HONOURABLE SRI JUSTICE SAMBASIVA RAO NAIDU
C.M.A.NO.312 of 2022
JUDGMENT :
This Civil Miscellaneous Appeal has been preferred by the appellant, who is respondent in O.A. II(U) No.10 of 2021 on the file of Railway Claims Tribunal, Secunderabad Bench at Secunderabad, which herein after will be referred as the 'Tribunal'. The appellant being aggrieved by the Judgment of the Tribunal in the above referred original application dated 24-01-2022, where under the application filed by the respondents No.1 to 5 herein under Section 16 of Railway Claims Tribunal Act was allowed granting a sum of Rs.8,00,000/- as compensation for the death of one Shaik Khaseem Saheb @ Shaik Khasim Saheb, preferred this appeal on the following grounds :
2. The claim application was filed by respondents No.1 to 5 under Section 16 of Railway Claims Tribunal Act, 1987 for compensation. The respondents have claimed that said Khaseem Saheb (herein after will be referred as deceased) died in an untoward incident while traveling from Khammam to Madhira in Train No.12862 H.Nizamuddin - Visakhapatnam Link Express. As per the said application, respondents No.1 to 5 have claimed 2 SSRN,J C.M.A. No.312 of 2022 that the deceased, who was a resident of Bheemavaram, went to the house of his brother-in-law on 12-07-2018 and in the return journey, he went to Khammam Railway Station in the early hours of 13-07-2018. The brother-in-law of deceased purchased a 2nd class ticket from Khammam to Madhira and the deceased boarded the train. Due to heavy rush in the train and in view of jerks and jolts, the deceased accidentally slipped and fell down from the running train at KM No.528/2-24 at Madhira railway station yard, he was dragged by the train to some extent. He received severe multiple fractures, crush injuries and died on the spot. The respondents have claimed that the journey ticket of the deceased was lost in the accident.
3. The appellant herein opposed the claim, filed a written statement stating that as per the Joint Observation Report, no journey ticket was found with the deceased. There was no ACP to the train, there was no untoward incident. Therefore, the respondents herein are not entitled to any compensation.
4. The Tribunal framed four issues for trial. During enquiry, two witnesses were examined on behalf of respondents No.1 to 5. One B.Ravi Kumar, S.I. GRP, Khammam was examined as CW.1. The respondents/claimants have marked Exs.A1 to A12.
3 SSRN,J
C.M.A. No.312 of 2022
The Divisional Railway Manager Report is marked as Ex.R1. The Case Dairy filed with regard to above referred accident produced by CW.1 was marked as Ex.C1. The Tribunal having considered the oral and documentary evidence, came to a conclusion that the respondents/claimants were able to prove their claim, thereby, directed the appellant herein to pay a sum of Rs.8,00,000/- as compensation together with interest @ 6% per annum.
5. The appellant has claimed that the Tribunal did not appreciate the contentions raised by the appellant vide its written statement in a correct manner. The Tribunal failed to appreciate the contention of the appellant that the deceased is not a bonafide passenger since no journey ticket was recovered from him inspite of the fact that valuables like gold ring, cash of Rs.300/- were recovered. Therefore, there may not be any chance for ticket only getting lost in the accident. The Tribunal failed to appreciate the fact that the appellant herein disputed the presence of AW.2 at the railway station in as much as the witness in the cross-examination failed to answer as to at what time he purchased the ticket, at what time the train arrived, the originating and destination station, the date and time of the accident etc., There was no alarm chain pulling to the train, no untoward incident was reported to the 4 SSRN,J C.M.A. No.312 of 2022 Guard of the train. Therefore, simply because a dead body was found in the yard at Madhira railway station, it cannot be treated as a death due to untoward incident. The appellant claims that there was no evidence to believe that the deceased was a bonafide passenger since no journey ticket was found. There is no evidence to believe that there is an untoward incident as claimed by the respondents. Therefore, the Tribunal could not have awarded compensation against the appellant herein thereby, sought for setting aside the Judgment of the Tribunal.
