IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD DATE.01-04-2011. PRESENT THE HON'BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CIVIL MISCELLANEOUS APPEAL No.1129 OF 2008 Between: K.R. Lakshmi and four others. --- Appellants/ Applicants. AND The Union of India, Rep. by its General Manager, South Central Railways, Secunderabad. --- Respondent/ Respondent. The Court made the following: THE HON'BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CIVIL MISCELLANEOUS APPEAL No.1129 OF 2008 JUDGMENT: 1. This Civil Miscellaneous Appeal filed under Section 23 of the Railway Claims Tribunal Act, 1987 (for short, “the RCT Act”) assailing order dated 07-02-2006 passed in O.A.A. No.66 of 2001 filed under Section 16 of the RCT Act read with Sections 124-A and 125 of Railways Act, 1989 (for short, ‘the Act’) on the file of Railway Claims Tribunal, Secunderabad Bench, Secunderabad (for short, ‘the Tribunal’) claiming compensation of Rs.4,00,000/- consequent on death of one K.Y. Rajkumar (Hereinafter referred to as ‘the deceased’) dismissing the claim. 2. The appellants are the applicants and the respondent is the respondent in the O.A.A. No.66 of 2001. For the sake of convenience, the parties hereinafter will be referred as they are arrayed in the Tribunal. 3. The facts of the case are as follows : The applicants happened to be the wife and daughters of the deceased. On the relevant date, the deceased was on escort duty in Train No.2724 New Delhi – Hyderabad Express and at about 19-30 hours, when the train was halting on Platform No.6 of Secunderabad railway station, he slipped and fell down accidentally from the running train in between the platform and the train, sustained injuries and succumbed to the injuries on 06-07-1999 in the Railway Hospital, Lallaguda, Secunderabad. Further, the applicants who happened to be the wife and daughters and dependants of the deceased are entitled to the compensation of Rs.4,00,000/-. 4. The respondent filed his written statement denying the claims of the applicants and further claiming that the deceased was not a bona fide passenger of the train and the death of the deceased was not brought to the notice of Railway officials and further claiming that the applicant No.1 received an amount of Rs.5,00,000/- towards exgratia for the death of the deceased from CSO/SC under Pay Order No.622110, dated 25-06-2001 and therefore the applicants got no right to claim the compensation under the RCT Act, 1987 and further claiming that the injuries received by the deceased should be deemed to be self inflicted injuries. Ultimately the respondent pleaded to 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 K.Y. Rajkumar? 2) Whether the deceased was on escort duty on Train No.2724 New Delhi – Hyderabad A.P. Express on 01-07-1999 and amounts to bona fide passenger? 3) Whether the deceased sustained injuries as a result of an untoward incident of accidental fall form the train while getting down from the said train at Secunderabad Railway Station? 4) To what relief? 6. On behalf of the applicants, the first of them got examined herself as A.W.1 and got marked Exs.A-1 to A-6. Further, on behalf of the respondent, none were examined and no documents were marked. 7. Examining the material available, the Tribunal dismissed the application mainly on the ground that the exgratia amount of Rs.5,00,000/- was granted to the first applicant following the death of the deceased and as such by virtue of Section 128 of the Railways Act, 1989, no amount of compensation should be awarded to the applicants with reference to the same cause of action/accident. Hence, aggrieved by the same, the present Appeal has been preferred. 8. Therefore, it is to be mainly examined as to : 1) Whether by virtue of Section 128 of the Railways Act, the applicants are not entitled to claim the compensation of Rs.4,00,000/- by virtue of the provisions of Section 123-C and Section 124-A of the Railways Act on the ground that the exgratia amount of Rs.5,00,000/- was already awarded to the first applicant and also on the ground that he was not a bona fide passenger of the train? 9. Point : It is necessary to examine the scope of Section 128 of the Railways Act, 1989 which reads : “128. Saving as to certain rights – (1) The right of any person to claim compensation under section 124 (or Section 124-A) shall not affect the right of any such person to recover compensation payable under the Workmen’s Compensation Act, 1923 (8 of 1923), or any other law for the time being in force; but no person shall be entitld to claim compensation more than once in respect of the same accident. (2) Nothing in sub-section (1) shall affect the right of any person to claim compensation payable under any contract or scheme providing for payment of compensation for death or personal injury or for damage to property or any sum payable under any policy of insurance”. Therefore, by virtue of these provisions the right of any person to claim compensation under Sections 124-A and 125 of the Railways Act, shall not affect the right of any person to recover the compensation payable under the Workmen’s Compensation Act, 1923 (8 of 1923), or any other law for the time being in force but no person shall be entitled to claim compensation more than once in respect of the same accident. 10. The wording so legislated is only with regards to the claim of compensation by virtue of occurrence of death by means of such accident only and not otherwise. On the other hand, exgratia might have been paid under different provisions of law by virtue of the death of the particular railway servant taking into consideration the services rendered by him for the railways which is quite distinct from awarding any compensation under section Sections 124-A and 125 of Railways Act, 1989 which envisages payment of compensation for a bona fide passenger if dies while traveling by fall from train which is to be described as “untoward incident” as defined under Section 123 (c) (2) of the Act subject to some exceptions provided under Section 124-A of the Act. A right created under a statutory provision will be enforced. In other words, there are two different provisions one for paying the exgratia and the other for paying the compensation and one will not over lap the other. Suppose a railway servant dies otherwise than by a fall from a running train or from a stationary train still his dependents are entitled to the exgratia which clearly distinguishes the scope of the provisions, under which the exgratia is to be paid and the provisions under which necessary compensation is to be paid. Emphatically, only the first applicant was given the exgratia admittedly. So, even supposing that Section 128 of the Act is applicable here the other applicants will not loose their statutory right to claim the compensation under sections 124-A and 125 of the Act. When it is postulated under Section 128 of the Act that only one claim is to be made with reference to the provisions noted therein in respect of one accident, it means that having received compensation in respect of one and the same accident under one of the said provisions the second claim should not be made under any of the remaining provisions for the same accident. 11. Further, when he was on escort duty it is to be deemed that he was on official duty and was a bona fide passenger of the train and when he died by a fall from the train certainly his dependents are entitled to necessary compensation. Therefore, the observations made by the Tribunal are not proper. For the foregoing reasons, the order passed by the Tribunal is set aside and the Civil Miscellaneous Appeal is allowed awarding compensation of Rs.4,00,000/- to the applicants. ___________________________ G. KRISHNA MOHAN REDDY, J Dated:1-4-2011. B/o.Dsh.