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2015 DIGILAW 639 (AP)

Union of India v. Koyya Malli Naidu

2015-08-21

T.SUNIL CHOWDARY

body2015
JUDGMENT : T. Sunil Chowdary, J. 1. This appeal is preferred under Section 23 of the Railways Act, 1989 (for short, the Act), challenging the order dated 30.6.2014 passed by the Railway Claims Tribunal, Secunderabad Bench, in OAA No. 376 of 2008 wherein and whereby the Tribunal allowed the claim petition in toto by awarding an amount of Rs. 4.00 lakhs as compensation to the applicants. The parties to this appeal will hereinafter be referred to as they are arrayed before the Tribunal, for the sake of convenience. 2. The factual matrix that led to the filing of the present appeal is as follows: On 1.6.2007, one Koyya Jagan Adi Murali Krishna boarded Train No. 2604 Chennai-Howrah Mail, after purchasing ticket bearing No. 34898770 at Vijayawada, to go to Visakhapatnam. When the train reached near Juwalamma Temple, RRI Cabin, near K.M. 771/04 in between Duvvada-Visakhapatnam, K.J.A. Murali Krishna (hereinafter referred to as, the deceased) fell down from the train due to sudden jerk and died on the spot. Post-mortem was conducted over the dead body of the deceased on 2.6.2007 at K.G. Hospital, Visakhapatnam. The applicants are the parents of the deceased. Hence, the petition claiming compensation of Rs. 4,00,000/-. 3. The respondent filed written statement denying all the averments made in the petition, inter alia, contending that the Guard and the driver, who were on duty on 1.6.2007 in Chennai-Howrah Mail categorically stated that nobody brought to their notice about the happening of the alleged untoward incident at any stage in between Vijayawada and Visakhapatnam. On 1.6.2007, Sri B. Adinarayana, Gangman under S.E. (P. Way)/Waltair, while performing duty as keyman, noticed one dead body lying by the side of the track at K.M. 771/4 around 15.00 hours and immediately he informed the same to on-duty SS/Gopalapuram RRI-Cabin, who in turn informed to GRP/Visakhapatnam. The GRP/Visakhapatnam registered a case in Crime No. 131, under Section 174 Cr.P.C. During the enquiry, statement of the eye-witness by name I. Lokeswara Rao was not properly recorded. The Railway Administration has also initiated enquiry to ascertain the details of the alleged incident by deputing the Railway Protection Force, Visakhapatnam and the report submitted by them is to the effect that the deceased person might have traveled by standing on the foot board or near the door. The Railway Administration has also initiated enquiry to ascertain the details of the alleged incident by deputing the Railway Protection Force, Visakhapatnam and the report submitted by them is to the effect that the deceased person might have traveled by standing on the foot board or near the door. While the train was on full running motion, the deceased tried to get down from the train, he slipped, fell down from the train and died on the spot. The act of the deceased will attract the penal provision of Section 156 of the Act. The applicants have to prove the incident as untoward incident under the provisions of Section 123(c) of the Act. Hence the petition may be dismissed. 4. Basing on the above pleadings, the Tribunal framed the following issues: 1. Whether the application is maintainable? 2. Whether the applicants are dependants of the deceased? 3. Whether the deceased was a bona fide passenger of train in question while traveling from Vijayawada to Visakhapatnam? 4. Whether the deceased died as a result of an untoward incident of accidental fall from the said train? 5. Whether the applicants are entitled to the compensation as claimed by them in the application? 6. To what relief? 5. During the course of trial, on behalf of the applicants, AWs. 1 and 2 were examined and Exs. A1 to A8 were marked. On behalf of the respondent, no oral or documentary evidence was let in. 6. On appraising the oral, documentary evidence and other material available on record, the Tribunal arrived at a conclusion that the deceased died of untoward incident and awarded compensation of Rs. 4,00,000/- as claimed. Feeling aggrieved by the order of the Tribunal, the respondent preferred the present appeal. 7. 6. On appraising the oral, documentary evidence and other material available on record, the Tribunal arrived at a conclusion that the deceased died of untoward incident and awarded compensation of Rs. 4,00,000/- as claimed. Feeling aggrieved by the order of the Tribunal, the respondent preferred the present appeal. 7. The contention of learned Counsel for the respondent (appellant) is fourfold: (1) the applicants taking advantage of lying of the dead body of the deceased by the side of the railway track, filed claim petition for unlawful gain, which aspect was not considered by the Tribunal; (2) the Tribunal ought to have dismissed the claim petition at the threshold as the deceased was not bona fide passenger; (3) the Tribunal failed to consider that the deceased fell down from the train when the train was on full running, due to his negligence, which act of the deceased attracts Provisos (b) to Section 124-A of the Act; (4) the Tribunal failed to consider that the deceased fell down from the train while standing on the foot board of the compartment, thereby the deceased committed an offence punishable under Section 156 of the Act. Per contra, the learned Counsel for the applicants submitted that the deceased died of untoward incident and that aspect was considered by the Tribunal in right perspective basing on the oral and documentary evidence available on record. He further submitted that the Provisos (b) and (c) to Section 124-A of the Act have no application to the facts of the case on hand, as rightly observed by the Tribunal. 