Judgment : 1. Union of India through General Manager, South Central Railway, is in appeal against the order of Railway Claims Tribunal, Secunderabad, in O.A.A.No.130 of 2007, dated 30.03.2011. 2. Under the aforesaid award, the Railway Claims Tribunal considered the claim of respondents for compensation of Rs.4, 00, 000/- with interest on account of the death of the husband of first claimant late S.Janaki Ramaiah. It is alleged that he was a Railway Protection Force Constable deputed to Bapatla and while on return to Vijayawada, by train No.7480, Tirupati-Puri Express, he accidentally fell down from the train on Platform No.3 at Bapatla Station on 13.03.2007 and died. 3. The appellant-Railways while denying the averments in the claim petition stated that the deceased fell down while trying to board the train from the off-side and as such it is a self-inflicted injury. They also stated that the ex gratia of Rs.5, 00, 000/- was paid on account of the death while on duty and enhanced ex gratia compensation of Rs.5, 00, 000/- is in process and hence, the claimants are not entitled to any further compensation. 4. The Tribunal framed as many as five points for consideration and recorded the evidence of first claimant as A.W.1 and marked Exs.A1 to A5. Crucial among the said documents is Exs.A4 and A5, Movement order and duty pass of the deceased and Family Member Certificate respectively. No evidence was lead on behalf of the appellant. 5. The Tribunal found on issue No.1 that the claimants were getting family pension and also received ex gratia and as per the family member certificate issued by the Tahsildar, Bapatla, holding claimants as dependants. On issue No.2, it was found that the deceased was on duty and on issue No.3 it was found that as per the report of the D.R.M. also the death was an untoward incident and not a self-inflicted injury. The 5th issue regarding claimants’ entitlement of compensation in view of the receipt of ex gratia, the Tribunal found that there is no bar for seeking claim under Sections 123, 124 or 124-A of the Railways Act, 1989 (for brevity, “the Act”) and it was held that mere payment of ex gratia does not bar the dependant from seeking compensation under the relevant provisions under the Railways Act. Accordingly, a compensation of Rs.4, 00, 000/- was granted. 6. Accordingly, a compensation of Rs.4, 00, 000/- was granted. 6. In this appeal, the main and the only question urged by the learned counsel for the appellant, is that having received ex gratia much more than the amount granted by the Tribunal, the claimants are not entitled to claim compensation under Section 124 and 124-A of the Act. Section 128 is also pressed into service to contend that right of person to claim compensation is available only under any one of the beneficial provisions and it is not open for a claimant to seek compensation twice over. Reliance is placed on a decision of this Court in Preet Comforts v. Commissioner for Workmen’s Compensation, Eluru ( 2007 (5) ALD 824 ) . 7. Per contra, learned counsel appearing for the respondents/claimants contends that the liability of the appellant-Railways for payment of compensation arises under Sections 124 and 124-A of the Act. The untoward incident established in the case pre supposes that the act on the part of the appellant is wrongful for which the appellant is liable to compensate the person wronged or his dependants. Strong reliance is also placed upon sub-clause (2) of Section 128 of the Act, which clarifies that the saving of certain rights under sub-clause (1) of Section 128 does not apply when a compensation is paid under any contract or a scheme or any sum payable under any policy of insurance. Based on the above, it is contended that the payment of ex gratia has no bar for claiming statutory compensation. 8. The core issue, therefore, is whether the respondents/claimants are barred from seeking compensation on account of having received payment of ex gratia from the appellants? 9. It is appropriate to extract the relevant provisions. Based on the above, it is contended that the payment of ex gratia has no bar for claiming statutory compensation. 8. The core issue, therefore, is whether the respondents/claimants are barred from seeking compensation on account of having received payment of ex gratia from the appellants? 9. It is appropriate to extract the relevant provisions. “Section-124-Extent of liability:- When in the course of working a railway, an accident occurs, being either a collision between trains of which one is a train carrying passengers or the derailment of or other accident to a train or any part of a train carrying passengers, then whether or not there has been any wrongful act, neglect or default on the part of the railway administration such as would entitle a passenger who has been injured or has suffered a loss to maintain an action and recover damages in respect thereof, the railway administration shall, notwithstanding anything contained in any other law, be liable to pay compensation to such extent as may be prescribed and to that extent only for loss occasioned by the death of a passenger dying as a result of such accident, and for personal injury and loss, destruction, damage or deterioration of goods owned by the passenger and accompanying him in his compartment or on the train, sustained as a result of such accident. Explanation: - For the purposes of this section “passenger” includes a railway servant on duty.” “Section-124-A:- Compensation on account of untoward incidents:- When