JURISDICTION OF SENIOR CIVIL JUDGE COURT IN I.P. PROCEEDINGS =This Court in R.O.C.No.40/So/72.2 – under the provision of Section 19 (1) of the Andhra Pradesh Civil Courts Act, 1972 (Act 19 of 1972) and in super cession of the previous Notification on the subject, authorized all Subordinate Judges (including the Additional Judges in the City Civil Courts) to take cognizance of any proceedings under the Indian Succession Act, 1925, (Act 39 of 1925) which cannot be disposed of by the District Delegates.

CMA 46 / 2010

CMASR 2318 / 2010

PETITIONER RESPONDENT AMBADIPUDI NAGARATNAMMA   VS TO WHOM SO EVER IT MAY CONCERN PET.ADV. : PULLA RAO YELLANKI RESP.ADV. :  SUBJECT: INDIAN SUCCESSION ACT DISTRICT:  KHAMMAM

PUBLISHED IN http://164.100.12.10/hcorders/orders/2010/cma/cma_46_2010.html

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH
AT HYDERABAD

(Special Original Jurisdiction)

 

WEDNESDAY, THE TENTH DAY OF MARCH
TWO THOUSAND AND TEN

 

PRESENT

 

THE HON'BLE SRI JUSTICE K.C. BHANU

 

CIVIL MISCELLANEOUS APPEAL No.46 OF 2010

 

Between:

Ambadipudi Nagaratnamma

..... APPELLANT

AND

 

To whom so ever it may concern

....RESPONDENT

The Court made the following: 

THE HON'BLE SRI JUSTICE K.C. BHANU

 

CIVIL MISCELLANEOUS APPEAL No.46 OF 2010

JUDGMENT:

This Civil Miscellaneous Appeal, under Section 384 (1) of the India Succession Act, 1925 (for short, “the Act”), is directed against the order, dated 28.10.2009, in S.O.P.No.32 of 2009, on the file of the Senior Civil Judge, Sathupalli, whereunder and whereby, the petition, filed for issuance of the succession certificate, was dismissed on the ground that there was no notification or order, which specifically authorize the Senior Civil Judges to take cognizance of the proceedings under the Act.

2.   This Court in R.O.C.No.40/So/72.2 – under the provision of Section 19 (1) of the Andhra Pradesh Civil Courts Act, 1972 (Act 19 of 1972) and in super cession of the previous Notification on the subject, authorized all Subordinate Judges (including the Additional Judges in the City Civil Courts) to take cognizance of any proceedings under the Indian Succession Act, 1925, (Act 39 of 1925) which cannot be disposed of by the District Delegates.

3.      Therefore, in view of the above proceedings, this Court authorized all the Subordinate Judges to take cognizance of the proceedings under Indian Succession Act.  Hence, the impugned order is not in accordance with law and the same is liable to be set aside.

4.      Accordingly, the Civil Miscellaneous Appeal is allowed setting aside the impugned order, and the trial Court shall take cognizance of the proceedings under the Act.  There shall be no order as to costs.

_______________

K.C. BHANU, J

March 10, 2010

Note: Issue C.C. of the order within four days.

B/O.MD/YVL

INDIAN SUCCESSION CERTIFICATE - WILL WITH IMMOVABLE PROPERTIES ALSO = whether in an O.P., filed under Section 372 of the Act, the Court can pronounce upon the validity of a Will said to have been executed by the deceased in respect of movable properties as well as immovable properties.= NO = whether it was competent for the Court to pronounce upon the legality or proof of Will, dated 21-11-2005 ? The Act provides for adjudication of the disputes of various kinds pertaining to the claims based upon testate and intestate succession. The facility of execution of a Will is created not only in respect of any items of movable, but also immovable properties. However, a dichotomy is maintained as to the adjudication of the claims in respect of movable properties on the one hand and immovable properties on the other. - Sections 370 and 372 of Part-X of the Act provide for grant of Succession Certificate in respect of movable properties, which are enlisted in sub-section (2) of Section 370. The mechanism provided for under Part-X cannot at all be pressed into service for adjudication of rights in respect of immovable properties. It is true that in the instant case, respondents 1 and 2 did not make any claim vis-à-vis an item of immovable property. However, their sole basis was the Will dated 21-11-2005 marked as Ex.A.2. If Ex.A.2 were to have been in respect of a movable property alone, the trial Court would have been certainly competent to pronounce upon the validity of a Will. However, a perusal of Ex.A.2 discloses that the testator has bequeathed an item of immovable property, namely plot No.42 in Sy.No.192 of Kondapur village, in favour of the respondents in equal shares. Once that is so, the proof or otherwise of Ex.A.2 cannot at all be pronounced upon by the trial Court.

