This Civil Miscellaneous Appeal by the appellants-applicants is preferred aggrieved by the order dated 28.03.2007 in O.A.A. No.113 of 2003 on the file of the Railway Claims Tribunal, Secunderabad Bench at Secunderabad, whereunder and whereby, the application filed by the applicants under Section 16 of the Railway Claims Tribunal Act, 1987, read with Sections 124-A and 125 of the Railways Act, 1989 (for short, 'the Act'), for grant of compensation of Rs. 4,00,000/- for the death of the Jetty Krishna Kishore (hereinafter referred to as 'the deceased') in an untoward incident of accidental fall from the train, was dismissed by the Tribunal.

2. The appellants/applicants filed the claim application stating that on 17.4.2002, the deceased while travelling from Visakhapatnam to Tenali in Train No.5930 Express, accidentally slipped and fell down from the running train at Vijayawada Railway Station, sustained injuries and died in Kottaiah Memorial Hospital, Tenali on 18.4.2002.

3. The respondent-railway administration filed its written statement denying the averments made in the application and stated that there is no untoward incident taken place on the alleged day, no passenger had fallen down from the train nor any information was given by any of the railway officials regarding the alleged incident; that the deceased initially was admitted in Government Medical College Hospital, Vijayawada where best medical facilities are available, but, 10 minutes after his admission, he was shifted to AA. Kotaiah Memorial Hospital, Tenali; that the deceased was not a passenger travelling with a valid ticket and that no untoward incident had taken place, and hence, prayed to dismiss the claim.

4. On the above pleadings, the following issues were framed by the Tribunal:

(1) Whether the applicants are the dependents of the deceased?

(2) Whether the deceased was a bona fide passenger of a Train No.5930 Express travelling between Visakhapatnam to Tenali on 17.04.2002?

(3) Whether the deceased died on account of injury sustained by him in an untoward incident of accidental fall from the said train on 17.4.2002?

(4) To what relief?

5. On behalf of the applicants, 1st first applicant herself was examined as A.W.1 and no documents were marked on their behalf. On behalf of the railways, R.Ws.1 and 2 were examined and Ex.R.1 was marked.

6. The Tribunal after considering both oral and documentary evidence, dismissed the application filed by the applicants. Aggrieved by the same, the present appeal is filed.

7. The point that falls or consideration in this appeal is as to whether on whom the burden lies to prove that the deceased was a bona fide passenger travelling in a train carrying passengers?

8. There cannot be any dispute that in order to claim compensation under Section 124A of the Railways Act, 1989 (for short, 'the Act'), the first condition precedent to be proved by the applicants is that there is an untoward incident happened and in that incident, the deceased died; and the second condition is that such a person must be a passenger travelling in a train carrying passengers with a valid ticket. If these two requirements are proved, then the burden shifts to the railways to establish that no untoward incident had happened or that the deceased was not a bona fide passenger or that the case of the railways falls under anyone of the defences as provided under proviso to Section 124A of the Act.

9. 'Untoward incident' has been defined in Section 123 (c) of the Act, which reads thus:

"(1) (i) the commission of a 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 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