The absence of a travel ticket does not negate a claim of bona fide passenger status; initial burden can shift based on sufficient evidence presented.

JUDGMENT :

(SYAM KUMAR V.M., J.)

This appeal is filed challenging the judgment dated 24.07.2014 in O.A.(IIu)/ERS/2013/0047 of the Railway Claims Tribunal (RCT), Ernakulam Bench. Appellants were the applicants before the RCT. Respondent was the respondent therein. Parties are referred to according to their status before the RCT.

2. Applicant's case in brief is as follows: They are the wife and children of late Seno V.J., who died in an untoward incident that occurred on 29.07.2012 at 7.40 P.M. While travelling in Thiruvananthapuram - Chennai Mail bearing train number 12624 from Ernakulam Town Station to Aluva, he somehow fell from the train at the north end of the platform. His body was found nearly 25 meters north of the north end of Ernakulam Town Railway Station. The deceased was a military man. After retirement, he was serving as an accountant in the Accountant General's office at Thiruvananthapuram. He was a bona fide passenger with a 2^nd class ordinary ticket, which could not be recovered since the body was mutilated and the dresses were torn. The applicants claimed Rs.4,00,000/- as compensation for the untoward incident.

3. The RCT framed four issues and the parties proceeded to tender evidence. The applicants examined PW1 and marked Exts.A1 to A11. Respondents examined RW1 and marked Exts.R1 to R3. After hearing both sides, the RCT concluded that the applicants had failed to produce any material to arrive at the conclusion that the victim was a bona fide passenger in the train in question and that the incident was an untoward incident as defined under Section 123 (c) of the Railways Act, 1989 . The applicants had not been able to prove that the victim died on account of a fall from the train. The application was thus dismissed. Aggrieved by the said judgment of the RCT, this appeal has been preferred by the applicants.

4. Heard Sri.P.Samsudin, Advocate for the appellants/ applicants and Sri.S.Biju, Advocate, SCGC for the respondent railways.

5. The learned counsel for the applicants contended that the judgment of the RCT is perverse, illegal and arbitrary. The same had been rendered by overlooking the law as well as the facts. The learned counsel contends that there were specific factual inputs, which had been brought out in evidence tendered by both sides which was not taken into consideration or discussed by the Tribunal. Reliance is placed on the deposition of PW1 who had stated that he had seen the victim being dragged by the train while moving from the platform. It had also been stated that the victim was between the handle of the compartment and the platform. The said evidence tendered by the witness categorically proves that the victim was a passenger in the train and that he fell down while trying to board the train. This aspect was overlooked by the RCT. The RCT erred in construing the FIR as settling that the death was due to ‘train hit’. It is submitted that the said FIR had only reported the incident and cause of death. Death due to ‘train hit’ need not mean that the victim was not a passenger. Insofar as PW1, who is a witness to the incident, had clearly deposed as to how the incident had occurred, the contradicting interpretation given to the FIR is incorrect. The RCT had failed to appreciate the scene mahazar which was authentic and corroborated the statement's deposition made by the witness. The reason stated by the RCT for disbelieving PW1's evidence related to the distance pointed out in the DRM's report regarding the platform and place where the body was found. The RCT ought to have found that the scene mahazar is more authentic than the final report or any other report in identifying the spot of the incident. The RCT had overlooked the testimony of RW1 that he saw a group of people at a distance of 25 mtrs. northward from the north end of the platform. The RCT overlooked the inquest report which had mentioned that the persons who were questioned had specifically stated that the deceased would have died fro