F.A.O. No.7325 of 2010 (O&M) 1 IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... F.A.O. No.7325 of 2010 (O&M) Date of Decision: August 16, 2011 Bimla Rani and others ... Appellants VERSUS Union of India ... Respondent CORAM : HON'BLE MR.JUSTICE MOHINDER PAL Present: Mr.Surinder Singh Virk, Advocate for the appellants. Mr.G.S.Bal, Advocate for the respondent-U.O.I. -.- MOHINDER PAL, J. This appeal has been filed by the appellants-claimants challenging the order dated 20.04.2010 passed in OA-II/89/2008 filed on 17.07.2006 by the Railway Claims Tribunal, Chandigarh Bench, Chandigarh (hereinafter referred to as 'the Tribunal'). As per averments made in the claim petition, the claimants are wife and children of the deceased passenger alleged to have died in accidental fall at Bahadurgarh while travelling in a train from Rohtak to Bahadurgarh. The claim petition was contested by the Railway by filing reply and taking up objections that the petition was not maintainable as alleged accident does not fall under Section 124-A of the Railways Act and that the widow of the deceased at the time of recording her F.A.O. No.7325 of 2010 (O&M) 2 statement before GRP has stated that deceased fell down from an unknown train. It has been contended that the injuries, if any, received by the deceased were self-inflicted injuries. The following issues emerged from the pleadings of the parties: “1. Whether the deceased was a bonafide passenger? 2. Whether the alleged incident falls within the ambit of Section 123 (c) (2) read with Section 124-A of the Railways Act? 3. Whether the applicants are the sole dependants of deceased?” The Tribunal after appreciating the evidence adduced by the parties and going through the material available on the record came to the conclusion that the claimants are the legal heirs of the deceased. However, it has been held that the deceased was not a bonafide passenger as the railway ticket found from his possession was from Bahadurgarh to Rohtak and not from Rohtak to Bahadurgarh. Resultantly, the Tribunal rejected the claim against which this appeal has been filed. Learned counsel for the appellants-claimants has contended that it was primary duty of the Railway to prove that the deceased was not a bonafide passenger. It is submitted that this burden is not discharged by the Railway. He has further referred to the evidence of AW1 Bimla Rani wife of the deceased, AW2 affidavit of a co-passenger Jitender and AW3 affidavit of Deepak, who went to purchase a ticket for the deceased from Rohtak to Bahadurgarh and submitted that the Tribunal erred in holding that deceased was not a bonafide passenger. On the other hand, learned Standing counsel for the Railway has submitted that no case is made out by the appellants to F.A.O. No.7325 of 2010 (O&M) 3 interfere with the impugned order passed by the Tribunal and, therefore, the appeal is liable to be dismissed. I have heard the learned counsel for the parties and have gone through the judgment passed by the Court below. The main point requires to be decided by this Court is whether the finding of the Tribunal, that the deceased was not a bonafide passenger, can sustain the scrutiny of the Court and is valid or legal. It is settled by now that burden of proof lies on the Railway to prove that the deceased was a ticket less passenger. However, from the evidence taken into consideration by the Tribunal, it is apparent that the Railway has failed to adduce any evidence in this regard. On the other hand, claimant AW1 Bimla Devi wife of the deceased has tendered into evidence her affidavit wherein it has been stated that the deceased was a bonafide passenger on the relevant date. AW2 Jitender co-passenger affirmed that on the relevant date, he was travelling from Rohtak to Delhi. The train got sudden jurk at Bahadurgarh railway station and due to pushing deceased lost balance and fell down from the running train in his presence. AW3 Deepak affirmed that he went to railway station Rohtak and purchased a ticket for the deceased from Rohtak to Bahadurgarh and he sat in the train in his presence. The Tribunal, in its turn, has found fault with the evidence that the widow of the deceased has not taken up the plea of lost luggage or name of the train in her original complaint. It will be relevant to note that widow of the deceased was not a co-passenger nor she could be knowing the number of the train. Once the luggage of the deceased has been lost, it cannot be said that the deceased was ticket less as the ticket may be lying in the luggage which has been lost. Otherwise also, if a passenger has travelled from Bahadurgarh to F.A.O. No.7325 of 2010 (O&M) 4 Rohtak on a valid ticket, it cannot be presumed that on return journey, he will travel ticket less. In view of the cogent and convincing evidence on behalf of the claimants and in absence of discharging liability of proving the fact regarding bondfide passenger, it has to be necessarily held that the deceased was a bonafide passenger. Under these circumstances, there is irresistible conclusion that the appellants-claimants succeed and their appeal is allowed. The judgment passed by the Tribunal is set aside. The case is remanded back to the Tribunal for deciding afresh within a period of three months. The parties are directed to appear before the Tribunal on 01.09.2011. August 16, 2011 ( MOHINDER PAL ) jt JUDGE