Andhra Pradesh High Court - Amravati

B. Venkatesh Rao vs Union Of India on 5 January, 2024

           THE HON'BLE DR. JUSTICE K. MANMADHA RAO

                      C.M.A.No.233 OF 2019

JUDGMENT:

The Appellants herein are the applicants before The Railway

Claims Tribunal, Amaravati Bench, Amaravati (in short 'the

learned tribunal') filed the present Civil Miscellaneous Appeal

before this Court, aggrieved by the order dated 20.03.2019 passed

by the learned Tribunal in O.A-II(U).No.72 of 2010, T.A.No.77 of

2018.

1st applicant by name Mr. B. Venkateswara Rao died on

19.11.2011. one Mr. B. Venkata Ramana, S/o B. Venkateswara

Rao was impleaded as 3rd applicant in the claim petition, who is

2nd respondent herein.

2. The 2nd appellant herein is the legal representative of

deceased B. Suryavathi, has made a claim before the learned

tribunal seeking compensation of Rs. 8,00,000/- along with

interest from the respondent/ Railways on account of death of

deceased in an untoward incident that occurred on 08.01.2010

while travelling, as there was heavy rush of passengers, suddenly,

the deceased slipped and fallen down accidently from the running

train at K.M.No.485/2-4 in between Vatluru and Eluru Railway

Stations, received severe injuries and died. The learned tribunal

after hearing on both sides, holding that the deceased is not proved

to be a bonafide passenger and he was also not a victim of

accidental falling from the train, which is highly doubtful and that

the appellants have failed to prove their case and dismissed the

claim application. Assailing the same, the present C.M.A came to

be filed.

3. Heard Ms. N.S.Geetha Madhuri, learned counsel for the

appellants and Ms. Manchala Uma Devi, learned Central

Government Counsel for the 1st respondent.

4. During hearing learned counsel for the appellants would

contend that the learned tribunal erroneously held that the

deceased was not a bonafide passenger and that the deceased was

not died due to an untoward incident. The learned tribunal without

appreciated the applicability of the provisions of the Railway Act

and simply dismissed the claim of the appellants. Therefore the

C.M.A is liable to be allowed.

5. Learned counsel for the respondents would contend that

the deceased was not in possession of any railway journey ticket.

Therefore he cannot be termed as a bonafide passenger. The claim

is not fall under Section 123(c) or Section 124-A of the Railways

Act. The DRM report confirms that the deceased was not a

bonafide passenger and he did not die in an untoward incident.

Therefore there is no fault or lapse on the part of the railways in

the alleged mishap; the respondent is not liable to pay any

compensation to the appellants herein. The learned tribunal rightly

dismissed the claim made by the appellants after considering the

submissions of respondents. Hence the C.M.A is liable to be

dismissed.

6. Perused the record.

7. During hearing learned counsel for the appellants

submitted that this matter is squarely covered by this Court order

dated 29.09.2023 passed in C.M.A.No. 17 of 2020, wherein this

court following the decision of the Hon'ble Apex Court in

"Kamukayi & Ors. V. Union of India and Ors"1, wherein it was

held as follows:

"This court in the case of Rina Devi (Supra) has explained the burden of proof when body of a passenger is found on railway premises. While analysing the said issue, this Court has considered the judgement of Madhya Pradesh High Court in Raj Kumari v. Union of India and the judgements of Delhi High Court in Gurcharan Singh v. Union of India, Andhra Pradesh High Court in Jetty Naga Lakshmi Parvathi vs. Union of India and also considered the judgement of this Court in Kamrunnissa vs. Union of India6 and in para 29 concluded as thus-

"We thus hold that mere presence of a body on the railway premises will not be conclusive to hold that injured or deceased was a bona fide passenger for which claim for compensation could be maintained. However, mere absence of ticket with such injured or deceased will not negative the claim that he was a bona fide passenger. Initial burden will be on the

claimant which 1992 SCC OnLine MP 96 2014 SCC OnLine Del 101 2011 SCC OnLine AP 828 (2019) 12 SCC 391 can be discharged by filing an affidavit of the relevant facts and burden will then shift on the Railways and the issue can be decided on the facts shown or the attending circumstances. This will have to be dealt with from case to case on the basis of facts found. The legal position in this regard will stand explained accordingly."

8. The Hon'ble Apex Court also discussed the same verdict

cited supra in "Union of India v. Rina Devi2" case also and

passed Award. Therefore, learned counsel for the appellant would

contend that the case law cited supra is squarely applicable to the

facts of this case. Therefore the appellants are entitled the claim as

prayed for.

9. In Rina Devi's case cited supra, the Hon'ble Supreme

Court held that, on the burden of proof, which emphasized that

any person found dead or injured on railway premises is presumed

to be a bona fide passenger unless the railway administration

proves otherwise. Therefore, the findings of the Tribunal are

perverse.

