1 fa1253-11 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURSIDICTION FIRST APPEAL NO. 1253 OF 2011 Prabhavati Pandharinath Gadkari .. Appellant V/s. Union of India through the General Manager, Western Railway, Churchgate, Mumbai .. Respondent ..... Mr. Kuldip Singh for the appellant. Mr. K. J. Kandpile for the respondent. ..... CORAM : A.S.OKA, J. DATE : SEPTEMBER 29, 2011. ORAL JUDGMENT : Taken up for final disposal. Compilation is taken on record. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent. 2. The appellant who is the mother of the deceased along with her husband (since deceased) filed a claim before the Railway Claims Tribunal invoking Section 124 A of the Railway Act, 1989 (hereinafter referred to as “the said Act”). The case of the appellant is that her son Nitin Pandharniath Gadkari on 27th April, 2005 while travelling by a suburban 2 fa1253-11 train from Nalasopara to Malad railway stations accidentally fell down from the train between Kandivali and Malad stations and died as a result of the injuries sustained. By the impugned Judgment and order, the claim petition has been dismissed. 3. The Railway Claims Tribunal found that the deceased was a bona fide passenger. The Tribunal recorded a finding on the basis of the station master's Memo and inquest panchanama that the case was not of accidental fall from the train, but was of a knock down. Therefore, the Tribunal held that the case of an untoward incident within the meaning of Clause 2 of Section 123(c) of the said Act was not made out. 4. I have heard the learned counsel appearing for the appellant. He has taken the Court through the compilation of documents containing notes of evidence and copies of the documents placed on record of the Tribunal. As far as finding on the issue of the deceased being a bona fide passenger is concerned, the Tribunal has already held that the deceased was a bona fide passenger. The father of the deceased filed an affidavit in lieu of examination-in-chief. Perusal of the cross-examination shows that the relationship between the original claimants and the deceased has not 3 fa1253-11 been disputed. 5. The finding of the Tribunal on the other issue is based on station master's memo and inquest panchanama. These documents record the case of knock down. It will be interesting to know that in the paragraph No.6 of the impugned Judgment, the learned Member of the Tribunal recorded a finding that there was no evidence to show that the deceased fell down from a train. But, in paragraph No.7, the Tribunal recorded a finding that even the case of knock down was not proved. 6. The burden was on the respondent Railway to prove the case of knock down. The said burden was not discharged. There was no witness examined to prove the case of the knock down. When the case of knock down has not been proved, and when the body of the deceased was found on the railway track, the case of accidental fall from the train will have to be accepted especially in the light of the finding already recorded that the deceased was a bona fide passenger. 7. Hence, the claim ought to have been allowed by granting compensation of Rs.4,00,000/- with interest thereon at the rate of 6% per annum. 4 fa1253-11 6. Hence, I pass the following order: :: O R D E R :: i. The impugned Judgment and order dated 22nd July, 2009 passed by the Railway Claims Tribunal is quashed and set aside. ii. The claim petition is allowed. iii. The appellant shall be entitled to compensation of Rs.4,00,000/- from the respondent together with interest thereon at the rate of 6% per annum from the date of filing of the claim application till the realization or deposit of the said amount. iv. The respondent shall deposit the compensation amount with the Tribunal within a period of eight weeks from today. v. The Appeal is partly allowed on the above terms with no order as to costs. (A.S.OKA, J.)