JUDGMENT A.P. Lavande, J.
1. Both the appeals are being disposed of by common judgment since they arise out of the order dated 19.4.1993 passed by the Railway Claims Tribunal, Nagpur Bench in Application No. 11/0A-II/RCT/NGP of 1992.
2. In nutshell, the facts leading to filing of these two appeals are as under:
On 19.11.1992, Abdul Kuddus, son of Sk. Mohiuddin and his wife Taslima Bi filed the application claiming compensation of Rs. 2,00,000 under Section 16 of Railway Claims Tribunal Act, 1987 on account of death of their son Abdul Rub who died in a train accident on account of derailment of 8033 Dn Ahmedabad-Howrah Express on 9.7.1992. During the pendency of the application Mehar Parveen widow of Abdul Rub for herself and on behalf of the minor daughter Nilopher Parveen filed application for impleadment which was allowed and they were joined as respondent Nos. 2 and 3. The parties shall hereinafter be referred to as per their original status in the application. The application was contested by the respondent No. 1. Abdul Kuddus examined himself and Mehar Parveen, the respondent No. 2, widow of the deceased stepped into the witness-box and also examined her cousin Saheb Khan. After appreciating the evidence, oral and documentary, led by the parties, the Tribunal dismissed the application. The Tribunal recorded the finding that deceased Abdul Rub was travelling in the train which met with accident and that he died on account of the accident. Claims Tribunal further recorded a finding that the applicants and respondent Nos. 2 and 3 were dependants of the deceased. However, the Tribunal held that the deceased was not a bona fide passenger and consequently dismissed the application. During pendency of the appeals, Abdul Kuddus, applicant No. 1 expired and his legal representatives have been brought on record.
3. I have heard Mr. Dahat, learned Counsel on behalf of the applicants, Advocate Mr. Lambat for the respondent No. 1 and Advocate Mr. Kanphade on behalf of the respondent Nos. 2 and 3.
4. Mr. Kanphade, learned Counsel appearing on behalf of the original respondent Nos. 2 and 3 submitted that the burden of proving that the deceased was not a bona fide passenger was on the respondent No. 1 which has not been discharged in the present case. Placing reliance on Sections 123, 124, 137 and 155 of the Railways Act, 1989 (hereinafter referred to as 'the Act'), Mr. Kanphade submitted that the applicants and the respondents are entitled to compensation of Rs. 2,00,000 inasmuch as the respondent No. 1 has not discharged the burden of proving that deceased was not a bona fide passenger.
5. Mr. Dahat, learned Counsel appearing for the original applicants submitted that the burden of proving that deceased was not a bona fide passenger was on respondent No. 1 and the same was not discharged by respondent No. 1. He further submitted that the applicants were paid ex gratia compensation of Rs. 10,000 which clearly proves that the deceased was travelling in the ill-fated train and that he was a bona fide passenger. In support of his submission, the learned Counsel relied upon the following judgments:
(i) Raj Kumari v. Union of India ; (ii) Agam Shanthamma v. Union of India ; (iii) Shantabai Krishna Zamre v. Union of India .
6. Per contra, Mr. Lambat, learned Counsel for respondent No. 1 relying upon several provisions of the Act submitted that though the burden to prove that deceased was not a bona fide passenger is on the railway administration, having regard to the several circumstances which have been brought on record the burden has been discharged by respondent No. 1. He further submitted that the fact that no ticket was found on the body of the deceased is a strong circumstance to hold that deceased was not a bona fide passenger. He further submitted that the story put up by respondent No. 2 that the deceased was holding a second class ticket No. 24661 purchased at Badnera Railway Station for his journey to Nagpur not only has not been established but stands falsified by evidence on record. He further urged that the applicants being parents could not be termed 'dependants' as defined under Section 123 of the Act and, therefore, in any case the applicants are not entitled to any compensation. He further urged that in the first information report or in the spot inspection note there is no mention of ticket number allegedly issued to the deceased which clearly proves that the deceased was not a bona fide passenger. In support of his submission, learned Counsel relied upon the following judgments:
(i) Sundari v. Union of India 1984 ACJ 614 (Allahabad); (ii) Ramchandra Prasad Sinha v. Union of India ; (iii) Union of India v. Kurukundu Balakrishnaiah .