CMA 1064 / 2010

CMASR 45833 / 2010

PETITIONER RESPONDENT MS. C.RAMYA BALA   VS CH. JAYARAM & 3 OTHERS PET.ADV. : VENKATARAMANA RESP.ADV. : VANI SUBJECT: INDIAN SUCCESSION ACT DISTRICT:  HYDERABAD

PUBLISHED IN http://164.100.12.10/hcorders/orders/2010/cma/cma_1064_2010.html

* THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY

AND

* THE HON’BLE SRI JUSTICE S.V.BHATT

+ C.M.A.No.1064 of 2010

% 16.04.2013 

# C. Ramya Bala                                             .. Appellant               

                                                                 

And

$  Ch. Jayaram & others                               .. Respondents

! Counsel for the appellant         : Sri T.S.Venkata Ramana

Counsel for respondents            : Ms. S. Vani

< Gist :

> Head Note :

                

? Citations:

THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY

AND

 THE HON’BLE SRI JUSTICE S.V.BHATT

C.M.A.No.1064 of 2010

JUDGMENT : (Per Hon’ble Sri Justice L. Narasimha Reddy)

An important question arises for consideration in this miscellaneous appeal filed under Section 384 of the Indian Succession Act (for short ‘the Act’).  It is as to whether in an O.P., filed under Section 372 of the Act, the Court can pronounce upon the validity of a Will said to have been executed by the deceased in respect of movable properties as well as immovable properties.

The facts that gave rise to the filing of this appeal are as under:

The appellant is the daughter of late Ch. Srinivasa Sastry.  There were disputes between the mother of the appellant on the one hand and Srinivasa Sastry on the other and the marriage between them was also dissolved and permanent alimony was also granted. 

The 1^st respondent is the brother and the 2^nd respondent is the sister of Srinivasa Sastry.  He died on 07-12-2005. Stating that Sri Srinivasa Sastry executed a Will, dated 21-11-2005, bequeathing his movable and immovable properties mentioned therein in their favour, respondents 1 and 2 (for short ‘the respondents’) filed O.P.No.1333 of 2007 before the II Additional Chief Judge, City Civil Court, Hyderabad.  Their claim was restricted to the items of movable properties, namely provident fund, gratuity, leave encashment. The appellant herein was shown as respondent No.3 and the employer of the deceased i.e., respondents 3 and 4 herein, were impleaded as respondents 1 and 2 in the O.P.  The appellant alone contested the O.P. by filing a counter.  It is stated that she does not have any objection as regards the Will.  The trial Court allowed the O.P., as prayed for through its order, dated 19.10.2010.  Hence, this appeal.

Sri T.S.Venkata Ramana, learned counsel for the appellant, submits that the Will said to have been executed by late SrinivasaSastry was in respect of movable and immovable properties and the trial Court has no jurisdiction to pronounce upon it in an O.P. filed under Section 374 of the Act.  He submits that the sole basis for the respondents to claim succession in respect of the amounts was the Will.  The O.P. ought to have been dismissed, leaving it open to them to work out their remedies before an appropriate forum.

Ms. S.Vani, learned counsel for the respondents, on the other hand, submits that the appellant did not raise any objection as to the validity of the Will and in that view of the matter, the appeal itself is untenable.  She contends that once the appellant has expressed her view that she would respect the wish of her father, there is no way that she could have resisted the disposition under the Will.

The O.P. was filed by the respondents in respect of certain monetary benefits, which accrued to late Srinivasa Sastry on account of his employment in the Government.   Their sole basis was the Will. 

Taking into account the pleadings before it, the trial Court framed only one point for its consideration, namely whether the Will Deed, dated 21-11-2005, alleged to have been executed by late Srinivasa Sastry is true, valid and binding on the third respondent? If so, whether the petitioners are entitled for succession certificate?

On behalf of the respondents, PWs.1 and 2 were examined and Exs.A1 to A4 were marked.  On behalf of the appellant, RWs.1 and 2 were examined and no documentary evidence was filed.   The trial Court allowed the O.P., as prayed for.

