HONOURABLE SRI JUSTICE C.V. RAMULU CIVIL MISCELLANEOUS APPEAL No.1894 OF 2003 JUDGMENT: This Civil Miscellaneous Appeal, under Section 23 of the Railway Claims Tribunal Act, 1987 is directed against the order in O.A.A. No.193 of 1998 dated 19-11-2002 on the file of the Railway Claims Tribunal, Secunderabad Bench at Secunderbad, whereunder the claim petition filed by the appellants under the Indian Railways Act, 1989 (for short ‘Railways Act’) claiming compensation of Rs.4,00,000/- for the death of the husband of petitioner No.1 due to accidental fall from Train No.6592 at Marpally Railway Station, was dismissed. 2. Appellants herein are applicants and respondent herein is respondent in the O.A.A. before the Tribunal. 3. For the sake of convenience, the parties are referred to as they arrayed in the O.A.A. before the Tribunal. 4. The applicants filed a claim petition before the Railway Claims Tribunal stating that husband of petitioner No.1 died in an untoward incident of accidental fall from Train No.6592 Secunderabad – Parbhani Link Express on 08-09-1998. The deceased Sivappa went to Vikarabad to see his daughter and stayed there for 15 days. While returning on 08-09-1998, accompanied by his second son Bakkanna purchased two train journey rickets from Vikarabad to Zaheerabad for both of them and boarded Train No.6592 Secunderabad – Parbhani Link Express in general compartment at Vikarabad Railway Station and the deceased fell down accidentally from the running train when the train was halting at Marpally Station and sustained serious multiple injuries and while being shifted by the Guard of the train to Government Hospital, Zaheerabad for necessary treatment, he died on the way at Zaheerabad Railway Station on 08- 09-1998. Therefore, applicants filed O.A.A. claiming compensation of Rs.4,00,000/-. 5. The respondent – railways filed written statement denying the allegations made by the applicants. According to the respondent, deceased slipped and fell down accidentally from the running Train No.6592 Bangalore-Parbhani Link Express when it was halting at Marpally Station on 08-09-1998 and sustained serious multiple injuries. Train No.6592 Link Express has no scheduled stop at Marpalli Station and that as per the statement of the Guard of the said train on 08-09- 1998, the deceased, while trying to get down from the running train when it was passing through Marpalli Railway Station at 15-25 hours, fell down from the said running train and sustained serious injuries. The Guard of the said train stopped the train and after giving first-aid, carried the injured (deceased) by the same train to Zaheerabad for medical treatment. The injured person was not possessing any journey ticket. On arrival of the train at Zaheerabad at 16-40 hours, the injured person died. The deceased fell down from the moving train due to his own negligence and carelessness, and therefore, the injuries suffered by him cannot be due to accidental fall, but were self- inflicted injuries and as such the accident does not fall under the category of untoward incident and does not attract the provisions of Section 123(c)(2) of the Railways Act. Further, it was denied that the deceased was a bona fide passenger and the applicants are required to put strict proof that they are legal heirs of the deceased. 6. On the basis of the above pleadings, the following issues were framed for trial by the Tribunal: (i) Whether the applicants are dependants of the deceased Sivappa? (ii) Whether the deceased was a bonafide passenger of train No.6592 Bangalore to Parbhani Link Exp. Travelling from Vikarabad to Zahirabad on 8-9-98? (iii) Whether the deceased died as a result of an untoward incident of accidental fall from the said train at Zahirabad Railway station? (iv) To what relief? 7. On behalf of the applicants, AW.1 was examined and the documents Exs.A-1 to A-6 were marked. On behalf of the respondent, none was examined. However, extract of Guard’s Journal and a true copy of the memo were marked as Exs.R-1 and Ex.R-2 respectively. Further, statement of the witness, Rasheed Ahmed (RPHC – 160), was marked as Ex.C-1. Except this, no other evidence was adduced. 8. However, after detailed consideration of the entire evidence on record, though the Tribunal found that the applicants are dependants of the deceased and the accident was an untoward incident due to accidental fall from the train, on the ground that the deceased, who travelled from Vikarabad to Zaheerabad on 08-09-1998, was not a bona fide passenger of Train No.6592 Bangalore – Parbhani Link Express, dismissed the claim of the applicants. Aggrieved thereby, the present appeal is filed. 9. Sri S. Chandra Sekhar, learned counsel appearing for the applicants, strenuously contended that having found that the applicants are the dependants of the deceased and the accident was an untoward incident of accidental fall from the train, which was witnessed by the Guard of the train, there was no other option for the Tribunal except to hold that the deceased was a bona fide passenger, but it is unfortunate that the Tribunal held that the deceased was not a bona fide passenger, and therefore, erred in dismissing the claim petition. 10. Whereas, Sri T.S. Venkataramana, learned Standing Counsel appearing for the respondent – railways, supported the order passed by the Tribunal and stated that the deceased tried to get down from a running train, and therefore, the injuries suffered by him shall be treated as self-inflicted injuries, as such, this is not an untoward incident of accidental fall from the train. Therefore, the Tribunal rightly dismissed the claim though it held that the applicants are dependants of the deceased and the accident was an untoward incident of accidental fall. 11. I have given my earnest consideration to the respective submissions made by the learned counsel on either side and perused the impugned order and other material made available on record. 