ash 1 fa-867.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.867 OF 2011 Mr. Krishna Shivram Bhoir & Another. .. Appellants Vs Union of India, Through General Manager, Western Railway. .. Respondent -- Shri Kunal Bhange for the Appellants. Shri K.J. Kandpile for the Respondent. -- CORAM ; A.S. OKA, J DATED : 1ST AUGUST, 2011 P.C. . Heard learned counsel appearing for the Appellants and learned counsel appearing for the Respondent Railways. 2. This Court passed an order directing disposal of the Appeal at the admission stage. Learned counsel appearing for the Appellants has placed on record a compilation containing true copies pleadings, notes of evidence and the relevant documents which are filed on record of the Railway Claims Tribunal. 3. The Appellants are the parents of the deceased Rakesh ash 2 fa-867.11 Krishna Bhoir. The Appellants made a claim under Section 124A of the Railways Act, 1989. The Appellants are the parents of the deceased. According to the case of the Appellants, the deceased was employed with the ICICI Bank at Bandra, Mumbai. On 17th June, 2005, the deceased was travelling by a train from Bandra to Malad. According to the case of the Appellants, at about 9.30 p.m. when the train was in between Jogeshwari and Goregaon Railway Stations, the deceased accidentally fell down from the train and as a result of the injuries sustained, he died on the spot. The case made out in the claim petition is that the deceased was holding a IInd class season ticket from Bandra to Virar which was lost in the said accident. A compensation of Rs. 4,00,000/- was claimed on account of death on account of an untoward incident. 4. A written statement was filed by the Respondent Railways. In the written statement, it was contended that the deceased was not a bona fide passenger. It was contended that the Memo of the Station Master shows that the deceased was knocked down by a local train and it is not a case of an accidental fall. 5. Learned Member of the Railway Claims Tribunal dismissed the claim application by holding that the Appellants have failed to prove that the deceased was a bona fide passenger. Learned Member of the ash 3 fa-867.11 Tribunal held that no evidence was adduced by the Appellants to show that the deceased was a bona fide passenger. The learned Member has observed that a cell phone was found on the person of the deceased and, therefore, the case that the ticket was lost cannot be accepted. The learned Member also observed that the old season ticket has not been produced by the Appellants. 6. Learned counsel appearing for the Appellants submitted that in fact, the burden was on the Respondent to prove that the deceased was not a bona fide passenger. He submitted that from the inception, the case made out by the Appellants was that the deceased was holding a season ticket from Bandra Station to Virar Station which was lost in the accident. He submitted that the fact that the deceased was working with the ICICI Bank was not disputed and in fact, the spot panchanama shows that on a tree near the spot of the accident, a plastic bag was found containing credit card forms of ICICI Bank. He submitted that the deceased was not found possessing any money. He submitted that even assuming that a cell phone was found on the person of the deceased, the case made out by the Appellants that the season ticket was lost in an accident cannot be disbelieved. The learned counsel appearing for the Respondent submitted that the very fact that the valuable cell phone of Nokia make ash 4 fa-867.11 was found on the body of the deceased shows that there is no possibility of someone taking away the season ticket allegedly held by the deceased. He pointed out the cross-examination of the mother of the deceased in which she admitted that the cell phone was found. He submitted that in any case, the case of accidental fall is not established by the Appellants. 7. I have given careful consideration to the submissions. In the claim application, there is a specific averment that the deceased was working with the ICICI Bank at Bandra (East) Branch, Mumbai. There is also an averment that the deceased was holding the season ticket from Bandra to Virar. The 2nd Appellant (mother) of the deceased filed an affidavit in lieu of examination in chief in which she reiterated that the deceased was working with the ICICI Bank at Bandra as a salesman. She stated that the deceased was holding a monthly season ticket at the relevant time. In the cross-examination, there is no suggestion given as regards assertion that the deceased was holding the season ticket. It was merely suggested that the Railway Ticket was not found after the incident. The 2nd Appellant admitted that the cell phone of the deceased was found. 8. The Respondent produced investigation report in which it is stated that on 18th June, 2005 at about 9.55 hrs, the information was ash 5 fa-867.11 received by the Station Master that a dead body of an unknown male person was found on the railway tack. The case made out by the Appellants is that the accident occurred at about 9.30 p.m. On 17th June, 2005. 9. An inquest panchanama was made between 10.30 to 11.20 a.m. on 18th June, 2005. In the cross examination of the 2nd Appellant, there was no suggestion given that the deceased was not working with the ICICI Bank. In fact, the spot panchanama on record shows that on a tree near the spot of the accident, a plastic bag containing the credit card forms of the ICICI Bank was found. The inquest panchanama reveals that there was no money on the person of the deceased and there were no valuables possessed by him. However, from his pocket of the trouser, a Nokia make Cell phone was recovered. As stated earlier, the accident appears to have occurred late in the night, and the inquest panchanama was recorded after 10.00 a.m. on the next morning. As the deceased was working with ICICI Bank, Bandra (East), it is impossible to believe that the deceased was not carrying a single farthing with him. The dead body was lying on the track throughout the night. Therefore, the theory that the season ticket was lost is certainly probable. Therefore, the Tribunal ought to have accepted the case made out by the Appellants that the season ticket was lost in the accident. Therefore, the finding of the Tribunal on the issue of ash 6 fa-867.11 deceased not being a bona fide passenger will have to be set aside. 10. The Respondent relied upon the note prepared on the investigation and the report of the Station Master for contending that it was a case of knock down. The dead body of the deceased was found on a railway track. The burden of the Respondent was to prove that the deceased was died due to knock down. No such evidence has been adduced by the Respondent. 11. Therefore, the case made out by the Appellants that the deceased died as a result of untoward incident within the meaning of Sub-clause (2) of Clause (c) of Section 123 of the said Act ought to have been accepted. Hence, in view of the relevant Rules, the Appellants were entitled to compensation of Rs.4 lakhs. The interest at the rate of 6% will have to be granted from the date of filing of the claim application. 12. Hence, I pass the following order:- ORDER: (i) The impugned judgment and order dated 21st July, 2009 is quashed and set aside. ash 7 fa-867.11 (ii) The Respondent is directed to pay to the Appellants the compensation of Rs.4,00,000/- with interest thereon at the rate of 6% per annum from the date of filing of the claim application till the date of deposit of the amount with the Tribunal. (iii) Time of eight weeks is granted to the Respondent to deposit the amount with the Tribunal. (iv) The Appeal is allowed on above terms with no orders as to costs. ( A.S. OKA, J )