THE HON’BLE SRI JUSTICE C.V.RAMULU CIVIL MISCELLANEOUS APPEAL No.1248 of 2005 JUDGMENT: This civil miscellaneous appeal, under Section 23 of the Railway Claims Tribunal Act, is directed against the order dated 22.09.2005 passed in O.A.A.No.140 of 1999 on the file of the Railway Claims Tribunal, Secunderabad Bench at Secunderabad, whereunder the claim petition filed by the appellants, claiming compensation of Rs.4,00,000/- on account of the death of the son of appellants 1 and 2, was dismissed. Appellants are the applicants in the said O.A.A.No.140 of 1999. Respondent is the South Central Railways represented by its General Manager. For the sake of convenience, the parties hereinafter are referred to as arrayed in the said O.A.A. Applicants 1 and 2 are the parents and applicant No.3 is the sister of one D.A.Sujith Babu, who died on 05.01.1999 in a train accident at Anathapur Railway Station. According to the applicants, while the deceased, accompanied by one Ayyub, was alighting train No.538 on 05.01.1999 in the morning at Ananthapur Railway Station, he accidentally fell down and sustained severe injuries, and while undergoing treatment, he succumbed to injuries. It is their case that the death of Sujith Babu occurred on account of untoward incident of accidental fall from the train, for which Railways is responsible, and, therefore, prayed to award compensation of Rs.4,00,000/- Respondent-Railways denied the accident as untoward incident and also denied purchasing of tickets bearing No.00427 and 00428 for travel from Hindupur to Anathapur by the deceased. It was also stated that one Ayyub, who is stated to have accompanied the deceased at the time of the accident, was not at all present at the time of the alleged incident. It was further stated that in view of the facts mentioned in the inquest report, which are similar to the version of the train Guard, it is clear that the alleged accident does not fall within the ambit of Section 123 (c) of the Railways Act. On the basis of above pleadings, the following issues were settled for trial: 1. Whether the deceased D.A.Sujith Babu was a bona fide passenger of the train in question ? 2. Whether the applicants are only dependents of D.A.Sujith Babu, deceased? 3. Whether the incident resulting in death of D.A.Sujith Babu falls within the ambit of untoward incident as defined in Sec. 124A of the Railways Act? 4. To what amount if any the applicants are entitled to as compensation? 5. Relief? On behalf of the applicants, AW.1 was examined and Exs.A1 to A5 were marked. On behalf of the Railways, RW.1 was examined and Ex.R1-D.T.C. register was marked. After detailed consideration of the matter, the Tribunal held that the incident was not occurred on account of an accidental fall from the train, but it was a negligent act which amounts to self-inflicted injuries, that the deceased was not a bona fide passenger and the applicants are not dependents on the earnings of the deceased to treat them as dependents and, therefore, dismissed the application of the applicants by the impugned order dated 22.09.2005 stating that they are not entitled to any compensation. Aggrieved thereby, the present civil miscellaneous appeal is filed. Heard the learned counsel for the appellants and the learned counsel appearing for the respondent Railways. So far as issue No.2 i.e., whether the applicants are only dependents of the deceased D.A.Sujith Babu, is concerned, the finding recorded by the Tribunal to the effect that the appellants are not dependents on the earnings of the deceased cannot be sustained, because by virtue of parental relationship, the appellants 1 and 2, being the parents of the deceased, are treated as dependents. Thus, it cannot be said that appellants 1 and 2 are not the dependents. With regard to the findings that the deceased was not a bonafide passenger, it is very interesting to notice the findings recorded at paragraph 5 of the impugned order, which read as under: “First applicant filed his affidavit reiterating the factual aspects and through his evidence he filed Ex.A1 copy of the FIR, Ex.A2 Inquest report, Ex.A3 Death Certificate, Ex.A4 Physically handicapped certificate of the deceased person, Ex.A5 Family Member Certificate. On the side of the respondent, Chief Commercial Clerk was examined as RW1 and he filed copy of the DTC Register which is marked as Ex.R1. RW1’s evidence is that the tickets bearing No. 00427 and 00428 Ex. Hindupur to Ananthapur were issued for train No. 538 passenger on 5-1-1999 at 6.30 hrs. in the rostered duty hours of 21.00 to 4-1-99 to 07.00 hrs. of 5-1-99. No doubt the deceased being physically handicapped person was issued with Ex.A4 concession certificate for his journey and he may be having a privilege to have concessional fare for the journey, but his journey ticket is not recovered from him at the time of inquest. The applicants have asserted that the deceased was accompanied by one Mr.Ayyub and two tickets were purchased and the ticket numbers are also given. Of course, RW.1 has stated that two tickets numbers referred to were sold for train No. 538 in between 4-1-99 to 5-1-99 during the hours 9 p.m. to 7 a.m. but still it cannot be said that these tickets were purchased by the deceased and one Mr.Ayyub. From the