THE HON’BLE SRI JUSTICE C.V.RAMULU CIVIL MISCELLANEOUS APPEAL No.907 of 2005 JUDGMENT: This civil miscellaneous appeal, under Section 23 of the Railway Claims Tribunal Act, 1987, is directed against the order dated 13.07.2005 passed in O.A.A.No.181 of 1999 on the file of the Railway Claims Tribunal, Secunderabad Bench at Secunderabad, whereunder the application filed by the applicants therein, who are the respondents herein, under Section 16 of the Railway Claims Tribunal Act, 1987 read with Sections 124-A and 125 of the Indian Railways Act, 1989, claiming compensation of Rs.4,00,000/- on account of the death of one G.Subrahmanyam, the husband of the 1st applicant, in an untoward incident of accidental fall from the train, was allowed as prayed for. Appellant is the South Central Railways represented by its General Manager, Secunderabad. Respondents, who are the applicants in the said O.A.A., are the dependants of the deceased G.Subrahmanyam. For the sake of convenience, the parties shall be referred to as arrayed in the said O.A.A. It was the case of the applicants before the Tribunal that on 08.02.1999, the husband of the 1st applicant namely G.Subrahmanyam (hereafter referred to as ‘the deceased’) left the village to go to Nandyal to purchase medicines. After purchasing the medicines at Nandyal, when the deceased went to Nandyal Railway Station at 1.00 p.m. in order to return to his village, he met one Chenchu Reddy, Railway Constable, with whom he had chit chat and tea in the railway restaurant, and after purchasing the ticket, the deceased boarded the train on its arrival and when the train was in motion, he fell down from the train at the platform of Nandyal Railway Station and succumbed to injuries at the spot and, therefore, claiming a compensation of Rs.4,00,000/- for the death of the deceased. The respondent Railways filed its reply denying the material facts and put the applicants to strict proof to establish their stand that the fall of the deceased was an untoward incident so as to entitle for the benefit of compensation. On the basis of the pleadings of both parties, the Tribunal framed the following issues for trial: “1. Whether the applicants are the sole dependents of the deceased Ganji Subrahmanyam? 2. Whether the applicant was a bona fide passenger of train No.429 Nandyal – Guntur passenger traveling from Nandyal to Giddalur on 8.2.99? 3. Whether the deceased died as a result of an untoward incident of accidental fall from the train at Nandyal as alleged? 4. To what relief?” After detailed consideration of the matter, insofar as Issue No.1 is concerned, the Tribunal held that there was no rival claim and the respondent did not raise any tenable objections on that issue and, therefore, issue no.1 was held in favour of the applicants. So far as issue Nos.2 and 3 are concerned, it was held that on the totality of the facts and circumstances of the case, as was evident from the material on record, it was reasonable to believe that the deceased, while traveling as a bona fide passenger, had a tragic end which attracts the definition of untoward incident for which the railway was liable to pay compensation to the applicants and, thus, by the impugned order dated 13.07.2005, awarded compensation of Rs.4,00,000/-, but however stipulated 60 days time for deposit of the amount of compensation and awarded interest at the rate of 6% per annum from expiry of that period. Aggrieved thereby, the present civil miscellaneous appeal is filed. Sri B.H.R.Chowdary, learned counsel for the appellant- respondent, strenuously contended that the deceased was not a bona fide passenger, since no ticket was recovered from the dead body of the deceased or from the belongings of the deceased found at the spot. It is his further contention that the incident occurred due to sheer negligence on the part of the deceased and there was no accidental fall to call it an untoward incident as defined in Section 123 (c) of the Railways Act and, hence, the Tribunal erred in awarding the compensation of Rs.4,00,000/-. Per contra, learned counsel appearing for the respondents- applicants, supported the impugned order, and submitted that the Tribunal gave cogent reasons for coming to the conclusion that the deceased was a bona fide passenger and that the accidental fall of the deceased from the train amounts to untoward incident, for which the railways was liable to pay compensation. He further submitted that the appellant has not made out any case calling for interference of this Court. 