                 

The question that arises before us is as to 

whether it was competent for the Court to pronounce upon the legality or proof of Will, dated 21-11-2005 ?

The Act provides for adjudication of the disputes of various kinds pertaining to the claims based upon testate and intestate succession.  

The facility of execution of a Will is created not only in respect of any items of movable, but also immovable properties. 

However, a dichotomy is maintained as to the adjudication of the claims in respect of movable properties on the one hand and immovable properties on the other.  

Sections 370 and 372 of Part-X of the Act provide for grant of Succession Certificate in respect of movable properties, which are enlisted in sub-section (2) of Section 370.  The mechanism provided for under Part-X cannot at all be pressed into service for adjudication of rights in respect of immovable properties.

It is true that in the instant case, respondents 1 and 2 did not make any claim vis-à-vis an item of immovable property.  However, their sole basis was the Will dated 21-11-2005 marked as Ex.A.2.  If Ex.A.2 were to have been in respect of a movable property alone, the trial Court would have been certainly competent to pronounce upon the validity of a Will.  However, a perusal of Ex.A.2 discloses that the testator has bequeathed an item of immovable property, namely plot No.42 in Sy.No.192 of Kondapur village, in favour of the respondents in equal shares.  Once that is so, the proof or otherwise of Ex.A.2 cannot at all be pronounced upon by the trial Court. This is so, notwithstanding the weak resistance that was offered by the appellant.  The reason is that a Court cannot be conferred with the jurisdiction even with the consent of the parties, if it otherwise lacks jurisdiction.  

One complication that arises on account of such an adjudication would be that as and when any claim is laid in respect of immovable property before a different Court, the necessity to pronounce upon Ex.A2 would arise once again and the adjudication and the findings recorded in an O.P. filed under Section 372 of the Act cannot be treated as final, much less binding on such proceedings.

Hence, we allow the appeal and set aside the order passed by the trial Court.  It is however, left open to the parties to work out their remedies in accordance with law.      

  The miscellaneous petition filed in this appeal shall also stand disposed of.   There shall be no order as to costs.               

_______________________

L. NARASIMHA REDDY, J.   

_______________________

                                                            S.V.BHATT, J.   

Dt:16.04.2013

Note : L.R. Copy to be marked

                 (B/o)

                  rds 

NOMINEE IS ONLY ENTITLED TO RECEIVE THE AMOUNTS , NOT FOR HERSELF ; WIDOW BEING CLASS 1 HEIR ENTITLED FOR A SHARE DESPITE OF FACT THAT SHE NEVER TAKE CARE OF HER HUSBAND = Admittedly, the appellant is the mother and the 1st respondent is the wife of the deceased namely G. Sharath Chandra, who died in a motor accident. Though the appellant contends that the 1st respondent did not attend on the deceased while he was undergoing treatment in the hospital for the injuries sustained by him in the motor accident, and that she did not attend the funeral and last rites of the deceased, and therefore, she cannot be treated as wife and successor of the deceased and cannot claim any share in the amounts in question, the fact remains, the mother and widow of a Hindu male died intestate, come within the meaning of Class I heirs as specified in the schedule of the Act, as per the provisions of Section 8 of the Hindu Succession Act, and the property of the deceased firstly devolve upon them, along with other heirs as specified in the schedule. Thus, the 1st respondent, being the widow of the deceased, as one of the class I heirs of the deceased, is entitled to a share in the property of the deceased, along with the appellant, and accordingly, we hold so.

CMA 941 / 2010

CMASR 38730 / 2010

PETITIONER RESPONDENT G. BHAGYAREKHA @ SUJATHA   VS G. SIRISHA AND 5 OTHERS PET.ADV. : RAMACHANDRA RAO RESP.ADV. : VENUGOPAL SUBJECT: INDIAN SUCCESSION ACT DISTRICT:  WARANGAL

PUBLISHED IN http://164.100.12.10/hcorders/orders/2010/cma/cma_941_2010.html
THE HONOURABLE SRI JUSTICE N.V. RAMANA

AND

THE HONOURABLE SRI JUSTICE B. CHANDRA KUMAR

Civil Miscellaneous Appeal No.941 of 2010

JUDGMENT:   (Per Hon’ble Sri Justice N.V. Ramana)

          This civil miscellaneous appeal is directed against the order dated 30.08.2010 passed in O.P. No. 1634 of 2007 by the learned IV Additional District Judge (Fast Track Court), Warangal.

