THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL MISCELLANEOUS APPEAL No. 115 of 2008 JUDGMENT: 1. This Civil Miscellaneous Appeal is directed against the order, dated 13.12.2007, in O.A.A.No.144 of 2004, on the file of the Railway Claims Tribunal, Secunderabad Bench, Secunderabad, whereunder and whereby, the application filed by the appellants/applicants claiming compensation of Rs.4,00,000/- consequent on the death of Bommireddy Jali Reddy (hereinafter referred to as the ‘deceased’) in a railway accident, was dismissed. 2. The appellants in this appeal are the applicants, and the respondent in this appeal is the respondent, before the Tribunal. For better appreciation of facts, the parties hereinafter are referred to, as they are arrayed before the Tribunal. 3. The applicants filed the claim application stating that on 13.04.2004, the deceased along with one P.Venkateswarlu went to Kavali railway station in order to go from Kavali to Ongole on personal work, purchased a ticket and boarded train No.6043 Circar Express. When the train was reaching near Ongole railway station, the deceased came near the door with a view to get down but accidentally slipped and fell down between Surareddipalem and Ongole Railway Stations due to jerk of the passenger train, sustained grievous injuries and died on the spot. Hence, the claim application. 4. Respondent/ Railways filed written statement denying the averments made in the claim application. It is stated that the deceased was not a bona fide passenger, as the applicants have not produced the ticket; that in the inquest report, it was mentioned that the deceased was neither carrying any ticket nor having any money nor any other articles with him; that the inquest mediators opined that the death was due to either suicide or accidental fall from the train carrying passengers; that there is no evidence of any co-passenger about the deceased falling down from train No.6043 Circar Express; that a dead body of male person aged about 35 years was found by the Key man on the down line at KM 289/18-20 between Ongole and Surareddypalem Railway Stations; that there was no eye witness to the incident and hence, it prayed to dismiss the appeal. 5. Basing on the above pleadings, the following issues are framed for trial. “1. Whether the applicants are dependents of the deceased? 2. Whether the deceased was a bona fide passenger of the train in question? 3. Whether the deceased died as a result of an untoward incident of accidental fall from the said train? 4. Whether the Applicants are entitled to claim compensation of Rs.4,00,000/- ? 5. To what relief?” 6. During trial, on behalf of the applicants, A.Ws.1 and 2 were examined and Ex.A.1 to A.7 were got marked, and on behalf of the respondent, R.W.1 was examined, and Exs.R.1 to R.3 were got marked. 7. The Tribunal after considering the evidence on record dismissed the claim application on the ground that the deceased was not a bona fide passenger and his death was not in an untoward incident and so, the dependents of the deceased are not eligible to any compensation. Aggrieved the same, the applicants filed the appeal. 8. Learned counsel for the appellants/applicants contended that the evidence of A.W.2 is very clear that the deceased purchased a ticket to travel in Circar Express; that the deceased died in an untoward incident and therefore, the applicants are entitled to compensation and hence, he prays to set aside the impugned order. 9. On the other hand, learned Standing counsel for the respondent/Railways contended that A.W.2 was not present at the time of purchasing the ticket by the deceased; that when the initial burden standing on the applicants to prove that the deceased was travelling with a valid ticket, is not discharged, the applicants are not entitled to compensation even if the deceased died in an untoward incident; that the Tribunal after elaborate consideration of evidence on record rightly dismissed the claim application and hence, there are no grounds to interfere with the impugned order. 10. Now the point for determination is whether the order of the Tribunal is correct, proper and legal ? 11. There cannot be any dispute that in order to claim compensation under Section 124 A of the Railways Act, 1989 (for short, ‘the Act’), the first condition precedent to be proved by the applicants 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 passenger travelling in a train carrying passengers with a valid ticket. If these two requirements are proved, then the burden shifts to the railways to establish that no untoward incident had happened or that the deceased was not a bona fide passenger or that the case of the railways falls under any one of the defences as provided under proviso to Section 124 A of the Act. 12. ‘Untoward incident’ has been defined in Section 123 (c) of the Act, which reads thus: “(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 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.” 