1 fa1734 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.1734 OF 2010 Union of India through the General Manager,Western Railway ...Appellant vs. Geeta Bachulal Mistry & Ors. ...Respondents Mr.Kiran Kandpile for the appellant Mr.Shrishailya Deshmukh for the respondent nos.1 to 3 CORAM : A.S.OKA,J. DATE : MAY 5, 2011 P.C.: 1 The submissions of the learned counsel for the parties were heard on the last date. This appeal preferred by the Union of India through the Western Railway takes exception to the Judgment and Order dated 31st July 2010 passed by the Railway Claims Tribunal in a claim petition under section 124-A of the Railways Act, 1989 (hereinafter referred to as the said Act). 2 The case made out by the respondents-claimants is that deceased Bachulal while travelling from Andheri to Dahisar by a local train on 16th March 2005, accidentally fell down in between Kandiwali and Boriwali railway stations. He sustained injuries and ultimately succumbed to injuries. The first respondent is the widow of the deceased and the second and third respondents are the sons of the deceased. The claim was contested by the appellant. It was contended that the incident was not of an untoward incident and in fact the deceased was knocked down while he was trespassing on the railway tracks. It was contended that the deceased was under the influence of alcohol and therefore, this case will not be governed 2 fa1734 by section 124-A of the said Act. However, it was admitted that the deceased was possessing a second class railway ticket. The Tribunal allowed the claim and granted compensation of Rs.4,00,000/- with interest. 3 The learned counsel for the appellant submitted that the documents such as Station Master s Memo, DRM s report, Post Mortem Notes show that the case was of knock down and not of accidental fall from the train. He submitted that at the time of post mortem examination of the deceased, blood samples were drawn and the chemical analysis showed that 144 to 149 mg of alcohol per ml of blood was found. He submitted that the case will be governed by clause (d) of the proviso to section 124-A of the said Act as the deceased was in the state of intoxication. He, therefore, submitted that the Railway Claims Tribunal has committed an error. The learned counsel for the respondents supported the impugned Judgment and order. 4 I have considered the submissions. I have perused the compilation containing pleadings, notes of evidence and other relevant documents on record of the Tribunal. In the written statement, the appellant admitted that the deceased was a bona fide railway passenger and was possessing a valid season ticket. However, it was contended that while unauthorizedly crossing the railway tracks, he was knocked down by a train and therefore, it is not the case of untoward incident covered by sub clause 2 of clause (c) of section 123 of the said Act. Reliance is placed on the documents produced on record. The first document is the report submitted by the Sub- Inspector of Police to the Senior Inspector of Police of Boriwali Railway Police station. The said report records that unknown person was hit by a local train who has died 3 fa1734 on the spot. The second document relied upon by the appellant is the spot panchanama which also records the case of knock down. The third document is inquest panchnama which does not specifically record the case of knock down. Another document relied upon by the appellant is the memo of Station Master which records the case of knock down. It must be noted here that none of the documents reflect that the authors of the said documents had seen the incident and/or they were eye witnesses. Apart from the fact that none of the signatories to the said documents were examined by the appellant as witnesses, once it was accepted that the deceased was holding a valid ticket to travel on a particular route, the burden to prove the case of knock down was on the appellant. The said burden has not been discharged as rightly held by the Tribunal. Therefore, the Tribunal was justified in accepting the case made out by the respondents that the case was governed by sub-clause 2 of clause (c) of section 123 of the said Act. 5 Certain percentage of alcohol was found in the blood of the deceased at the time of Post Mortem. The blood sample of the deceased was drawn on the basis of which the said finding has been recorded. Clause (d) of section 124-A carves out an exception which excludes the liability to pay compensation on account of an untoward incident. Clause (d) provides that if the passenger dies due to an act committed by him in a state of intoxication, the appellant will not be liable to pay compensation. The burden to bring the case within the exception provided by clause (d) was on the appellant. On the basis of proof of the fact that the deceased had consumed alcohol, one cannot jump to the conclusion that the accident will fall within the scope of clause (d). The said Clause (d) is applicable only when the death 4 fa1734 has been occasioned due to an act committed by the passenger in a state of intoxication. Unless it was proved that an overt act committed in the state of intoxication has directly resulted in the fall from the train, the case will not come within the exception. In the present case, what has been established is an untoward incident of accidental fall from the train. As the appellant has led no evidence, the appellant has not discharged the burden of bringing the case within the exception carved out by clause (d). There is no evidence adduced to show that the state of intoxication is the cause of fall from the train. 6 In the circumstances, it is not possible to find fault with the findings recorded by the Tribunal. There is no merit in the appeal and the same is dismissed with no order as to costs. JUDGE