The burden of proof in cases of death resulting from an accident lies with the claimant, and in the absence of evidence, the application for compensation can be rejected.

BAHARUL ISLAM, J.:- This appeal is under the Letters Patent and is from a judgment and decree passed by a learned single Judge of this Court.* It arises out of a claim petition made by the mother of one Mahendra Goswami, alleged to have been the victim of a Railway accident that took place at the Diphu Railway Station on the 23rd April, 1966.

* Reported in AIR 1972 Gauhati 97.

2. The Claims Commissioner on consideration of a number of points raised by the parties rejected the application. Two of the grounds on which the application for compensation was rejected were (1) that the application was barred by limitation; and (2) that the death of Mahendra Goswami has not been proved. The learned Single Judge affirmed the order.

3. It is admitted by both the parties that the accident in question took place on the 23rd April, 1966. The application for compensation was made by the appellant who was the mother of Mahendra Goswami on 2nd September, 1968. The period of limitation of the application is three months. But on the discretion of the Claims Commissioner the period can be extended to one year. Clearly the application is barred by limitation.

4. Mr. S.K. Senapati, the learned counsel for the appellant submits that on an earlier occasion one application claiming compensation was made by one T.P. Bhattacharjee, then a local M. L. A. of Silchar from which place Mahendra Goswami hailed. The claim petition alleged to have been filed by T.P. Bhattacharjee has not been proved in the case. That apart, under Section 82-C, an application for compensation under Section 82-A arising out of any accident of the nature specified therein may be made,

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where death has resulted from the accident, by any dependent of the deceased.

Admittedly, T.P. Bhattacharjee was not a dependent of the deceased. The applicant was the mother who made the application on 2-9-1968 and was a dependent of the deceased. The Claims Commissioner as well as the learned Single Judge have concurrently held that the application is barred by limitation. We do not find any reason as to differ from the finding of the learned Single Judge.

5. The next question that was canvassed before the learned Single Judge was whether Mahendra Goswami died as a result of the accident in question.

The only evidence on the point was the evidence of P. Ws. 1 and 2. Their evidence is to the effect that on 23rd April, 1966, Mahendra Goswami purchased a third class ticket and boarded the 20Dn. train en route to Silchar. They saw him off. According to the evidence the train started at 11 A. M. and the accident took place towards the afternoon. It is admitted by the parties that Amguri where Mahendra Goswami boarded the train and Diphu where the accident took place are intervened by several stations and the evidence fell far short to prove the death of Mahendra Goswami in the accident.

6. Shri Senapati submits that under Section 108 of the Evidence Act the burden is upon the defendant to prove that Mahendra Goswami is alive and the defendant has failed to discharge that burden. So, he submits the death of Mahendra Goswami shall be presumed.

Section 108 of the Evidence Act is a proviso to Section 107. These two sections are based on the principle that once it is shown that a man was alive within a certain period, continuance of his being alive shall be presumed. The presumption is rebuttable. These two sections deal with the burden of proof in such a case. Section 107 provides that when the question is whether a man is alive or dead, and it is shown that the man was alive within 30 years, the presumption is that he is alive; the burden is then upon him who asserts that the man is dead to prove that he is dead. In the instant case, Mahendra Goswami was admittedly alive within 30 years. So, under Section 107 the burden is upon the claimant to prove that Mahendra Goswami is dead. But as Section 107 is subject to the proviso embodied in Section 108, if the claimant proves