Aayithi Gangaraju vs Union Of India
2023 Latest Caselaw 3875 Tel

      THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI

             CIVIL MISCELLANEOUS APPEAL No.42 OF 2011

JUDGMENT:

The present Civil Miscellaneous Appeal has been directed

against the Order dated 20.09.2010 passed by the Railway Claims

Tribunal, Secunderabad Bench (for brevity, 'the Tribunal'), in

R.P.No.10 of 2009 wherein and whereby, the order dated

24.03.2009 in O.A.A.No.114 of 2004 and 116 of 2004, dated

20.09.2010, was dismissed.

2. For the sake of convenience, hereinafter, the parties will be

referred as per their array before the Tribunal.

3. The brief facts of the case are that, the applicants who are the

sons and married daughter of the deceased-Aayithi Gangayamma

(hereinafter will be referred as 'deceased No.1'), filed OAA No.114 of

2004 seeking compensation of Rs.4 lakhs and OAA No.116 of 2004

is filed by the parents of the deceased-Aayithi Neelavathi

(hereinafter will be referred as 'deceased No.2'), seeking

compensation of Rs.4 lakhs, as both the deceased died in an

untoward incident of fall from a train on 6.4.2004. According to the

claimants, the deceased Gangayamma along with her grand

daughter Neelavathi had spent six months at her daughter

Rajeshwari's place in Tuni and decided to return Tadepalligudem.

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Rajeshwari took them to the station, bought a ticket for her mother

Gangayamma and a platform ticket for herself. Neelavathi, who is 2

and half years old, did not need a ticket. Rajeshwari sent her

mother and niece Neelavathi by train No.472 Rayagad-Vijayawada

passenger and went home. While traveling, both Neelavathi and

Gangayamma slipped and fell down from the running train,

sustained severe multiple injuries and died on the spot in the early

hours of 6.4.2004. The journey ticket of Gangayamma was lost in

the accident along with her clothes bag. Hence both the claims.

4. The respondent-Railways filed written statement in both the

applications separately denying the averments of the application

and contended that the bodies were found dead in mid-section,

there was no evidence that they had traveled by train, there was no

untoward incident of fall from train reported by the guard of the

train and since even at inquest, there was no ticket and as such,

there was no proof that they were bona fide passengers. Hence,

prayed to dismiss the application.

5. Based on the above pleadings, the Tribunal framed the

following issues in:

1. Whether the applicants are dependents of the deceased?

2. Whether the deceased was a bona fide passenger of train No.472 Rayagad-Vijayawada passenger travelling from Tuni to Tadepalligudem on 5.4.2004?

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3. Did the deceased die of an untoward incident of fall from the said train?

4. To what relief?

6. Before the Tribunal, on behalf of the applicants, A.Ws.1 and 2

were examined and got marked Exs.A.1 to A.11. On behalf of

respondent-railways, RW.1 was examined and Ex.R1 was marked.

7. The Tribunal after considering the evidence on record, both

oral and documentary, has dismissed both the applications vide

common order. Aggrieved by the same, the applicants in both the

applications have filed the review before the Tribunal and the same

was also dismissed. Hence the applicants filed the present appeal.

8. Heard Sri T.Krishna Prasad, learned counsel for the

appellants and Sri K.L.N.Raghavendra Reddy, learned Standing

Counsel for the Railways and perused the record.

9. The main contention of the learned counsel for the applicants

is that though the applicants proved their case by examining AWs.1

and 2 and relying on the documents under Exs.A.1 to A11, the

tribunal without considering the same, has erroneously dismissed

the applications and even in review application also, the Tribunal

failed to appreciate the evidence of AWs.1 and 2 and the documents

filed by them applicants. It is further submitted that the Tribunal

dismissed the review application alleging that the bodies were not 4 MGP,J Cma_42_2011

found at a great distance from their home and that traveling up to 8

KMs away from home does not indicate train travel and that the

evidence of AW.2 that both the deceased traveled from Tuni to

Tadepalligudem by train No. 472 passenger appears to be an after

thought. Hence, prayed to allow the appeal by awarding the just

and reasonable compensation.

10. Per contra, learned counsel for the respondent Railways

submitted that the Tribunal, after considering all the aspects, has

rightly dismissed the applications and the review petition also.

Hence, interference of this Court is not necessary.

11. Now the point for consideration is, whether the order passed

by the learned Commissioner is sustainable under law?

POINT:

12. This Court has perused the entire material available on

record. The applicant No.2 in OAA No.114 of 2004 and applicant

No.1 in OAA No.116 of 2004 was examined as AW.1 and he

reiterated the petition averments. He further stated that it was

decided by the Railway Police that his daughter A.Neelavathi and

his mother A.Gangayamma boarded the Train No.472 Rayagada-

Vijayawada passenger at Tuni Railway station in the night of

5.4.2004 holding a passenger train journey ticket from Tuni to

Tadepalligudem and while they were traveling both of them slipped 5 MGP,J Cma_42_2011

and fell down accidentally from the said running train in between

Prathipadu and Tadepalligudem railway stations at a distance of 8

K.Ms. from his house in the morning of 6.4.2004 due to speed and

jerks of the said running train sustained severe multiple injuries

and died on the spot and the journey ticket was lost along with his

mother's clothes bag and money pouch in the train. Admittedly, he

is not an eyewitness to the incident. In his cross-examination he

deposed that on the third day of her departure he came to know of

the incident. His neighbour told him after seeing daily news paper

in which there is a photo of his daughter, have expressed the doubt

about the incident. Along with some others he went to

Tadepalligudem RS to make enquiries and the police showed him

the talisman of the baby waist beeds and the clothes of his daughter

were shown for identification.

