IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL MISCELLANEOUS APPEAL No.543 of 2007 Date: 05.09.2011 Between: Smt Kasaram Sarojini and another .....Petitioners AND The Union of India, rep. By its General Manager, S.C. Railway, Secunderabad. ....Respondent THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL No.543 of 2007 JUDGMENT: 1. This Civil Miscellaneous Appeal by the appellants-applicants is preferred aggrieved by the order dated 13.03.2007 in O.A.A. No.250 of 2002 on the file of the Railway Claims Tribunal, Secunderabad Bench at Secunderabad, whereunder and whereby, the application filed by the applicants under Section 16 of the Railway Claims Tribunal Act, 1987, read with Sections 124-A and 125 of the Railways Act, 1989, for grant of compensation of Rs.4,00,000/- for the death of the deceased Kasaram Krishnamohan, (hereinafter referred to as the deceased) in an untoward incident of accidental fall from the train, was dismissed by the Tribunal. 2. The brief facts that are necessary for disposal of the present appeal may be stated as follows: On 20.04.2002, the deceased came to Khammam Railway Station and purchased a ticket to go to Warangal on his business work and he boarded train No.5221 Cochin-Gorakhpur express at about 08.00 hours and due to sudden jerks of the train and sudden push of the co-passengers, he fell down from the train and sustained severe injuries on head and the legs were fractured and due to heavy bleedings, he died in the hospital while undergoing treatment. 3. The respondent railways administration filed its written statement while denying the averments made in the application stated that the Guard of train No.5221 express started that he worked from Vijayawada to Balharsha on 20.4.2002. At Khammam the train stopped for 2 minutes as usual and at 08.04 was the departure timing and no unusual or untoward incident was noticed by him or informed to him. No alarm chain pulling either on the platform or on the run and no dentition to train taken place and hence the deceased is not a bonafide passenger and further alleged incident if any was caused by the criminal acts of the deceased and such acts disentitle the applicants from claiming any compensation and prayed to dismiss the claim. 4. On the above pleadings, the following issues were framed by the Tribunal: 1. Whether the applicants are the dependents of the deceased Kasaram Krishnamohan? 2. Whether the deceased was a bona fide passenger of a train No.5221 Cochin-Gorakhpur express travelling from Khammam to Warangal on 20.4.2002? 3. Whether the deceased sustained injuries as a result of an untoward incident of accidental fall from the train at Kahmmam Railway Station and succumbed to injuries during the treatment at Government Hospital? 4. To what relief? 5. On behalf of the applicants, 1st first applicant was examined as A.W.2 and V. Krishnaveni elder daughter of the deceased was examined as A.W.1. Exs.A.1 to A.5 were marked. On behalf of the respondent, R.W.1 was examined and Ex.R.1 was marked on their behalf. 6. The Tribunal after considering both oral and documentary evidence, dismissed the application filed by the applicants. Aggrieved by the same, the present appeal is filed. 7. Now the point for determination is whether the order of the Tribunal is correct, proper and legal? 8. The issue involved in this appeal is as to whether on whom the burden lies to prove that the deceased was a bonafide passenger travelling in a passenger train. 9. The factual matrix is not in dispute. The contention of the learned counsel for the appellants is that when the deceased boarded the train, due to sudden jerk of the train and sudden push by the co-passengers, he fell down from the train and sustained severe injuries and due to heavy bleeding injuries, he died in the hospital while undergoing treatment. 10. The learned counsel for the appellants placed reliance on a decision reported in Unionof India, Secunderabad V. B. Koddekar and others[1] wherein it was held: “49. The facts in the said case are that on account of the death of Sheo Ram Singh, who died in a railway accident on 16.7.1991, his dependents laid a claim before the learned Judge-cum- Ad hoc Claims Commissioner, for compensation, which was denied to them on the ground that the claimants failed to prove that the deceased was a bona fide passenger, that means, he did not hold a valid railway ticket, pass or permission of the journey. Under these circumstances, the Division Bench, apart from observing as cited supra, has held thus: “In our opinion, when a person is found dead as a result of accident in a railway carriage, in which he was travelling, a presumption may be drawn under Section 114 of the Evidence Act keeping in view of the prohibition under Section 68 of the Act against boarding a train without ticket that the deceased was a bonafide passenger. Since ticket less travel is an illegal act and exposes such traveller to penal action, the presumption is of innocence in favour of such one of the travellers or passengers in a train. It is for the railway administration to prove contrary and the burden in such circumstances that the deceased was a ticket less traveller or was not a bona fide passenger should be on the railway administration which has special means of knowledge as to whether any ticket was issued to that deceased or whether at any point, before or at the end of journey, he was checked and detected by staff of the railway as an unauthorised person without ticket, pass or permission.” 