Gyni Srinivas vs The Union Of India
2022 Latest Caselaw 4365 Tel

    HONOURABLE SRI JUSTICE SAMBASIVA RAO NAIDU

                     C.M.A.NO.503 of 2019



JUDGMENT:

Being aggrieved by the Judgment dated 05-03-2019 in

OA II (U) No.171 of 2015 on the file of Railway Claims Tribunal,

Secunderabad Bench, the appellants who are applicants in the

above referred application filed the present appeal.

2. As could be seen from the record, the appellants

herein are parents of one Vamshikrishna, who herein after will

be referred as deceased was a student and a bachelor. On

28-04-2015, the deceased with a view to attend a function of his

friend at Bellampally, he left his house at Peddapally at 11.a.m.,

and reached railway station. He has purchased journey ticket from

Peddapally to Bellampally and boarded a train but accidentally fell

down from the running train and died on the spot. In the evening

hours, when the appellant No.2 made an attempt to contact the

deceased, she could not reach him. Thereafter, she was informed

about the incident met by her son and died due to injuries.

Thereby, the parents rushed to Mancherial where they found the

dead body of their son. Therefore, they filed the above referred 2 SSRN,J CMA No.503 of 2019

application before the Railway Claims Tribunal for compensation.

The application was opposed by the respondent on the ground that

the post-mortem report revealed the presence of alcohol in the

abdomen of the deceased. There was no eye-witness to the

alleged incident. Even as per the General Diary entry and sketch

prepared at the scene of accident it would suggest that the dead

body was found in between the track. Therefore, they claimed

that they are not liable to pay any compensation.

3. The Tribunal framed four (4) issues. During the

enquiry, the appellant No.2, who is mother of the deceased filed

her evidence affidavit. She was examined as AW.1. They have

marked Exs.A1 to A9. No body was examined by the respondent

but Divisional Railway Manager's report was marked as Ex.R1.

The Railway Claims Tribunal did not accept the contention of the

appellants herein and placing reliance on the PME report, came to

a conclusion that the deceased did not suffer any untoward

incident within definition under Section 123(c)(2) of Railways act,

1989, thereby, dismissed the application.

4. The learned counsel for the appellant has submitted

that the deceased, who purchased a valid journey ticket and who

boarded Singareni passenger, accidentally fell down from train, 3 SSRN,J CMA No.503 of 2019

thereby, it is an untoward incident and thereby the appellants are

entitled to compensation. The learned counsel has further stated

that though the appellants have examined AW.1 and marked

documents in support of their claim and in spite of the fact that

respondent did not adduce any evidence, the Tribunal basing on

Ex.R1 dismissed the application filed by the appellant herein. The

learned counsel has submitted that the findings of the Tribunal on

the basis of post-mortem report are incorrect. Even as per the

post-mortem report, Final report from the Forensic Science

Laboratory was not received. The Medical Officer gave a clear

finding that the deceased died due to severe injuries received from

the train accident. Therefore, the learned counsel sought for

setting aside the order passed by the Tribunal.

5. In the grounds of appeal, the appellants have claimed

even though the application was filed for Rs.4,00,000/-, in view of

the subsequent Gazette issued by the Union of Government, they

are entitled to enhanced compensation of Rs.8,00,000/-. Thereby,

they prayed for a sum of Rs.8,00,000/- with interest from the date

of accident.

6. The learned counsel for the respondent has submitted

the evidence placed by the appellants and report marked as Ex.R1 4 SSRN,J CMA No.503 of 2019

clearly shows that there was alcohol in the abdomen of the

deceased thereby, even if it is believed that the deceased fell down

from the train it was due to influence of alcohol but was not due to

untoward incident. Therefore, the appellants are not entitled to

any compensation, and therefore sought for dismissal of the

appeal.