13. According to AW.2, the deceased-A.Neelavathi is her second

brother's daughter and another deceased A.Gangayamma is her

mother. Her brother A.Thatarao/AW.1 is resident of

Tadepalligudem and both the deceased came to her house at

Rolukunta Village from Tadepalligudem about six months prior to

their death. Both the deceased with a view to return to

Tadepalligudem went to Tuni Railway station accompanied by her in

the night of 5.4.2004, purchased a passenger train journey ticket

from Tuni to Tadepalligudem for her mother and a platform ticket 6 MGP,J Cma_42_2011

for her and she sent them by Train No.472 Rayagada-Vijayawada

passenger in General compartment. After giving send off to them,

she returned to her village Rolukunta from Tuni after departure of

the said train. She further deposed that four days later, she was

informed by her brother A.Thatarao about the death of both the

deceased as they fell down from running passenger train in between

Prathipadu and Tadepalligudem railway stations and succumbed to

the injuries and then she went along with her family members and

learnt about the accident of her mother and niece as mentioned

supra. She informed him and other family members that both the

deceased were seen off by her on 5.4.2004 by train No.472

Rayagada-Vijayawada passenger holding train journey ticket from

Tuni to Tadepalligudem.

14. AW.2 in her cross-examination stated that being an illiterate

she does not know the dates, month and year of the journey. They

started at 5 p.m. at their village and reached Tuni at 7.30 p.m. Her

mother proceeded to Tadepalligudem, she do not know by which

train they proceeded on that date. Again says it is a Rayagada pass.

They boarded in the general compartment which is adjacent to the

engine. Five days after the departure of her mother from Tuni RS

her brother informed on phone about the accident.

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15. According to Ex.A3 F.I.R., the bodies were found in mid

section at KM.539/27-25 by the Keyman in the early morning of 6th

April 2004. In Ex.A4 and Ex.A9 Inquest reports, there was no

mention of the journey ticket, however, panchas opined that the

deceased might have fallen from an unknown train moving from

Rajahmundry to Vijayawada in the night or early morning. The

bodies were buried without identifying. Since the photos of the

bodies were published in the papers, the family members of the

deceased contacted the police and recognized the deceased only on

9th or 10th April 2004.

16. Here it is pertinent to state that the initial burden is on the

appellants to prove their claim. Admittedly, no ticket was found

from the dead bodies at the time of inquest. Further AWs.1 and 2

are the children of the deceased No.1 and as such, they shall be

treated as interested witnesses. Except them, no third party was

examined to prove that the deceased purchased the ticket, boarded

the train on the date of incident and even nobody watched them

while they fallen down from the running train. The clothes bag and

pouch of the deceased No.1 was also not seized by the railway

police. Deceased No.1 was the mother of the applicants and

deceased No.2 was the daughter of one of the applicants, aged two

and half years old. When both the deceased died on 5th or 6th April,

the applicants approached the police only on 9th or 10th April and 8 MGP,J Cma_42_2011

there is no proper explanation by the applicants why they kept quite

without taking any steps about their whereabouts nor worried

about the deceased persons during the said gap, even they have not

reached the destiny. Merely because the dead bodies were found

near the tracks, it cannot be held that they have travelled in 472

passenger with a valid journey ticket and fallen down from the

running train, sustained injuries and died on the spot. Further the

Final report or charge sheet is also not filed by the applicants. Even

as per Ex.R1 Divisional Railway Manager's report, either on

5.4.2004 or on 6.4.2004, no driver or guard of any train reported

any case of run over or any accidental falling from any train in the

section. As there was no ticket found with the deceased, she was

not a bona fide passenger as defined in Section 124(a) of Railways

Act,2003. Thus, the applicants utterly failed to prove their initial

burden of purchasing journey ticket by the deceased, boarded the

train and the deceased fallen down from the running train. In view

of the above facts and circumstances, this Court is of the

considered opinion that the Tribunal rightly held that both the

deceased were not bona fide passengers and they did not die in an

untoward incident and as such, the applicants are not entitled for

compensation. The Tribunal rightly appreciated the evidence of

AWs.1 and 2 and the documents filed by them in all aspects and 9 MGP,J Cma_42_2011

passed well reasoned order. There are no grounds to interfere with

the findings of the Tribunal and the appeal is liable to be dismissed.

17. In the result, the Civil Miscellaneous Appeal is dismissed. No

order as to costs.

Pending Miscellaneous applications, if any, shall stand closed.

______________________________ JUSTICE M.G.PRIYADARSINI

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