S. Ananda Reddy, J.@mdashThis is an appeal filed by the applicant against the award passed by the Railway Claims Tribunal, Secunderabad
Bench, Secunderabad in O.A.A. No. 8 of 1997, dated 16.10.1997 dismissing the claim.
2. As per the averments of the application, on 9.10.1996 while the deceased Dasari Nageswara Rao was trying to board Secunderabad-Palasa
Visakha Express'' at Yelamanchili Railway Station, he slipped and fell down from the train accidentally and sustained injuries. Subsequently, he
died in the Government Hospital, Vishakhapatnam. The applicant being the wife, who is a dependent of the deceased, made a claim for
compensation of Rs. 2,00,000/- in respect of the death of her husband.
3. No written statement was filed by the respondent Railway authorities. Thereafter, Tribunal framed the issue whether the deceased was a bona
fide passenger or not and thereafter recorded the evidence of both sides and decided the issue holding that the deceased was not a bona fide
passenger as there is no evidence showing that he had purchased the ticket and, therefore, dismissed the application of the claimant. Aggrieved by
that, the applicant has come up in the present appeal.
4. The learned Counsel for the appellant contended that the Tribunal erred jn rejecting the claim of applicant. It is contended that the deceased was
carrying on business in the sale of cigars at Visakhapatnam. On the date of accident, he along with two others, who were carrying similar business,
was proceeding to Vishakhapatnam by ''Visakha Express'' and the evidence of the co-passenger (co-seller) clearly shows that the deceased
purchased the ticket by borrowing Rs. 20/- from the co-seller, as at the booking-counter, it was informed that there is no change for Rs. 100/-
note which was offered for the purchase of the ticket and hence the deceased had borrowed Rs. 20/- from RW. 2 and purchased the ticket, which
was clearly deposed by RVV. 2. In the light of the said evidence and in the absence of any other contra evidence, the Tribunal was not justified in
rejecting the claim of the appellant/claimant. Learned Counsel also contended that the provisions which are intended to award compensation to the
dependents of the deceased m an accident where it causes death of a passenger, the burden cannot be imposed on the dependents to prove that
the deceased passenger was a bona fide passenger. The learned Counsel also contended that the burden should be on the Railways to prove that
the deceased was not a bona fide passenger in order to deny its liability to pay the compensation as provided under the provisions of the Railways
Act. Learned Counsel also relied upon a decision of the Madhya Pradesh High Court in the case of Raj Kumari and Another Vs. Union of India
(UOI), , where it was held that the burden to prove that the deceased was not a bona fide passenger is on the Railways. The learned Counsel also
relied upon a decision of the Rajasthan High Court in the case of Union of India v. Soram Bai 1998 (2) AJR 254, where a similar view was taken
by Gullipalli Lakshmikanthamma Vs. General Manager, South Central Railway, The learned Counsel, therefore, contended that the view taken by
the Tribunal is contrary to the above decisions, apart from the evidence on record and, therefore, sought for setting aside the impugned order.
5. The learned Standing Counsel for the respondent Railways on the other hand, supported the order of the Tribunal. The learned Counsel
contended that it is for the claimant to prove that the deceased was a bona fide passenger in which case alone the claimant is entitled for
compensation. The learned Counsel contended that there is a dispute both as to the accident as well as to the fact that the deceased was travelling
with a valid ticket. Basing on the evidence adduced by both sides the Tribunal came to the conclusion that the deceased was not a bona fide
passenger and, therefore, the claim was rightly rejected. The learned Counsel also relied upon two decisions of the Allahabad High Court in the
case of Sundari v. Union of India 1984 ACJ 614 and. Sudha Srivastava v. Claims Commissioner, Northern Railway 1985 ACJ 404 (Allahabad).
The learned Counsel, therefore, sought for dismissal of the appeal.
6. Heard both sides and considered the material on record.
7. The dispute in this appeal is whether the claimant-appellant is entitled for any compensation under the provisions of the Railways Act, 1989.
