tribunal properly considered the matter and there is no reason to interfere with its order. 10. There is no dispute about the findings given under the issue No.1. 11. It is to be mainly examined in the appeal as to whether he was a bona fide traveler of the train and the applicants are entitled to the claim and the Tribunal considered the matter properly? 12. POINT: AW.1 deposed about prior circumstances and is not an eye witness to the incident. No eye witness to the incident was examined before the Tribunal. Therefore, the case is to be decided on the basis of circumstantial evidence adduced. 13. Ex.A-1 is a message issued by the Deputy Station Manager, Vikarabad Railway Station to the Sub Inspector, Government Railway Police, Vikarabad that at about 23-45 hours on 14-07-1998, local sub Inspector approached and informed that a male dead body was lying at the railway track. Ex.A-2 is a copy relevant inquest report which provides that in between 11 a.m. and 1-30 p.m. i.e., after a gap of 24 hours from the alleged time of accident, the inquest was conducted over the dead body and injuries, which were fresh in nature, were noticed and further a ticket number was noted. Further, Ex.A-3, which is a copy of post mortem examination report, provides that the death would have occurred about 24 to 26 hours prior to that examination which discloses that it would have occurred during the intervening night of 14/15-07-1998, which does not tally with the time of fall from the train claimed by the applicants. It also does not agree with the inquest report about the time of death, but as the post mortem report was issued by a technical person, the same is to be taken as authenticated. 14. It is quite acceptable what is claimed on behalf of the applicants that due to some slope the deceased rolled down after his fall from the train (subject to proving the fall). As per the post mortem report he received serious injuries which rules out that he would have survived for about 8 hours before he died. It also cannot be believed that no body saw the dead body though number of trains passed in between during the relevant period. Further, it is significant that according to the applicants he traveled by Purna Express which was to reach Kohir Deccan station around 10-05 a.m. holding valid ticket and in between Kohir and Zaheerabad railway stations he fell down, if that reason is accepted during morning or before noon he fell down and received injuries which is disproved by the contents of the postmortem report discussed above. 15. In spite of various discrepancies found, it is significant to note here that ticket was found with the deceased as per the inquest report. It is for the Railways to place necessary evidence to establish that he was not holding valid ticket to travel by the train, but no rebuttal evidence is placed by the Railways for which adverse inference is to be drawn. In the circumstances, it is necessary to see that the matter is remanded to the Tribunal for giving opportunity to the railways to take steps to examine panchayatdars of the inquest over the dead body and also examine concerned railway clerk with reference to relevant ticket issue register to disprove the claim of the applicants. 16. Hence, the order passed by Tribunal is set aside and the matter is remanded to the Tribunal for taking necessary steps as referred with a direction to dispose of the matter afresh independently. Since the matter is very old, the Tribunal is directed to dispose of the matter within a period of three months from the date of receipt of a copy of this order by giving opportunity to both the parties to adduce necessary evidence for proper adjudication of the matter. The CMA is accordingly disposed of. There shall be no order as to costs. __________________________ G. KRISHNA MOHAN REDDY, J. Date: 13-04-2011. DSH