          Brief facts of the case are that the 1^st respondent herein is the widow of late G. Sharath Chandra, who is no other than the son of the appellant herein and who died intestate in a motor accident. The
1^st respondent stating that her husband G. Sharath Chandra died in a motor accident and that she being his legally wedded wife, is entitled to the amounts under the insurance policies obtained by him during his lifetime as also the death benefits payable by his employer, and that as the appellant herein is trying to withdraw all those amounts, taking advantage of the fact that she was shown as nominee in some of the insurance policies, obtained by the deceased, filed the present O.P. before the Court below, praying to issue her Succession Certificate, as per the provisions of Section 372 of the Indian Succession Act. 

          The appellant herein resisted the petition by filing counter, inter alia, stating that the 1^st respondent did not look after the deceased while he was undergoing treatment in the hospital for the injuries sustained by him in the motor accident, that she being being a Hindu wife, did not attend his funeral ceremony and last rites, and as such, she cannot be treated as wife to succeed the properties of the deceased and is not entitled to claim any share in his properties.  She further stated that the 1^st respondent suppressed about one other insurance policy obtained by the deceased, for an amount of Rs. 4,00,000/-, with a mala fide intention to appropriate the entire amount under the said policy for her benefit, by excluding the appellant, and as such claimed share in the said amount, as a counter-claim. 

          The Court below, having considered the rival contentions of the parties and the material on record, held that the 1^st respondent and the appellant, being the wife and the mother of the deceased respectively, come within the meaning of Class I heirs as per Section 8 of the Hindu Succession Act, and therefore, the 1^st respondent along with the appellant is entitled to a share in the amounts shown in the petition schedule as also the amount claimed by the appellant as counter-claim and also the death benefits payable by the employer of the deceased.  

So far as the contention of the appellant that since she is shown as nominee in the insurance policies, she alone is entitled to the amounts under those polices and the 1^st respondent is not entitled to any share in it, is concerned, the Court below, relying on the judgments of the apex Court as regards the powers of nominee, rejected the said contention of the appellant and held that merely because the appellant is shown as nominee in most of the insurance policies, she will not get any exclusive right in the amounts insured and the 1^st respondent is entitled to a share in the said amounts.  Having held so, the Court below allowed the petition filed by the 1^st respondent herein, holding that she is entitled to half share in the amounts claimed in the petition schedule as also the other amounts payable by the 6^th respondent-employer as detailed in paragraph 4 of its counter, and in the amount claimed as counter-claim by the appellant, and the appellant is entitled to the remaining half share.  Aggrieved thereby, the appellant-mother preferred the present appeal.

          Heard the learned counsel for the appellant and the learned counsel for the 1^st respondent and perused the order under appeal and other material available on record.

          Admittedly, the appellant is the mother and the 1^st respondent is the wife of the deceased namely G. Sharath Chandra, who died in a motor accident. 

Though the appellant contends that the 1^st respondent did not attend on the deceased while he was undergoing treatment in the hospital for the injuries sustained by him in the motor accident, and that she did not attend the funeral and last rites of the deceased, and therefore, she cannot be treated as wife and successor of the deceased and cannot claim any share in the amounts in question, the fact remains, the mother and widow of a Hindu male died intestate, come within the meaning of Class I heirs as specified in the schedule of the Act, as per the provisions of Section 8 of the Hindu Succession Act, and the property of the deceased firstly devolve upon them, along with other heirs as specified in the schedule.  Thus, the 1^st respondent, being the widow of the deceased, as one of the class I heirs of the deceased, is entitled to a share in the property of the deceased, along with the appellant, and accordingly, we hold so. 

So far as the other contention raised by the appellant that since she is shown as nominee in most of the insurance policies obtained by the deceased, she alone is entitled to receive the amounts under those polices, is concerned, it is to be noted that the apex Court in its decision inSarbati Devi v. Usha Devi[1], has categorically held that a mere nomination does not have the effect of conferring to the nominee any beneficial interest in the amount payable under the life insurance policy, on the death of the assured, the nomination only indicates the hand which is authorized to receive the amount on payment of which the insurer gets a valid discharge of its liability under the policy, and the amount, however, can be claimed by the heirs of the assured in accordance with the law of succession.  Following these principles, the apex Court in Shipra Sengupta v. Mridul Sengupta[2], held that nomination does not confer any beneficial interest on the nominee and the amounts so received by the nominee are to be distributed according to Hindu Succession Act, 1956.   The trial Court, in view of this settled legal position, held that merely because the appellant is shown as nominee in most of the insurance policies, the appellant will not get any exclusive right in the amounts insured and the 1^st respondent is equally entitled to a share in the said amounts, and accordingly passed the order under appeal, holding the 1^st respondent and the appellant equally entitled to the amounts in question, and we find no reason whatsoever to interfere with the said finding recorded by the Court below, by exercising the appellate jurisdiction.

