THE HON’BLE SRI JUSTICE K.C. BHANU CIVIL MISCELLANEOUS APPEAL No.752 OF 2009 JUDGMENT: This Civil Miscellaneous Appeal, under Section 23 of the Railway Claims Tribunal Act, 1987, is directed against the order, dated 31.03.2009 in O.A.A.No.290 of 2003, on the file of the Railway Claims Tribunal, Secunderabad Bench, Secunderabad, whereunder and whereby, the claim petition filed by the respondents/applicants, claiming compensation of Rs.4,00,000/- consequent on the death of Sk. Moulana (hereinafter referred to as, ‘the deceased’), was allowed. 2. The brief facts that are necessary for disposal of the present appeal may be stated as follows: The deceased was a resident of Kalwakurthi and working as a Cook in a Bakery at Shadnagar. Jadcherla railway station is the nearest railway station to go to Kalwakurthi. On 18.06.2003, the deceased with a view to go to Jadcherla from Shadnagar, after discharging his duties, went to Shadnagar railway station in the afternoon and purchased a passenger train journey ticket from Shadnagar to Jadcherla. He boarded train No.547, Secunderabad – Mahabubnagar passenger in a general compartment. When the train was leaving the platform of Shadnagar railway station, the deceased slipped and fell down accidentally from the said running train between platform and the train due to rush of passengers, speed and jerks of the train. As a result, he sustained severe injuries and lost blood heavily by running of wheels of the train. The injured was shifted to Government Hospital, Shadnagar by the railway station staff for necessary treatment but he died while undergoing treatment within short time on the same day. The journey ticket is lost in the accident. Hence, the claim petition. 3. The railways filed the written statement denying the averments made in the application and stated that the claim does not fall under the provisions of Sections 123 (c) (2) or 124-A of the Railways Act, 1989 (for short, “the Act”); that the applicants are put to strict proof to show that they are the dependants of the deceased; that as per the message given by the duty Doctor and Guard of train No.547 on 18.06.2003 to the duty Station Master, Shadnagar and SI/GRP, Kachiguda and as corroborated by the FIR filed along with the OAA, one male person aged about 38 years boarded running train from off side (non platform side) and fallen down from train No.547 Dn. Passenger, his right hand cut and sustained internal injuries; that the deceased was not holding the journey ticket; that in the absence of journey ticket, the deceased cannot be treated as a bona fide passenger and hence, it prayed to dismiss the claim application. 4. Basing on the above pleadings, the following issues have been framed by the Tribunal: “1. Whether the Applicants are the dependants of the deceased? 2. Whether the deceased was a bona fide passenger of train No.547 passenger travelling between Shadnagar and Jadcherla on 18-06-03? 3. Whether the deceased died on account of injuries sustained by him in an untoward incident of accidental fall from the said train on 18-06-03? 4. To what relief?” 5. To substantiate the case of the applicants, AWs.1 and 2 were examined and Exs.A1 to A5 were got marked, and on behalf of the respondent, RWs. 1 and 2 were examined but no document was got marked. 6. After considering the oral and documentary evidence available on record, the Tribunal came to the conclusion that the deceased had fallen accidentally from the moving train due to sudden jerk of the train and died in an untoward incident; that he was a bona fide passenger travelling in the train with a valid ticket, and granted compensation of Rs.4,00,000/-. Challenging the same, the present appeal is filed by the Railways. 7. Now the point for consideration is whether the order passed by the Tribunal is correct, legal and proper? 8. Learned standing counsel for the appellant/railways contended that there is no evidence adduced by the respondents/applicants to show that the deceased was a bona fide passenger travelling in a train carrying passengers; that under the wrong impression that AW.2 has witnessed the deceased purchasing the ticket, the claim of the respondents was allowed and hence, he prays to set aside the impugned order. 9. In spite of service of notice, none appears for the respondents/applicants. 10. There cannot be any dispute that in order to claim compensation under Section 124-A of the Act, two requirements are to be satisfied. 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 bona fide passenger travelling in the train carrying passengers with valid ticket. If these two requirements are proved, then, the applicants are entitled to compensation. If the Railway administration wants to resist the claim, it has to prove that no untoward incident had happened or that the deceased was not a bona fide passenger travelling in a train carrying passengers or that the case of railways falls under anyone of the exceptions as provided under proviso to Section 124-A of the Act. 11. The death of the deceased in an untoward incident is not in dispute. Police after registering a case held inquest on the dead body of the deceased. Thereafter, the dead body of the deceased was subjected to post-mortem examination. The Doctor, who conducted post-mortem examination, opined that the deceased died as a result of the injuries sustained by him in an untoward incident. Even the railway administration did not deny or dispute about the death of the deceased in an untoward incident. 12. Coming to the second aspect of the case i.e., bona fide passenger, the initial burden is on the respondents/applicants to show that the deceased was a bona fide passenger. 13. 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. 14. During the course of inquest, the Investigating Officer did not find any ticket on the body of the deceased. Similarly, the respondents did not examine any person to show that the deceased was a bona fide passenger travelling in the train carrying passengers. AW.2 is examined to speak about his presence at the time of the incident. He did not speak that the deceased purchased the ticket in his presence. The Tribunal misconceived itself by saying that the normal presumption is that the passengers who are travelling in a train are bona fide passengers unless the railways prove the contrary that the said passenger has not purchased a ticket. There is no presumption under law that all the passengers who are travelling in a train carrying passengers are bona fide passengers. 15. The word ‘passenger’ under Section 124-A of the Act would mean a person travelling in a train carrying passengers with a valid ticket. The respondents are asserting that the deceased was a bona fide passenger travelling in a train carrying passengers. Therefore, the initial burden is on the respondents/applicants under Section 101 of the Indian Evidence Act, 1872 to show that the deceased was a bona fide passenger travelling in a train carrying passengers. Unless the onus of proving the fact is discharged by the respondents/applicants, it would not shift to the railway administration. So, the presumption drawn by the Tribunal that under law all the passengers travelling in a train carrying passengers were presumed to be the bona fide passengers is untenable and it is a wrong application of principle. Therefore, the impugned order is liable to the set aside in view of the fact that the respondents/applicants failed to adduce any evidence to show that the deceased purchased a ticket to travel in a train carrying passengers. Once this requirement is not established, the respondents are not entitled to any compensation under Section 124-A of the Act. 16. Accordingly, the Civil Miscellaneous Appeal is allowed setting the impugned order, dated 31.03.2009 in O.A.A.No.290 of 2003, on the file of the Railway Claims Tribunal, Secunderabad Bench, Secunderabad, and consequently, the claim application filed by the applicants is dismissed. There shall be no order as to costs. _______________ K.C. BHANU, J September 22, 2011 MD IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE TWENTY SECOND DAY OF SEPTEMBER TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL MISCELLANEOUS APPEAL No.752 OF 2009 Between: Union of India .....APPELLANT AND Smt. Safia and others ....RESPONDENTS The Court made the following: THE HON’BLE SRI JUSTICE K.C. BHANU CIVIL MISCELLANEOUS APPEAL No.752 OF 2009 September 22, 2011 MD