K.Venkata Narayana Gupta and another v. The Union of India, represented by its General Manager, South Central Railway, Secunderabad

Judgment

- The Civil Miscellaneous Appeal, under Section 23 of the Railways Claims Tribunal Act, 1987 is directed against the order, dated

10.12.2009, in O.A.A.No.56 of 2003 on the file of the Railway Claims Tribunal, Secunderabad Bench at Secunderabad, (for short, ‘the Tribunal’), whereunder and whereby, appellants/applicants under Section 16 of Railway Claims Tribunal Act, 1987 read with Sections 124-A and 125 of the Railways Act, 1989 (for short, ‘the Act’) with regard to grant of compensation of Rs.4,00,000/- consequent on the death of K.Sumanth Kumar (hereinafter referred to as ‘the deceased’) in a railway accident that took place on 10.03.2002 was dismissed.

2. The appellants/applicants are the parents of the deceased. On

09.03.2002, the deceased went to Tenali to meet his friend Gopi, and in the night, came with him to the station, bought a ticket from Tenali to Sattenapalli and boarded train No.7053 Chennai-Hyderabad Express in the presence of his friend. He accidentally fell from the train at Km.42/10-12 in the yard of Sattenapalli Station, in the early hours of

10.03.2002, and sustained severe injuries and died, and the ticket was lost in the accident.

3. The respondent-Railways denied the case of the applicants and stated that the body of the deceased was discovered in the morning of

10.03.2002 at Sattenapalli yard, beyond the station towards Reddygudem station, and further, no tickets were issued from Tenali to Sattenapalli in the shift in which train No.7053 passed Tenali. Hence, the deceased was not a bona fide passenger and he did not travel in the train or fall from it.

4. Basing on the above pleadings, the following issues have been framed by the Tribunal:-

1. Whether the applicants were dependents of the deceased?

2. Whether the deceased was a bona fide passenger?

3. Whether the deceased died as a result of an untoward incident? and

4. To what relief?

5. On behalf of the appellants, A.Ws.1 and 2 were examined and Exs.A-1 to A-5 were marked. On behalf of the respondent, R.Ws.1 and 2 were examined and got marked Exs.R-1 and R-2.

6. After considering the evidence, the Tribunal dismissed the claim application. Aggrieved thereby, this appeal is preferred by the applicants.

7. Now the point for determination is whether the order of the Tribunal is correct, proper and legal?

8. There cannot be any dispute that in order to claim compensation under Section 124-A of the Act, two conditions are to be satisfied. The

first condition precedent to be proved by the claimants 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 the passenger train. If these two requirements are proved, the burden shifts to the Railway administration to establish that the case falls under anyone of the exceptions as provided under proviso to Section 124-A of the Act.

9. Learned counsel for the appellants/applicants contended that the deceased sustained multiple injuries all over his body, his right leg was cut upto the thigh, his knees were broken, his left leg was also broken upto the thigh and the body was found lying by the side of LC Gate going to Atchampet, and therefore, in the incident, the deceased might have lost the ticket; that A.W.2’s evidence is very clear that the deceased was a bona fide passenger; and hence, he prays to set aside the impugned order and grant compensation to the appellants.

10. On the other hand, learned Standing Counsel appearing for the respondent/Railways contended that the evidence of R.W.1 is clear that no ticket was sold to travel from Tenali to Sattenapalli in the ‘C’ shift and that evidence was accepted by the trial Court; that there is no evidence to disbelieve the evidence of R.W.1 and hence, the Tribunal rightly dismissed the claim of the appellants and that there are no grounds to interfere with the impugned order, and hence, he prays to dismiss the appeal.

11. The factual matrix is not in dispute. The death of the deceased while travelling in a train in an untoward incident is not denied or disputed. He sustained several serious injuries. Both hands were cut upto the shoulder, the stomach was fully broken, both legs were cut upto the thigh and the body was found by the side of the track. So, from the nature of the injuries, it can be said that the deceased died in a railway accident.

12. The inquest mediators opined that the deceased died as a result of the injuries sustained by him in the railway accident. The Doctor, who conducted post mortem, also opined that the deceased died as a result of cut injuries of both legs and hands. Therefore, from the medical evidence, it is clear that the deceased died in an untoward incident.