8. In view of the rival contentions, the points that arise for consideration in this appeal are: (1) Whether the deceased was a bona fide passenger or not? (2) Whether the deceased died of untoward incident or not? (3) Whether the deceased fallen down from the train due to self-inflicted injury or his own criminal act? Point No. 1: 9. To substantiate the case of the applicants, the first applicant examined himself as AW 1 and got marked Exs. A1 to A6. Exs. A7 and A8 were marked through AW 2, the then SI, GRP, Visakhapatnam. To demolish the case of the applicants, no oral or documentary evidence was let in by the respondent. 10. Point No. 1: 9. To substantiate the case of the applicants, the first applicant examined himself as AW 1 and got marked Exs. A1 to A6. Exs. A7 and A8 were marked through AW 2, the then SI, GRP, Visakhapatnam. To demolish the case of the applicants, no oral or documentary evidence was let in by the respondent. 10. To substantiate the contention that the deceased was not a bona fide passenger, learned Counsel for the respondent has drawn my attention to the decision in Jetty Naga Lakshmi Parvathi v. Union of India, 2012 (1) ALD 331 . As per the principle enunciated therein, initial burden lies on the claimants to prove that the deceased was bona fide passenger and died of untoward incident. 11. According to Section 2(29) of the Act, "passenger" means a person traveling with a valid pass or ticket. Clause (ii) of Explanation to Section 124-A of the Act defines the "passenger" as 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. A combined reading of Section 2(29) and Clause (ii) of Explanation to Section 124-A of the Act clearly demonstrates that a person who purchased a valid ticket alone is a passenger. Let me consider whether the deceased is a bona fide passenger or not. The oral testimony of AWs. 1 and 2 coupled with Exs. A1 and A2 clearly reveals that the dead body of the deceased was found lying near Juwalamma Temple, RRI Cabin, in between Duvvada-Visakhapatnam on the early hours of 1.6.2007. In Ex. A2 (inquest report) it is clearly mentioned that the Investigating Officer had seized Ex. A8 (original journey ticket) near the dead body of the deceased. A perusal of Ex. A8 clearly reveals that the deceased purchased Ex. A8 ticket at Vijayawada Railway Station on 1.6.2007 at 07.13 hours to travel from Vijayawada to Visakhapatnam. The factum of deceased traveling with valid ticket is corroborated by the oral testimony of AW 2, the then SI, GRP, Visakhapatnam, who appeared before the Tribunal on receipt of summons and produced Ex. A7 (case diary) and Ex. A8 (original journey ticket). If Ex. A8 ticket was produced by AW 1 during the trial, for the first time, then there may be some justification to doubt the genuineness of Ex. A7 (case diary) and Ex. A8 (original journey ticket). If Ex. A8 ticket was produced by AW 1 during the trial, for the first time, then there may be some justification to doubt the genuineness of Ex. A8 ticket. By any stretch of imagination, it cannot be presumed that the applicants might have kept Ex. A8 ticket by the side of the deceased on the early hours of 1.6.2007 with an ulterior motive of claiming compensation from the respondent taking advantage of unfortunate death of the deceased. The oral testimony of AW 2 clinchingly establishes that the ticket was seized by the Investigating Officer on 1.6.2007 and the same was produced by him at the time of trial. The oral testimony of AWs. 1 and 2 coupled with Exs. A1, A2, A7 and A8 clearly establishes that the deceased purchased the ticket at Vijayawada to go to Visakhapatnam and there is no rebuttal evidence to the contra. The applicants have satisfied the ingredients of Section 2(29) of the Act and Clause (ii) of Explanation to Section 124-A of the Act. Having regard to the facts and circumstances of the case, I am unable to accede to the contention of the learned Counsel for the respondent that it is a fit case to draw an adverse inference against the applicants by pressing into service Section 114(g) of the Indian Evidence Act, in view of non-examination of I. Lokeswara Rao. 12. In the light of the foregoing discussion, I am of the considered view that the deceased was a bona fide passenger. Accordingly, the point is answered against the respondent and in favour of the applicants. Point Nos. 2 and 3: 13. The Point Nos. 2 and 3 are interlinked with each other; hence I am inclined to address both these points simultaneously in order to avoid recapitulation of facts and evidence. 14. The crucial question that arises for consideration is whether the death of the deceased falls within the definition of "untoward incident" which entitles the applicants to claim compensation under Section 124-A of the Act or whether the facts of the case on hand would attract any of the provisos to Section 124-A of the Act so as to exonerate the liability of the respondent. 