The burden of proof lies on the railway administration to prove that the deceased was not a bona fide passenger. A presumption can be drawn under Section 114 of the Evidence Act that the deceased was a bona fide passenger, since ticketless travel is an illegal act and exposes such traveller to penal action.

D.M. Dharmadhikari, J.

1. The only accident on 16.7.1991, were rightly denied question involved in this appeal is whether payment of compensation by the learned the appellants as dependants of the deceased Judge as Ad hoc Claims Commissioner Sheo Ram Singh, who died in a railway under the provisions of Section 82A of the Railways Act, 1890, on the ground that they failed to prove that the deceased was a 'bona fide passenger' meaning thereby that he did not hold a valid railway ticket, pass or permission for the journey.

2. Learned counsel appearing for the dependants-appellants herein contends that the claim for compensation could not have been negatived by the lower court on the ground mentioned above.

3. Learned counsel appearing for the Railways supports the decision of the Claims Commissioner on the basis of the ruling of Patna High Court reported in Ramchandra Prasad v. Union of India AIR 1939 Patna 316 and Full Bench decision of Allahabad High Court reported in Sundari v. Union of India 1984 ACJ 614 (Allahabad).

4. The aforesaid decisions cited at the Bar (Sic. held that liability of) railway administration under Section 82-A of the Act to pay compensation for death in a railway accident arises only if the deceased was a 1 bona fide passenger' and not for the death in such accident of any trespasser or ticketless traveller.

5. The main question that arises in this case is on whom the onus of proof lies in such claim cases and whether any presumption under the Evidence Act can be raised. Normally under Sections 101 and 102 of the Evidence Act, the burden to prove such facts, on which the legal right or liability depends, is on such person who asserts existence of these facts. But the question before us is whether the burden of proof that the deceased held a valid ticket, pass or permission during his journey, in which he died in accident, can be placed on his dependants. Obviously, such burden of proof is impossible to be discharged by the dependants, who can have no means of knowledge, whether the deceased, before boarding the train, had purchased a valid ticket, pass or permission from the railway authorities. It is likely that such a deceased passenger held a valid ticket, pass or permission, but the same is lost in the accident with the death of person and loss of his belongings, if any.

6. The provisions of Sections 66, 68, 113 and 122 of the Act do indicate that the person is deemed to be a 'passenger' when he travels either on ticket, pass or with permission of the authorised officer of the Railways. Section 68 contains prohibition against travelling without pass or ticket or permission and provides as under:

68. Prohibition against travelling without pass or ticket.-(1) No person shall, without the permission of a railway servant empowered in this behalf by the railway administration, enter or remain in any carriage on a railway for the purpose of travelling therein as a passenger unless he has with him a proper pass or ticket.

(2) A railway servant granting the permission referred to in Sub-section (1) shall ordinarily grant to the passenger a certificate that the passenger has been permitted to travel in such carriage upon condition that he subsequently pays the fare payable for the distance to be travelled.

7. The provisions of Sections 113 and 122 of the Act make travelling without ticket punishable under certain circumstances and liable for payment of fare and fine. The scheme and the Act seen as a whole makes it evident that the entry into a railway carriage required of a person to obtain a ticket, pass or permission and in absence thereof, his action or omission is punishable with imprisonment or fine, including removal from the carriage. In our opinion, when a person is found dead as a result of accident in a railway carriage, in which he was travelling, a presumption may be drawn under Section 114 of the Evidence Act keeping in view of the prohibition under Section 68 of the Act against boarding a train wi