F.A.O. No.5928 of 2010 (O&M) 1 IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... F.A.O. No.5928 of 2010 (O&M) Date of Decision: September 21, 2011 Jitender ... Appellant VERSUS Union of India ... Respondent CORAM : HON'BLE MR.JUSTICE MOHINDER PAL Present: Mr.D.S.Nirban Rao, Advocate for the appellant. Mr.Karamjeet Verma, Advocate for the respondent. -.- MOHINDER PAL, J. C.M.No.26358-CII of 2010 For the reasons mentioned in the application, which is supported by an affidavit, the same is allowed. Delay of 92 days in filing the appeal is condoned. F.A.O.No.5928 of 2010 This appeal has been filed by the appellant-claimant challenging the order dated 07.08.2009 passed in OA-II/08/2008 decided by the Railway Claims Tribunal, Chandigarh Bench,Chandigarh F.A.O. No.5928 of 2010 (O&M) 2 (hereinafter referred to as 'the Tribunal'). As per averments made in the claim petition, the claimant is husband of deceased Rinku Kumari alleged to have died in accidental fall and run over by Malwa Express while waiting for the train to travel from Sonepat to Jammu Tawi. The claimant claimed compensation of ` 10 lacs under Section 124(A) and 124 read with Section 16 of the Railway Claims Tribunal Act, 1987. The claim petition was contested by the Railway by filing reply and taking up objections that the petition was not maintainable as alleged accident has not taken place with the train Malwa Express at the relevant time. It has been submitted that deceased has not started her journey from Sonepat to Jammu Tawi on 29.05.2007 at 6.00 A.M. by train No.2919 Malwa Express. The time of the accident has not been mentioned intentionally and as on the relevant date the train has reached the railway station at 10.27 and departed at 10.47, the story regarding hit by the Malwa Express was false and not believable at all. The following issues emerged from the pleadings of the parties: 1.Whether the deceased was a bonafide passenger as alleged? 2.Whether the incident in question is covered within the ambit of Section 123 (2) of the Railways Act? 3.Whether the applicant is the only sole dependant of the deceased?” 4.Relief.” The Tribunal after appreciating evidence adduced by the parties and going through the material available on the record came to the conclusion that the claimant was the legal heir of the deceased and the deceased lady was bonafide passenger as she was having railway F.A.O. No.5928 of 2010 (O&M) 3 journey ticket. However, the claim petition has been dismissed on the ground that the train arrived at 10.27 and departed at 10.47 and, as such, deceased Rinku Kumari died while crossing the railway line in un-authorized way. Resultantly, the Tribunal rejected the claim against which the appeal has been filed. Learned counsel for the appellant-claimant has contended that the Tribunal has committed an error by holding that the deceased died when she was crossing the railway line. The findings of the Tribunal are based on conjectures and surmises, and are not based on any evidence on record. As the assumptions and presumptions were not based on any evidence and were simply hypothetical assumptions, the decision of the Tribunal is liable to be reversed. On the other hand, learned standing counsel for the Railway has submitted that no case is made out by the appellant to interfere with the 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 in this case is whether the finding of the Tribunal that the deceased died while crossing the Railway in a hurried manner, can sustain the scrutiny of the Court and is valid or legal. It is settled that the burden of proof lies on the Railway to prove that the deceased was a bonafide passenger and died while crossing the railway line. However, from the evidence taken into consideration by the Tribunal, it is apparent that the Railway has filed to adduce any evidence in this regard. The Tribunal seems to have presumed that probably the deceased was crossing the railway line in a hurried manner and she met with and accident and died. There is no evidence F.A.O. No.5928 of 2010 (O&M) 4 from the Railway in this regard. On the other hand, D.R.M. inquiry report has been placed on record wherein it has been admitted that the deceased lady was a bonafide passenger and was having railway journey ticket. It is own admission of the Railway that the deceased has been hit by some other train. As discussed earlier, in absence of any evidence to show that death has occurred due to own fault and negligence of the deceased, no benefit can be given to the Railway to absolve them of the liability. Once it is established that the passenger was having a valid reserved ticket to travel by train whether she has been hit by that train or by some other train become meaningless. The witnesses may have tried to depose in view of the time written on the ticket, which was found in possession of the lady in question. However, such deviation cannot result into discharging the Railway from its liability to pay the compensation. The requirement of law is that untoward incident has taken place. Whether or not there has been any negligence on part of the passenger, the Railway Authorities will be liable to pay the compensation. In view of the cogent and convincing evidence on behalf of the claimant and own admission of the Railway-Board and in absence of discharging liability of proving the fact that deceased was negligent in crossing the railway line, it has to be necessarily held that the husband of the deceased was entitled to get the compensation. Under these circumstances, there is irresistible conclusion that the appellant-claimant succeed and his appeal is allowed. The judgment passed by the Tribunal is set aside. The appellant-claimant is held entitled to compensation of ` 4 lacs. Railway Administration-respondent is directed to pay the amount of compensation within a period of two months from the date of passing F.A.O. No.5928 of 2010 (O&M) 5 of this judgment with simple interest @ 6% per annum from the date of filing of the claim petition till the actual payment. September 21, 2011 ( MOHINDER PAL ) jt JUDGE