IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD DATE.21-03-2011. PRESENT THE HON'BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CIVIL MISCELLANEOUS APPEAL No.124 OF 2009 Between: The Union of India, Rep. by its General Manager, South Central Railway, Rail Nilayam, Secunderabad. --- Appellant/ Respondent. AND Chilukuri Padmaja and another. --- Respondents/ Applicants. The Court made the following: THE HON'BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CIVIL MISCELLANEOUS APPEAL No.124 OF 2009 JUDGEMENT: This Civil Miscellaneous Appeal filed under Section 23 of the Railway Claims Tribunal Act, 1987 (for short, “the RCT Act”) against order dated 14-11-2008 passed in O.A.A. No.339 of 2003 filed under Section 16 of the RCT Act read with Section 124-A of Railways Act, 1989 (for short, ‘the Act’) on the file of Railway Claims Tribunal, Secunderabad Bench at Secunderabad (for short, ‘the Tribunal’), claiming compensation of Rs.4,00,000/- consequent on the death of one Ch. Mohan Subrahmanya Sastry (Hereinafter referred to as ‘the deceased’), allowing the claim. 2. The appellant is the respondent and the respondents are the applicants in O.A.A. No.339 of 2003. For the sake of convenience, the parties hereinafter will be referred as they are arrayed in the application. 3. The facts of the case are as follows : The claim of the applicants is that the deceased who happened to be the husband of first of them and father of the second of them boarded in second class general compartment of train No. 7049 Machilipatnam – Secunderabad express at Vijayawada on 14-08-2003 and on the way in between Raigir and Bhongir railway stations at KM No.246/17-19 due to sudden jerks and high speed of the train, he fell down and received injuries and died on the spot on 15-08-2003 and he was a bona fide passenger of the train and they are entitled to the compensation claimed being the dependants of the deceased. 4. The respondent filed written statement totally denying the claims of the applicants and further pleading that the Guard of the train did not notice fall of any passenger and the claim would not fall under the ambit of Section 123 (c) or Section 124-A of the Railways Act and ultimately prayed to the dismiss the application. 5. On the strength of the pleadings, the Tribunal framed the following issues for trial and disposal : 1) Whether the applicants are dependents of the deceased? 2) Whether the deceased was a bona fide passenger? 3) Whether the deceased died on account of injuries sustained by him in an untoward incident of accidental fall from the train? 4) To what relief? 6. On behalf of the applicants, the first of them got examined herself as A.W.1 and the sister of the deceased Smt. K. Sujatha was examined as AW.2 and got marked Exs.A-1 to A-8. Further, on behalf of the respondent, the Assistant Station Master, Vangapally railway station, was examined as RW.1 and night patrolling man Sri K. Anjaiah was examined as RW.2 and no documents were marked on their behalf. 7. Examining the material available, the Tribunal upheld the claim of the applicants and granted the relief prayed for with a direction to the respondent to deposit the amount within thirty (30) days from the date of order failing which to pay interest at the rate of 9% p.a. from the date of order till the date of realization of the amount. 8. It is the contention of the learned counsel for the respondent that a dead body was found by the keymen in between Wangapally - Raigir railway stations at 08-30 a.m. whereas no eye witness of the incident was examined and as per the corresponding FI.R. inquest report, postmortem report it was unknown dead body and in fact there is no evidence of identification of the dead body subsequently with regards to which the Tribunal observed that the deceased was the husband of the first applicant and father of the second applicant on the basis of some photographs and documents filed which is not sufficient compliance of the requirement of proper identification of the dead body as envisaged in Sections 101, 102 and 103 of the Evidence Act. It is also his contention that no ticket of the deceased was seized at the time of inquest over the dead body and in fact it was also not produced before the Tribunal later, but the Tribunal just accepted the evidence of AWs. 1 and 2 who are not eye witnesses to the incident without properly considering it and hence the circumstances of the case proves that he was not a bona fide passenger and the order passed by the Tribunal is liable to be set aside. 9. Therefore it is to be mainly examined as to : 1) Whether there was proper identification of the deceased? 2) Whether sufficient evidence was placed to the effect that the deceased was a bona fide passenger of the train? 3) Whether the Tribunal properly examined the matter and arrived at correct conclusions? 4) Whether the order passed by the Tribunal is tenable or not? 10. Under the first issue it is observed by the Tribunal as follows : “The applicants are wife and daughter of the deceased. Ex.A-6 is the wedding invitation and Ex.A-8 is the marriage photos clearly disclose that the first applicant is the wife of the deceased. Ex.A-7 is the birth certificate of applicant No.2 issued by the Registrar, Birth and Deaths, Municipal Corporation of Hyderabad, wherein it is clearly mentioned the name of the parents of the applicant No.2 Moreover, AW.1 in her affidavit deposed that the deceased is her husband. There is no rebuttal evidence from the respondent to this aspect. Therefore, we hold that the applicants are the dependants of the deceased” 11. So, mainly it is to be established in view of the contentions raised by the opposite party that the deceased was properly identified. The proper identification of the deceased could be done by comparing his photographs taken subsequent to the accident by the concerned authorities with his earlier photographs filed by the applicants, so without that it is difficult to come to any conclusion about the identity. Therefore, necessary steps are to be taken for the identification of the deceased. 12. Further, in Union of India, South Central Railways, Secunderabad Vs. Kurukundu Balakrishnaiah, Dhone, Kurnool District and others[1] (1 supra), it is observed : “On the analysis above we conclude that the expression “untoward incident” in Sec.124-A of the Act, which has been defined inter alia to mean the accidental falling of any passenger from a train carrying passengers (in sub-clause (2) of Clause (c) of Section 123 of the Act) does not comprehend injury or death occasioned by his negligence, carelessness, wrongful act or prohibited conduct, disregard of the requisite standard of care obligated by a person traveling on a train or any such conduct of a passenger which might reasonably be expected to result in his injury or death, as a resultant injury or death would, in such circumstances, be the consequence of a self-inflicted injury”. 13. Further the inquest report does not provide that any ticket was seized from the dead body at the time of inquest over the dead body. Further, no eye witness of the incident was examined nor any co-passenger of the deceased was examined to prove the accident. The evidence of AWs.1 and 2 who are not eye witnesses is insufficient to establish the issue. 14. Further, when once it is proved that the deceased traveled by the train then it is for the railways to establish that he was not a bona fide passenger of the train. 15. Therefore, for the foregoing reasons, it is necessary to remand the matter to the Tribunal to take necessary steps for the identification of the deceased rationally and decide the question of bona fide travel of the deceased by the train giving opportunity to the applicants and later to the respondent to adduce necessary evidence in all aspects. Further, the contents of the Inquest Report, Postmortem report, F.I.R. should be proved by examining concerned witnesses unless those documents were marked by consent. Further, mere marking of the documents is not proof of its contents. In other words, though no objection was raised regarding the marking of documents, concerned witnesses are to be examined to prove its contents. In the result, the Civil Miscellaneous Appeal is allowed setting aside the order passed by the Tribunal and the matter is remanded to the Tribunal for disposal afresh independently in the light of the observations made above. There shall be no order as to costs. ___________________________ G. KRISHNA MOHAN REDDY, J Dated:21-03-2011. Dsh. [1] 2004 (1) ALT Page 100 (FB)