The burden of proof rests on the claimants to establish the untoward incident and the deceased's status as a bona fide passenger, and in the absence of evidence, the onus shifts to the person claiming compensation to prove the same.

Valmiki J. Mehta, J (Oral)

1. By this first appeal under Section 23 of the Railway Claims Tribunal Act,1987, the claimants/appellants pray for setting aside of the impugned judgment of the Railway Claims Tribunal dated 30.8.2011 whereby the claim petition filed by the appellants seeking compensation was dismissed.

2. The claim petition was dismissed as the Railway Claims Tribunal held that the claimants/appellants failed to prove that the deceased was a bona fide passenger. The relevant findings and observations of the Railway Claims Tribunal read as under :

“After perusal of record, I observe that in the documents i.e. AW1/6 to AW1/9, placed on record by the applicants, it is no where mentioned that (deceased) fell down from the train and died. The burden of proof rests entirely upon the applicants to prove the untoward incident, within the meaning of section 123 (c) read with section 124-A of the Railways Act. In this connection, a reference may be made to a decision of Hon’ble Delhi High Court titled as Jamirul Nisha and another Vs. Union of India, 2009 ACJ 1393, wherein it is held in para no.34 & 35 of the decision as under:

“34. From the perusal of section 123 c 92) & 124 A, it is clear that “sine qua non” for claiming compensation, on account of death or injury sustained in a train accident is that the victim of a train accident, or his dependents as the case may be, must first establish that the victim or the deceased had accidentally fallen from the train.”

“35. In the instant case, applicants have failed to establish that the deceased had accidentally fallen from the train, therefore, the question of the proof by the Railways that the death of the deceased was not the result of untoward incident does not arise.”

Hence, it is clear that the applicants miserably failed to prove the untoward incident by way of documents placed on record by them & it is also relevant to mention that in the police final report i.e R5 (based on inquest report & other documents), submitted by the respondent, it is clearly mentioned by Sh. Zile Singh SHO/ODRS dt.24.05.2008 in his report as under:-

“On 20.03.2008, on receipt of information, IO reached the place of occurrence i.e KM pole no. 9/01-9/03 Vivek Vihar railway line & there he found lying one male dead body of an old man, who was identified as Gurumukh Singh S/o Sardar Mohan Singh R/o H. No.20/97, Kalyanpuri Delhi. Statements of the witnesses were recorded, who told that the deceased met with train accident, while he was crossing the railway line. Post Mortem was got conducted, cause of death was train accident. No foul play suspected, inquest may please be filed.”

Sd/-

Zile Singh

SHO/ODRS

24.05.2008

Filed.

Sd/-

Mahendra Kumar

Sub Divisional Magistrate

Kotwali

The aforesaid report was sent to Sub Divisional Magistrate Sh. Mahendra Kumar, who endorsed & accepted it. The evidence of witness AW2 Sh. Rajeev is also not convincing, because he did not submit any positive proof that he was travelling with Sh. Gurmukh Singh as there was no reference of AW2 in the claim application & so the story put forth by the applicants, is an after thought & not well convincing. The copy of document R5(based on inquest report & other documents), submitted by the respondent, was given to the applicants through their Counsel, but nothing was adduced in rebuttal on behalf of the applicants. Hence, adverse inference goes against the applicants. It is also relevant to mention that the documents i.e. AW 1/6 to AW1/9 submitted by the applicants & R5 submitted by the respondent, were prepared in the ordinary course of duties by the Govt. officials and the veracity of the documents, cannot be doubted.

Hence, it is clear that the incident occurred, while Sh. Gurmukh Singh (deceased) was crossing the railway track on 20.03.2008 at KM pole no.9/01-9/03 Vivek Vihar railway line & met with the train accident, due to his own negligence & for that Railway Administration is not responsible as the present case falls under the exce