HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Miscellaneous Appeal No v. Liyakat Son Of Aas Mohammed, Aged About 25 Years, Resident Of Village Dathet, Tehsil

Judgment

1. The present civil misc. appeal has been filed by the appellant/non-applicant under Section 23 of the Railway Claims Tribunal Act, 1987 (for short ‘the Act of 1987’) against the Judgment and award dated 16.08.2022 passed by learned Railway Claims Tribunal, Jaipur Bench (for short ‘the Railway Tribunal’) in OA-II-255-2019, Liyakat Vs. Union of India, whereby the original application filed by the respondent-applicant was partly allowed and Rs.7,20,000/- has been awarded as a compensation in his favour along-with interest @ 9% per annum from the date of incident i.e.

08.07.2019 till the date of award. [2025:RJ-JP:27971] (2 of 16) [CMA-3212/2022]

2. The facts borne out from the pleadings are that the respondent applicant- Liyakat filed a claim petition under section 16 of the Railway Claims Tribunal Act, 1987 read with section 125 of the Railway Act, 1989 with the averments that on he 08.07.2019 commenced his journey ex. Bawal to Alwar in general coach of a passenger train named Hissar-Jaipur Passenger holding a valid second class railway journey ticket. During journey, the applicant accidentally fell down from the running train near Padisal Railway Station and suffered amputation of right leg above ankle and amputation of four fingers of left hand. The applicant further mentioned that he shifted to Government Hospital, Alwar from where after

rendering him first-aid service, he was referred to the SMS Hospital, Jaipur. Afterwards, the applicant was again shifted to Geetanjali Hospital, Alwar. The applicant further mentioned in the claim application that the relevant railway journey ticket on which he was performing his aforesaid journey, was lost during the course of incident being with the bag that he was carrying at the material time and claimed compensation to the tune of Rs.8,00,000/-.

3. After receipt of notice, the Railway Department filed written statement of denial. In the written statement the Railway Department stated that the applicant has not come before the Tribunal with clean hands and there is no eye witness to the incident. As per the crew of the said train, [2025:RJ-JP:27971] (3 of 16) [CMA-3212/2022] none fell down or ran over on that day. It has also been submitted that there is no entry made in the station record of Padisal Railway Station regarding this incident and it appears that the applicant pulled the alarm chain and became a victim of this incident while getting down from the slowly moving train in hurry. The said train halted at the site of incident for about six minutes on account of alarm chain pulling. The applicant was not a bonafide passenger of the said train at the material time and prayed for dismissal of the claim case.

4. On the basis of the pleadings of the parties, the Railway Tribunal framed four issues including the relief which are quoted as under:- “1. Whether the applicant was travelling on a valid railway journey ticket and was a bonafide passenger of the train in question at the relevant time?

2. Whether the alleged incident does not fall under the definition of Section 123 (c) (2) of the Railways Act, 1989 and the Railway Administration is not liable to pay any compensation to the applicant?

3. Whether the applicant is entitled to compensation as claimed under Para-16 of the claim application?

4. What relief?”

5. The Railway Tribunal after hearing Partly allowed the claim petition and passed the impugned judgment and award. Hence, this civil misc. appeal. [2025:RJ-JP:27971] (4 of 16) [CMA-3212/2022]

6. Mr. Sanjay Mishra, learned counsel appearing for the appellant/ non-applicant submits that the respondent /applicant was not a bonafide passenger of the alleged train within the meaning of Section 2(29) read with Section 124A of the Railways Act, 1989 (for short ‘the Act of 1989’) as no ticket has been produced by him and this fact stands corroborated with the testimony of the witnesses of the Railway Department and the original DRM’s Report. Counsel also submitted that the respondent/ applicant did not suffer injuries to the alleged untoward incident. During investigation, it was revealed that no such incident took place on that day. The said incident is not mentioned in the station record of Padisal Railway Station. Counsel argued that as per Guard and Driver of the alleged train, none fell down or ran over by their train on that day and it appears that the applicant suffered injuries due to the road accident. Counsel also submitted that the said fact stands corroborated with the testimony of the witnesses of the Railway Department and the original DRM’s report.

7. Counsel for the appellant/ non-applicant further submitted that the findings and the observations of the learned Tribunal are based on surmises and conjectures without there being any evidence to the effect that the respondent/ applicant was not having a valid ticket for travelling in a train. He further submits that the Tribunal has [2025:RJ-JP:27971] (5 of 16) [CMA-3212/2022] not taken into consideration the averments made in the written statement and the pleadings adduced on behalf of the appellant/non-applicant.

