The central legal point established in the judgment is the presumption that a person traveling in a train is a bonafide passenger and the burden of proof on the railways to prove that the deceased was a ticketless passenger.

Aggrieved against the Order of Railway Claims Tribunal dismissing the Claim Petition, wife, children and mother of deceased Sambasivam have filed this appeal.

2. Factual background in a nutshell are as follows: -

Applicants/appellants alleged that the deceased Sambasivam was travelling in a EMU train in between Veppampattu and Sevvapet R.S. on 14. 2001 at about 7 a.m., and died due to accidental fall. Sambasivam was working as driver in State Transport Corporation. Stating that they are the legal heirs and dependents of Sambasivam, the appellants filed Claim Petition under Ss.123(c)(2), 124A and 125 Railways Act. Railway resisted the claim and alleged that it was purely a suicidal death.

3. The appellants have examined A.W.1 - Rajan and eye witness A.W.2 -Kumar. Exs.A-1 to A-6 were marked. Referring to the evidence of A.W.2, Railway Claims Tribunal has held that A.W.2 could not have witnessed the incident. Pointing out the position and lying of the body i.e. severance of head and the body found inside the down line and noticing the pattern of injuries, the learned Tribunal has concluded that death was due to suicide and not of accidental fall and on those findings, dismissed the claim petition.

4. Challenging the order of the Tribunal, learned Counsel for the appellant Mr.S.Subbiah has submitted that when in the Inquest Report and in the Final Opinion, police have recorded a finding that Sambasivam died by accidentally falling down from the train, the Tribunal erred in saying that the death was suicidal death. The learned Counsel has further submitted that under the provisions of the Railways Act, there is always a presumption that a person travelling in train is a bonafide passenger, holding valid ticket and any accidental fall from the train would be falling within the ambit of Sec.123(c)(2) of the Railways Act. In support of his contention, the learned Counsel for the appellants has placed reliance upon the following decisions: -

1993 ACJ 846 [Raj Kumari & Anr. v. Union of India];

AIR 2000 Orissa 147 [Union of India v. Jshna Kanhar];

AIR 2003 Andhra Pradesh 56 [Dasari Laxmi v. Union of India];

I (2003) ACC 423 [Agam Shanthamma v. Union of India];

C.M.A.No.2568/2003 dated 12. 2003.

5. The learned Counsel for the Railway Mr.V.G.Suresh Kumar has submitted that having regard to the inherent contradictions in the evidence of A.W.2, Tribunal has rightly disbelieved the evidence of A.W.2 – Kumar. The learned Counsel has further submitted that when the head of the deceased was severed and the body lying inside down line, and keeping in view the pattern of injuries, Tribunal has rightly concluded that it was a suicidal death and that factual finding cannot be interfered with.

6. There is no dispute that death was on the railway track. In the light of rival contentions, the main point falling for consideration is whether the Tribunal was right in holding that the death of Sambasivam was not due to accidental fall but a suicidal death.

7. The claim for compensation arises on account of "accident" as well as the occurrence of an "untoward incident", both of which are defined under the Railways Act. As per Sec.123(a), "accident" means an accident of the nature described in Section 124. As per Sec.123(c), "untoward incident" means -

.(1) (i)the commission of terrorist Act within the meaning of sub-section (1) of Section 3 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 1987); or

.(ii) the making of a violent attack or the commission of robbery or dacoity; or

(iii) the indulging in rioting, shoot-out or arson,

by any person in or on any train carrying passengers, or in a waiting hall, cloak room or reservation or booking office or on any platform or in any other place within the precincts of a railway station; or (2) he accidental falling of any passenger from a train carrying passengers.

8. Definite evidence to show that the cause of death of Sambasivam was due to accidental fall is the Inquest