IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE ELEVENTH DAY OF JUNE TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL No. 1087 OF2003 Between : V.Satyavathi and others. … APPELLANTS A N D Union of Inida Rep.by its General Manager, ecunderabad .… RESPONDENT THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL MISCELLANEOUS APPEAL No. 1087 of 2003 JUDGMENT: This Civil Miscellaneous Appeal, under Section 23 of the Railway Claims Tribunal Act, 1987, ( for short “the Act”) is preferred aggrieved the order, dated 27.03.2002, in O.A.A No.211 of 1998, on the file of the Railway Claims Tribunal, Secunderabad Bench at Secunderabad, whereunder and whereby, the application for grant of compensation, was dismissed. 2. The brief facts that are necessary for disposal of the present appeal may be stated as follows:. Claimants filed the O.A.A. stating that on 12.07.1998, one Varapalli Apparao ( hereinafter referred to as, “the deceased”) with a view to go to Kanakadurga Temple at Vijayawada, purchased the ticket from Rajahmundry to Vijayawada and boarded train No.426, Visakhapatnam-Vijayawada passenger train, in general compartment. While the train was moving, the deceased accidentally slipped and fell down from the running train in between Rajahmundry and Godavari railway stations and sustained multiple injuries and then he was shifted to Government Hospital, Rajahumundry, where he succumbed to injuries on the same day while undergoing treatment. On receipt of information about the incident, police registered a case as in Ex.A4 and investigated into. Police also conducted inquest on the dead body of the deceased. The Doctor, who conducted autopsy on the dead body of the deceased opined that the deceased died due to injuries sustained by him. 3. The Railways filed written statement disputing about the death and took objection that the deceased was not a bona fide passenger travelling in the passenger train No.426 from Rajahmundry to Vijayawada; that the Guard of the passenger train did not report about the happening of any untoward incident while the passenger train was coming from Rajahmundry to Vijayawada, and therefore, it was not a case of an untoward incident, and hence it was prayed to dismiss the claim application. 4. Basing on the above pleadings, the following issues have been framed for trial. “1.Whether the Applicants are dependents of the deceased? 2. Whether the deceased Apparao was a bona fide passenger of the train No.426 Visakhapatnam-Vijayawada passenger traveling from Rajahmundry to Vijayawada on 12.07.1998? 3. Whether the deceased was a victim of an untoward incident of accidental fall from the train between Rajahmundry and Godavari Railway Stations? 4. To what relief ?” 5. During the enquiry, on behalf of the claimants, AWs-1 and 2 were examined and Exs. A1 to A9 and Exs.C1 and C2 were also marked. On behalf of the respondent, R.W. 1 was examined. But no documents were marked. 6. The trial court after consideration of evidence, came to the conclusion that the deceased was not a bona fide passenger, that he died not in an untoward incident, that therefore, the claimants are not entitled for any compensation and accordingly dismissed the application. Challenging the same, this appeal is preferred. 7. Now the points for consideration are:- 1) whether the deceased died in a railway accident traveling as a bona fide passenger; and 2) whether the Judgment of the claims Tribunal is correct, proper and legal? 8. The learned counsel appearing for Appellants contended that Exs.A5 and A9 would clearly go to show that the deceased sustained injuries as a result of falling from the running train; that simply because, the guard did not notice about a person falling from a train, that cannot be a ground to disbelieve the contents of Ex.A9; that those injuries can be possible by falling from a running train; that the further evidence of AW-1 would clearly go to show that the deceased was a bona fide passenger travelling from Rajahmundry to Vijayawada, and hence he prays to set aside the impugned order. 9. On the other hand, learned standing counsel for the respondent/Railways contended that absolutely there is no document to show that the deceased purchased a ticket to go to Vijayawada to travel in a passenger train; that the evidence of AW-2 was rightly disbelieved by the claims Tribunal, and if the evidence of AW-2 is disbelieved, there is no other evidence to show that the deceased was a bona fide passenger; that after elaborate consideration of evidence on record, the claims Tribunal rightly found that the deceased was not a bona fide passenger and consequently the legal representatives are not entitled for any compensation and the said order needs no interference by this Court. 10. To maintain the claim under Section 124-A of the Act, the initial burden is on the claimants to show that the deceased was a bona fide passenger travelling in a passenger train with a valid ticket. Section 124-A, is in the nature of no fault liability. Whether or not there has been any wrongful act, neglect or default on the part of the Railway Administration, the dependant of a passenger who was killed, an action can be maintained. 