8. Ms. Namrata Sharma learned counsel appearing for the respondent/ applicant submits that the learned Tribunal has passed the award after having taken into consideration the totality of the facts and circumstances of the case and the trustworthy evidence available on the record. She further submits that the respondent /applicant during journey accidentally fell down from the running train near Padisal Railway Station and suffered amputation of right leg above ankle and amputation of four fingers of left hand. Counsel also submitted that thereafter the respondent / applicant was shifted to Government Hospital, Alwar by 108 Ambulance Service from where after administering the first-aid, he was referred to SMS Hospital, Jaipur and later-on he was shifted to Geetanjali Hospital, Alwar where he was treated.

9. Considered the submissions made at Bar and perused the record of the claim petition and the evidence therein.

10. The respondent/applicant filed the claim petition before the Tribunal with the specific averments that on

08.07.2019 the respondent / applicant commenced his journey ex. Bawal to Alwar in general coach of a passenger [2025:RJ-JP:27971] (6 of 16) [CMA-3212/2022] train named Hissar-Jaipur Passenger holding a valid second class railway journey ticket. During journey, the applicant accidentally fell down from the running train near Padisal Railway Station and suffered amputation of right leg above ankle and amputation of four fingers of left hand. The applicant was shifted to Government Hospital, Alwar from where after rendering him first-aid service, he was referred to the SMS Hospital, Jaipur and thereafter he was again shifted to Geetanjali Hospital, Alwar. The appellant/ non-applicant has denied the averments made in the claim petition that since no valid ticket was found from the respondent/ non- applicant, he could not be allowed the compensation under the provisions of the Act of 1989.

11. On perusal of the record, the Court finds the Rojnamcha (Ex.A/1) dated 08.07.2019 of GRP Police Station, Ajmer wherein at 6:33 AM a report has been recorded that Constable Jawahar Singh, Police Chowki, Government Hospital, Jaipur gave the information on phone that one person has fell down near Padisal Railway Station from the moving train, which has been admitted in trauma ward in the Government Hospital, Alwar and the Head Constable Shri Ghanshyam No. 109 was directed to record the statement of injured (applicant) and as per Rojnamcha dated 08.07.2019 at 8:41 AM, the statement of injured (applicant) was recorded by Head Constable Shri Ghanshyam No.109. [2025:RJ-JP:27971] (7 of 16) [CMA-3212/2022]

12. The Ex.A/11 i.e. the Discharge Summary of Geetanjali Trauma & Advance Surgical Center also speaks that the applicant was taken to the hospital for treatment of the injuries sustained by falling from the train.

13. The respondent/ applicant has also submitted his affidavit in evidence stating the facts about the alleged accident, the injuries sustained and about his treatment and so also that he was travelling in the train after purchasing a valid train ticket which was lost during his treatment.

14. There is no such evidence from the Railway’s side which could be an otherwise evidence. There is a report of DRM which says that the driver and the guard have denied the fact of accident by train. On scrutiny of the said report, the Court finds that those witnesses have not denied the fact of accident but have shown their ignorance i.e. they have no knowledge. Not having any knowledge and denial are altogether different things.

15. On taking into consideration the submissions made in the claim petition so also the Rojnamcha of daily Rojnamcha of GRP Police Station, Alwar and the record of medical treatment, this fact is proved that the respondent/ applicant got injured in an accident from the train i.e. Hissar – Jaipur Passenger on 08.07.2019.

16. The Hon’ble Apex Court in the case of Anita Sharma & Ors. Vs. The New India Assurance Co. [2025:RJ-JP:27971] (8 of 16) [CMA-3212/2022] Ltd. & Anr. in Civil Appeal Nos.4010-4011/2020 (arising out of SLP (C) No.32011-32012/2018 decided on

08.12.2020 has given similar observations as under:- “22. Equally, we are concerned over the failure of the High Court to be cognizant of the fact that strict principles of evidence and standards of proof like in a criminal trial are inapplicable in MACT claim cases. The standard of proof in such like matters is one of preponderance of probabilities, rather than beyond reasonable doubt. One needs to be mindful that the approach and role of Courts while examining evidence in accident claim cases ought not to be to find fault with non-examination of some best eye-witnesses, as may happen in a criminal trial; but, instead should be only to analyze the material placed on record by the parties to ascertain whether the claimant’s version is more likely than not true. A somewhat similar situation arose in Dulcina Fernandes v. Joaquim Xavier Cruz wherein this Court reiterated that: “7. It would hardly need a mention that the plea of negligence on the part of the first respondent who was driving the pick-up van as set up by the claimants was required to be decided by the learned Tribunal on the touchstone of preponderance of probabilities and certainly not on the basis of proof beyond reasonable doubt. (Bimla Devi v. Himanchal RTC [(2009) 13 SCC 530 : (2009) 5 SCC (Civ) 189 : (2010)1 SCC (Cri) 1101])” (emphasis supplied) [2025:RJ-JP:27971] (9 of 16) [CMA-3212/2022]

