F.A.O. No.3569 of 2010 1 IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... F.A.O. No.3569 of 2010 Date of Decision: August 19, 2011 Usha and others ... Appellants VERSUS Union of India and others ... Respondents CORAM : HON'BLE MR.JUSTICE MOHINDER PAL Present: Mr.Pawan Sharma, Advocate for the appellants. Mr.D.D.Sharma, Advocate for the respondents. -.- MOHINDER PAL, J. This appeal has been filed by the appellants-claimants challenging the order dated 19.11.2009 passed in OA-II/12/2006 filed on 03.02.2006 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 Balia Kheri railway crossing (Saharanpur) while travelling in a train from Chandigarh to Village Baduli, P.S. Nagal (Saharanpur). 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 F.A.O. No.3569 of 2010 2 Act and that the deceased was not a bonafide passenger of the train. 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?” 4. Relief. 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, neither it has been proved that the deceased was a bonafide passenger of the train in question nor that the deceased had died in an untoward incident as defined under Section 123 ( c ) (2) of the Railways Act. 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 Usha wife of the deceased and AW2 affidavit of Ramesh Chand. On the other hand, learned Standing counsel for the Railway has submitted that no case is made out by the appellants to 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 F.A.O. No.3569 of 2010 3 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 bonafide 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 Usha, 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 and purchased a ticket from Chandigarh to Saharanpur in her presence. The Tribunal, in its turn, has found fault with the evidence of the widow of the deceased as AW2 Ramesh Chand, has stated that the deceased had travelled one day before the incident to come to Village Baduli. It will be relevant to note that widow of the deceased was not a co-passenger. 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 calculating the amount of compensation payable to the appellants within a period of two months. The parties are directed to appear before the Tribunal on 12.09.2011. August 19, 2011 ( MOHINDER PAL ) jt JUDGE