THE HON’BLE SRI JUSTICE B. CHANDRAKUMAR C.M.A.No.278 of 2006 Dated:- 08.07.2011 Between: Allamsetti Sugunamma and another .. Appellants AND The Union of India, represented by its General Manager, South Central Railway, Secunderabad .. Respondent THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR C.M.A.No.278 of 2006 JUDGMENT: This appeal is directed against the order dated 30.12.2005 passed in O.A.A.No.168 of 2000 by the Railways Claims Tribunal, Secunderabad Bench, Secunderabad (‘the Tribunal’, for brevity). The appellants herein, who were the applicants before the Tribunal, are parents of one A. Srinu, who died in a train accident. The appellants’ specific case is as follows: Allamsetti Srinu (hereinafter referred to as the deceased) was a coffee vendor. He used to travel between Nalgonda and Sattenapalli Railway Stations on Second Class monthly season ticket as a coffee vendor in the trains. On 18.08.1999, he boarded Train No.2748 Secunderabad to Guntur Palnadu Express at Nalgonda Railway Station. While the said train travelling, when the deceased was changing from one bogie to another bogie through vestibule, he slipped and fell down accidentally from the said running train at KM No.103/5-6 in between Madgulapalli and Kukkadam Railway Stations due to speed, jolt and jerks of the train, as a result of which, the deceased came underneath the wheels of the train and his body was cut into pieces and he died on the spot. Contending that the deceased was aged about 16 years as on the date of accident, the claimants claimed a total compensation of Rs.4,00,000/-. The respondent contested the matter and filed written statement contending that no cause of action arose for the claimants as their claim does not fall within Section 123 (c) (2) or Section 124-A of the Railways Act, 1989 and that the deceased was a coffee vendor and used to travel between Nalgonda and Sattenapalli Railway Stations on Second Class monthly season ticket and that the deceased died due to accidental fall while changing from one bogie to another bogie from vestibule and that the deceased was not holding any season ticket and he was a ticket-less hawker and that the dead body of the deceased was found at KM 102/11-12 and not in between KM No.103/5-6 and that the inquest report reveals that while the deceased was changing from bogie to another from outside the doors of the train, he slipped and fell down and was run over by the train and that the act of the deceased amounts to a criminal act and self-inflicted injury and cannot be treated as untoward incident. Evidence was let in. On behalf of the applicants, the first applicant – mother of the deceased was examined as PW.1 and Exs.A.1 to A.7 were marked. On behalf of the respondents, no oral and documentary evidence has been adduced, except examining the Chief Goods Clerk as R.W.1. The mother of the deceased, who is 56 years old illiterate woman, filed chief-affidavit on 08.10.2001. According to her, the deceased was a Coffee Vendor and used to travel in the trains between Nalgonda and Sattenapalli Railway stations on Second class monthly season ticket as a coffee vendor and used stay at Nalgonda. She had also deposed that after coming to know about the accident, she went to Government Hospital, Nalgonda along with her husband and brought the dead body of their son to their village and performed the last rituals. On behalf of respondent, one Ch. Bikshama Chary, who was working as Chief Goods Clerk at Nalgonda, filed his chief affidavit and according to him, no monthly market vendor season ticket was issued from his Railway Station, i.e., Nalgonda Railway Station since the date of its operation. Since no eye-witness is examined in this case, the matter has to be decided basing on the documentary evidence marked. The Tribunal, basing on the recitals of the inquest report that there was no journey ticket with the deceased and that there is no positive evidence that the deceased was in possession of the season ticket, held that the deceased was an unauthorised passenger. Similarly, basing on the recitals of the inquest report that the deceased was changing from one bogie to another bogie from outside the doors of the train and there is no vestibule system in the train, the Tribunal held that the applicants’ have failed to prove that the deceased fell down from the vestibule while changing from one bogie to another. Holding so, the Tribunal dismissed the O.A.A., aggrieved by which, the applicants are before this Court as appellants. It appears that the findings of the Tribunal were based on the recitals of the inquest report that the deceased fell down while changing from one bogie to another bogie from outside the doors of the train and indulged in prohibited act. Learned counsel for the appellants submitted that the findings of the Tribunal are contrary to the evidence on record and that the inquest report reveals that the deceased died due to accidental fall from the train. It is also submitted that the Tribunal had erred in holding that the accident had not occurred on account of untoward incident by merely placing reliance on Ex.A.2, which is the record of Railways. Learned counsel has relied on various decisions reported in Union of India v. Baburao Koddekar and another[1], Union of India v. Borra Vijayalakshmi and others[2], Union of India v. Prabhakaran Vijaya Kumar and others[3], Asharani Das v. Union of India and another[4], and Jameela v. Union of India[5] in support of his contentions that it is for the respondent to prove that the act of the deceased comes within the meaning of self-inflicted injury and not untoward incident. It is also submitted that burden lies on Railways to prove that the deceased was a ticketless unauthorised passenger. Per contra, learned standing counsel