15. Before adverting to the findings of the Tribunal, it is apposite to refer relevant provisions of the Act. 15. Before adverting to the findings of the Tribunal, it is apposite to refer relevant provisions of the Act. Chapter-XIII of the Act (Sections 123 to 129) deals with liability of Railway Administration for death or injury to passengers due to accidents. Sections 124and 124-A of the Act deal with the right of the applicants to claim compensation. Clauses (a) to (e) of Proviso to Section 124-A of the Act exonerate the liability of Railway Administration under certain circumstances. 123. Definitions.--In this chapter, unless the context otherwise requires,-- (a) xxxx (b) xxxx (c) "untoward incident" means-- (1) (i) the commission of a terrorist act within the meaning of sub-section (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. 124-A. Compensation on account of untoward incidents.--When in the course of working a railway 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 any thing 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. A conjoint reading of the above two provisions cast liability on the Railway Administration to pay compensation in case of death or injury to passengers. In order to claim compensation under this chapter, the applicants herein have to establish that the cause of death of the deceased would not fall within Clause (b) or (c) of Proviso to Section 124-A of the Act. Various provisions enumerated under Chapter-XIII of the Act are a piece of social beneficial legislation. The very object of this chapter is to provide speedy and inexpensive justice to the victims of the railway accidents. It is a cardinal principle of law that while interpreting the provisions of beneficial legislation, the Court has to keep in mind the objects with which the Act was enacted. It does not mean that the Court or the Tribunal can ignore the basic principles of law. The learned Counsel for the applicants has drawn my attention to the decision of Hon'ble apex Court in Union of India v. Prabhakaran Vijaya Kumar, (2009) ACC 270 (SC), wherein it was held as follows: It is well settled that if the words used in a beneficial or welfare statute are capable of two constructions, the one which is more in consonance with the object of the Act and for the benefit of the person for whom the Act was made should be preferred. Let me consider the facts of the case on hand in the light of the above legal principle. 16. The first and foremost contention of the learned Counsel for the respondent is that the deceased committed an offence punishable under Section 156 of the Act; therefore, the petition is liable to be dismissed in limine. 156. Let me consider the facts of the case on hand in the light of the above legal principle. 16. The first and foremost contention of the learned Counsel for the respondent is that the deceased committed an offence punishable under Section 156 of the Act; therefore, the petition is liable to be dismissed in limine. 156. Traveling on roof, step or engine of a train.--If any passenger or any other person, after being warned by a railway servant to desist, persists in traveling on the roof, step or foot-board of any carriage or on an engine, or in any other part of a train not intended for the use of passengers, he shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both and may be removed from the railway by any railway servant. A perusal of the above section, at a glance, clearly reveals that a passenger, though having valid ticket, sustains injury or died while traveling on the roof, steps or engine of a train, despite the warning given by railway servant, such act of the passenger shall be punishable under Section 156 of the Act. It appears that Section 156 of the Act was incorporated to safeguard the interest of the passengers, who are ignorant or determined to violate the safety rules. Mere violation of Section 156 of the Act, ipso facto, debars the injured or legal representatives of the deceased passenger to claim compensation under Section 124-A of the Act. 17. The respondent has not examined any official of the train at that point of time, or even a co-passenger, to establish that despite warning given by the Railway officials, the deceased traveled on the roof, steps or engine of the train at the relevant point of time. The burden of proof lies on the prosecution to establish the guilt of the accused for the offence alleged to have been committed by him. Even assuming, but not conceding, that by the time of the unfortunate incident, the deceased was traveling on the steps of the compartment; whether that itself is a valid ground to exonerate the liability of the respondent, is to be considered. Even assuming, but not conceding, that by the time of the unfortunate incident, the deceased was traveling on the steps of the compartment; whether that itself is a valid ground to exonerate the liability of the respondent, is to be considered. While dealing with similar set of facts, a Division Bench of this Court in Union of India v. Uggina Srinivasa Rao, 2001 (3) ALD 247 (DB) : AIR 2001 AP 360 : 2001 (3) ALT 429 (DB) observed. "It has to be held that the accidental