Point of Law : Mere absence of ticket with such injured or deceased will not negative claim that he was a bona fide passenger. Initial burden will be on the claimant which can be discharged by filing an affidavit of the relevant facts and burden will then shift on Railways and the issue can be decided on the facts shown or the attending circumstances.

JUDGMENT :

1. This appeal under Section 23 of the Railway Claims Tribunal Act, 1987 (“the Act, 1987”) is directed against the judgment and award dated 23rd December, 2016, passed by the learned Vice Chairman (Judicial) of the Railway Claims Tribunal, Mumbai Bench, Mumbai (“the Tribunal”), whereby the claim application OA (II u)/MCC/0435/2011, preferred by the appellant – applicant under Section 124-A of the Railways Act, 1989 (“the Railways Act”) for compensation on account of the death of her son Abdul Salam Kadir Shaikh in an untoward incident on 11th May, 2010, came to be dismissed.

2. The background facts leading to this appeal can be stated in brief as under :

(a) Abdul Salam Kadir Shaikh (“the deceased”), then 23 year old, was a bachelor. On 11th May, 2010, he was travelling from Andheri to Dadar by a local train on a valid second class ticket. The applicant asserted that after the train left Andheri station and was running, in between kilometers 21/7A and 21/8, due to push from the other passengers in the compartment, the deceased fell off the running train and sustained a fatal head injury. The deceased died on the spot. The deceased’s father had deserted his mother Raziya, the applicant, and, thus, the applicant being the sole dependent preferred the application for compensation under Section 124-A of the Railways Act.

(b) The respondent resisted the application by filing a written statement. It was contended that since the applicant had no personal knowledge of the occurrence, the mode and manner of the alleged untoward incident pleaded by the applicant was not correct. On the contrary, the respondent asserted, the accident memo and inquest panchnama indicate that the deceased was not a bona fide passenger and had not suffered death in an untoward incident. The deceased suffered the fatal injury while unauthorisedly crossing the railway track. There was no material to show that the deceased fell off accidentally from a train carrying passengers. On these, amongst other, grounds the respondent prayed for dismissal of the application.

(c) The Tribunal recorded evidence of applicant Mrs. Raziya (AW-1). After appraisal of the oral evidence and the documents tendered for his perusal, especially the accident memo submitted by the Station Superintendent, Andheri, the inquest panchnama and the postmortem report, the learned Vice Chairman of the Tribunal was persuaded to hold that the deceased was knocked down/run over by an unknown local train while crossing the railway tracks near Andheri Railway Station. Thus, the said incident did not fall within the ambit of “untoward incident” as defined under Section 123 (c)(2) of the Railways Act. The Tribunal further held that the deceased was not a bona fide passenger. Thus, the claim for compensation was negatived by the impugned judgment and award.

3. Being aggrieved by and dissatisfied with the impugned judgment and award, the applicant has preferred this appeal.

4. I have heard Mr. V. N. More, the learned Counsel for the appellant, and Mr. T. J. Pandian, the learned Counsel for the respondent, at length. With the assistance of the learned Counsels for the parties, I have perused the material on record especially the pleadings, the deposition of Mrs. Raziya (AW-1) and the documents tendered for the perusal of the Tribunal.

5. Mr. More, the learned Counsel for the appellant, strenuously submitted that the Tribunal erred on both the counts. Firstly, the inference drawn by the Tribunal that the deceased was not a bona fide passenger for the only reason that a valid ticket was not found on the person of the deceased is wholly unsustainable. Emphasis was laid on the fact that the claim of the applicant on the said count went untraversed during the course of her cross-examination. Secondly, the approach of the Tribunal in recording a finding that the deceased did not meet death in an untoward incident is far from satisfactory. In the process, according to Mr. More, the Tribunal committed a man