for Railways submitted that the deceased claimed that he had monthly season ticket and that he was changing from one compartment to another from outside the doors of the train and this circumstance is sufficient to say that the deceased was negligent and his act comes within the definition of self-inflicted injury. It is also submitted that there is nothing on record to show that he obtained any seasonal ticket and that seasonal ticket was not issued from Nalgonda Railway Station and in the above circumstances, it is to be held that the deceased was an unauthorised passenger. It is also submitted that the submissions made by the investigating officer in the inquest report cannot be treated as a statement made by the witness before the police during investigation, but it is a record of what the investigating officer himself observed and found and such observations can be looked into in support of his contention. He relied on a decision reported in Rameshwar Dayal and others v. State of U.P.[6] The points that arise for consideration in this appeal are whether the claimants are entitled for compensation and whether the deceased died due to his own criminal act or self-inflicted injury? POINT: It is not in dispute that the deceased died in a train accident. It is also not in dispute that the Railway Police conducted inquest over the dead body of the deceased. Inquest Report is marked as Ex.A.2. Ex.A.1 is the First Information Report. The contents of Ex.A.1 go to show that a male dead body was lying on the track of 1KM 102/11-12 in between KM 103/5-6. The Tribunal dismissed the claim merely on the ground that Kilo Metre number where the dead body of the deceased was found was not correctly mentioned. It is to be seen that the claimants are illiterate persons. Merely because they did not give correct the number of Kilo Metre where the dead body of the deceased was lying, that cannot be a ground to reject the claim when it is an admitted fact that the deceased died in a train accident. The recitals of Ex.A.2- Inquest Report reveal that the deceased was selling coffee in the train and he was proceeding from one bogie to another bogie from outside and in that process, he fell down and died. Every inquest report contains two parts. One part is the observation by the investigating officer and the Panchayatdars and the other one is the opinion gathered by them from what they heard from other sources. In the case relied on by the learned standing counsel for Railways in Rameshwar Dayal and others v. State of U.P. (6th supra), the Apex Court observed as follows: “…..the statement made by the investigating officer in inquest report is not a statement made by any witness before the police during investigation, but it is a record of what the investigating officer himself observed and found. Such an evidence is the direct or primary evidence in the case and is in the eye of law the best evidence……” Therefore, what was observed by the investigating officer and the Panchayatdars may be with regard to location of the dead body or the blood stains found in the scene of offence or other incriminating material found at the scene of offence etc., that can be taken into consideration. Thus, what was actually seen or what was actually observed by the investigating officer and panchayatdars alone can be taken into consideration and whatever they heard from others would become hearsay and that part of observation, if any, made in the inquest report cannot be considered as a part of admissible evidence. Therefore, that part of record which the investigating officer and panchayatdars did not observe but heard from others, in this case that the deceased fell down from the running train while changing from one bogie to another bogie from outside of the doors, falls in the category of inadmissible portion of the evidence and such part cannot be taken into consideration. To prove such fact, the witnesses who had actually witnessed the incident must be examined. Admittedly, they did not witness the incident and admittedly, no person, who was present at the time of accident or who had scene the accident, has been examined. Thus, it is clear that there is no direct evidence in this case. The learned standing counsel for Railways submitted that since a part of the dead body was found at a distance of 10 feet, it has to be presumed that the deceased fell down while changing the bogies from outside the door. The inquest report reveals that the investigating officer and the other mediators found a part of the dead body in the middle of the track and other part of the dead body was at a distance of 10 feet. The body was cut into pieces at the stomach. If at all, the version of the counsel for Railways is correct that the deceased was changing the bogies from outside the train, the entire body of the deceased would have fallen away from the track and a part of the body would not have fallen on the track. The lower portion of the body below the stomach was found in between the tracks. As far as this fact is concerned, since it was noticed by the investigating officer and the panchayatdars, therefore, the same can be considered as admissible evidence. Thus, there is no evidence in this case to say that the deceased died while moving from one bogie to another bogie from outside the doors. How he fell down and whether he fell down while standing at the door or not is not clear since the specific case of the Railways is that there is no vestibule system in the train. Admittedly, no railway ticket or any pass was found at the place of accident. Similarly, there is no evidence in this case to show whether the deceased had purchased the ticket or not before boarding the train. Merely because no ticket was found at the place of accident or near the dead