fall from any part of the compartment is covered by untoward incident. If there is a fall from the steps leading to the compartment, it is a fall from the train. The steps of the compartment cannot be disassociated from the compartment. They are integral part of the compartment." No rebuttal evidence was let in by the respondent to demolish the stand of the applicants that the deceased died of untoward incident. Absolutely there is no material on record to establish that the death of the deceased would fall within Proviso (c) to Section 124-A of the Act. In the above factual scenario, it is not possible to arrive at a conclusion that the deceased committed the offence punishable under Section 156 of the Act. Viewed from any angle, I am unable to accede to the contention of the learned Counsel for the respondent that the deceased committed the offence punishable under Section 156 of the Act. 18. As per the principle enunciated in Uggina Srinivasa Rao's case (supra), as well as the decisions in General Manager, South Central Railway v. K. Narayana Rao, 2004 (4) ALD 351 (DB) : 2004 (4) ALT 464 (D.B.) and Union of India, Secunderabad v. B. Koddekar, 2002 (4) ALD 843 (DB) : 2002 (4) ALT 310 (D.B.), if a passenger dies while boarding the train or accidentally falling from the train, it is an "untoward incident". In view of the principle enunciated in the cases cited supra, mere traveling on the steps of the compartment, by itself is not a valid ground to exonerate the liability of the respondent. 19. In view of the principle enunciated in the cases cited supra, mere traveling on the steps of the compartment, by itself is not a valid ground to exonerate the liability of the respondent. 19. Another Division Bench of this Court by order dated 22.10.2002 in CMA No. 2273 of 2003 and batch, expressing dissent with the view of the earlier Division Bench decisions in Uggina Srinivasa Rao's case (supra) and B. Koddekar's case (supra), referred the appeals filed by the Railways to the Full Bench. The Full Bench of this Court in Union of India, SCR, Secunderabad v. K. Balakrishnaiah, 2004 (1) ALD 449 (FB) : 2004 (1) ALT 100 (F.B.), formulated the question as follows: 2. Whether a passenger trying to board or alight from a running train or standing near the door, jumped from the compartment, crossing the Railway track or leaning out of the carriage; and during the course of such circumstance had fallen down and was either injured or had died, was entitled to compensation from the Railways under Section 124-A of the Railways Act, 1989, (the Act) is the question that in substance arises for consideration in this reference. Incidentally whether wrongful, careless, imprudent or negligent conduct of a person in any of the places within the precincts of a Railway Station (as enumerated and defined in Section 123(c) of the Act) would entitle him to compensation, also falls for consideration. The Full Bench clarified the decisions in Uggina Srinivasa Rao's case (supra) and B. Koddekar's case (supra), by adding the following principles by majority: (1) Where a bona fide passenger dies in an untoward incident or sustains injuries, as the case may be, Railways to pay compensation without dispute, unless the death of the deceased, or the injuries sustained by the injured, would fall within the Exceptions (a) to (e) of proviso to Section 124-A of the Act. (2) Accidental falling would include a passenger trying to alight a train, board a train, or any other like action, and hence they would be covered by untoward incident as specified in Section 123(c) of the Act. (2) Accidental falling would include a passenger trying to alight a train, board a train, or any other like action, and hence they would be covered by untoward incident as specified in Section 123(c) of the Act. (3) Where a penal provision in a Statute or Rules under Tariff would fall or attract any of the exceptions under Section 124-Aproviso, may have to be decided in each and every case and general propositions cannot be laid down in this regard in view of the complexity and diversity of the illustrations and the provisions or the Rules. The Full Bench further held as follows (from ALD): 72. On the above analysis we hold that the expression self-inflicted injury in Clause (b) of the proviso to Section 124-A of the Act denotes and includes an injury suffered as a direct, proximal and reasonably expected consequence of a victim's wrongful act, default, negligence or the absence of requisite degree of care and prudence on his part. 80. On the analysis above we conclude that the expression "untoward incident" in Section 124-A of the Act, which has been defined inter alia, to mean the accidental falling of any passenger from a train carrying passengers (in sub-clause (2) of clause (c) of Section 123 of the Act) does not comprehend injury or death occasioned by his negligence, carelessness, wrongful act or prohibited conduct, disregard of the requisite standard of care obligated by a person traveling on a train or any such conduct of a passenger which might reasonably be expected to result in his injury or death, as a resultant injury or death would, in such circumstances, be the consequence of a self-inflicted injury. As per the principle enunciated in the case cited supra, the negligent act of the injured/deceased-passenger falls outside the purview of untoward incident. 