11. The death of the deceased in a railway accident is not seriously disputed. The guard of the passenger train No.426 was examined as RW-1. He did not notice any passenger falling from the running train in between Rajahmundry and Godavari Stations. Simply because, RW-1 did not notice any passenger falling from the train, that does not mean no person had fallen from the running train. Fall of a passenger from the running train was not noticed by the guard including the co- passengers. But the Government Railway police upon receipt of report about a person falling from the running train, registered a case under Ex.A4. Thereafter, they conducted investigation into the case and subjected the dead body to inquest, where the inquest mediators found several injuries, which might have been caused due to falling from the train. Similarly, the Doctor who conducted autopsy on the dead body of the deceased opined that those injuries can be possible by falling from the running train. It is not the case of the Railways that those injuries sustained by the deceased were self inflicted or that the deceased tried to commit suicide by jumping from a running train. Therefore, from the evidence on record, it is established beyond preponderance of probability that the deceased sustained injuries by falling from the running train. The medical evidence is completely in corroboration with the ocular testimony of AW-2. His evidence would clearly go to show that he along with the deceased after purchasing the tickets, boarded the train No.426 at Rajahmundry to go to Vijayawada. While the train was passing in between the Rajahmundry and Godavari Stations, the deceased had fallen from the compartment accidentally. There is no other reason to doubt the testimony of AW-2. His presence was established in view of fact that he was one of the eye witnesses examined during inquest. If really he was not accompanying deceased, the police would not have examined him as an eye witness to an untoward incident. Basing on surmises and conjectures the claims Tribunal has not placed any reliance on the evidence of AW-2. Simply because, AW-2 has not reported the incident to the station master or any other person, that cannot be a ground to disbelieve his evidence. He himself got down from the moving train and took the injured to the hospital. So in such circumstances, it is not expected from AW-2 to rush to the Station Master to lodge a complaint. Therefore, appreciation of evidence of AW-2 by the Tribunal is not in accordance with law. The evidence of AW-2 coupled with the medical evidence would clearly go to show that the deceased died by an accidental fall from the running train and therefore, he died in an untoward incident. 12. Now the question is whether the deceased was a bona fide passenger traveling in a passenger train. Admittedly, the claimants did not produce any ticket to show that the he is a bona fide passenger. There is evidence on record, which would go to show that when the train moved from the station, there was a heavy rush. If the bona fide passenger wants to travel in a train with an intention to pay the ticket charge and penalty at a time when the ticket examiner comes, then it cannot be said that he was not a bona fide passenger. In such circumstances, this Court, in a decision reported in PARISA ANJALI AND OTHERS V UNION OF INDIA REPRESENTED BY ITS GENERAL MANAGER, SOUTH CENTRAL RAILWAY, SECUNDERABAD[1], is held thus: “Even if there is any possibility for treating the ticket held by the deceased, as not valid one, he does not cease to be a passenger, in the context of the extension of benefits, under Sections 124 and 124-A of the Act. What becomes material, in this regard, is the intention of the person, who was traveling in the train. It is only when the person boards the train with a clear intention to travel in it, without purchasing a ticket, that he can be treated as not a passenger. Take for instance a situation, where a person finds that the train in which he has to travel, is about to start, by the time he reached the station, and he does not have the time to purchase the ticket. Though he does not hold the ticket, he may still board the train with an intention to pay the fare to the TTE. Such a person can still be treated as bona fide passenger, both, when he boarded the train without ticket and after he pays the fare to the TTE”. In view of the fact that there was heavy rush in the railway station, the possibility of the deceased not purchasing the ticket and similarly the possibility of deceased intended to pay the fare including the penalty, if any, at the time when the ticket examiner comes cannot be ruled out. Therefore, the findings of the Claims Tribunal are not based upon proper appreciation of evidence on record. 13. Hence, the impugned order is set aside accordingly, and the claimants are entitled for compensation of Rs.4,00,000/-, for which the first claimant is entitled for Rs.2,00,000/- and claimant Nos.2 and 3 are entitled for Rs.1,00,000/- each. The amount so granted in favour of minors shall be deposited in a Nationalized bank, until they attain the majority. The claimants are also entitled for interest at the rate of 6% per annum from the date of petition till the date of award and thereafter at the rate of 9% per annum. 14. Accordingly, the Civil Miscellaneous Appeal is allowed. There shall be no order as to costs. _______________ K.C. BHANU, J JUNE 11, 2010 YVL [1] 2010(1) ALT 709