17. The Hon’ble Apex Court delivered in the case of Union of India v. Rina Devi, reported in 2019(3) SCC

572. In the case of Rina Devi (supra), the Hon’ble Apex Court has observed as under:- “25. We are unable to uphold the above view as the concept of “self-inflicted injury” would require intention to inflict such injury and not mere negligence of any particular degree. Doing so would amount to invoking the principle of contributory negligence which cannot be done in the case of liability based on “no fault theory”. We may in this connection refer to the judgment of this Court in United India Insurance Co. Ltd. v. Sunil Kumar [United India Insurance Co. Ltd. v. Sunil Kumar, (2019) 12 SCC 398 : 2017 SCC OnLine SC 1443 : (2017) 13 Scale 652] laying down that plea of negligence of the victim cannot be allowed in claim based on “no fault theory” under Section 163-A of the Motor Vehicles Act, 1988. Accordingly, we hold that death or injury in the course of boarding or de- boarding a train will be an “untoward incident” entitling a victim to the compensation and will not fall under the proviso to Section 124-A merely on the plea of negligence of the victim as a contributing factor. Re : (iii) Burden of proof when body found on railway premises — Definition of passenger

26. Conflict of decisions has been pointed out on the subject. As noticed from the statutory provision, compensation is payable for death or injury of a “passenger”. In Raj Kumari [Raj Kumari v. Union of India, 1992 SCC OnLine MP 96 : 1993 ACJ 846] [2025:RJ-JP:27971] (10 of 16) [CMA-3212/2022] referring to the scheme of the Railways Act, 1890, it was observed that since travelling without ticket was punishable, the burden was on the Railway Administration to prove that passenger was not a bona fide passenger. The Railway Administration has special knowledge whether ticket was issued or not. The 1989 Act also has similar provisions being Sections 55 and 137. This view has led to an inference that any person dead or injured found on the railway premises has to be presumed to be a bona fide passenger so as to maintain a claim for compensation. However, the Delhi High Court in Gurcharan Singh [Gurcharan Singh v. Union of India, 2014 SCC OnLine Del 101 : 2015 ACJ 171] held that initial onus to prove death or injury to a bona fide passenger is always on the claimant. However, such onus can shift on the Railways if an affidavit of relevant facts is filed by the claimant. A negative onus cannot be placed on the Railways. Onus to prove that the deceased or injured was a bona fide passenger can be discharged even in absence of a ticket if relevant facts are shown that ticket was purchased but it was lost. The Delhi High Court observed as follows: (Gurcharan Singh case [Gurcharan Singh v. Union of India, 2014 SCC OnLine Del 101 : 2015 ACJ 171] , SCC OnLine Del para 4) “4. … (ii) In my opinion, the contention of the learned counsel for the appellant claimants is totally misconceived. The initial onus in my opinion always lies with the appellant claimants to show that there is a death due to untoward incident of a bona fide passenger. Of course, by filing of the affidavit and depending on the facts [2025:RJ-JP:27971] (11 of 16) [CMA-3212/2022] of a particular case that initial onus can be a light onus which can shift on the Railways, however, it is not the law that even the initial onus of proof which has to be discharged is always on the Railways and not on the claimants. I cannot agree to this proposition of law that the Railways have the onus to prove that a deceased was not a bona fide passenger because no such negative onus is placed upon the Railways either under the Railways Act or the Railway Claims Tribunal Act and the Rules or as per any judgment of the Supreme Court. No doubt, in the facts of the particular case, onus can be easily discharged such as in a case where the deceased may have died at a place where he could not have otherwise been unless he was travelling in the train and in such circumstances depending on the facts of a particular case it may not be necessary to prove the factum of the deceased having a ticket because ticket as per the type of incident of death can easily be lost in an accident. I at this stage take note of a judgment of a learned Single Judge of this Court in Pyar Singh v. Union of India [Pyar Singh v. Union of India, (2007) 8 AD Del 262] which holds that it is the claimant upon whom the initial onus lies to prove his case. I agree to this view and I am bound by this judgment and not by the ratio of the case of Leelamma [Union of India v. Leelamma, 2009 SCC OnLine Ker 903 : (2009) 1 KLT 914] .” [2025:RJ-JP:27971] (12 of 16) [CMA-3212/2022]