          The civil miscellaneous appeal is devoid of merit and the same is accordingly dismissed.  No costs.

_____________

N.V. RAMANA, J

__________________

B. CHANDRA KUMAR, J

7^th December, 2010

IBL

---

[1] (1984) 1 SCC 424

[2]  (2009) 10 SCC 680

NO NOTICE AFTER TRANSFER OF THE CASE = admittedly, there is nothing on record to show that after transfer of the said I.P. from the District Court, Vizianagaram to the Court of Senior Civil Judge, Parvathipuram, there was any notice to the appellant i.e., the appellant had no information about transfer of the said I.P. from the District Court, Vizianagaram to Court of Senior Civil Judge, Parvathipuram and also the date of hearing and hence, the appellant cannot be put to any blame nor can the case be dismissed as such, that too, for default Hence, C.M.A.No.296 of 2001 is allowed and the order, dated 29.12.2000, passed by the Senior Civil Judge, Parvathipuram, Vizianagaram District, in I.P.No.1 of 1999 is set aside.

CMA 453 / 2010

CMASR 6341 / 2001

PETITIONER RESPONDENT B.SRINIVASA RAO   VS ANDHRA CEMENT LTD.VISK.& 23 ORS PET.ADV. : VENKATESWARA RAO GUDAPATI RESP.ADV. : RAJA RAO SUBJECT: INDIAN SUCCESSION ACT DISTRICT:  VIZIANAGARAM

PUBLISHED IN http://164.100.12.10/hcorders/orders/2010/cma/cma_453_2010.html

THE HONOURABLE SRI JUSTICE B.PRAKASH RAO

AND

THE HONOURABLE SRI JUSTICE R.KANTHA RAO

CIVIL MISCELLANEOUS APPEAL Nos.296 of 2001

and 453 of 2010

COMMON JUDGMENT: (per the Hon’ble Sri JusticeB.Prakash Rao)

          Since both the appeals are between the same parties and relate to the same matter, they are heard together and are being disposed of by a common judgment.

C.M.A.No.296 of 2001 is filed against the order, dated 29.12.2000, passed by the Senior Civil Judge, Parvathipuram, Vizianagaram District, in I.P.No.1 of 1999, whereunder the said I.P. was dismissed for default.

C.M.A.No.453 of 2010 is filed against the order, dated 11.10.2000, passed by the District Judge, Vizianagaram District, in I.P.No.1 of 1999, whereunder the said I.P. was made over to the Court of Senior Civil Judge, Parvathipuram, for disposal in accordance with law.

In C.M.A.No.296 of 2001, the grievance of the appellant, who filed the Insolvency Petition, is to the effect that originally, the said I.P. was filed before the District Judge, Vizianagaram. However, the same was made over by the District Judge, Vizianagaram to the Court of Senior Civil Judge, Parvathipuram, Vizianagaram District. Subsequent to the said transfer, the appellant had no notice of the same, yet the matter was taken up and the case was dismissed for default, which is not correct.

Heard learned counsel appearing on either side and perused the material available on record.

We are of the view that admittedly, there is nothing on record to show that after transfer of the said I.P. from the District Court, Vizianagaram to the Court of Senior Civil Judge, Parvathipuram, there was any notice to the appellant i.e., the appellant had no information about transfer of the said I.P. from the District Court, Vizianagaram to Court of Senior Civil Judge, Parvathipuram and also the date of hearing and hence, the appellant cannot be put to any blame nor can the case be dismissed as such, that too, for default  Hence, C.M.A.No.296 of 2001 is allowed and the order, dated 29.12.2000, passed by the Senior Civil Judge, Parvathipuram, Vizianagaram District, in I.P.No.1 of 1999 is set aside.

In C.M.A.No.453 of 2010, the grievance of the appellant is as regards the transfer of the said I.P. from the District Court, Vizianagaram to the Court of Senior Civil Judge, Parvathipuram.