circumstances it can be said that Ayyub was a set up witness. Had he followed the deceased he would have definitely been present at the time of the inquest, as such it falsify the version of the applicants. The non- examination of Ayyub who is said to have accompanied is fatal to the case of the applicants. As per the inquest report, cash of Rs.4800/-, two wheeler keys and motor driving license were recovered from the deceased but not the ticket. If really the ticket was with him, it would have also been recovered. The incident had taken place only at Anantapur station platform. There is no possibility of missing of the ticket from the pockets as the inquest was held immediately. It is not the case of the applicants that Mr.Ayyub kept the tickets and that they are unable to secure his presence or that his whereabouts are not known to them. It is interesting to note that at the time of inquest, the first applicant was also present in whose presence panchanama was conducted and panchayatdars came to a conclusion that the deceased sustained injuries while trying to get down from the moving train by awakening from the sleep when the train was leaving Ananthapur R.S. platform. Further, in view of this recitation in the inquest report that the deceased has slept in the train and he woke up when the train reached Ananthapur and when the train was moving he jumped out from it and fell down. It can be held that the incident was not on account of an accidental fall from the train but it is a negligent act which amounts to self inflicted injuries. In view of the admitted facts and the evidence on record it can be said without hesitation that the deceased was not a bonafide passenger and that he knowing fully well tried to alight the running train as a result of which he sustained injuries. Hence, negative findings are in favour of the applicants.” From the aforesaid findings, it is clear that merely because the said Ayyub, who is stated to have accompanied the deceased on the date of the alleged accident, was not examined and the ticket was not recovered from the body of the deceased, the Tribunal came to the conclusion that the deceased was not a bona fide passenger. In this regard, I would like to refer to the evidence of RW.1, the Chief Commercial Clerk, who stated that tickets bearing No.00427 and 00428 were issued for train No.538 on 05.01.1999 for a travel from Hindupur to Ananthapur. Further, it is to be noticed that as per Ex.A4- Physically Handicapped Certificate produced on behalf of the appellants, the deceased was a physically handicapped person (polio effected person). Apart from this, the inquest report marked as Ex.A2 shows that an amount of Rs.4,800/, two wheeler keys and motor driving license were recovered on the body of the deceased, which would justify that the deceased could not have traveled without any ticket and there was no necessity for him to travel without ticket. Even, the extract of D.T.C. register marked as Ex.R1, which was produced by RW.1, categorically shows that two concessional tickets were issued against a physically handicapped person on the alleged date of the accident. Thus, all these would prove and probabilise in drawing a strong presumption that the deceased was a bona fide passenger of the train in question. Now the question remains as to whether the deceased died on account of untoward incident of accidental fall from a passenger train or not. Insofar as this aspect is concerned, though Railways, in their written statement, stated that the Guard of the train had witnessed one physically handicapped person jumping out of the train as soon as the train moved from Anantapur Railway Station and falling on the tracks resulting injuries, but however, the said guard was not examined to show that the deceased jumped out of the moving train and died of his own negligence. Further, none of the panch witnesses of the inquest report were examined to prove the contention of the Railways that the deceased died of his own negligence. Therefore, in the absence of any evidence let in by the respondent Railways to show that the deceased died of his own negligence and having regard to the fact that the deceased is a physically handicapped person holding valid physically handicapped pass, a conclusion must be drawn that the deceased died of an untoward incident of accidental fall from a passenger train No.538 at Ananthapur Railway Station, while traveling from Hindupur to Ananthapur, and the respondent Railways is liable to pay compensation for the death of the deceased. For the aforesaid reasons, the order dated 22.09.2005 passed in O.A.A.No.140 of 1999 on the file of the Railway Claims Tribunal, Secunderabad Bench at Secunderabad, is set aside, and the respondent-Railways is directed to pay compensation of Rs.4,00,000/- to appellants 1 and 2, being the parents of the deceased, along with interest @ 9% per annum from the date of appeal till the date of realization. However, it is made clear that appellant No.3, being a sister of the deceased, is not entitled for any compensation, since she is not the dependent of the deceased as on today. The civil miscellaneous appeal is, accordingly, allowed to the extent indicated above. No order as to costs. _____________ C.V.RAMULU,J 19.08.2010 v v