in the course of working a railway an untoward incident occurs, then whether or not there has been any wrongful act, neglect or default on the part of the railway administration such as would entitle a passenger who has been injured or the dependant of a passenger who has been killed to maintain an action and recover damages in respect thereof, the railway administration shall, notwithstanding anything contained in any other law, be liable to pay compensation to such extent as may be prescribed and to that extent only for loss occasioned by the death of, or injury to, a passenger as a result of such untoward incident: Provided that no compensation shall be payable under this section by the railway administration if the passenger dies or suffers injury due to --- (a) suicide or attempted suicide by him; (b) self-inflicted injury; (c) his own criminal act; (d) any act committed by him in a state of intoxication or insanity; (e) any natural cause or disease or medical or surgical treatment unless such treatment becomes necessary due to injury caused by the said untoward incident. Explanation: - For the purposes of this section, “passenger” includes --- (i) a railway servant on duty; and (ii) a person who has purchased a valid ticket for traveling, by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident. “Section 128-Saving as to certain rights:- (1) The right of any person to claim compensation under Section 124 (or Section 124-A) shall not affect the right of any such person to recover compensation payable under the Workmen’s Compensation Act, 1923 (8 of 1923), or any other law for the time being in force; but no person shall be entitled to claim compensation more than once in respect of the same accident. (2) Nothing in sub-section (1) shall affect the right of any person to claim compensation payable under any contract or scheme providing for payment of compensation for death or personal injury or for damage to property or any sum payable under any policy of insurance.” 10. The deceased was on duty at the time of happening of the untoward incident, is not in controversy. The deceased was on duty at the time of happening of the untoward incident, is not in controversy. In normal circumstances and in the absence of payment of any ex gratia, it was not open for the appellant to claim immunity from payment of compensation, if a claim is lodged by the dependants. Section 124 specifically declares and imposes a liability on the appellant-Railways irrespective of whether the Act is wrongful or on account of the neglect or default on the part of the railway administration. The liability imposed in terms of Section 124 is, therefore, absolute. The explanation to Section 124 provides that the word “passenger” includes a railway servant on duty. On the findings of the Tribunal, therefore, the case of the deceased clearly falls within the parameters of Section 124 of the Act. Section 124-A of the Act provides the mode in which compensation can be claimed towards damages. Under the proviso to the said section, death or injury on account of the specified category is excluded. On the facts of this case, however, none of the exclusions are applicable. 11. Section 128 of the Act comprises of two parts. The first part declares that the right to claim compensation either under Section 124 or 124-A shall not effect right to claim compensation under any other Act. However, the claimant shall be entitled to compensation only once in respect of same accident. The above provision, therefore, means that in a given case if a claim is preferred, under Section 124 and 124-A of the Act and if a claim is also preferred under the Workmen’s Compensation Act or any other beneficial legislation that by itself is not a bar. But the bar is only with respect to receiving more than one set of compensation for the same accident. On this aspect the judgment of this Court relied upon by the learned counsel for the appellant in the case of Preet Comforts (1 supra), is clearly applicable. Para 8 thereof extracted hereunder would clarify this position. However the said decision is not an authority for the proposition canvassed by the learned counsel for the appellant. “8. On this aspect the judgment of this Court relied upon by the learned counsel for the appellant in the case of Preet Comforts (1 supra), is clearly applicable. Para 8 thereof extracted hereunder would clarify this position. However the said decision is not an authority for the proposition canvassed by the learned counsel for the appellant. “8. A plain reading of sub-sections (1) and (2) of Section 128 of the Act would make it clear that a person can claim compensation either under Section 124 or under Section 124-A of the Railways Act or under the Workmen’s Compensation Act, 1923 or any other law for the time being in force, but no person shall be entitled to claim compensation more than once in respect of the same accident. Admittedly, in this case, the accident is only one. But, the claims were made before the Railway Claims Tribunal at Secunderabad as well as before the Authority under the Workmen’s Compensation Act, 1923, one after the other. Even a reading of Section 167 of the Motor Vehicles Act would indicate that when a claim arises under the said Act and under the Workmen’s Compensation Act, the person entitled to claim compensation may claim compensation only under either of these Acts and not under both the Acts. Similar analogy has to be adopted in this case also.” 12. In Rathi Menon v. Union of India ( (2001) 3 SCC 