The objection raised by the appellant is to the effect that having regard to the valuation of the very Insolvency Petition i.e., a sum of Rs.11,68,657/-, the question of making over the said I.P. to the Court of Senior Civil Judge, Parvathipuram by the District Judge, Vizianagaram, does not arise and the order is wholly unsustainable.

On perusal of the material on record, we find that there is no dispute as regards the valuation of the Insolvency Petition i.e., Rs.11,68,657/-. Hence, necessarily the matter has to be disposed of only by the District Court as per Section 3 of the Provincial Insolvency Act, 1920.

For the foregoing reasons, C.M.A.No.453 of 2010 is allowed and the order, dated 11.10.2000, passed by the District Judge, Vizianagaram District, in I.P.No.1 of 1999 is set aside and the matter is remanded to the District Court, Vizianagaram, for fresh disposal on merits and in accordance with law, after giving notice and opportunity to both the parties.

Accordingly, both the appeals are allowed and the impugned orders therein are set aside. However, there shall be no order as to costs.

_________________________

JUSTICE B.PRAKJASH RAO

_______________________

JUSTICE R.KANTHA RAO

10^th June 2010

dr

Bona fide passenger or not - Claim = whether the deceased was a bona fide passenger or not is concerned, the evidence of A.W.1 is very clear that he went to the railway station for the purpose of dropping his father and his father purchased a ticket to go to Vijayawada from Chirala and boarded the train and as the train started, he left the station. Practically, the evidence of A.W.1 remained unchallenged. The statement of A.W.1 that his father purchased a ticket to travel in a passenger train remained unchallenged. There is no contrary evidence adduced by the railway administration to show that the deceased was not a bona fide passenger. Perhaps, that is the reason why the Tribunal rightly placed an implicit reliance on the evidence of A.W.1. After taking into consideration the evidence of A.W.1., it can be said that the deceased was a bona fide passenger.= the Station Master, after receipt of message from the Keyman, informed the police. The police registered a case and conducted inquest on the dead body of the deceased. During the inquest, the police also examined A.W.1. The inquest mediators opined that the deceased died by falling from a running train. Similarly, the dead body was subjected to post mortem examination. The Doctor, who conducted the post mortem, categorically stated that the deceased sustained injuries as a result of falling from the train. There is no contra evidence adduced by the Railways to show that the case of the railway administration fall under anyone of the exceptions as mentioned under proviso to Section 124-A of the Act. Further, the police, after completion of investigation, filed a final report stating that there was no foul play or suspicious circumstances resulting in the death of the deceased. Therefore, the Tribunal rightly awarded the compensation. There are no grounds to interfere with the impugned order and the appeal is devoid of merit and is liable to be dismissed.

CMA 363 / 2010

CMASR 14681 / 2010

PETITIONER RESPONDENT THE UNION OF INDIA, SOUTH CENTRAL RAILWAY, SECUNDERABAD   VS SMT. POLISETTY LAKSHMI SAROJINI & ANOTHER, PRAKASAM DISTRICT PET.ADV. : VENKATARAMANA RESP.ADV. : NARAYANA REDDY SUBJECT: INDIAN SUCCESSION ACT DISTRICT:  HYDERABAD

published in  http://164.100.12.10/hcorders/orders/2010/cma/cma_363_2010.html                          

 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD

                        PRESENT

                        THE HON'BLE SRI JUSTICE K.C.BHANU

C.M.A.No.363 of 2010.

           Date:23.08.2011

Between:-

The Union of India, represented by its General Manager, South Central Railway, Secunderabad.

      ..Appellant/Respondent

And

P.Lakshmi Sarojini and others

     .. Respondents/Applicants

 

JUDGMENT:-

         

This Civil Miscellaneous Appeal, under Section 23 of the Railways Claims Tribunal Act, 1987 is directed against the order, dated 20.01.2010, in O.A.A.No.60 of 2006 on the file of the Railway Claims Tribunal, Secunderabad Bench at Secunderabad, (for short, ‘the Tribunal’), whereunder and whereby, the claim of the respondents/applicants under Section 16 of the Railways Claims Tribunal Act read with Section 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 Polisetty Venkateswarlu (hereinafter, referred to as ‘the deceased’) in a railway accident that took place on 13.08.2001 was allowed. 