6. Heard the learned Standing counsel for the appellant and learned counsel for the respondents/claimants.
7. Now the following points arose for consideration in the appeal :
1. Whether the deceased was not a bonafide passenger?
2. Whether there was no such untoward incident as claimed by the respondents/claimants?
3. Whether the findings of the Tribunal about the accident are incorrect thereby, liable to be set aside?
4. Whether the respondents/claimants are entitled to compensation?
POINTS :
8. The learned Standing counsel of the appellant has submitted that AW.2, who supposed to have purchased ticket for the deceased could not substantiate the contention of the 5 SSRN,J C.M.A. No.312 of 2022 respondents. As per his cross-examination, he has purchased the ticket but he does not know the time at which he purchased the ticket and at what time the train arrived at the station. He was unable to say the stations in between which the train was proceeding. The learned counsel also argued that the dead body of the deceased was found in a vacant place which is not close to any railway station. Therefore, the possibility of deceased waiting at the door way for alighting is ruled out. If really, the deceased fell down from a running train, it is nothing but an indication that he was standing negligently at the door way and if there is any death due to such negligence, the same cannot be treated as untoward incident. While relying on the Judgment of Hon'ble Apex Court in "Reena Devi V. Union of India"1, the learned counsel has submitted that the evidence placed before the Tribunal clearly shows that no journey ticket was found on the person of the deceased. However, the inquest report and other record indicates that gold ring, cash in a loose currency notes was found with the deceased. Therefore, it is a clear indication that the deceased did not purchase any ticket.
9. The learned counsel for the respondents/claimants has submitted that the evidence placed before the Court clearly shows 1 2018 ACJ 1441 6 SSRN,J C.M.A. No.312 of 2022 that the deceased while traveling in the train accidentally fell down towards a low lying area abutting the railway track, his body was rolled to a far of place which is very much evident from the post-mortem report. The deceased died due to multiple fractures thereby, there is every chance of ticket being lost when the body of the deceased was rolled out from a higher place towards a low lying area. She has also submitted that it is a settled 'Principle of Law' that in view of a continuous check on the respondents by concerned train ticket examiners, it shall be believed unless and until the contrary is proved that every passenger traveling in a train was holding a valid ticket.
10. As per the record placed before this Court, it is clear that the deceased fell from a Super Fast train running between Hazrat Nizamuddin to Visakhpatnam, the chance of deceased traveling in such a train that too in a second class sleeper is completely ruled out. The appellant herein could not place any oral or documentary evidence about the actual accident. No witness is examined to believe that the deceased was negligently standing near the door of the compartment. The evidence adduced by the claimants, photographs marked during the enquiry and other record clearly indicates that while the train was on 7 SSRN,J C.M.A. No.312 of 2022 transit, the deceased fell from it due to accidental slip. Therefore, it is an untoward incident. The Tribunal after considering the oral evidence of the witnesses, came to a conclusion that the deceased was a bonafide passenger and he died in an untoward incident. As could be seen from the inquest report, it shows that the dead body of the deceased was found near Madhira railway station, the mediators to the inquest noticed multiple injuries. The Tribunal while scrutinizing the record, considered the entries in the inquest report clearly shows that the left eye of the deceased was totally crushed, skull was broken, left hand was cut at the wrist and broken between the elbow and shoulder. The clothes of the deceased were badly torn. A gold ring without stone to the left hand ring finger and cash of Rs.300/- was recovered from the place of accident. In view of the above stated circumstances, the possibility of ticket being lost from the body of the deceased cannot be ruled out.
11. A part from that it is an admitted fact that the deceased was traveling in a super fast train and fell from a second sleeper class compartment. According to the evidence placed before the Tribunal, the deceased was traveling from Khammam, therefore, the contention of the learned counsel for the 8 SSRN,J C.M.A. No.312 of 2022 respondents can be accepted. As per the record, it is very clear that the dead body of the deceased was not identified soon after the accident, therefore, the question of claimants influencing anybody to prepare a false inquest report does not arise. It is only when the news item about the accident was flashed in the news papers, the family members of the deceased identified the deceased as Shaik Khaseem Saheb. The Tribunal gave a reasoned order while accepting the claim of respondents/claimants, therefore there is nothing to interfere with the said findings. The respondents/claimants are able to establish that the deceased after purchasing the ticket, boarded the train and died due to an accidental fall from a running train. Therefore, the Tribunal rightly awarded compensation.
12. Earlier while preferring the appeal, the learned Standing counsel sought for stay of the further proceedings in pursuance of the award of the Tribunal and a stay was granted by imposing a condition for deposit of 50% of award amount. Accordingly, the appellant herein deposited the said amount. In view of the representation of the learned Standing counsel that they have got good chance to win the appeal, the respondents/claimants were not permitted to withdraw the 9 SSRN,J C.M.A. No.312 of 2022 compensation amount. In view of the findings in the appeal, the respondents/claimants can be permitted to with draw the deposited amount. The appellant shall deposit the balance compensation and earlier stay is vacated.
13. In the result, the appeal is dismissed without costs. Consequently, Miscellaneous applications if any, are closed.
__________________________
JUSTICE SAMBASIVA RAO NAIDU
Date: 15.11.2022
PLV
10 SSRN,J
C.M.A. No.312 of 2022