Union of India v. Smt Posan Bai Bhumanna Bandagilwad & Ors.

THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL MISCELLANEOUS APPEAL No. 406 OF 2009 JUDGMENT: This Civil Miscellaneous Appeal, is directed against the order, dated 29.01.2009, in O.A.A.No.80 of 2003, on the file of the Railway Claims Tribunal, Secunderabad Bench, Secunderabad, whereunder and whereby, the application filed by the respondents-applicants claiming compensation of Rs.4,00,000/- consequent on the death of the deceased Ramesh Bhumanna Bandagilwad (hereinafter referred to as the ‘deceased’), was allowed directing the Railways to deposit the amount within thirty days from the date of receipt of a copy of order, and in the event of failure to deposit, it was ordered to pay interest @ 9% per annum from the date of the order till the date of actual payment.

2. The appellant in the C.M.A. is the respondent, and the respondents in the C.M.A. are the applicants, before the Tribunal. For better appreciation of facts, the parties hereinafter are referred to, as they are arrayed before the Tribunal.

3. The applicants filed O.A.A. stating that, on 09.02.2003, while the deceased was travelling from Tirupati to Vijayawada by train No.7480 Howrah Express holding II class ticket, he accidentally fell from the passenger train in between Bitragunta and Allur Road Railway Stations, sustained fatal injuries and died instantaneously. The ticket was lost during the course of incident. Hence the claim application.

4. Respondent- Railways filed written statement denying the averments made in the claim application. It is stated that the incident does not fall within the ambit of Sections 123(c) (2) or Section 124A of the Railway Act, 1989; that as per the Key man of Unit No.5, who reported that a dead body of a male person aged 25 years was found lying at Km No.206/26-28 between Bitragunta and Allur Road Railway Stations; that as per the inquest report, the cause of death was either due to fall from the train or while crossing the track; that in the absence of filing any journey ticket, the deceased cannot be treated as a bona fide passenger; that the applicants are put to strict proof that they are the dependents of the deceased and hence, it prayed to dismiss the appeal.

5. Basing on the above pleadings, the following are framed for trial. “1. Whether the applicants are dependents of the deceased?

2. Whether on 09.02.2003, the deceased was a bona fide passenger of train in question?

3. Whether the death of the deceased was caused due to an untoward incident as defined under Section 123 ( c) of the Railways Act?

4. To what relief?”

6. During trial, on behalf of the applicants, A.Ws.1 and 2 were examined and Exs. A1 to A7 were got marked, and on behalf of the respondent, R.W.1 was examined and Ex.R.1 was got marked.

7. Learned counsel for the appellant-railways contended that the deceased was not a bona fide passenger travelling in the passenger train; that due to negligence of the deceased only the incident had happened and therefore, the Railway administration is not liable to pay compensation and hence, he prays to set aside the impugned order.

8. On the other hand, learned counsel for the respondents- applicants contended that the evidence of A.W.2 would clearly go to show that he purchased a ticket and the same was handed over to the deceased; that the deceased was a bona fide passenger travelling in the passenger train with a valid ticket and therefore considering all the aspects, the Tribunal rightly granted compensation and hence, there are no grounds to interfere with the impugned order.

9. There cannot be any dispute that in order to claim compensation under Section 124 A of the Railways Act, 1989 (for short, ‘the Act’), the first condition precedent to be proved by the applicants is that there is an untoward incident happened and in that incident, the deceased died; and the second condition is that such a person must be a bona fide passenger travelling in a passenger train. If these two requirements are satisfied, then the burden shifts to the railways to establish that no untoward incident had happened or that the case of the applicants fall under any one of the clauses mentioned under proviso to Section 124 A of the Act.

10. With regard to the untoward incident, it is not in dispute that the dead body of the deceased was found lying by the side of the track. The Key man, who noticed the dead body, immediately informed the same to the Station Master, who in turn informed to Police. Police registered a case and conducted inquest over the dead body of the deceased. From the evidence on record, it is clear that the deceased died in an untoward incident. With regard to the second aspect, whether the deceased was a bona fide passenger travelling in the passenger train with a valid ticket or not, no doubt, police did not seize any ticket to travel in a passenger train from the dead body of the deceased at the time of holding inquest. The applicants examined A.W.2. His evidence is very clear that he went to the station and purchased a ticket and handed over the same to the deceased. The statement of A.W.2 to the effect that he purchased a ticket for the deceased, remained unchallenged. Once a fact has been stated by a witness and it is not denied or disputed in the cross-examination, then it can be presumed that such a fact is admitted. The defences available to the railway administration are enumerated under proviso to Section 124-A of the Act. The case does not fall under any one of the exceptions as provided under proviso to Section 124 A of the Act. Therefore, the railway administration is liable to pay compensation. From the evidence available on record, the Tribunal rightly granted compensation. Hence, there are no grounds to interfere with the impugned order.

11. Accordingly, the Civil Miscellaneous Appeal is dismissed confirming the order, dated 29.01.2009 in O.A.A.No.80 of 2003 on the file of the Railway Claims Tribunal, Secunderabad Bench, Secunderabad AUGUST 12, 2011 YVL _______________ K.C. BHANU, J