10. In the light of judgment of "Union of India v. Radha

Yadav3", wherein the Hon'ble Supreme Court held that

"because death is proved due to outcome of untoward incident of the deceased being a bona fide passenger, the adequate amount of compensation may be awarded."

http://Indiankanoon.org/doc/94898543/

(2019) 3 SCC 410

11. During hearing learned counsel for the appellants drawn

the attention of this Court with regard to Section 123 and also 25

which reproduced hereunder:

Section 123 in The Railways Act, 1989

123. Definitions.--In this Chapter, unless the context otherwise requires,--

(a) "accident" means an accident of the nature described in section 124;

(b) "dependant" means any of the following relatives of a deceased passenger, namely:--

(i) the wife, husband, son and daughter, and in case the deceased passenger is unmarried or is a minor, his parent;

(ii) the parent, minor brother or unmarried sister, widowed sister, widowed daughter-in-law and a minor child of a pre-deceased son, if dependant wholly or partly on the deceased passenger;

(iii) a minor child of a pre-deceased daughter, if wholly dependant on the deceased passenger;

(iv) the paternal grandparent wholly dependant on the deceased passenger.

25 [(c) "untoward incident" means--

(1) (i) the commission of a terrorist act within the meaning of subsection (1) of section 3 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 1987); or

(ii) the making of a violent attack or the commission of robbery or dacoity; or

(iii) the indulging in rioting, shoot-out or arson, by any person in or on any train carrying passengers, or in a waiting hall, cloak room or reservation or booking office or on any platform or in any other place within the precincts of a railway station; or

(2) the accidental falling of any passenger from a train carrying passengers.

12. In view of the foregoing discussion and upon perusing

the material available on record and as per the law laid down by

the Hon'ble Supreme court in Kamukayi's case, it is observed that

the respondents are failed to establish that whether the deceased is

a bona fide passenger or not, as the burden lies on the respondent

authorities and hence the railway administration is liable to pay

the adequate compensation. Therefore, considering the

submissions made by learned counsel for the appellants, this

Court is of the considered opinion that while setting aside the

impugned judgment, inclined to allow the present appeal.

13. With regard to interest part is concerned, learned

counsel for the appellants relied on a decision of Hon'ble Supreme

Court in "Tahazhathe Purayil Sarabi and Others v. Union of

India and Another"4 wherein the Hon'ble Supreme Court held as

follows:

"22. In the instant case, the claim for compensation accrued on 13.11.98, when Kunhi Moosa, the husband of the

2009 ACJ 2444

appellant No.1, died on account of being thrown out of the moving train. The claim before the Railway Claims Tribunal, Ernakulam (O.A.No.68 of 1999), was filed immediately thereafter in 1999. There was no delay on the part of the claimants- appellants in making the claim, which was ultimately granted for the maximum amount of Rs. 4,00,000/- on 26.03.2007. Even if the appellants may not be entitled to claim interest from the date of the accident, we are of the view that the claim to interest on the awarded sum has to be allowed from the date of the application till the date of recovery, since the appellant cannot be faulted for the delay of approximately 8 years in the making of the award by the Railway Claims Tribunal. Had the Tribunal not delayed the matter for so long, the appellants would have been entitled to the beneficial interest of the amount awarded from a much earlier date and we see no reason why they should be deprived of such benefit. As we have indicated earlier, payment of interest is basically compensation for being denied the use of the money during the period which the same could have been made available to the claimants.

23. In our view, both the Claims Tribunal, as also the High Court, were wrong in not granting any interest whatsoever to the appellants, except by way of a default clause, which is contrary to the established principles relating to payment of interest on money claims.

24. We, therefore, allow the appeal and modify the order of the High Court dated 24.5.2007 affirming the order of the trial court and direct that the awarded sum will carry interest at the rate of 6 per cent simple interest per annum from the date of the application till the date of the award and, thereafter, at the rate of 9 per cent per annum till the date of actual payment of the same".

14. Following the decisions cited supra, this Court is inclined

to allow the Civil Miscellaneous Appeal. The impugned judgment

dated 20.03.2019 passed in OA/II/U/72 of 2010, T.A.No.77 of

2018 by the learned tribunal, is hereby set aside. The 2nd appellant

and 2nd respondent are entitled to claim compensation of Rs.

8,00,000/- (Rupees Eight Lakhs only) from the 1st respondent and

direct that the awarded sum will carry interest at the rate of 6% p.a

from the date of filing claim till the date of the award/ order and,

thereafter, at the rate of 9% p.a till the date of actual payment of

the same. The 2nd appellant and 2nd respondent are permitted to

withdraw the said compensation amount in equal shares.

15. With the above direction, the Civil Miscellaneous Appeal