714 ) the Supreme Court considered and interpreted Section 124 and 124-A of the Act as well as sub-clause (1) of Section 128. “25. In this context we may look at Section 128 (1) also. It says that the right of any person to claim compensation before the Claims Tribunal as indicated in Section 124 or 124-A shall not affect the right of any such person to recover compensation payable under any other law for the time being in force. But there is an interdict that no person shall be entitled to claim compensation for more than once in respect of the same accident. This means that the party has two alternatives, one is to avail himself of his civil remedy to claim compensation based on common law or any other statutory provision, and the other is to apply before the Claims Tribunal under Section 124 or 124-A of the Act. This means that the party has two alternatives, one is to avail himself of his civil remedy to claim compensation based on common law or any other statutory provision, and the other is to apply before the Claims Tribunal under Section 124 or 124-A of the Act. As he cannot avail himself of both the remedies he has to choose one between the two. The provisions in Chapter XIII of the Act are intended to provide a speedier remedy to the victims of accidents and untoward incidents. If he were to choose the latter that does not mean that he should be prepared to get a lesser amount. He is given the assurance by the legislature that the Central Government is saddled with the task of prescribing fair and just compensation in the Rules from time to time. The provisions are not intended to give a gain to the Railway Administration but they are meant to afford just and reasonable compensation to the victims as a speedier measure. If a person files a suit the amount of compensation will depend upon what the court considers just and reasonable on the date of determination. Hence when he goes before the Claims Tribunal claiming compensation the determination of the amount should be as on the date of such determination.” 13. In order to answer the question, posed in the case on hand, sub-clause (2) of Section 128 is very crucial. As would be noticed from the extract above, a claim under Section 124 or 124-A of the Act does not effect right of a person to claim compensation under any contract or scheme or under policy of insurance. The aforesaid sub-clause (2), therefore, specifically clarifies that the bar under sub-clause (1) of Section 128 is not applicable where the claim for compensation is made without effecting the contingencies under sub-clause (2) . Thus, any claim or payment received referable to sub-clause (2) of Section 128 does not affect the bar under sub-clause (1) of Section 128. Payment of ex gratia to the victim is not a right of the dependants as it is a voluntary payment made by the Railways. Such payment, therefore, is referable to as welfare scheme under the Railways provided for minimum compensation. Payment of ex gratia to the victim is not a right of the dependants as it is a voluntary payment made by the Railways. Such payment, therefore, is referable to as welfare scheme under the Railways provided for minimum compensation. Sub-clause (2), therefore, clearly excludes payments received under any contract or scheme and neither the bar under sub-clause (1) of Section 128 applies nor payment of such amount has any effect on the claim for compensation made. The civil liability for the tortious act arising out of the untoward incident is, therefore, not obliterated merely because payment is made out of compassion as an ex gratia as such payment is merely a benevolence exhibited by the wrong doer. 14. There are several decisions of this Court as well as that of the Supreme Court under Motor Vehicles Act where the payment of various amounts such as Insurance, Provident Fund, Family Pension, ex gratia etc., received or receivable by the dependants are held not deductable from the statutory compensation payable under the Motor Vehicles Act. Reference may be made to State of Andhra Pradesh v. K.Pushpalatha ( 2007 ACJ 2038 ) and Bhanwri Bai v. Union of India ( 2009 ACJ 1319 ) . In the latter two decisions, which arise under Motor Vehicles Act, it was specifically considered and held that the ex gratia paid by the employer and payment of amounts like Provident Fund, Group Insurance Company or any amount of such nature cannot be deducted from the compensation granted by the Tribunal under Motor Vehicles Act. 15. The decision of the Madhya Pradesh High Court, referred to above, is based on the dictum of Lord Denning, M.R. in the matter of Cunnigham v. Harrison (1974 ACJ 218), where the payment of ex gratia was not taken into account while determining the compensation, was followed. The same principle was applied by this Court in an unreported judgment in C.M.A.No.1129 of 2008, dated 01.04.2011. It, therefore, follows that under the Railways Act, the voluntary payment of ex gratia cannot be equated to the right of person to make a claim as envisaged under sub-clause (1) of Section 128 of the Act and as such, it cannot be said that there is any bar for the claimants to claim compensation under the statutory remedy of Section 124 and 124-A of the Act. The Tribunal below, therefore, has rightly rejected the said contention. I, therefore, do not find any reason to interfere with the judgment impugned. 16. The Civil Miscellaneous Appeal is, accordingly, dismissed. The miscellaneous applications, if any, stand dismissed. There shall be no order as to costs.