7. Now the points for consideration are :

1. Whether the findings of the Tribunal are incorrect? If so, whether they are liable to be set aside?

2. Whether the appellants are entitled to enhanced compensation of Rs.8,00,000/- as prayed for?

8. The learned counsel for the appellants while relying on

a Judgment between Union of India Vs. Amaravati Devi1, and

submitted that even if liquid contents of the stomach smelt

alcohol, that itself is not sufficient to prove that the deceased

when he had fallen from the train was intoxicated thereby, the

appellants are entitled to compensation. He has also relied on

another Judgment of this Court in C.M.A.No.78 of 2016 wherein,

this Court opined that when there is no breath analysis test to find

percentage of the alcohol in the blood of the appellant, it is

AIR (DEL) 2004 0 218 5 SSRN,J CMA No.503 of 2019

difficult to constitute that the appellant was preliminarily negligent

and he himself responsible for fall from the subject train.

9. There is no dispute about the relationship between the

parties. The journey of deceased in Singareni Passenger from

Peddapally to Bellampally on above referred date is also not in

dispute. The respondent did not deny the contention of appellants

that their son boarded the train, having purchased a valid ticket.

The evidence of AW.1 and documents marked as Exs.A1 to A9

which includes inquest, PME report etc., categorically shows that

the deceased, who traveled in the above referred train died and

his dead body was found on the Railway track with multiple

injuries over his body. The Tribunal below placed reliance on the

post-mortem report, but the Medical Officer who conducted

post-mortem was not examined by the respondent. It is true,

there is a mention in the PME report to the effect that stomach

contains alcohol smell. As per the opinion as to the cause of

death by the Civil Asst. Surgeon, it is stated that the deceased

died due to multiple injuries and report from Forensic Science

Laboratory was awaited. Therefore, the respondent did not

examine any qualified person to prove that there was alcohol in

the blood of the deceased. No evidence is forthcoming. With 6 SSRN,J CMA No.503 of 2019

regard to the age, percentage of the alcohol in the blood of the

deceased, most importantly there is no evidence before the Court

to believe that the deceased was under the influence of alcohol/he

was intoxicated at the time of accident.

10. In the above referred Judgment, the Hon'ble High

Court of Delhi made an observation that though the stomach

contents gave alcohol smell that itself not sufficient to prove that

the deceased at the time of fall from the train was intoxicated. In

another Judgment relied on by the appellant, this Court made an

observation that in the absence of breath analyser test and in the

absence of evidence of percentage of alcohol in the blood of the

deceased, it is difficult to constitute that the appellant therein was

under the influence of liquor.

11. In the case on hand except the sentence in the post-

mortem report to the effect that the contents of the stomach gave

alcohol smell, no scientific evidence is placed to believe that the

deceased consumed alcohol and he was under the influence of

liquor when he fell down from the train. There is no evidence as

to the percentage of the liquor in the blood of the deceased. For

all these reasons, it cannot be held that the deceased fell from the

running train due to the influence of liquor. Therefore, the death 7 SSRN,J CMA No.503 of 2019

of the deceased can be considered as an untoward incident.

There is evidence before the Court to believe that the deceased

purchased a ticket thereby, he is a bonafide passenger and he

died in the untoward incident. Therefore, the appellants are

entitled to compensation.

12. However, this Court is not convinced with the

argument of the learned counsel for the appellants that they are

entitled to enhanced compensation. The accident occurred on

28-04-2015. The Gazette came into effect on 22-12-2016. The

appellants could not produce any material to show that the

Gazette Notification was issued with retrospective effect,

therefore, they cannot claim enhanced compensation. But they

are entitled to a sum of Rs.4,00,000/- with costs and interest @

9% per annum from the date of accident.

13. In the result, appeal is partly allowed. A sum of

Rs.4,00,000/- is awarded with interest @ 9% on the compensation

amount from the date of accident till the amount is realized.

Consequently, Miscellaneous applications if any, are closed. No Costs.

                                   __________________________
                                   JUSTICE SAMBASIVA RAO NAIDU
Date: 05.09.2022
PLV
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