HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA CIVIL MISCELLANEOUS APPEAL No. 262 OF 2006 DATED 1ST December, 2011 BETWEEN Union of India, rep. by the General Manager, South Central Railway, Secunderabad …….Appellant and Smt. Jogu Laxmi an dors …… Respondents HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA CIVIL MISCELLANEOUS APPEAL No. 262 of 2006 ORDER: This Civil Miscellaneous Appeal under Section 23 of the Railway Claims Tribunal Act was filed by the appellant-South Central Railway assailing the order dated 30.12.2005 passed by the Railway Claims Tribunal, Secunderabad Bench, at Secunderabad in AAO.No. 206 of 2002 whereby the claim application filed by the respondents/applicants seeking payment of compensation on account of death of their family member, Jogi Balraj in the alleged untoward incident of accidental fall from the train on 29.6.2002 was allowed awarding compensation. The respondents/applicants being mother, wife and daughter of the deceased filed a claim application under Section 16 of the Railway Claims Tribunal Act read with Sections 124-A and 125 of the Railways Act alleging that one Jogu Balraj while travelling in train No. 573 as a passenger on 29.6.2002 from Secunderabad to Kamareddy accidentally fell down at KM No. 566/11-12 between Brahmanpally and Masaipet Railway Stations under Pushpa bridge and suffered grievous injuries and died in the presence of railway Gateman, Pentaiah. The appellant-respondent opposed the said claim application disputing that there was no untoward incident as alleged by the respondents/applicants on that relevant date in the subject train; and that though it was stated that the railway gateman has watched the accident of falling the deceased from the subject train, but the FIR was issued based on the information given to the Station Master, Kamareddy from outsiders. They have also denied that the deceased was a bona fide passenger. The Tribunal after due consideration of the evidence on record, allowed the claim application of the respondents/applicants. In this appeal, it is contended by the learned Standing Counsel for the appellant-Railways that the deceased was not a bona fide passenger; and that the so called gateman who was said to have seen the fall of the deceased from the subject train was not examined by the respondents/applicants to prove their case; and that there was no identity of the deceased as the FIR, Inquest Report and Post- Mortem report do not disclose the name of the deceased and nothing has been put forward as to how the dead body of the deceased was identified. He further submitted that the alleged incident might be due to the gross negligence of the deceased if at all he had fallen from the train. On the other hand, the learned Counsel for the respondents/applicants submitted that the evidence on record would clinchingly establish that the deceased was a bona fide passenger and the dead body of the deceased was duly identified and the evidence on record would manifestly corroborate the same. He submitted that the order under appeal passed by the Tribunal is based on evidence and as such there are no grounds to interfere with the same. In support of his contentions, he relied on the judgment of the Rajasthan High Court in Union of India Vs. Harinarayana Gupta (AIR 2007 Rajasthan 38). As regards the issue as to whether the deceased was a bona fide passenger or not, the respondents/applicants have not placed any documentary evidence to prove the same. They have also not adduced any evidence to show that the deceased has purchased any ticket. However, the Inquest Report, Ex.A.2 reads that the dead body of the deceased fell 13 yards deep under the Pushpa bridge from the subject train. Further, such falling of the deceased from the subject train was witnessed by the Railway gateman, Pentaiah and the Inquest Report further reads that the deceased was last seen by the said Pentaiah. As such, in such serious accident of falling from such height under the bridge, there was every possibility of ticket being lost. This evidence would further establish that the deceased had travelled in the subject train. In similar circumstances, a learned Judge of Rajasthan High Court in the case of Union of India Vs. Hari Narayana Gupta, referred supra, held as under: “Section 101 of the Evidence Act places the burden of proof on the person, who desires any Court to give judgment as to any legal right or liability dependent on the existence of the facts, which he asserts. But in the case of the railway accident where a passenger has died, the claimants would find it extremely difficult, if not impossible, to prove certain facts, which are beyond their reach and control. Since the claimants may not know whether the deceased had purchased a valid ticket or not, they would not be in a position to prove the fact that the deceased was a bona fide passenger. However, since the Railway appoints ticket collector on its behalf to check the valid ticket of the passengers, the Railway has a mechanism for finding out and discovering whether the deceased was a bona fide passenger or not. Since the passenger is presumed to be innocent, a legal presumption can be drawn that he had followed the law and that he had, indeed, purchased a valid ticket prior to boarding the train. Considering the fact that there is an equal presumption in favour of the Railway that the railway officers would have discharged his duty of checking the ticket, in a bona fide manner, it can be presumed that the ticket collector would have examined whether the deceased possesses a valid ticket or not. Therefore, the Railway has a means through which they can easily prove that the deceased was not a bona fide passenger. However, the burden of prooflies on the Railway administration to lead evidence and to prove that the deceased was not a bona fide passenger. THERE is yet another aspect of the matter, prior to travelling, a passenger neither records, nor leaves any information with the family members about the valid ticket bought by him. During the course of travelling and specially after he meets with an accident, the body of the deceased is transported