13. The appellants are required to prove that the deceased was a bona fide passenger travelling in a passenger train. As per the evidence of A.W.2, he accompanied the deceased to the railway station. The deceased purchased a ticket to go to Sattenapalli and they arrived to the station at about 10.30 p.m. and the train bearing No.7053 arrived at 10.50 p.m. Therefore, from the evidence on record, it is clear that the deceased might have purchased the ticket in between 10.30 and 10.50 p.m. The Tribunal has not placed any reliance on the evidence of A.W.2 for the reason that R.W.1 produced a hard copy of the complete list of tickets sold in the ‘C’ shift of Tenali to show that no ticket was sold at Sattenapalli in the ‘C’ shift. Basing on the evidence of R.W.1., the Tribunal disbelieved the statement of A.W.2 to the effect that the deceased purchased a ticket to go to Sattenapalli from Tenali. This statement of A.W.2 remained unchallenged. Once a fact is stated by a witness and the same is not denied or disputed in the cross examination, it can be said that such a fact is proved. Now, it has to be seen whether the evidence of R.W.1 is trustworthy and reliable or not, as he stated that no tickets were sold in the ‘C’ shift of Tenali to the passengers to travel upto Sattenapalli. R.W.1 is no other than the Chief Booking Supervisor. In the cross examination, he admitted that he has not filed the daily ticket collection register of the station which would show about the number of the tickets sold on that day. That is an important and relevant document, which would throw light with regard to the selling of the tickets in the ‘C’ shift on 09.03.2002. That document was suppressed by the railway administration. Even Ex.R-1, which is the photo copy of the hard copy of the computerised tickets sold from Tenali is not a original document. No explanation is given by R.W.1 for not producing the original of Ex.R-1. The reason for withholding evidence which reveals about the true state of affairs with regard to selling of the tickets in ‘C’ shift on 09.03.2002, if not explained properly, it would be a ground to draw an adverse inference against the railway administration under Section 114(g) of the Indian Evidence Act, 1872. If the documents were produced, the truth would have come out as to whether any tickets were sold in the ‘C’ shift on 09.03.2002 or not. The Ticket Issuing Clerk, who was present in the ‘C’ shift on 09.03.2002, was withheld by the railway administration for the reasons best known to it. Therefore, non examination of the concerned Clerk, who is the actual person to sell the tickets, and non-production of daily train cash register, an adverse inference can be drawn. Under Section 114(g) of the Indian Evidence Act, the Court may presume that the evidence which could be and is not produced would, if produced, be unfavourable to the person, who withholds it. When better and relevant evidence is withheld, it is only fair to presume that the party withholding the evidence has some motive for not producing it and that if the evidence is offered, his design would be frustrated. This aspect of the case has not been properly appreciated by the Tribunal. The possibility of deceased loosing the ticket in the train incident cannot be ruled out because the entire body was cut into pieces, which can be possible by run over of the train. Therefore, in the process of dragging or ran over by the wheels of the train, the possibility of misplacing or loosing the ticket cannot be ruled out. Therefore, from the evidence of A.W.2, it is clear the deceased was a bona fide passenger because A.W.2 categorically stated that the deceased and himself came to the railway station and the deceased purchased a ticket at Tenali to go to Sattenapalli and boarded the train. Therefore, there is no other reason to disbelieve the testimony of A.W.2. Therefore, from the evidence of A.W.2, it is clear that the deceased was a bona fide passenger and hence, the appellants are entitled to compensation of Rs.4,00,000/- with interest at the rate of 9% p.a. from the date of Award till the date of realization.

13. Accordingly, the Civil Miscellaneous Appeal is allowed setting aside the impugned order, dated 10.12.2009, in O.A.A.No.56 of 2003 on the file of the Railway Claims Tribunal, Secunderabad Bench at Secunderabad. There shall be no order as to costs. _​ ​__________________ JUSTICE K.C.BHANU 25th August, 2011 AMD THE HON'BLE SRI JUSTICE K.C.BHANU C.M.A.No.1246 of 2009. ​ Date:25.08.2011 AMD