The burden of proof in civil cases requires a fact to be proved by a preponderance of probabilities. The tribunal erred in its decision-making process and failed to consider the standard of proof applicable in the case.

Dipankar Datta, J.

1. Dismissal of Claim Application No.U/421/2006 by the Railway Claims Tribunal, Kolkata, vide judgment and order dated February 29, 2008, has been called in question in this appeal by the applicant thereof (hereafter the appellant).

2. The appellant had approached the tribunal seeking compensation on the death of her husband, Barun Kumar Misra (hereafter the victim), on July 21, 2005. It was pleaded in the claim application that the victim while returning home from Sheoraphuli boarded a Howrah bound local train and fell down on the track at Serampore Railway Station by slipping in between the gap of the platform and the train due to pressure exerted by other passengers, suffered multiple injuries and died on the spot. Accordingly, Rs.4,00,000/- was claimed together with interest and costs. The claim application was contested by the Eastern Railway by filing a written statement wherein the material allegations levelled in the claim application were denied and disputed. The appellant examined herself as a witness, AW-1, and another gentleman who was allegedly accompanying the victim and was in the train with him adduced evidence as AW-2. The railway did not adduce any evidence.

3. The tribunal framed the following issues for determination:

“(1) Whether the victim sustained injuries by falling from a running train and died thereof on the alleged date and time and if so, whether the said incident is covered within the meaning of ‘untoward incident’ as defined under Section 123 (c) of the Railways Act, 1989?

(2) Whether the victim was a bona fide railway passenger?

(3) Whether the applicant, is entitled to get compensation from the respondent, as prayed for?

(4) To what other relief, if any, the applicant is entitled?”

4. All the aforesaid issues were decided against the appellant resulting in dismissal of the claim application, as referred to above.

5. Mr. Banerjee, learned advocate appearing for the appellant contended that the tribunal erred in the exercise of its jurisdiction in returning the findings it did and thereby declining relief despite the claim of the appellant having been duly proved on the basis of the evidence on record. He further contended that despite the railway having sought for time for adducing evidence and obtained adjournments, it ultimately did not and the Member (Technical) who presided over the tribunal imported his personal knowledge in recording the finding that the victim was run over while crossing a railway track and not that he fell down from a moving train and died, as claimed by the appellant. He also contended that the oral evidence of AW-2 was not appreciated in the proper perspective and submissions advanced on behalf of the appellant by her advocate relying on decisions having the force of precedents binding on the tribunal were not at all considered. Placing reliance on the decision of the Supreme Court reported in 2011 (1) T.A.C. 10 (S.C.) [Jameela & others v. Union of India] and a decision of a coordinate Bench of this Court reported in (2010) 1 WBLR (Cal) 106 [Bandana Mondal v. Union of India], he submitted that the appellant is entitled to relief and prayed for compensation in a sum of Rs.8,00,000/- having regard to the amendment effected in the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990 by the Amendment Rules of 2016.

6. Per contra, Mr. Das appearing for the respondent contended that the judgment and order of the tribunal does not suffer from any infirmity warranting interference. According to him, the victim was a ticket-less passenger and, therefore, not a bona fide passenger as explained in section 124-A of the Railway Act, 1989. Relying on the decision of a coordinate Bench of this Court reported in (2010) 1 WBLR (Cal) 444 [Smt. Shakuntala Show & ors. v. Union of India], he prayed for dismissal of the appeal.

7. We have heard the learned advocates for the parties and perused the materials on record. The contentious issue, arising for decis