12. From the above, it is seen that the only point that needs to be decided is whether the deceased was a bona fide passenger of Train No.6592 Bangalore –Parbhani Link Express travelling from Vikarabad to Zaheerabad on 08-09-1998. In this regard, Tribunal gave its finding as under: The point now arises whether he was a bonafide passenger. According to the Applicant, the deceased was accompanied by his son Bakkanna. AW.1 and AW-2 filed their affidavits to the effect that Bakkanna had gone to Vikarabad to fetch his father and when he was coming back to Zahirabad along with him after purchasing ticket for 6592 Express. However, it is instructive to note that in the FIR the injured person, who had subsequently died, was referred to as unknown. Further, in the inquest report, although the name of Bakkanna has been shown under column I(B)(a), it has not been stated that the deceased was accompanied by Bakkanna. There has been no mention also of Bakkanna having purchased tickets and travelled with him. We are of the view that had Bakkanna been actually present when the incident took place, the identity of the injured/deceased would have certainly been indicated in the FIR. In the inquest also it would have come that Bakkanna was accompanying the deceased. The Applicant has taken a specific plea that the ticket was not available with the deceased, but with the co-passenger, i.e. Bakkanna (the middle son of the deceased). As it is not considered by us that Bakkanna was a co-passenger and that the affidavit and the version that he had travelled along with his father is an after-thought and an improvement over the original situation to serve the Applicants’ ends. We do not believe his statement. As per the Applicants version Bakkanna was carrying the tickets and he had misplaced subsequently. Since his version is not believed by us, we do not consider that he had carried the ticket of the deceased and travelled in the train. As the Applicant himself has admitted that the deceased was not having ticket obviously he was a ticketless passenger. We wish to add in this connection that had it been pleaded that the ticket was lost by the deceased at the time of accident, we would have presumed that he was carrying the ticket in view of the prohibitive provision in the Railways Act that no person can travel without a ticket. In the instant case, the Applicant had taken the specific plea that the tickets were being carried by a person whose affidavit we are unable to take as true and correct. As such we have to come to the conclusion that the deceased was travelling without a ticket. In the circumstances, we are unable to get convinced of the version of AW-2 that he had purchased tickets. As such, we do not consider the deceased was a bonafide passenger.” 13. While holding that it is an untoward incident of accidental fall from the train, Tribunal missed its attention to the statement made by the Guard that he took over the Train at Vikarabad and the train started at 13-55 hours and while the train was running through Marpalli Station, some passengers shouted to stop the train and therefore he applied the vacuum and found one male person aged about 65 years fell down from the train at Marpalli Station and he immediately rendered first-aid and in the presence of Deputy S.S., Marpalli, the Pointsman checked the injured person and found no ticket with him and gave a message to SS, Zaheerabad for a Doctor, medical and GRP. The statement of the Guard was recorded as under: “While passing run through at Marpalli on platform, at about aged 65 years male person fallen down and injured, stopped the train, Dy.SS, Marpalli arranged stretcher, rendered first aid, loaded in stretcher, loaded in last coach general bogie 2774, Doctor to attend at Zahirabad (since hospital far away from Marpalli), so handed over to Dy.SS, Zahirabad. Noted at Marpalli station, Pointsman checked no ticket available in front of Dy.SS, Marpalli. At Zahirabad also checked by the staff, no ticket available.” 14. In the inquest report or in the statement of the Railway Guard of Train No.6952 Bangalore – Parbhani Link Express, nowhere it is stated that the deceased was trying to get down at Marpalli though there is no Station. On the other hand, inquest report shows that it was an accidental fall, due to which the deceased died. In fact, son of the deceased, who was also one of the panchas to the inquest report, asserted that he was holding the ticket, but thereafter he lost the ticket. Even otherwise, this is not a case, where the deceased died while boarding the train at Marpalli, but it is a case, where he had fallen accidentally from a running train and died at Marpalli Station. Therefore, it cannot be said that deceased was not a bona fide passenger in view of the judgment of this Court in C.M.A. No.1069 of 2009 dated 07-10-2009, which reads as under: “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 an 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.” 15. In view of the above and also in view of the fact that there is no rebuttal evidence let in by the respondent, it must be deemed that the deceased was a bona fide passenger, and therefore, applicants are entitled to the compensation, as claimed for. 16. In the result, the respondents are directed to pay an amount of Rs.4,00,000/- (Rupees four lakhs only) towards compensation to the applicants for the death of Sivappa, husband of applicant No.1, along with interest at 9% per annum from the date of appeal till realization. 17. Accordingly, the Civil Miscellaneous Appeal is allowed. There shall be no order as to costs. _____________________ C.V. RAMULU, J July 23, 2010. PV