IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE THIRTEENTH DAY OF SEPTEMBER TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL No. 82 OF 2010 Between : Lakhmisetty Lakshmi Kumari and others. …APPELLANTS A N D The General Manager and another …RESPONDENTS THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL No. 82 of 2010 JUDGMENT : This Civil Miscellaneous Appeal is directed against the order dated 06.10.2009 in O.A.A.No.30 of 2003 on the file of the Railway Claims Tribunal, Secunderabad Bench at Secunderabad, whereunder and whereby the claim application filed by the appellants/applicants for compensation of Rs.4,00,000/- consequent on the death of the deceased Lakshmisetty Krishna Murthy (hereinafter referred to as ‘the deceased’), was dismissed. 2. The appellants in the C.M.A. are the applicants, and the respondent in the C.M.A. is the respondent, 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 02.03.2002 the deceased along with his friend Mr.Krishna boarded train No.163 passenger train in order to go from Nidubrolu to Chirala. While the deceased was travelling in the said passenger train, he had accidentally slipped near Musalamma Railway Gate and sustained injuries. Immediately after incident, the deceased was shifted to Peoples Truma and Emergency Hospital, Guntur and while undergoing treatment the deceased was succumbed to injuries on 13.05.2002. During the course of incident, the deceased lost the ticket. Hence, the claim application. 4. The respondent/railways filed its written statement denying the averments made in the claim application. It is stated that the applicants have not produced the ticket to show that the deceased was a bona fide passenger travelling in a passenger train; that if really friend of deceased Krishna accompanied the deceased in the train, he would have reported the fall to Railway authority; that in the inquest report it was not mentioned any witness to the incident 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 were dependents of the deceased? 2. Whether the deceased was a bona fide passenger of the train in question? 3. Whether the deceased died as a result of an untoward incident of fall from the train “ and 4. To what relief?” 6. During trial, on behalf of the applicants, A.Ws.1 and 2 were examined and Exs. A1 to A6 were got marked, and on behalf of the respondent R.W.1, but no documents were marked. 7. The Tribunal, after considering the oral and documentary evidence dismissed the claim application holding that the deceased was not a bona fide passenger travelling in a passenger train ; that the deceased received injuries and died subsequently on account of sickness and so, the dependents of the deceased are not entitled to compensation. Challenging the same, the appellants/applicants filed the present appeal. 8. Learned Standing counsel for the appellants/applicants contended that the evidence of A.W.2 is very clear that the deceased was a bona fide passenger travelling in a passenger train; that Ex.A.3- post mortem report would clearly go to show that the deceased sustained multiple injuries and those injuries can be possible by falling from the running train; that the Tribunal ought to have granted compensation and hence, he prays to set aside the impugned order. 9. On the other hand, learned Standing counsel for the respondent/railways opposed the same on the ground that no untoward incident had happened on the date of incident as alleged by the applicants; that no ticket was produced to show that the deceased was a bona fide passenger; that the evidence of A.W.2 is not shown to be reliable and trustworthy since he is closely related to the deceased and therefore, the Tribunal after considering the oral and documentary evidence rightly dismissed the claim application and hence, there are no grounds to interfere with the impugned order. 10. There cannot be any dispute that in order to claim compensation under Section 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 deceased died; and the second condition is that such a person must be a bona fide passenger travelling in a train carrying passengers. If these two requirements are proved, then the burden shifts to the railways to establish that no untoward incident had happened or that the case of the Railways falls under any one of the clauses mentioned under proviso to Section 124 A of the Act. 11. As far as untoward incident is concerned, A.W.2 is said to be an eyewitness to the incident. He saw the deceased purchasing the ticket and boarding the train. On coming to know about the incident, he went there and shifted the deceased to the hospital. The applicants ought to have examined the Doctor, who conducted the postmortem examination to give his opinion with regard to the actual cause of death of the deceased. The alleged incident had taken place on 02.03.2002 in between 08:00 and 10:00 AM, which is a broad daylight. The deceased was admitted in Peoples Trauma and Emergency Hospital on the same day and discharged on 28.04.2002. The deceased was readmitted on 13.05.2002 at 07:00 AM and died one hour thereafter. Therefore, from the date of incident till the date of death of the deceased there is a time gap of more than two months. If the medical evidence was adduced to show that sustaining of injuries by the deceased in a train accident and those injuries were responsible for causing death of the deceased, then the applicants are entitled to compensation, provided if the applicants proved that the deceased was a bona fide passenger travelling in a train carrying passengers. The Doctor who conducted post-mortem examination opined that the deceased appeared to have died as a result of multiple injuries. The Doctor has not opined in the post-mortem report that those injuries can be possible by falling from the train. Therefore, if really the incident had happened, it would have been noticed by several passengers in the train when the deceased had fallen from the train. Therefore, the case of the applicants appears to be not correct. 12. Insofar as bona fide passenger is concerned, though the applicants have not produced the ticket to show that the deceased was a bona fide passenger. At the same time they examined A.W.2, who stated that he went to Railway Station along with the deceased and saw the deceased purchasing the ticket. The only question is whether the evidence of A.W.2 is true, trustworthy and reliable. If the evidence of A.W.2 is put in the category of wholly reliable, then there is difficulty in accepting his evidence. It is in the evidence that A.W.2 was doing seasonal business and used to sell Sarees. It is not in dispute that the deceased was working as Mechanic in RTC. On the date of the incident, while he was present near Railway Station, the deceased met him at 08:30 AM and enquired him. Then he followed the deceased to the Railway Station and he kept his Saree load nearby shop and saw the deceased purchasing the ticket. Simply because the deceased was close friend of A.W.2, there is no need for him to go to the Railway Station when he was actually doing Saree business. He kept the Sarees at the shop, which appears to be highly improbable. There is no need for A.W.2 to accompany the deceased to the Railway Station leaving his business. Therefore, the presence of A.W.2 is very much doubtful and the purpose for which he went to Railway Station is also highly improbable. So, for these reasons, the Tribunal rightly not placed any reliance on the evidence of A.W.2. The applicants failed to establish that the deceased sustained injuries in an untoward incident and those injuries were responsible for his death. The applicants also failed to establish that the deceased was bona fide passenger travelling in a train carrying passengers. If these two requirements are not proved by the applicants, the question of granting compensation does not arise. Considering these aspects, the Tribunal rightly dismissed the claim application and hence, there are no grounds to interfere with the impugned order. 13. Accordingly, the Civil Miscellaneous Appeal is dismissed. There shall be no order as to costs. _______________ K.C. BHANU, J SEPTEMBER 13, 2011 YVL