JUDGMENT :

J.C. DOSHI, J.

1. Judgment and order dated 28.12.2022 passed by learned Railway Claims Tribunal (for short ‘the Tribunal’) in Case No.OA-IIu/2019/0103 which is subject matter in this appeal under section 23 of the Railway Claims Tribunal Act, 1987, is at the behest of Railway Administration. By impugned judgment, learned Tribunal awarded Rs.8 lakhs with interest @ 9% per annum from the date of accident till realization.

2. Brief facts are that on 24.11.2019, the deceased – Anil Ugrejiya was travelling from Vapi to Udhwad Railway station by train holding travelling ticket which he lost in the accident. It is also claimed by the claimant that due to heavy rush, deceased could not get seat and therefore, he was standing near the door of compartment. It is further averred that deceased fell from train running between KM. No.173/18-19 and sustained injuries and died on the spot. Therefore, claimant preferred claim petition.

3. Railway Administration filed written statement along with DRM report claiming that deceased was not bona fide passenger as no travelling ticket was recovered in from his possession. It is further stated that deceased became victim of incident due to his own negligence as he fell down from running train and therefore, case does not fall within section 123(c)(2) of the Railway Act, 1989 and thus, it was submitted to dismiss the claim petition.

4. Learned Tribunal after permitting both the parties to lead evidence, was pleased to pass award in favour of the claimant granting fixed compensation of Rs.8 lakhs.

5. Heard learned advocate Ms.Amin for the appellant and learned advocate Mr.Desai for the respondent.

6. What appears from the impugned judgment that learned Tribunal to meet with contention that deceased was not bona fide passenger as no ticket was found from the place of incident or clothes of the deceased or person of deceased, he referred to judgment of High Court of Madras in the case of Eswari v/s. Union of India [2021 (2) TAC 329] and famous judgment in the case of Union of India v/s. Rina Devi [2018 AIR (SC) 2362]. Relevant para 14,15 and 16 reads as under :-

“14. High Court of Madras held in the case of Eswari & others V/S Union of India cited in 2021 (2) T.A.C. 329 mention in Para No.8 relied on Apex Court Judgment of Gopal Krishnaji Ketkar and in this judgment para 11 reads as follows :

“(11) We are quite conscious of the position of law that is provided in Section 106 of the Evidence Act, if a fact is within the special knowledge of a person, the burden of proving such fact is on that person and as provided in illustration (b) of the Section, if a person is charged with travelling on a railway without a ticket, that burden of proving that he had a ticket is upon him. But such principle is not applicable to a case of a dead person whose dead body was found on the railway track and whose body was taken in custody by the Railway Police. In such a situation, it is the duty of the railway authority to first give evidence that he was without a valid ticket and if such evidence is given the onus shifts upon the claimants to prove that he was a bonafide passenger having a valid ticket. In this case, as no person on behalf of the Railway has given any such evidence not has any person come forward to disclose that articles were found with the victim, we conclude that the initial burden of proving such fact had not been discharged. We cannot lose sight of the fact that one in not entitled to enter even the platform of a railway station without having a valid platform ticket and one takes the risk of criminal prosecution by boarding a train without ticket. In such circumstances, in the absence of any evidence of railway authority asserting absence of a valid ticket, we are of the opinion, there is no just reason for totally discarding the evidence of PW1, the mother of the victim, who deposed and asserted that it was she who purchased the ticket for her son, handed over the same to him and saw him off the