8. Though it was disputed even as to the factum of accident, but the Tribunal on consideration of the material on record gave a finding that there is
no controversy as to the untoward incident (accident) that had occurred on 9.10.1996 in which the deceased had received injuries and
subsequently died in the hospital on 10.10.1996. Therefore, it is to be considered whether the deceased was a passenger as referred to in Clause
(2) to the Explanation u/s 124-A, which reads as under:
Compensation on account of untoward incidents.-
(i) xxx xxx xxx
(ii) a person who has purchased a valid ticket for travelling, by a train carrying passengers, on any date or a valid platform ticket and becomes a
victim of an untoward incident.
9. In order to decide the above, it is to be considered on whom the burden lies. Is it on the claimant or on the respondent authorities, who wants to
deny the liability? In order to prove that the burden lies on the Railways, the appellant relied upon the judgment of the Madhya Pradesh High Court
in the case of Raj Kuninri v. Union of India (supra). In that case, a Division Bench of the Madhya Pradesh High Court had an occasion to consider
similar issue with reference to a claim u/s 82-A of the old Act, which corresponds to Section 124. Of course Section 124-A was inserted for the
first time in the year 1994 under which the compensation payable on account of untoward incident was specifically incorporated. Similarly, u/s
123, the term ''untoward incident'' was also defined so as to include even the accidental falling of any passenger under a train carrying passengers.
The Division Bench after considering the rival contentions and also referring to some of the relevant provisions of the Railways Act, which
specifically prohibits travelling without pass or ticket, which would in fact result in imposition of punishment of imprisonment or fine and concluded
that the burden is on the Railways to prove that the deceased was not a bona fide passenger. The relevant portion of the judgment reads as under:
The main question that arises in this case is on whom the onus of proof lies in such claim cases and whether any presumption under the Evidence
Act can be raised. Normally, under Sections 101 and 102 of the Evidence Act, the burden to prove such facts, on which the legal right or liability
depends, is on such person who asserts existence of these facts. But the question before us is whether the burden of proof that the deceased held a
valid ticket, pass or permission during his journey, in which he died in accident, can be placed on his dependents. Obviously, such burden of proof
is impossible to be discharged by the dependents, who can have no means of knowledge, whether the deceased, before boarding the train, had
purchased a valid ticket, pass or permission from the railway authorities. It is likely that such a deceased passenger held a valid ticket, pass or
permission, but the same is lost in the accident with the death of person and loss of his belongings, if any.
Thereafter, the Court referred to the provisions of Section 114 of the Evidence Act and held that when there is a prohibition to board the train and
travel without a ticket or pass, it should be presumed that the passengers travelling in the train are the passengers with ticket. Holding so, the
appeal was allowed granting compensation to which the claimants are entitled.
10. Similar view was taken by the Rajasthan High Court in the case of Soram Bai (supra). A learned Single Judge of this Court had also an
occasion to consider a similar issue in case of Gullipalli Likshmikanthamma (supra), where the claimant''s appeal was allowed holding as under:
After considering the same, I am of the opinion, that an inference can be drawn to the effect that the deceased is a bona fide passenger having
regard to the realities and realistic and pragmatic approach of the question involved. It cannot invariably be conceived or comprehended that,
always, ticket should be traced. One has to imagine the circumstances, that will prevail, at the relevant time and whether keeping of the ticket
should be given that much of importance at the crucial time, when the deceased was suffering from fatal injuries died, the ticket could have been
missing. So, from the material on record, it must be found that the deceased is a bona fide passenger.
11. On the other hand, learned Counsel for the respondent relied upon a decision of the Allahabad High Court in the case of Sundari v. Union of
India (supra), where a Full Bench of the Allahabad High Court had considered the expression ''passenger'' and held that it does not include
trespasser or person travelling without ticket, pass or authority and, therefore, the compensation is not payable for the death of such trespasser in a
train accident. The said decision does not deal with the burden on whom it lies to prove whether the deceased was a bona fide passenger or not.
Similarly, in the case of Sudha v. Claims Commissioner, Northern Railway (supra), a Division Bench of the Allahabad High Court had considered
the scope of Sections 82-A and 82-F of the Railways Act. Though in that case it was held that the burden of proof lies on the claimant, in fact the
dispute in that case was whether the deceased died in consequence of the train accident and the Court gave a finding that there was not reliable
evidence to show that the deceased purchased a ticket and boarded the train. In that case the finding was that there is no evidence as to the
travelling of the deceased in the train, which met with the accident. Therefore, it could not be an authority to support the contention of the
respondent authorities that the burden lies on the claimant to prove that the deceased was a passenger in terms of Explanation to Section 124-A of
the Act.
