Absence of a ticket does not negate the status of a passenger as bona fide under specific conditions.

JUDGMENT :

JITENDRA JAIN, J.

1. This appeal is filed challenging the order dated 31^st January, 2018 passed by the Railway Claims Tribunal, Mumbai, whereby the application made by the legal heirs of the deceased came to be rejected on the ground that the deceased was not a bonafide passenger, because no ticket was found and the deceased was trespassing the railway lines and was hit by a moving train. Therefore, after looking at the injuries, the Tribunal came to a conclusion that it is not a case of falling down from the train, but negligence of the deceased in crossing the railway lines.

2. I have heard learned counsel for the Appellants and Respondent.

3. The issues which arise for my consideration are :-

Issue (1): Whether deceased was a bonafide passenger travelling by train?

Issue (2): Whether the deceased died by falling from the train or was knocked down by moving train?

4. On 29^th October, 2012 at around 20.30 hours, the deceased was travelling from his office from Grant Road to Shahad via. Dadar. The untoward incident happened between the Kanjurmarg and Bhandup Railway Station. The deceased was initially admitted to Rajawadi Hospital and then taken to Sion Hospital at 2.00 am. The deceased succumbed to his injury on 04^th November, 2012. Thereafter, a claim was lodged with the Tribunal seeking compensation of Rs.4,00,000/- and interest at the rate of 18%. The wife and nephew of the deceased filed their affidavits in evidence. The wife was cross-examined. Respondent did not lead any evidence in support of their stand.

5. At the outset, the Appellants submit that in paragraph 8 of the impugned order the Tribunal has wrongly recorded name of dependent No.1 as Bhairulal Dhulchand Jain instead of Jaishree Gondake. From records the said contention appears to be correct.

6. The first issue which requires to be considered is whether the deceased was a bonafide passenger, since no ticket was found, although ATM and other documents were found from possession of the deceased at the time of the accident. The learned counsel for the respondent states that in the claim and in the affidavit of the wife of the deceased, there is a reference to monthly pass. Whereas, in the cross-examination she has stated that the deceased was having second class ticket. This contradiction shows that he was not a bonafide passenger.

7. In my view, the words used in the cross-examination and affidavit in evidence and the statement of claim cannot be read like statute. In the statement of claim, it is specifically averred that he was holding monthly pass. In the affidavit in evidence of the wife of the deceased she has reiterated the same. In the cross-examination, the wife accepts that he was having a second class ticket. The phrases “monthly pass” and “ticket” are used interchangeably in Mumbai and when in the cross-examination it is stated that he was having a second class ticket, it cannot be inferred that he was travelling without ticket. It is also important to note that the deceased was a government employee working in Post Office and, therefore, it is incomprehensible that a government employee would be travelling to his work place and back home without any ticket. Therefore, the contention raised by the learned counsel for the respondent to contend that he was not a bonafide passenger and, therefore, Tribunal was justified in giving its findings, cannot be accepted.

8. The learned counsel for the respondent relied upon the decision in the case of Kamrunnissa vs. Union of India, (2019) 12 SCC 391 and more particularly par