and is transferred on various occasions. During the period of alleged accident and the discovery of the body, many things may transpire and the ticket may be lost but unknown to others. Therefore, in case, the ticket is lost, it would be almost impossible for the claimants, who are the members of the bereaved family, to establish that the deceased was travelling with a valid ticket. Considering the fact that Section 124 and section 124a of the Act are social beneficial piece of legislation, by placing the burden of proof on the claimants the benefit of these two beneficiary provisions would be denied to the claimants. An interpretation of the law, which dilutes the very purpose of a provision should be shunned. Therefore, examined from any angle, it is clear that the burden of proving the fact that the deceased was a bona fide passenger or not lies on the railway Administration and not on the claimants.” (Emphasis supplied) A reading of the aforesaid decision, it is clear that since the journey of the deceased was not obstructed or abruptly stopped by the railway administration during the course of the railway officers having discharged their duty of checking the ticket, it would be presumed that the deceased might have purchased the valid journey ticket. Considering the above fact that there is an equal presumption in favour of the Railway that the railway officers would have discharged their duty of checking the ticket, in a bona fide manner, it can be presumed that the ticket collector would have examined whether the deceased possesses a valid ticket or not. Therefore, the Railway has a means through which they can easily prove that the deceased was not a bona fide passenger. As such, the burden of proof lies on the Railway administration to lead evidence and to prove that the deceased was not a bona fide passenger. As the said decision was rendered in the similar facts situation by a learned Judge of the Rajasthan High Court, which is persuasive in nature, I am inclined to place reliance on the said decision. In the present case, in as much as the appellant-railway did not choose to prove that the deceased was not a bona fide passenger, the presumption can be drawn in favour of the respondents-applicants that the deceased was a bona fide passenger. Coming to the next aspect as to whether the deceased died due to untoward incident of accidental fall from the train and also as to whether the alleged dead body was of the deceased, the appellant-railway submitted that the alleged incident might have occurred due to gross negligence of the deceased, if at all he fell fro the train and that Ex.A.1-FIR, Ex.A.2-Inquest Report, Ex.A.3-Post Mortem Examination Report do not disclose the name of the deceased. During the course of conducting inquest over the dead body, the panchayatdars were informed by the L.C.Gate No.234-A. gateman, Pentaiah that the deceased suddenly fell down at K.M.No.566/11-12 from 573 Dn train near Pushpa bridge and died due to sustaining severe injury on the head and nose. The fatal to the case of the respondents-applicants is that they have not taken steps to examine the said Pentaiah. The fact that the dead body was noticed and recovered by the railway staff near railway track prim facie discloses that the death of the deceased occurred on account of an accident. The nature of incident that may result in injuries or death of bona fide passengers involving a train is elaborately dealt with in Section 123 of the Railways Act. The term 'accidental fall' referred to in clause (c) thereof, does not require that the accident shall be of a particular nature. Once an individual receives injuries or succumbs to them, the liability of the railways arises. It is saved only under certain circumstances referred under Section 124-A of the Act. As long as the circumstances stated therein are not proved, the liability against the appellant- Railways to pay compensation subsists. Being the provisions intended for the welfare of the victims of accident or their dependants, Sections 123 and 124-A need to be given a liberal construction. There are no factors to indicate that there was any attempt on the part of the respondents-applicants to present a fictitious claim. Further, it is to be seen that normally when the passengers travelled alone and died in untoward incidents, it is not possible to identify the dead bodies of such passengers then and there. It is also general practice that immediately knowing such happening of accidents, the persons who witnessed the dead body in such accidents would pass on the information to the concerned authorities or police and on such information, the police authorities would issue FIR and later find out more details of such dead body. In the case on hand also, on 29.6.2002 at 0130 hours the deceased suddenly fell from the train. On the same day, the police received the information at 1500 hours and issued FIR. On the next day, i.e. on 30.6.2002 at 0700 hours inquest was conducted over the dead body of the deceased. In these two proceedings, none of the known persons of the deceased had participated and identified the dead body. During the course of investigation, the police have examined and recorded the statements in detail, during the said process, the identity of the deceased was established and after completion of the same, they filed Ex.A.5 final report. As such, it cannot be said that the death of the deceased was not due to untoward incident of accidental fall from the train and that the respondents-applicants have not identified that the dead body was of the deceased. If still the appellant-Railway disputes the same, the burden is on the appellant-railway to rebut the same. For the foregoing discussion, I find that the Tribunal rightly allowed the application filed by the applicants and granted compensation by its Award dated 30.12.2005 which does not warrant inference by this Court in this appeal. In the result, I do not see any merit in the appeal, which is accordingly dismissed.. There shall be no order as to costs. --------------------------------------------- JUSTICE ASHUTOSH MOHUNTA Dated 1st December, 2011. Msnro