Jetty Naga Lakshmi Parvathi & Others v. The Union Of India, Rep. By Its General Manager

1. 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 for 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 124 A 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 any one of the defences as provided under proviso to Section 124 A 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 of a railway station; or

(2) the accidental falling of any passenger from a train carrying passengers.

10. The factual matrix is not in dispute. The applicants have not filed any dependency certificate so as to show that they are the legal heirs of the deceased who died in an untoward incident.

11. The contention of the learned counsel for the appellants is that on 17.04.2002, the deceased while travelling from Visakhapatnam to Tenali in Train No.5930, accidentally slipped and fell down from the running train at Vijayawada Railway Station and due to the injuries, he died on 18.04.2002 in the hospital while taking treatment.

12. The learned counsel for the appellants placed reliance on a decision in Union of India, Secunderabad V. B. Koddekar and others (2002 (4) ALT 310 (DB) wherein it was held:

49. The facts in the said case are that on account of the death of Sheo Ram Singh, who died in a railway accident on 16.7.1991, his dependents laid a claim before the learned Judge-cum- Ad hoc Claims Commissioner, for compensation, which was denied to them on the ground that the claimants failed to prove that the deceased was a bona fide passenger, that means, he did not hold a valid railway ticket, pass or permission of the journey. Under these circumstances, the Division Bench, apart from observing as cited supra, has held thus:

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 without ticket that the deceased was a bonafide passenger. Since ticket less travel is an illegal act and exposes such traveller to penal action, the presumption is of innocence in favour of such one of the travellers or passengers in a train. It is for the railway administration to prove contrary and the burden in such circumstances that the deceased was a ticket less traveller or was not a bona fide passenger should be on the railway administration which has special means of knowledge as to whether any ticket was issued to that deceased or whether at any point, before or at the end of journey, he was checked and detected by staff of the railway as an unauthorised person without ticket, pass or permission.

In the above decision, the question as to on whom onus of proof lies, has not come up for consideration before the Division Bench of this Court. Further more, the initial burden standing on the applicant therein had been discharged in view of the fact that the ticket number has been mentioned in the inquest report. Therefore, the above judgment has to be understood that initial burden stands on the applicants therein has been discharged as there is some evidence on record which would clearly go to show that the deceased persons therein were found to be passengers travelling in a train carrying passengers with a valid ticket. Thereafter, the burden shifts on to the railways to establish that the ticket numbers as noted in the inquest reports are invalid tickets so as to arrive at a conclusion that the deceased persons therein were not bona fide passengers travelling in a train carrying passengers. Therefore, even from the above decision also, it is clear that the initial burden stands on the applicants to show that the deceased was a passenger travelling in a train carrying passengers with a valid ticket.

13. Similarly, the counsel for the appellants placed reliance on another decision in Union of India v. Borra Vijayalakshmi and others(2006 ACJ 162)wherein it was held:

(6) The learned counsel would place considerable stress on the Explanation to seek exception from the rigour of law in payment of compensation. To my mind though a person travelling by a train carrying passengers without ticket is not entitled for compensation, the burden to prove that railway administration is exempted from paying compensation for untoward incident on the ground of a person not buying a ticket would heavily lie on the railway administration. There are two reasons for this. First, it is well settled that when a person seeks exemption from any liability, the burden in justification of such exemption would certainly lie on the person seeking such exemption. Secondly, under Section 137 read with Section 55 of the Act, ticket less travel is made a culpable offence attracting imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. Needless to point out that unless the statute so (Sic. Otherwise) requires when an offence is alleged against a person the burden lies on the prosecution to show that such person has violated law by not buying the ticket.

14. The counsel for the appellants also relied on a decision in ParisaAnjali and others v. Union of India (2011 ACJ 693 [LQ/TelHC/2009/692] ) wherein it was held:

(11) Even if there is any possibility for treating the ticket held by the deceased as not valid one, he does not cease to be a passenger in the context of the extension of benefits under Sections 124 and 124-A of the Act. What becomes material in this regard is the intention of the person who was travelling in the train. It is only when the person boards the train with a clear intention to travel in it without purchasing a ticket that he can be treated as not a passenger. Take for instance a situation where a person finds that the train in which he has to travel is about to start, by the time he reached the station and he does not have the time to purchase the ticket. Though he does not hold the ticket, he may still board the train with an intention to pay the fare to the TTE. Such a person can still be treated as bona fide passenger, both, when he boarded the train without ticket and after he pays the fare to the TTE.

In the above two decisions, the issue of onus of proof has not come up for consideration before this Court. Further more, in those cases, witnesses were examined to show that the deceased had purchased the ticket to travel in a train carrying passengers. Hence, these decisions are not applicable to the facts of the present case.

15. In an unreported judgment of this Court in C.M.A.No.1127 of 1998 dated 25.9.2003, relied on by the counsel for the appellants, it was held:

The Tribunal having observed that the evidence of P.W.1 that he was present when the deceased purchased the ticket cannot be believed, held that the deceased was not a bonafide passenger. It is no doubt true that the evidence of P.W.1 that he took the deceased to the Railway Station on a cycle from his village is hard to believe. But merely because the evidence of P.W.1 that he was present when the deceased boarded the train cannot be believed, it cannot be said that the deceased was not a bonafide passenger. Because the deceased slipped while trying to board a moving train, it is clear that the deceased was allowed entry on to the platform. If the deceased did not purchase either a platform or journey ticket, he would not have been allowed entry on to the platform, because it is well known that Railway Authorities would not allow all and sundry to enter the platform, more so after the arrival and before the departure of a train, without a valid journey or platform ticket. The fact that no ticket was found in the clothes and articles found on and near the dead body of the deceased, by itself, cannot be taken as a ground for holding that the deceased was not a bonafide passenger.