27. In Jetty Naga Lakshmi Parvathi [Jetty Naga Lakshmi Parvathi v. Union of India, 2011 SCC OnLine AP 828 : 2013 ACJ 1061] the same view was taken by a Single Judge of Andhra Pradesh after referring to the provisions of the Evidence Act as follows : (SCC OnLine AP para 24) “24. So, from Section 101 of the Evidence Act, 1872, it is clear that the applicants, having come to the court asserting some facts, must prove that the death of the deceased had taken place in an untoward incident and that the death occurred while the deceased was travelling in a train carrying passengers as a passenger with valid ticket. Therefore, having asserted that the deceased died in an untoward incident and he was having a valid ticket at the time of his death, the initial burden lies on the applicants to establish the same. The initial burden of the applicants never shifts unless the respondent admits the assertions made by the applicants. Such evidence is lacking in this case. Except the oral assertion of AW 1, no evidence is forthcoming on behalf of the applicants. The court may presume that the evidence which could be, and is not produced, would, if produced, be unfavourable to the person who withholds it. The best evidence rule, which governs the production of evidence in courts, requires that the best evidence of which the case in its nature is susceptible should always be produced. Section 114(g) of the Evidence Act, 1872 enables the court to draw an adverse presumption against a person [2025:RJ-JP:27971] (13 of 16) [CMA-3212/2022] who can make available to the court, but obstructs the availability of such an evidence. The Claims Tribunal, upon considering the material on record, rightly dismissed the claim of the applicants and there are no grounds in this appeal to interfere with the order of the Tribunal.”

28. In Kamrunnissa [Kamrunnissa v. Union of India, (2019) 12 SCC 391 : 2017 SCC OnLine SC 304] , from the circumstances appearing in that case it was held that there was no evidence that the deceased had purchased the ticket. In the given fact situation of that case, this Court inferred that it was not a case of “untoward incident” but a case of run over. It was observed: “7. The aforestated report also reveals, that the body of the deceased had been cut into two pieces, and was lying next to the railway track. The report further indicates, that the intestine of the deceased had come out of the body. The above factual position reveals that the body was cut into two pieces from the stomach. This can be inferred from the facts expressed in the inquest report, that the intestines of the deceased had come out of the body. It is not possible for us to accept that such an accident could have taken place while boarding a train.

8. In addition to the factual position emerging out of a perusal of Paras VII and VIII extracted hereinabove, the report also reveals that besides a pocket diary having been found from the person of the deceased a few telephone numbers were also found, but importantly, the deceased was not in [2025:RJ-JP:27971] (14 of 16) [CMA-3212/2022] possession of any other article. This further clears the position adopted by the railway authorities, namely, that the deceased Gafoor Sab, was not in possession of a ticket, for boarding the train at the Devangere Railway Station.”

29. We thus hold that mere presence of a body on the railway premises will not be conclusive to hold that injured or deceased was a bona fide passenger for which claim for compensation could be maintained. However, mere absence of ticket with such injured or deceased will not negative the claim that he was a bona fide passenger. Initial burden will be on the claimant which can be discharged by filing an affidavit of the relevant facts and burden will then shift on the Railways and the issue can be decided on the facts shown or the attending circumstances. This will have to be dealt with from case to case on the basis of facts found. The legal position in this regard will stand explained accordingly.”

18. The facts of the present case are that the respondent / applicant fell down from a train, which resulted amputation of his right leg above ankle and amputation of four fingers of left hand. After first-aid given to the respondent / applicant at Government Hospital, Alwar, he was referred to SMS Hospital, Jaipur and again he was shifted to Geetanjali Hospital, Alwar, where he undergone for operation and remained hospitalized for various days. In such circumstances, the ticket for travelling in the train might have lost. The respondent/ applicant has admitted that the journey [2025:RJ-JP:27971] (15 of 16) [CMA-3212/2022] ticket on which he was performing his journey, was lost during the course of incident being with the bag which he was carrying at the material time. The appellant/ non-applicant has failed to come out with any evidence which could lead to the fact that the respondent/applicant has not purchased the ticket for travelling in the train. In view of the observations of the Hon’ble Apex Court made in the case of Rina Devi (supra) and taking into consideration the facts of the present case and in view of the fact that the provisions in regard to compensation under the Act of 1989 are the beneficial provisions, this Court can safely held that the present case is covered under the clause of ‘untoward accident’ and the respondent/ applicant was a passenger and thus, he is entitled for compensation. The Court is satisfied that onus was discharged by the respondent/ applicant that he was a bonafide passenger and accordingly, he is entitled for compensation. It is a well settled law that in case of beneficial legislation as regards the compensation, the claimant is not required to prove the facts beyond reasonable doubt as is required under the criminal law so as to hold guilty someone for the offence.

19. After making an extensive scrutiny of the evidence available on the record and the findings arrived at by the learned Tribunal, the Court finds no error or perversity in the findings recorded by the learned Tribunal and there is no [2025:RJ-JP:27971] (16 of 16) [CMA-3212/2022] scope of interference in the impugned Judgment and Award passed by the learned Tribunal.

20. Accordingly, the misc. appeal filed by the appellant/ non-applicant is dismissed.

21. The stay application and pending application/s, if any, also stand dismissed.

22. The Registry is directed to send back the record of the case to the concerned Tribunal forthwith. (GANESH RAM MEENA),J Sharma NK/Dy. Registrar