body, it cannot be said that the deceased had not purchased any ticket or that he was not having any pass. Even if the evidence adduced by the Railways is accepted, it only shows that the deceased had not applied for season pass ticket at Nalgonda Railway Station and not purchased season ticket at Nalgonda Railway station. It is not the case of the Railways that passes were issued only at Nalgonda Railway Station to the hawkers. The deceased might have obtained season pass at Secunderabad or any other stations or he might have purchased a railway ticket at any other station. There is every possibility of missing such ticket or season pass at the time of accident or after the accident. Therefore, in the absence of any other material, no presumption can be drawn against the petitioners. The attitude of the Tribunal and attitude of the Courts while dealing with such cases has been explained by the Apex Court in number of judgments. The Apex Court in Union of India v. Prabhakaran Vijaya Kumar and others (3 supra) observed as follows: “…….it is well settled that if the words used in a beneficial or welfare statute are capable of two constructions, the one which is more in consonance with the object of the Act and for the benefit of the person for whom the Act was made should be preferred. In other words, beneficial or welfare statutes should be given a liberal and not literal or strict interpretation……” Reference in a case in Workmen v. American Express International Banking Corporation [(1985) 4 SCC 71] the Apex Court observed as follows: …..the principles of statutory construction are well settled. Words occurring in statutes of liberal import such as social welfare legislation and human rights’ legislation are not to be put in Procrustean beds or shrunk to Lilliputian dimensions. In construing these legislations the imposture of literal construction must be avoided and the prodigality of its misappropriation must be recognized and reduced. Judges ought to be more concerned with the “colour”, the “content” and the “context” of such statutes. In the same opinion, Lord Wilberforce pointed out that law is not to be left behind in some island of liberal interpretation but is to enquire beyond the language, unisolated from the matrix of facts in which they are set; the law is not to be interpreted purely on internal linguistic considerations.” In the same judgment, in para-14, the Apex Court observed as follows: …..in our opinion, if we adopt a restrictive meaning to the expression “accidental falling of a passenger from a train carrying passengers” in Section 123 (c) of the Railways Act, we will be depriving a large number of railway passengers from getting compensation in railway accidents. It is well known that in our country there are crores of people who travel by railway trains since everybody cannot afford travelling by air or in a private car. By giving a restrictive and narrow meaning to the expression we will be depriving a large number of victims of train accidents (particularly poor and middle class people) from getting compensation under the Railways Act. Hence, in our opinion, the expression “accidental falling of a passenger from a train carrying passengers” includes accidents when a bona fide passenger i.e. a passenger travelling with a valid ticket or pass is trying to enter into a railway train and falls down during the process. In other words, a purposive and not liberal interpretation should be given to the expression.....” The purposive construction of enactment is one which gives effect to the legislative purpose by following the legislation where that meaning is in accordance with the legislative purpose. In that case, a lady passenger while trying to enter a train fell down on the railway track and was run over by the train. Consequently, she died and her legal representatives filed a claim petition before the Railway Claims Tribunal. The case of the Railways is that the deceased had attempted to board the train and fell down from the running train. The Tribunal held that that was not an “untoward incident” within the meaning of the said expression in Section 123 (c) of the Railways Act, 1989. The Apex Court observed as follows: “.....it was not legally make any difference whether the deceased was actually inside the train when she fell down or whether she was only trying to get into the train when she fell down or whether she was only trying to get into the train when she fell down. In ether case, it amounted to an “accidental falling of a passenger from a train carrying passengers”. Hence, it was an “untoward incident” as defined in Section 123 (c) of the Railways Act. Similarly, when the question came up for consideration before this Court in a case reported in Union of India v. Baburao Koddekar and another (1 supra), it was held at para-41 reads thus: “.......As extracted above, Section 124 A of the Railways Act, 1989 provides that when in the course of working a railway an untoward incident occurs, then whether or not there has been any wrongful act, neglect or default on the part of the railway administration, a passenger who was injured or killed is entitled for compensation. Therefore, in our considered view, as provided in this section, there is no obligation on the part of the injured/claimants of the deceased to prove whether there was a wrongful act, neglect or default on the part of the railway administration. Suffice it to say, if any bona fide passenger having a ticket, as defined under clause (29) of Section 2 of the Act dies in an untoward accident; it is incumbent upon the Railways to pay the compensation to the victim/claimants of the deceased without putting up any dispute.......” Another question came for consideration in that case, whether the deceased having a valid ticket