12. In the light of the above decisions, if we examine the evidence, which was considered by the Tribunal for recording a finding, on behalf of the
claimant, the claimant herself was examined as P.W. 1 and got examined P.W. 2, who is said to be an eye-witness to the accident as well as to the
purchase of the; ticket. In fact the evidence of P.W. 1 cannot be of much relevance as to the purchase of ticket as she was not present either at the
time of the purchase of ticket or at the time of the accident. P.W. 1 categorically stated that the deceased tendered Rs. 100/- note at the railway
booking counter and as the booking-clerk informed the deceased that he does not have the change; the deceased borrowed Rs. 20/- from P.W. 2
and purchased the ticket. In fact, hi the cross-examination of the said witness/not even a suggestion was made disputing his version that he had
advanced Rs. 20/- to the deceased for purchasing the ticket and the purchase of ticket by the deceased. On behalf of the railway authorities, no
counter or written statement was filed but examined R.W. 1 who is a Guard of the said train, Visakha Express, under which the deceased came
under and was ran over. His evidence is that there was no accident at all. He must have been examined to prove that there was no such accident at
all. But as the Tribunal gave a categorical finding as to the factum of accident, his evidence is not at all relevant for the present appeal. Coming to
the evidence of R.W 2, who was the Assistant Station Master at the relevant point of time, his evidence shows that he was informed by some
people that a man had fallen down accidentally from the train and was lying injured on the platform. According to this witness, he went to the spot
and came back to his office to make arrangement for sending the injured to the Government Hospital. His further version was a part of the crowd
told him that they had arranged a rickshaw and would undertake to carry the injured to the hospital and they only wanted a memo from R.W. 2
addressing the hospital authorities for forwarding the injured. According to this witness, the crowd told him that injured was having a season ticket
and when he wanted to see the said season ticket, the crowd had pressurised him to issue memo informing that the injured was having professed
bleeding. Therefore, this witness has issued a memo incorporating the said fact. In the cross-examination, however, his version was recorded as
He denies the suggestion that he mentioned about the season ticket on the ground of pressuring him to do so"". He has even deposed in the cross-
examination that he could not recollect any particular face in the crowd and cannot identify any one. The witness has also admitted that there was
no rowdy behaviour of the mob immediately after the accident.
13. The Tribunal based on the above version of R.W. 2, rejected the claim of the claimant on the ground that the claimant failed to prove that the
deceased was a passenger as defined in the Act. The conclusion arrived at by the Tribunal is not proper and just even going by the evidence. P.W.
2 categorically stated that he advanced Rs. 20/- to the deceased as he could not purchase ticket with his own money as he was having Rs. 100/-
note for which there was no change at the booking counter. When his version was not even doubted by giving any suggestions in the cross-
examination, there is absolutely no justification in not accepting his version. In fact, the evidence of R.W. 2 is in a way of shaky. He was not very
clear, who has pressurised him to note that the deceased was having a season ticket. According to his own version, when he was informed by the
mob, he went to the spot and came to his office for preparing a memo. Therefore, under the above circumstances, the Tribunal is not justified in
giving much importance to the evidence of R.W. 2 rather than the evidence of RW. 2. The Tribunal showed the reason for not accepting the
evidence of P.W. 2 that though he was along with the deceased when he was lying injured, he did not inform R.W. 2 that he had purchased a
ticket and he was not having a season ticket. R.W. 2 did not state that P.W. 2 was aware of the preparation of the memo and whether he was
present in the crowd, who pressurised him to issue the memo stating that the deceased was having the season ticket. In the light of the above
evidence as well as in the light of the decisions cited earlier, the conclusion arrived at by the Tribunal is not just and proper and accordingly the said
findings are liable to be set aside. Therefore, the impugned order is set aside and the claimant is, therefore, entitled for compensation as claimed in
accordance with Part-I of Schedule to the Railway Accidents (Compensation) Rules, 1990.
14. In the result, the appeal is allowed. No. costs.