20. Let me consider whether the death of the deceased is consequence of self-inflicted injury or not. The term "self-inflicted injuries" defined in P. Ramanatha Aiyar's The Law Lexicon, 2nd Edition Reprint 2010, Page 1742, as follows: "Self-inflicted injuries", as used in an accident policy providing that the insurer shall not be liable to the insured for self-inflicted injuries means injuries which are self-inflicted by the insured when he is capable of rational voluntary action, and not when he insane." Self-inflicted injury pre-supposes some mental element. If the deceased-railway passenger on his volition inflicted an injury of such nature, which in all probability results in his death, and thereby his legal representatives will be financially benefited by claiming compensation from Railway Administration, certainly it is a self-inflicted injury. It is needless to say that the devil does not know the human mind. It is very difficult to secure direct evidence to establish the mental element of an individual while doing a particular act. Normally, the Courts will take into consideration the facts pleaded and proved with reference to the attending circumstances so as to ascertain the mental element of an individual. This exercise shall be done in consonance with sound principles of law. A fraction of deviation from sound principles of law sometimes leads to miscarriage of justice. As per the principles laid down in K. Balakrishnaiah a negligent act or lack of proper care or caution on the part of the deceased while traveling in the train will certainly fall (sic) the purview of untoward influent. The respondent has taken a plea in the counter that. "The Railway Administration has also initiated enquiry to ascertain the details of the alleged incident by deputing the Railway Protection Force, Visakhapatnam and the report submitted by them is to the effect that the deceased person might have traveled on the foot board or standing near the door, while the train was on full running motion". It is not specifically pleaded that the deceased fell down from the train due to his own negligence or due to non-taking of reasonable care as an ordinary prudent man. 21. The burden of proof will always on the person who pleads a particular fact and desires the Court to adjudicate the same. By examining AWs. 1 and 2, the applicants have established that the deceased fell down from the train, which act of the deceased comes within the fold of untoward incident. Once the applicants discharge the burden of proof cast on them, the onus of proof shifts on the respondent to establish the stand taken by it. In the instant case, the onus of proof is on the respondent to establish that the negligent act, if any, on the part of the deceased falls within Proviso (b) or (c) to Section 124-A of the Act, so as to exonerate its liability. In the instant case, the onus of proof is on the respondent to establish that the negligent act, if any, on the part of the deceased falls within Proviso (b) or (c) to Section 124-A of the Act, so as to exonerate its liability. Suffice it to say, a person who wants to take shelter under the proviso or exception has to establish the same. 22. In the written statement the respondent has taken stand that in order to ascertain the negligence, if any, on the part of the deceased, the Railway Administration has conducted enquiry. In exercise of the powers conferred by Section 129 of the Act, Railway Passengers (Manner of Investigation of Untoward Incidents) Rules, 2003 (for short, the Rules) were framed to safeguard the interest of Railway Administration. The Rules postulate the procedure to be followed in the event of happening of an untoward incident. The Rules cast duty on the concerned Railway servant, guard or driver of the train, to report the untoward incident to the nearest Station Superintendent, on coming to know it. The concerned Station Superintendent shall make necessary enquiry, if necessary with the aid of Railway Police, and send the report to the Divisional Railway Office of Zonal Railways, who in turn may accept the report or may direct the concerned to enquire further. It is not out of place to extract hereunder Rule 13 of the Rules: 13. Sending report to Claim Office.--(1) The investigation report along with acceptance of Divisional Railway Manager thereon shall be sent within fifteen days to the administrative in-charge of the Claim Office of the Zonal Railway where the incident has occurred. (2) The administrative in-charge of Claim Office of the Zonal Railway who has received the notice of claim for that particular incident shall arrange to collect the report from the Claim Office of Railway where the incident has occurred and submit the same to the concerned Bench of the Railway Claims Tribunal along with the Written Statement. Rule 13 mandates that the final order passed by the Divisional Railway Manager shall be submitted to the concerned Railway Claims Tribunal alongwith written statement. A perusal of the Rules clearly reveals that the concerned Railway official has to conduct enquiry and submit the report to the Railway Claims Tribunal in order to protect the interest of the Railway Administration. Rule 13 mandates