No doubt, in the judgment of Division Bench of this Court, it is held that the burden is on the railways to establish that the deceased was not a bona fide passenger. The ratio of a decision has to be read in the factual aspects of the case. Further, no decision by any court shall be taken so as to nullify a statutory provision.

16. Section 124A of the Railways Act, 1989 reads thus:

Compensation on account of untoward incidents- When, in the course of working in a railway an untoward incident occurs, then whether or not there has been any wrongful act, neglect or default on the part of the railway administration, such as would entitle a passenger who has been injured or the dependant of a passenger who has been killed to maintain an action and recover damages in respect thereof, the railway administration shall, notwithstanding anything contained in any other law, be liable to pay compensation to such extent as may be prescribed and to that extent only for loss occasioned by the death, or injury to, a passenger as a result of such untoward incident:

Provided that no compensation shall be payable under this section by the railway administration if the passenger dies or suffers injury due to,-

(a) suicide or attempted suicide by him;

(b) self-inflicted injury;

(c) his own criminal act;

(d) any act committed by him in a state of intoxication or insanity;

(e) any natural cause or disease or medical or surgical treatment unless such treatment becomes necessary due to injury caused by the said untoward incident.

Explanation: For the purposes of this Section, passenger includes-

(i) a railway servant on duty; and

(ii) a person who has purchased a valid ticket for travelling, by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident.

From the above provision, it is clear that when, in the course of working in railways, if an untoward incident occurs, a passenger who has been injured or dependent of a passenger who has been killed, can maintain an action and recover damages. Passenger includes a person who has purchased a valid ticket for travelling by a train carrying passengers on any date or a valid platform ticket and becomes victim of an untoward incident.

17. Section 101 of the Indian Evidence Act, 1872 deals with Burden of proof and it reads:

"Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

18. A distinction between burden of proof and onus or proof cannot be overlooked or forgotten. The expression burden of proof denotes legal burden and it never shifts. Onus of proof, on the other hand, means evidentiary burden and it shifts. Unlike the burden of proof, there is continuous process of shifting onus of proof. In this regard, it is pertinent to refer to a decision in A.Raghavamma& anr. V. A.Chenchamma & anr. (AIR 1964 Supreme Court 136) wherein it is held thus: (para12)

There is an essential distinction between burden of proof and onus of proof : burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts, but the onus of proof shifts. The burden of proof in the present case undoubtedly lies upon the plaintiff to establish the factum of adoption and that of partition. The said circumstances do not alter the incidence of the burden of proof. Such considerations, having regard to the circumstances of a partition. The said circumstances do not alter the incidence of the burden of proof. Such considerations, having regard to the circumstances of a particular case, may shift the onus of proof. Such a shifting of onus is a continuous process in the evaluation of evidence. The criticism levelled against the judgment, of the lower Courts, therefore, only pertains to the domain of appreciation of evidence. We shall, therefore, broadly consider the evidence not for the purpose of revaluation, but to see whether the treatment of the case by the Courts below is such that it falls in the category of exceptional cases where this Court, in the interest of justice, should depart from its usual practice.

19. In applying the rules regarding burden of proof, the court has to concentrate upon the substance and the effect of the issues raised. In civil cases, the question on whom the burden of proof rests, depends upon the pleadings, assuming that the pleadings are drawn up properly and in conformity with the settled law on the subject. If the facts alleged by the plaintiff are made by simple denial on the part of the defendant, then the burden is thrown completely on the plaintiff. But, the defendant may, if he thinks proper, and very often, does admit some of the facts alleged in the plaint and himself asserts some facts which he relies as an answer to the plaintiffs claim. The general rule as to burden of proof is laid down under Section 101 of the Indian Evidence Act, 1872 to the effect that the burden of proof lies on the party who substantially asserts affirmation of the issues, which is simple rule of convenience. In other words, it is reasonable and just that the party who asserts and relies upon existence of certain facts or state of circumstances as ground for the relief to be granted, should be called upon to prove his case. An issue must be proved by the party who states affirmative, but not by the party who states negative. Therefore, it is incumbent on each party to discharge burden of proof which rests upon him.

20. On this aspect, it is pertinent to refer to a decision in Rangammalv. Kuppuswamy, (2011 TLPRE 576)it is held thus:

Section 101 of the Indian Evidence Act, 1872 defines burden of proof which clearly lays down that whosoever desires any court to give judgment as to any legal right or law dependent on the existence of facts which he asserts, must prove that those facts exists. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Thus, the Evidence Act has clearly laid down that the burden of proving fact always lies upon the person who asserts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of the other party.

21. It is also pertinent to refer to a decision in a decision in Parimalv. Veena @ Bharti, (2011-Supreme-1-731)it is held thus: (para 15)

The provisions of Section 101 of the Evidence Act provide that the burden of proof of the facts rests on the party who substantially asserts it and not on the party who denies it. In fact, burden of proof means that a party has to prove an allegation before he is entitled to a judgment in his favour. Section 103 provides that burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any special law that the proof of that fact shall lie on any particular person. The provision of Section 103 amplifies the general rule of Section 101 that the burden of proof lies on the person who asserts the affirmative of the facts in issue.

22. So, from Section 101 of the Indian 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 A.W.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 Indian Evidence Act, 1872 enables the court to draw an adverse presumption against a person 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.

23. Accordingly, the Civil Miscellaneous Appeal is dismissed. No order as to costs.