2.       The brief facts that are necessary for disposal of the present appeal are as follows:

          Respondents/applicants are the wife, son and three daughters of the deceased.  On 13.08.2001, when the deceased was travelling by train No.7405 Krishna Express from Chirala to Vijayawada, while standing near the door on account of heavy crowd, due to the jerks of the train, he slipped, fell down and died.  The ticket was missing in that incident.

3.       The appellant/Railways denied the averments made in the application and pointed out that the applicants have not mentioned the site of the incident, but stated that as per the copy of the First Information Report filed by them, on 13.08.2001, the Keyman reported to the Station Master, Chirala that a person was run over by train No.7405 at Km.340/12-16 and that this did not suggest a fall from the train, and called for proof from the applicants regarding the averments made in the application and stated that the deceased was own responsible for his death.

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

1.     Whether the applicants are dependents of the deceased?

2.     Whether the deceased was a bona fide passenger of the train No.7405 Krishna Express travelling from Chirala to Vijayawada on 13.08.2001?

3.     Whether the deceased died as a result of an untoward incident of accidental fall from the said train?

4.     To what relief?

5.         On behalf of the applicants, A.W.1 was examined and   Exs.A-1 to A-5 were marked.  On behalf of the railways, R.W.1 was examined and got marked Exs.R-1 and R-2.

6.         The Claims Tribunal, after considering the evidence and other material on record, came to the conclusion that the deceased was a bona fide passenger and died on account of a fall from the train, and accordingly, awarded compensation of Rs.4,00,000/-. Challenging the same, Railways filed this appeal.

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

8.          Learned Standing Counsel appearing for the appellant/ Railways contended that there is no evidence to show that the deceased was a bona fide passenger travelling in a passenger train; that due to the own negligence of the deceased, the incident has taken place and therefore, the claimants are not entitled for compensation; and hence, he prays to set aside the impugned order.

9.       On the other hand, learned counsel appearing for the respondents/applicants contended that the evidence of A.W.1 would clearly go to show that he saw his father purchasing a ticket and that evidence has remained unchallenged; that the Key Man found the dead body of the deceased by the side of the track; that R.W.1, who is the Station Master, received a message from the Keyman that a body was lying by the side of the track; that therefore, the Tribunal rightly awarded compensation and there are no grounds to interfere with the impugned order, and hence, he prays to dismiss the appeal.

10.     There cannot be any dispute that in order to claim compensation under Section 124-A of the Act, two conditions are to be proved. 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, then, the burden shifts to the Railway administration to establish that the case falls under anyone of the exceptions provided under proviso to Section 124-A of the Act.

11.     With regard to the aspect of 

whether the deceased was a bona fide passenger or not is concerned, the evidence of A.W.1 is very clear that he went to the railway station for the purpose of dropping his father and his father purchased a ticket to go to Vijayawada from Chirala and boarded the train and as the train started, he left the station.  Practically, the evidence of A.W.1 remained unchallenged.  The statement of A.W.1 that his father purchased a ticket to travel in a passenger train remained unchallenged.  There is no contrary evidence adduced by the railway administration to show that the deceased was not a bona fide passenger. Perhaps, that is the reason why the Tribunal rightly placed an implicit reliance on the evidence of A.W.1.  After taking into consideration the evidence of A.W.1., it can be said that the deceased was a bona fide passenger.

12.     With regard to the aspect of untoward incident, the Station Master, after receipt of message from the Keyman, informed the police.  The police registered a case and conducted inquest on the dead body of the deceased.  During the inquest, the police also examined A.W.1. The inquest mediators opined that the deceased died by falling from a running train.  Similarly, the dead body was subjected to post mortem examination.  The Doctor, who conducted the post mortem, categorically stated that the deceased sustained injuries as a result of falling from the train.  There is no contra evidence adduced by the Railways to show that the case of the railway administration fall under anyone of the exceptions as mentioned under proviso to Section 124-A of the Act.  Further, the police, after completion of investigation, filed a final report stating that there was no foul play or suspicious circumstances resulting in the death of the deceased.  Therefore, the Tribunal rightly awarded the compensation. There are no grounds to interfere with the impugned order and the appeal is devoid of merit and is liable to be dismissed.

13.          Accordingly, the Civil Miscellaneous Appeal is dismissed.  There shall be no order as to costs.

_­­­_____________________

JUSTICE K.C.BHANU

23^rd August, 2011

AMD

THE HON'BLE SRI JUSTICE K.C.BHANU

C.M.A.No.363 of 2010.

Date:23.08.2011

AMD