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. Insofar as issue Nos.2 and 3 are concerned, the Tribunal recorded its findings as under: “Applicant No.1 filed sworn affidavit in which she reiterated the factual aspects of the case. Since her evidence is based on information, she was not cross examined. While so, on the basis of the sworn statement of AW2 he was cross examined on whose evidence it is evident that he was a constable working at Nandyal GRP who stated that at about 1 p.m. the deceased came to him and both went for a cup of tea into the railway restaurant and thereafter the deceased went to the counter to purchase ticket for his journey and when passenger train arrived, he left his house for lunch. AW2 had not witnessed the deceased boarding the train. However, the fact that the deceased boarded the train cannot be untruthful statement since it is supported by the undisputed facts as per the information given in the FIR, which is based on the statement given by the Station Supdt., of Nandyal R.S. sent to GRP/Nandyal on 8-2-99 by 13.50 hrs. So also from Ex.A1 Inquest Report. The Station Supdt., who gave statement also acted as one of the panch witness at the time of the inquest. In column No.3 of Ex.A1 Inquest report it is mentioned that on 8-2-99 at 13.50 hrs., the train No.429 Nandyal – Guntur passenger was moving from the platform the deceased while boarding the train had fell down and came under the wheels. It is also mentioned that the deceased was last seen left by R.Chenchi Reddy, who is AW2. The Inquest report and so also the statement recorded by the police under Section 162 during the investigation of criminal case can be used for contradicting witness. If necessary, Officer who recorded the statement may be summoned to prove those facts vide AIR 1964 A.P. page 198. AW2 deposed that he saw the deceased purchasing the ticket. Merely because no ticket was recovered from the dead body of the deceased, it cannot be said that he had not purchased the ticket and that he is traveling as ticket less passenger and not a bonafide passenger. As from the details of Ex.A1, the dead person was cut into pieces from the trunk portion and his internal organs came out. The dead body was on the track of platform No.2 and the body was crushed. It is also noted that the jip bag was by the side of the dead body which contains Rs.130/- cash and medicines and also medical check up bills. Non recovery of the ticket from the pockets will not have any adverse effect and in the circumstances of the case that the body was cut into pieces it is to be presumed that the ticket might have been lost. The burden shifted on the respondent to prove that the deceased was a ticket less passenger by that train. The decision reported in Bona Vijayalakshmi’s case 2005 (2) ALD 79 was held that it should be presumed that the passenger traveled for the journey with a valid ticket. Similarly in other decisions i.e., 2002 (4) ALD 843 (D.B.), 2002 (6) ALT 400. Even the FIR which is based on the statement of the Station Suptd., is very clear that the dead body lying on the railway track opposite to the name board of Nandyal R.S. platform No.1 which is within the railway precincts. The accident had taken place in the day light but none of the railway staff are examined to say that the deceased who negligently boarded the running train as a result of which he faced risk. There will be several railway staff and several private persons moving on the platform at that time and it is not known why none of the witness were examined to support the plea that on account of the negligent act of the deceased, the incident had taken place. As per the statutory provisions, accidental fall from the train is to be considered as untoward incident. The word ‘untoward incident’ has been interpreted by the Apex Court and High Courts in various decisions holding that when a passenger fall from the train while boarding or alighting also amounts to an untoward incident which fastens the railways with the liability to pay compensation vide 2002 ALT 370 DB, 2004 (6) ALD 302. Thus, on the totality of the facts and circumstances of the case as is evident from the material on record, it is reasonable to believe that the deceased while traveling as a bona fide passenger had a tragic end which attracts the definition of untoward incident for which the railway is liable to pay compensation to the applicants.” From the above, it is seen that AW2-Chenchu Reddy, Railway Constable, who had chit chat with the deceased at the platform of Nandyal Railway Station on the date of the incident, has categorically deposed that he saw the deceased purchasing the ticket. Apart from this, in column No.3 of Ex.A1-Inquest report, it was mentioned that on 08.02.1999 at 1350 hours, while the deceased was boarding Nandyal- Guntur passenger train No.429, which was moving from the platform, he fell under the wheels of the said train. Even otherwise, except filing a reply denying the material facts, none of the witnesses were examined on behalf of the railways to establish that the deceased had negligently boarded the running train, as a result of which he faced the risk. Therefore, in the absence of any rebuttal evidence, it cannot be said that the findings recorded by the Tribunal are perverse or contrary to the evidence on record. The civil miscellaneous appeal is devoid of merits and is, accordingly, dismissed. _____________ C.V.RAMULU,J 05.08.2010 v v