The present First Appeal has been filed by the Appellant - Railway Administration - Original Respondent under Section 23 of the Railway Claims Tribunal Act, 1987 being aggrieved by the judgment and order passed by the Railway Claims Tribunal, Ahmedbad Bench, Ahmedabad in Case No. OA 0200073 dated 14.5.2009, on the grounds stated in the memo of Appeal in detail inter alia that the Tribunal has ignored the important aspect that only the ticket for the minor was produced and no ticket for the deceased was produced nor it was found on the person of the deceased. It is therefore contended that the deceased was not a bonafide passenger and wold not be entitled to claim the compensation. It is contended that the Tribunal has ignored the evidence of the railway administration and therefore the judgment is erroneous. It is also contended that the untoward incident cannot be construed in a manner in which the Tribunal has interpreted, and therefore ,the entire judgment is erroneous.
Heard learned Advocate Mr. Ravi Karnavat for the Appellant and learned Advocate Mr.U.M.Shastri for the Respondent.
Having perused the record and the impugned judgment, the moot question which is required to be considered is as to whether the findings given by the Tribunal can be said to be erroneous particularly with regard to the contention raised about the bonafide passenger.
Though the contention has been raised by learned Advocate Mr. Ravi Karnavat for the Appellant - Railway Administration that there is no ticket found from the person of the deceased and in the absence of such ticket it cannot be said that the deceased was a bonafide passenger, the impugned judgment therefore could not have been passed. However, as could be seen from the discussion, it is not in dispute that the deceased was traveling, and the daughter - Tinaben of the decased has filed an affidavit, who is a witness to the incident with all supporting evidence like Memo, Panchnamas, railway ticket, P.M. report, Ration Card, etc. suggesting that the accident has occurred. Therefore, merely because the ticket of the deceased is not recovered from his person in such an accident, cannot lead to a presumption that he was not a bonafide passenger.
It is well accepted that the burden of proof is on the railways if such a contention is raised. The railway could have produced from the record or the list of the passengers that no such ticket has been issued in the name of such person. On the other hand, the daughter of the deceased was traveling and accompanying the deceased, who has clearly stated about their journey as well as the accident having taken place.
The provisions of Section 2(29) of the Railways Act, 1989 define the word "passenger" as a person traveling with valid pass or ticket.
It is in these circumstances, the court has to consider whether the deceased was traveling as a passenger and would be covered by the definition of "passenger". The submission that as no ticket has been recovered, he will not be treated as a passenger, is misconceived in light of the other evidence, including the evidence of the daughter of the deceased and the other documentary evidence, which clearly suggest that the deceased was traveling by the train. Therefore, the burden would shift on the railways if such a contention is raised that the deceased was not at all traveling as a passenger though it is for the railway administration to prove and establish by cogent evidence as observed in case of Rajkumari and Another v. Union of India, reported in 1994 (1) T.A.C 67 that the burden of proof is of the railways if such a contention is raised.
In the circumstances, as there is no such evidence, it cannot be believed that the deceased was not a bonafide passenger.
Further, Section 123 (c) of the Railways Act referred to "untoward incident" and Section (c)(2) provide:
"the accidental falling of any passenger from a train carrying passengers."
Section 124 read with Section 124A referred to the compensation on account of untoward incident. Therefore it cannot be said that the court below has committed any error which would call for any interference in the present First Appeal.
This court is in complete agreement with the findings and the conclusions arrived at, which does not call for any interference by this Court. Hence, the present First Appeal deserves to be dismissed and accordingly stands dismissed.
In view of the order passed in the main matter, the Civil Application stands disposed of.
(Rajesh H.
shukla,J) Jayanti* s disposed of.
(Rajesh H.
shukla,J) Jayanti* Top