1 S.B.CIVIL MISC. APPEAL NO.105/2006 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B.CIVIL MISC. APPEAL NO.105/2006. Union of India. VERSUS Smt.Ramesh Devi Tak and Another. 30.01.2009. HON'BLE MR.JUSTICE DALIP SINGH Mr.Ghanshyam Brijwasi, for the appellant. Mr.Deepak Goyal, for the respondent. ***** Heard learned counsel for the parties. This appeal has been preferred by the Union of India against the decision of the learned Railway Claims Tribunal, Jaipur Bench dated 22.07.2005 whereby the learned Tribunal has allowed the claim filed by Smt.Ramesh Devi wife of Shri Mohan Lal and Mohan Lal son of Shri Ram Chandra who are the parents of the deceased passenger Mukesh Kumar. As per the findings of the learned Tribunal, the deceased boarded the Train No.9263 Down (Porbandar – Delhi Sarai Rohilla Express) at Ajmer after having purchased the ticket in the presence of the witness Smt.Sulochana, sister of the deceased passenger, to whom he had gone to meet at Ajmer and was returning thereafter. The facts, in brief, are that after boarding the aforesaid train having purchased the ticket in the 2 S.B.CIVIL MISC. APPEAL NO.105/2006 presence of Smt.Sulochana, the deceased fell down from the running train and was found on the track by the passing train 2015 Up. The guard and the driver of the said train brought him to Ajmer Station and an FIR was lodged with the Government Railway Police at Ajmer. Based upon the above facts, the claimants filed the claim petition before the learned Tribunal and led evidence before the Tribunal in support of the above. The appellants, who were respondents before the learned Tribunal, denied the fact of accident and interalia submitted that the deceased was not a bonafide passenger at the time of accident. Issues No.1, 2, 3 and 4 which are enumerated in the impugned order at page No.3 were decided together by the learned Tribunal. The learned Tribunal relying upon the evidence of Smt.Sulochana, held that the deceased had purchased the ticket in the presence of Smt.Sulochana, sister of the deceased, who had filed an affidavit before the leaned Tribunal. The learned Tribunal held that initial onus on the part of the claimants that he was a bonafide passenger had been discharged. Thereafter, the evidence of the appellants was examined and the learned Tribunal came to the conclusion that the appellants had failed to discharge the burden to show that the deceased was not in the possession of a valid ticket which was the plea taken by the appellants in defence. Since this was the plea taken in defence by the appellants before the learned Tribunal the burden to prove the same rested upon the 3 S.B.CIVIL MISC. APPEAL NO.105/2006 appellant. Learned counsel for the appellants submitted that the burden to show that the deceased was a bonafide passenger was upon the claimants who failed to discharge the aforesaid burden and the learned Tribunal has wrongly decided the claim in favour of the claimants. I have considered the aforesaid submissions. So far as the burden of proving whether or not the deceased was a bonafide passenger, has been decided by this court in the case of Smt.Bhagwani Giri Vs. Union of India reported in 2004(4) WLC (Raj.) 573. In para 5 of the said report, it has been held as follows:- “Learned Single Judge in the impugned order observed that the appellant could not establish the fact that her son Balendra Giri was a bona fide passenger at the time of incident. Merely by filing the affidavit the burden could not have been discharged. We find ourselves unable to agree with this finding. The Division Bench of Madhya Pradesh High Court in Raj Kumar Vs. Union of India (1993 ACJ 84) indicated that the burden to prove that the deceased was a ticketless passenger and was not a bona fide passenger is on the Railway Administration. In the instant case since the burden was not discharged by the Railway Administration, the impugned orders deserve to be set aside.” The learned Tribunal in the instant case came to the conclusion that the appellants failed to prove the 4 S.B.CIVIL MISC. APPEAL NO.105/2006 plea raised by them in defence that the deceased was not a bonafide passenger. This plea could not be proved by them as the appellants failed to lead any evidence in support of the same. It has also been held by the learned Tribunal that the respondents failed to bring on record the fact with regard to the search of the person of the deceased in the form of any, jama talashi or panchnama of the deceased to show as to in what condition the deceased was found and whether or not the deceased was possessing any valid ticket. Once it has come on record that an FIR was registered at the GRP Police Station, Ajmer, the appellants were duty bound to produce the record of the said investigation. As such an adverse inference against the appellant could be drawn. Since the claimants had filed the affidavit of Smt.Sulochana the witness who saw the deceased purchasing the ticket at Ajmer before boarding the train the claimants had discharged their initial burden. The appellants not having brought any documentary evidence, as aforesaid, an adverse inference was rightly drawn against them for not producing the record and on their failure to prove the plea taken in defence by the appellants rests upon the defendant who failed to discharge the same, the learned Tribunal rightly accepted the claim as held by the Division Bench of this Court. In the facts and circumstances, no exception can be taken from the findings arriving at by the learned 5 S.B.CIVIL MISC. APPEAL NO.105/2006 Tribunal. Consequently, the appeal and the stay application also stand dismissed. (DALIP SINGH),J. Solanki DS, Jr.P.A.