FA/809/1999 VSS : 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.809 OF 1999 Jaydevi & Ors. ... Appellants V/s. Union of India ... Respondent Mr.C.M. Jha for Appellants Mr.Anand Samant for Respondent CORAM: SMT.NISHITA MHATRE, J. JUDGEMENT RESERVED ON: APRIL 29, 2010 JUDGEMENT PRONOUNCED ON: AUGUST 31, 2010 JUDGMENT: 1. Although the Record and Proceeding has not been received, the appeal has been taken up for final hearing at the request of the appellant herein. 2. This appeal is directed against the award of the Railway Claims Tribunal since the application for compensation filed by the appellants has been dismissed. The application was dismissed on the ground that the deceased on whom the appellants depend was not a bonafide passenger. However, the Tribunal has concluded that the appellants had proved that the deceased was a bonafide passenger and compensation was payable to them as he had met with an untoward incident as defined u/s 123 of the Railways Act. 3. On 19.9.1997, the deceased fell off the train between 2 stations on his journey FA/809/1999 VSS : 2 : from Jogeshwari to Kandivali. Since the claim for compensation was denied by the railways, the appellants filed a claimed before the Railway Claims Tribunal. The claim was resisted by the respondents contending that the deceased was run over by a train when he was trespassing on a railway track and such an accident was not covered u/s 123-C of the Railways Act. It was also contended that the deceased was not a bonafide passenger. 4. On the basis of the evidence on record, the Court held that the deceased was not a bonafide passenger as the appellants had failed to produce a ticket which was issued to the deceased. The Tribunal was of the view that since certain other articles including cash Rs.350/- were found in the pocket of the deceased and no ticket was found it was obvious that the deceased had not purchased any ticket. The Tribunal therefore drew the presumption against the appellants for not producing the railway ticket and by holding that the deceased was not travelling on a valid ticket and, therefore was not a bonafide passenger. 5. This approach of the Tribunal in my opinion, is incorrect. It is now well settled in the cases of Union of India v/s. B.Koddekar & Ors., AIR 2003 AP 23; Mahadeo Laxman v/s. Union of India, 2004 (4) Mh.LJ 266; Union of India v/s. Hari Narayan Gupta, 2008 ACJ 822; Mehar Parveen vs. Abdul Rab, 2007(3) ALL MR 549; Sahadeo S. Sanas v/s. Union of India, 2010 Bom CR 43 that burden of proof that the deceased was not a bonafide passenger of the railways has to be discharged by the railways. Had the Tribunal appreciated the law in this regard that the onus is on the railways to establish that the passenger was not a bonafide one the Tribunal would certainly have held that the deceased was a bonafide passenger. In my opinion, FA/809/1999 VSS : 3 : therefore, the Tribunal has erred in concluding that the deceased was not a bonafide passenger. It is true that no ticket was found when the dead body of the deceased was recovered. It is also true that other articles including cash were found on the dead body. However, the railways have not led any evidence to indicate that the applicant was a ticketless traveller as required by the aforesaid judgment. It has been held that it is for the railways to prove that a person was a ticketless traveller in order to deny him or his dependents compensation. Since the railways had not cared to lead any evidence the Tribunal ought to have held that the burden cast on the railways to prove ticketless travel has not been discharged. The presumption drawn by the Tribunal against the deceased is errorneous. 6. As regards the question as to whether the deceased had met with an untoward incident, the Tribunal has accepted this contention of the applicants. The Tribunal has held that in absence of any evidence to the contrary, it must be held that the deceased had fallen off the moving train. The Tribunal has accepted the Panchanama which showed that the Assistant Station Master, Malad had written a memo indicating that an unknown male body was found in a train along the railway tracks and that the death had occurred while he was struck by a local train when crossing the track. The Tribunal accepted the case of the appellants that the deceased had left Jogeshwari to return to Kandivali and at about 8.30 pm, his body was recovered the next morning at about 8.15 am. In these circumstances, the Tribunal held that it was difficult to draw any conclusion as to whether the deceased had fallen off a train or was crossing tracks when he was hit by a train. FA/809/1999 VSS : 4 : 7. In my view, therefore, it would be appropriate to remand the matter to the Tribunal. The Tribunal shall consider all issues framed by it while deciding the application. However, these issues will be considered in the light of the aforesaid case laws and the recent judgment in the case of Union of India v/s. Prabhakaran Vijaya Kumar, 2009 (1) Mh.L.J. 27. 8. Appeal allowed accordingly. 9. The parties shall appear before the Tribunal on 28.6.2010. The parties are at liberty to lead fresh evidence. The Tribunal will hear and decide the matter within six months from today.