13. As far as untoward incident is concerned, after coming to know about the incident, police registered a case and after securing mediators, police held inquest over the dead body of the deceased. The inquest mediators opined that the deceased committed suicide. To know the actual cause of death, the dead body was sent to postmortem examination. The Doctor, who conducted autopsy over the dead body of the deceased opined that the deceased died as a result of head injury. The dead body was found by the side of the track. From the evidence on record, it is clear that the deceased died in an untoward incident. Finding of the dead body by the side of the track suggests that the deceased might have fallen from the train. If it is a case of suicide, the injuries on the body of the deceased would have been different and distinct. Now, the question that arises for consideration is whether the deceased was holding a valid ticket to travel in a train carrying passengers on that day. 14. Section 124A of the Railways Act, 1989 reads thus: “Compensation on account of untoward incidents- When, in the course of working in 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, 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 travelling, by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident.” From the above provision, it is clear that when, in the course of working in railways, if an untoward incident occurs, a passenger who has been injured or dependent of a passenger who has been killed, can maintain an action and recover damages. ‘Passenger’ includes 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 victim of an untoward incident. 15. The applicants are asserting that the deceased was a passenger travelling in a train carrying passengers with a valid ticket and while travelling in the train, he died in an untoward incident. Section 101 of the Indian Evidence Act, 1872 deals with ‘Burden of proof’ and it reads: ‘Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.” 16. A distinction between ‘burden of proof’ and ‘onus or proof’ cannot be overlooked or forgotten. The expression ‘burden of proof’ denotes legal burden and it never shifts. ‘Onus of proof’, on the other hand, means evidentiary burden and it shifts. Unlike the burden of proof, there is continuous process of shifting onus of proof. In this regard, it is pertinent to refer to a decision in A.Raghavamma & anr. V. A.Chenchamma & anr. [1] wherein it is held thus: (para12) “There is an essential distinction between burden of proof and onus of proof : burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts, but the onus of proof shifts. The burden of proof in the present case undoubtedly lies upon the plaintiff to establish the factum of adoption and that of partition. The said circumstances do not alter the incidence of the burden of proof. Such considerations, having regard to the circumstances of a partition. The said circumstances do not alter the incidence of the burden of proof. Such considerations, having regard to the circumstances of a particular case, may shift the onus of proof. Such a shifting of onus is a continuous process in the evaluation of evidence. The criticism levelled against the judgment, of the lower Courts, therefore, only pertains to the domain of appreciation of evidence. We shall, therefore, broadly consider the evidence not for the purpose of revaluation, but to see whether the treatment of the case by the Courts below is such that it falls in the category of exceptional cases where this Court, in the interest of justice, should depart from its usual practice.” 17. In applying the rules regarding burden of proof, the court has to concentrate upon the substance and the effect of the issues raised. In civil cases, the question on whom the burden of proof rests, depends upon the pleadings, assuming that the pleadings are drawn up properly and in conformity with the settled law on the subject. If the facts alleged by the plaintiff are made by simple denial on the part of the defendant, then the burden is thrown completely on the plaintiff. But, the defendant may, if he thinks proper, and very often, does admit some of the facts alleged in the plaint and himself asserts some facts which he relies as an answer to the plaintiff’s claim. The general rule as to burden of proof is laid down under Section 101 of the Indian Evidence Act, 1872 to the effect that the burden of proof lies on the party who substantially asserts affirmation of the issues, which is simple rule of convenience. In other words, it is reasonable and just that the party who asserts and relies upon existence of certain facts or state of circumstances as ground for the relief to be granted, should be called upon to prove his case. An issue must be proved by the party who states affirmative, but not by the party who states negative. Therefore, it is incumbent on each party to discharge burden of proof which rests upon him. 18. On this aspect, it is pertinent to refer to a decision in Rangammal v. Kuppuswamy,[2] it is held thus: “Section 101 of the Indian Evidence Act, 1872 defines ‘burden of proof’ which clearly lays down that whosoever desires any court to give judgment as to any legal right or law dependent on the existence of facts which he asserts, must prove that those facts exists. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Thus, the Evidence Act has clearly laid down that the burden of proving fact always lies upon the person who asserts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of the other party.” 19. It is also pertinent to refer to a decision in a decision in Parimal v. Veena @ Bharti,[3] it is held thus: (para 15) “The provisions of Section 101 of the Evidence Act provide that the burden of proof of the facts rests on the party who substantially asserts it and not on the party who denies it. In fact, burden of proof means that a party has to prove an allegation before he is entitled to a judgment in his favour. Section 103 provides that burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any special law that the proof of that fact shall lie on any particular person. The provision of Section 103 amplifies the general rule of Section 101 that the burden of proof lies on the person who asserts the affirmative of the facts in issue.” 20. From Section 101 of the Indian Evidence Act, 1872, it is clear that the applicants, having come to court asserting some facts, must prove that the death of the deceased had taken place in an untoward incident and that the death occurred while the deceased was travelling in a train carrying passengers as a passenger with a valid ticket. No doubt, it is proved that the deceased died in an untoward incident. But, the initial burden lies on the applicants to establish that the deceased was a bona fide passenger travelling in train carrying passengers having purchased a valid ticket. The initial burden of the applicants never shifts unless the respondent admits the assertions made by the applicants. 21. The fact asserted by the applicants is that the deceased was a bona fide passenger travelling in the train carrying passengers with a valid ticket. This can be proved by direct or circumstantial evidence. At the time of holding inquest, police did not recover ticket from the dead body of the deceased. Similarly, the applicants have not produced the valid ticket purchased by the deceased to travel in a train carrying passengers. But, they adduced oral evidence of A.W.2. No doubt, A.W.2 is closely related to the applicants, but it does not mean that his evidence has to be discarded on that ground, as, relationship, by itself, is not a ground to disbelieve such evidence. If his evidence is found to be true, reliable and trustworthy, there is no legal bar for placing an implicit reliance on the evidence of A.W.2. A.W.2 stated that A.W.1 informed that the deceased was found missing for the last three days, and when A.W.2 went to police station and enquired, at that point of time, he came to know through one Venkateswarlu about the factum of deceased purchasing the ticket and boarding the train carrying passengers. So, the evidence of A.W.2 with regard to deceased purchasing ticket and boarding the train, is based upon the information given by one Venkateswarlu. The evidence of A.W.2 with regard to the deceased purchasing the ticket is in the nature of hearsay evidence, which is not admissible under law, unless, the person who gave that information to A.W.2 is examined as a witness in the Court. The said Venkateswarlu who informed A.W.2 about the deceased purchasing the ticket, was not examined. The court may presume that the evidence which could be, and is not, produced, would, if produced, be unfavourable to the person who withholds it. The best evidence rule, which governs the production of evidence in courts, requires that the best evidence of which the case in its nature is susceptible should always be produced. Section 114 (g) of the Indian Evidence Act, 1872 enables the court to draw an adverse presumption against a person who can make available to the court, but obstructs the availability of such an evidence. 22. Once Section 101 of the Indian Evidence Act, 1872 is applicable to the facts of the case, no judgment of any court can be read so as to nullify a statutory provision. From Section 101 of the Indian Evidence Act, 1872, it is clear that the initial burden is always on the applicants to establish that the deceased was a bona fide passenger and the burden shall stand discharged by adducing direct evidence or by circumstantial evidence. Such evidence is lacking in this case and the applicants failed to establish that the deceased was a passenger travelling in a train carrying passengers with a valid ticket and hence, the Tribunal rightly dismissed the claim of the applicants. There are no grounds in this appeal to interfere with the order of the Tribunal. 23. Accordingly, the Civil Miscellaneous Appeal is dismissed. There shall be no order as to costs. _______________ K.C. BHANU, J AUGUST 30, 2011 DRK/YVL IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE THIRTIETH DAY OF AUGUST TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL No. 115 OF 2008 Between : Smt Bommireddy Padma … APPELLANT A N D Union of India. … RESPONDENT THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL MISCELLANEOUS APPEAL No. 115 of 2008 30.08.2011 [1] AIR 1964 Supreme Court 136 [2] [3] 2011-Supreme-1-731