or not, this Court observed as follows: “.....the burden does not lie on the dependants of the deceased to prove that the deceased was a bona fide passenger and the burden is on the railway administration to prove that the deceased was a ticketless traveller or was not a bona fide passenger.....” Similar question came before the Madhya Pradesh High Court in Raj Kumari and another v. Union of India (1993 ACJ 846). A Division Bench of Madhya Pradesh High Court, while dealing with Sections 82-A and 68 of the Railways Act, 1890 (old) observed thus: “.....Normally, under Sections 101 and 102 of the Evidence Act, the burden to prove such facts, on which the legal right or liability depends, is on such person who asserts existence of these facts. But the question before us is whether the burden of proof that the deceased held a valid ticket, pass or permission during his journey, in which he died in accident, can be placed on his dependants. Obviously, such burden of proof is impossible to be discharged by the dependants, who can have no means of knowledge, whether the deceased, before boarding the train had purchased a valid ticket, pass or permission from the railway authority. It is likely that such a deceased passenger held a valid ticket, pass or permission, but the same is lost in the accident with the death of person and loss of his belongings, if any......” Admittedly, in every train, the Railway Department officials should verify whether any ticketless passenger has been travelling in the train. It is not a case of the Railways that the Travelling Ticket Examiner (TTE) was not on duty in the train. When the officials in the train were checking the passengers, it is deemed that they have checked all the passengers travelling in the train. It is deemed that no person without any valid ticket was travelling in the train. Therefore, a presumption has to be drawn that the Railway TTEs have performed their usual duties and examined all the passengers including the deceased in this case and they would not have allowed the deceased to travel in the train if at all he was not having any pass or ticket to travel by the train. Therefore, it cannot be held that the deceased was an unauthorised passenger. Similar question came before Calcutta High Court i n Asharani Das v. Union of India and another (4 supra), wherein it was observed as follows: “......we are quite conscious of the position of law that as provided in Section 106 of the Evidence Act, if a fact is within the special knowledge of a person, the burden of proving such fact is on that person and as provided in illustration (b) of that section, if a person is charged with travelling on a railway without a ticket, the burden of proving that he had a ticket is upon him. But, such principle is not applicable to a case of a dead person who was proved to have died in course of railway travel and whose body was taken in custody of the Railway Police. In such a situation, it is the duty of the Railway Authority to first give evidence that he was without a valid ticket and if such evidence is given, the onus shifts upon the claimants to prove that he was a bona fide passenger having a valid ticket.....” Even in a case of licence hawkers, the Railways have not adduced any evidence to show that the list of hawkers, who were licenced and who was permitted hawkers. In a case between Jameela v. Union of India (5 supra), the Apex Court was dealing with a similar case and as in the case, no eye-witness were examined in that case. Then the Apex Court observed as follows: “..... There is admittedly no eye-witness of the fall of the deceased from the train and therefore, there is absolutely no evidence to support the case of the Railway that the accident took place in the manner suggested by it.....” It cannot be said that the deceased had committed any criminal act. It was observed as follows: “......A criminal act envisaged under clause (c) must have an element of malicious intent or mens rea. Standing at the open doors of the compartment of a running train may be a negligent act, even a rash act but, without anything else, it is certainly not a criminal act. Thus, the case of the railway must fall even after assuming everything in its favour.....” Untoward incident has been defined under Section 123 (c) (2) of the Railways Act, 1989 is as follows: “the accidental falling of any passenger from a train carrying passengers” Section 124-A of the Act is as follows: “When in the course of working a railway an untoward incident occurs, then whether or not there has been any wrongful act, neglect or default on the part of the railway administration such as would entitle a passenger who has been injured or the dependant of a passenger who has been killed to maintain an action and recover damages in respect thereof, the railway administration shall, notwithstanding anything contained in any other law, be liable to pay compensation to such extent as may be prescribed and to that extent only for loss occasioned by the death of, or injury to, a passenger as a result of such untoward incident. Provided that no compensation shall be payable under this section by the railway administration if the passenger dies or suffers injury due to- (a) suicide or attempted suicide by him; (b) self-inflicted injury; (c) his own criminal act; (d) any act committed by him in a state of intoxication or insanity; (e) any natural cause or disease or medical or surgical treatment unless such treatment becomes necessary due to injury caused by the said untoward incident. Explanation.- For the purposes of this section, "passenger" includes- (i) a railway servant on duty; and (ii) a person who has purchased a valid ticket for traveling, by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident.]” As discussed