that the final order passed by the Divisional Railway Manager shall be submitted to the concerned Railway Claims Tribunal alongwith written statement. A perusal of the Rules clearly reveals that the concerned Railway official has to conduct enquiry and submit the report to the Railway Claims Tribunal in order to protect the interest of the Railway Administration. As observed earlier, the Railway Administration has initiated enquiry. If really, the report accepted by the Divisional Railway Manager discloses negligence, wrongful act or lack of proper care or precaution on the part of the deceased, what prevented them to place the same before the Railway Claims Tribunal. If the report discloses that the act of the deceased falls within the Proviso (b) or (c) of Section 124-A of the Act, it is not known why the respondent has not filed that report along with written statement so as to exonerate it from the liability. No explanation is forthcoming from the respondent for not submitting final report before the Railway Claims Tribunal. 23. It is not the case of the respondent that they have sent report to the applicants. There is no chance for the applicants to access the final report. The final report shall be exclusively within the custody of the Railway Administration. For the reasons best known, the respondent has not placed the report before the Tribunal. In State (Inspector of Police) v. Surya Sankaram Karri, 2006 (2) ALD (Crl.) 564 (SC) : (2006) 7 SCC 172 , at Page 178, the Hon'ble apex Court while dealing with drawing of adverse inference, observed as follows: 18. It is now well settled that when a document being in possession of a public functionary, who is under a statutory obligation to produce the same before the Court of law, fails and/or neglects to produce the same, an adverse inference may be drawn against him. The learned Special Judge in the aforementioned situation was enjoined with a duty to draw an adverse inference. He did not consider the question from the point of view of statutory requirements, but took into consideration factors, which were not germane. 24. The learned Special Judge in the aforementioned situation was enjoined with a duty to draw an adverse inference. He did not consider the question from the point of view of statutory requirements, but took into consideration factors, which were not germane. 24. Having regard to the facts and circumstances of the case and also the principle enunciated in the case cited supra, I am of the considered view that this is a fit case to draw adverse inference against the Railway Administration for not submitting the final report before the Tribunal. Viewed from this angle also, the stand taken by the respondent has no legs to stand. 25. While dealing with similar set of facts, this Court in Union of India v. S. Yadagiri, 2004 (5) ALD 361 : 2006 ACJ 2589, held as follows: However, the question as to whether there was any negligence or absence of prudence on the part of the deceased is always a matter of evidence and the burden to prove this fact rests with the Railways. 26. The Hon'ble apex Court in Jameela v. Union of India, 2011 (4) ALD 3 (SC) : AIR 2010 SC 3705 , while observing that the authority shall be liable to pay compensation unless negligence on the part of the deceased is proved beyond reasonable doubt, held as follows: The manner in which the accident is sought to be reconstructed by the railway, the deceased was standing at the open door of the train compartment from where he fell down, is called by the railway itself as negligence. Now negligence of this kind which is not very uncommon on Indian trains is not the same thing as a criminal act mentioned in Clause (c) to the proviso to Section 124-A. A criminal act envisaged under clause (c) must have an element of malicious intent or mens rea. Standing at the open doors of the compartment of a running train may be a negligent act, even a rash act but, without anything else, it is certainly not a criminal act. Thus, the case of the railway must fail even after assuming everything in its favour. Standing at the open doors of the compartment of a running train may be a negligent act, even a rash act but, without anything else, it is certainly not a criminal act. Thus, the case of the railway must fail even after assuming everything in its favour. Having regard to the facts and circumstances of the case and also the principles enunciated in the cases cited supra, I am of the considered view that the respondent failed to establish the negligent act or lack of prudence on the part of the deceased so as to exonerate its liability by taking aid of Clause (b) or (c) of Proviso to Section 124-A of the Act. 27. For the foregoing reasons, it is to be held that the death of the deceased was due to untoward incident, but not due to his own criminal act or self-negligence, and that the respondent is liable to pay compensation to the applicants. The Tribunal has assigned cogent and valid reasons to its findings. There are no grounds much less valid grounds to interfere with the well considered order of the Tribunal. Accordingly, Point Nos. 2 and 3 are answered. In the result, the appeal is dismissed. There shall be no order as to costs. Miscellaneous petitions, if any, pending in this appeal shall stand closed.