11. Similarly he placed another decision reported in Union of India v. Borra Vijayalakshmi and others[2] wherein it was held: “The learned counsel would place considerable stress on the Explanation to seek exception from the rigour of law in payment of compensation. To my mind though a person travelling by a train carrying passengers without ticket is not entitled for compensation, the burden to prove that railway administration is exempted from paying compensation for untoward incident on the ground of a person not buying a ticket would heavily lie on the railway administration. There are two reasons for this. First, it is well settled that when a person seeks exemption from any liability, the burden in justification of such exemption would certainly lie on the person seeking such exemption. Secondly, under Section 137 read with Section 55 of the Act, ticket less travel is made a culpable offence attracting imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. Needless to point out that unless the statute so (Sic. Otherwise) requires when an offence is alleged against a person the burden lies on the prosecution to show that such person has violated law by not buying the ticket.” 12. He also relied on a decision reported in Parisa Anjali and others v. Union of India[3] wherein it was held: “Even if there is any possibility for treating the ticket held by the deceased as not valid one, he does not cease to be a passenger in the context of the extension of benefits under Sections 124 and 124-A of the Act. What becomes material in this regard is the intention of the person who was travelling in the train. It is only when the person boards the train with a clear intention to travel in it without purchasing a ticket that he can be treated as not a passenger. Take for instance a situation where a person finds that the train in which he has to travel is about to start, by the time he reached the station and he does not have the time to purchase the ticket. Though he does not hold the ticket, he may still board the train with an intention to pay the fare to the TTE. Such a person can still be treated as bona fide passenger, both, when he boarded the train without ticket and after he pays the fare to the TTE.” 13. In an unreported judgment of this Court in C.M.A.No.1127 of 1998 dated 25.9.2003, wherein it was held: “The Tribunal having observed that the evidence of P.W.1 that he was present when the deceased purchased the ticket cannot be believed, held that the deceased was not a bonafide passenger. It is no doubt true that the evidence of P.W.1 that he took the deceased to the Railway Station on a cycle from his village is hard to believe. But merely because the evidence of P.W.1 that he was present when the deceased boarded the train cannot be believed, it cannot be said that the deceased was not a bonafide passenger. Because the deceased slipped while trying to board a moving train, it is clear that the deceased was allowed entry on to the platform. If the deceased did not purchase either a platform or journey ticket, he would not have been allowed entry on to the platform, because it is well known that Railway Authorities would not allow all and sundry to enter the platform, more so after the arrival and before the departure of a train, without a valid journey or platform ticket. The fact that no ticket was found in the clothes and articles found on and near the dead body of the deceased, by itself, cannot be taken as a ground for holding that the deceased was not a bonafide passenger.” In the above decisions relied upon by the counsel for the appellants, would also go to show that initial burden on the applicants was changed as there was some evidence with regard to tickets. Therefore, it is held that the burden is on the railways to prove that the deceased was not a bonafide passenger travelling in a train carrying passengers with valid ticket. 14. Now doubt in the judgment of Division Bench of this Court, it is held that the burden is on the railways to establish that the deceased was not a bonafide passenger. But, at the same time, under Section 124-A of the Railways Act, 1989 (for short, the Act), two requirements are to be satisfied by the claimants in order to claim the compensation viz., 1) there must be untoward incident and in that untoward incident a passenger died (2) That the deceased was a boanfide passenger travelling in the train with a valid ticket. If these two requirements are satisfied then the burden shifts to Railway Administration to show that the case falls under any one of the exceptions as provided under the proviso to Section 124-A of the Act, 1872. Under Section 101 of the Indian Evidence Act, the burden of proof lies whoever desires any Court to give judgment as to any legal right or liability dependant 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. 15. So from Section 101 of the Evidence Act, 1872 it is clear that the applicants having come to the court must prove that the death of a person in an untoward incident had taken place and as such the death occurred while the deceased was travelling in a train as a passenger. Explanation to Section 124-A of the Act, reads as follows: “For the purpose this Section “Passenger” includes- (i) ……………. (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.” 16. Therefore, when the applicants are asserting that the deceased died in an untoward incident and he is having a valid ticket at the time of his death, the initial burden lies on the applicants to establish that the deceased was a bonafide passenger having purchased a valid ticket. The initial burden never shifts unless the respondent admits the assertions made by the applicants. 17. 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. Therefore, 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 bonafide passenger and that burden can stand discharged by adducing direct evidence or circumstantial evidence. Such evidence is lacking in this case and the applicants failed to establish that the deceased was a bonafide passenger travelling in the train with 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. 18. Accordingly, the Civil Miscellaneous Appeal is dismissed. No order as to costs. ______________ K.C.BHANU,J Date:05.09.2011. Gk. THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL MISCELLANEOUS APPEAL No.543 of 2007 Date: 05.09.2011 Gk. [1] 2002 (4) ALT 310 (DB) [2] 2006 ACJ 162 [3] 2011 ACJ 693