IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL NO.303 OF 2006 Date:15.09.2011 Between:- Union of India. ...Appellant And Mente Murali Krishnarjuna Rao and another. ... Respondents THE HON'BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL NO. 303 OF 2006 JUDGMENT: This Civil Miscellaneous Appeal is directed against the order, dated 06.02.2006, in O.A.A.No.50 of 2000, on the file of the Railway Claims Tribunal, Secunderabad Bench, Secunderabad, whereunder and whereby, the application filed by the respondents/applicants claiming compensation of Rs.4,00,000/- consequent on the death of Mente Leela Prasad (hereinafter referred to as ‘the deceased’) was allowed granting compensation of Rs.4,00,000/- and directing the Railways to deposit the amount within sixty days from the date of receipt of a copy of order, and in the event of failure to deposit, it was ordered to pay interest @ 6% per annum from the date of receipt of copy of the order till realization. 2. The appellant in the C.M.A. is the respondent, and the respondents in the C.M.A. are the applicants, before the Tribunal. For better appreciation of facts, the parties hereinafter are referred to, as they are arrayed before the Tribunal. 3. The applicants filed O.A.A. stating that on 22.01.2000 the deceased boarded train No.7488 Tirumala Express in order to go from Eluru to Vijayawada along with his friend. While he was travelling in the said passenger train, he had accidentally slipped and fell down from the train at Vatluru Railway Station, which resulted in his death. At the time of accident, the deceased was unmarried. Hence, the claim application. 4. The respondent/ Railways filed written statement denying the averments made in the application. It is stated that the Gangman of Vatluru Railway Station had noticed a dead body of male person aged 28 years at KM No.484/31-33 and reported to Station Superintendent; that as per the inquest report the journey ticket was not recovered; that as per the panchas, the deceased seems to have walked through connecting way of the bogies which might have caused the mishap; if the act or commission would be a negligent or criminal act, railway administration is not liable to pay compensation and hence, it prayed to dismiss the appeal. 5. Basing on the above pleadings, the following issues are framed for trial. “1. Whether the Applicants is the sole dependent of the deceased Mente Leela Prasad? 2. Whether the deceased was a bona fide passenger of train No.7488 Visakhapatnam/Kakinada –Tirupati express travelling from Eluru to Vijayawada on 22.01.2000? 3. Whether the deceased died as a result of an untoward incident of accidental fall from the train between Eluru and Vatlluru railway Stations? 4. To what relief?” 6. After considering the oral and documentary evidence, the Tribunal allowed the claim application holding that the deceased died in an untoward incident. Challenging the same, the present Civil Miscellaneous Appeal is filed by the Railways. 7. Now the point for consideration is whether the order of the Tribunal is proper, correct and legal. 8. Learned counsel for the appellant/railways contended that the applicants failed to establish that the deceased was a bona fide passenger travelling in a passenger train; that no direct or circumstantial evidence was adduced to show that the deceased purchased a ticket and boarded the train; that the Tribunal came to the wrong conclusion and granted compensation and hence, he prays to set aside the impugned order. 9. Learned Standing counsel for the respondents/applicants contended that the deceased sustained severe cut injuries and the dead body was dragged to a considerable extent; that in that process possibility of loosing the ticket after falling from the running train cannot be ruled out; therefore, the Tribunal rightly held that the deceased was bona fide and granted compensation and hence, he prays to dismiss the appeal. 10. For the purpose of claiming compensation under Section 124-A of the Act, two requirements have to be satisfied, firstly, there must be untoward incident whereunder a person died. Untoward incident includes a person falling from the running train accidentally. Secondly, a person who died or sustained injuries must be a bona fide passenger travelling in the train with a valid ticket. If these requirements are proved, then the applicants are entitled for compensation. If the Railways want to resist the claim, it is has to prove that no untoward incident had happened or deceased was not a bona fide passenger travelling in a train carrying passengers or its case falls under anyone of the exceptions as provided under proviso to Section 124-A of the Act. 11. As far as untoward incident is concerned, it is not in dispute that the deceased died in an untoward incident. The dead body of the deceased was found lying by the side of the track,which was noticed by the Gangman of Vatluru Railway Station and the same was reported to Station Superintendent. After coming to know about the incident, police registered a case and held inquest over the dead body of the deceased. From the evidence on record, it is clear that the deceased had fallen from the running train. 12. Coming to the second aspect whether the deceased was a bona fide passenger travelling in the passenger train with a valid ticket or not, the initial burden is on the applicants to show that the deceased was a bona fide passenger travelling in a passenger train. The word ‘passenger’ is defined under explanation to 124-A of the Act, which reads as follows: “For the purpose of this section," passenger" includes- (i) a railway servent on duty; and (ii) a person who has purchased a valid ticket for travelling, by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident”. 13. From the explanation it is clear that if a person wants to travel in a passenger train, he must possess a valid pass or ticket. There is absolutely no evidence to show that the deceased purchased a ticket and boarded the train. A specific plea has been taken in the original application that the deceased along with one Hari Krishna went to the railway station, purchased two tickets and entered into compartment through different doors because of rush in the train. The said Hari Krishna who accompanied along with the deceased was not examined to show that the deceased had purchased the ticket so as to infer that he was travelling in a train with a valid ticket. The Gangman of Vatluru Railway Station noticed the dead body of the deceased at 09:00 AM. Immediately within one hour thereafter, police conducted inquest on the dead body of the deceased. During the course of inquest, they found several injuries on the dead body and they did not find any ticket on the wearing apparels of the deceased. When a person purchased a ticket, naturally it would be kept in the shirt or pant pocket. The objective findings of the Investigation Officer with regard to the state of affairs that were existing at the time of inquest are admissible under law. There was no evidence to show that shirt and pant pockets were cut into pieces. In such circumstances, possibility of loosing the ticket as observed by the Tribunal cannot be accepted. The findings of the Tribunal that the waist belt was cut and thrown out and as the deceased was dragged to a considerable extent, there was a remote chance to trace out the ticket. But, the objective findings in the inquest report do not indicate that the shirt and pant pockets were cut into pieces and no personal belongings were available with the deceased in the wearing apparels. Even if the deceased was dragged to a considerable distance, the ticket which was kept in his pocket would be remained in the pocket intact on the body of the deceased. This aspect of the case has been clearly over looked by the Tribunal and awarded compensation. When the initial burden stands on the applicants has not been discharged, the question of shifting the burden to the Railways to show that the deceased was not a bona fide passenger does not arise. Therefore, the findings of the Tribunal are not based upon proper appreciation of evidence record. For non-examination of important witness namely Hari Krishna, which could throw light with regard to the deceased purchasing ticket has been suppressed by the applicants for the reasons best known to them. If they produced the said Hari Krishna, the truth would have been come out. No explanation was given for non- examination of Hari Krishna. 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. The best evidence rule, which governs the production of evidence in Court, requires that the best evidence of which the case in its nature is susceptible should always be presented. Therefore, an adverse inference can be drawn under Section 114 (g) of the Indian Evidence Act, 1872 for non-examination of said Hari Krishna. Hence, the impugned order is liable to the set aside. 14. Accordingly, the Civil Miscellaneous Appeal is allowed setting aside the impugned order, dated 06.02.2006 in O.A.A.No.50 of 2000 on the file of the Railway Claims Tribunal, Secunderabad Bench, Secunderabad and consequently claim application filed by the applicants is dismissed. There shall be no order as to costs. _​_____________________ JUSTICE K.C.BHANU SEPTEMBER 15 2011 YVL