7. I have considered the submissions made by the learned Counsel for the parties. I have perused the records as well as the judgments relied upon by learned Counsel for the parties.
8. Mr. Lambat, learned Counsel appearing on behalf of respondent No. 1 has not disputed the fact that the deceased was travelling in the ill-fated train but what is disputed is that he was travelling as a bona fide passenger.
9. Having regard to the submissions made by the learned Counsel for the parties and the finding given by the Tribunal, the following point arises for consideration in the present appeal:
Whether the deceased Abdul Rub was travelling as a bona fide passenger in the train on 9.7.1992 which met with an accident resulting in his death?
10. At the outset, having regard to the submissions made by the learned Counsel for the parties and more particularly Mr. Lambat on behalf of respondent No. 1 it can be taken as fairly established that the deceased was travelling in the train which met with an accident on 9.7.1992. The only question which arises for consideration is, whether he was a bona fide passenger and not a trespasser or ticketless traveller? In the case of Raj Kumari , the Division Bench of Madhya Pradesh High Court speaking through Justice DM. Dharmadhikari (as he then was) held that in case of railway accident compensation is payable to the dependants of a bona fide passenger and not for the death of any trespasser or ticketless traveller. It was further held that the burden to prove that the person who died in the accident was not a bona fide passenger lies on the railway administration inasmuch as it is impossible for the dependants to discharge the burden to prove that the deceased was a bona fide passenger. The Division Bench further held that in view of Sections 68, 113 and 122 of the Railways Act, 1890 the ticketless travel is an illegal act which exposes traveller to penal action which raised a presumption against boarding the train without ticket. Under Section 55 of the Railways Act, 1989 the travelling in railway without a proper pass or ticket or without obtaining permission of a railway servant authorised in that behalf has been prohibited. Section 137 of the Act provides for punishment for travelling without a pass or ticket. Since there are similar provisions under the 1989 Act, in my opinion, the ratio laid down by the Division Bench of Madhya Pradesh High Court is clearly applicable in the present case. I am in respectful agreement with the ratio laid down by the Division Bench of Madhya Pradesh High Court. Since it is impossible for the dependants of the person travelling in a train to prove that he was travelling pursuant to a valid ticket, the burden would necessarily lie on the railway administration to prove that the person who died in railway accident was not a bona fide passenger. Similar ratio has been laid down by Andhra Pradesh High Court in the case of Agam Shanthamma , relying upon the Division Bench judgment of the same court in Union of India v. B. Koddekar . Insofar as the judgment given by the learned single Judge of this Court in Shantabai Krishna Zamre's case , the ratio is not attracted in the present case inasmuch as in that case deceased Krushnaji who was serving as khalasi had died in the accident which occurred on 5.9.1986. The deceased was having pass which was valid up to 3.9.1986. Learned single Judge held that in the peculiar circumstances of the case the fact that the deceased had not renewed his pass could not absolve the railway administration of its liability to pay compensation to the dependants of the deceased.
11. I shall now deal with the authorities relied upon by Mr. Lambat on behalf of respondent No. 1. In Sundari's case 1984 ACJ 614 (Allahabad), the Full Bench of Allahabad High Court held that expression 'passenger' does not include trespasser or person travelling without ticket, pass or authority and, therefore, compensation is not payable in case of death of such person in train accident. The ratio laid down in the Full Bench decision is clearly not attracted in the present case since the issue before this Court is, whether the deceased was a trespasser or a bona fide passenger? In Ramchandra Prasad Sinha's case , the Division Bench of Patna High Court held that the heirs of such a trespasser in case where he meets with death in an accident to the train through which he happens to be travelling are not entitled to claim compensation from the Railways. A Division Bench of Allahabad High Court in Sudha Srivastava v. Claims Commissioner, Northern Railway 1985 ACJ 404 (Allahabad), has held that in case the claimants fail to prove that the deceased was a bona fide passenger in the train which met with the accident resulting in his death the claimants are not entitled to any compensation. In the said case the claimants had failed to prove that the deceased was actually travelling by the ill-fated train and that he died as a result of the accident and further that he was a bona fide passenger. The ratio laid down in both these judgments obviously are not attracted in the present case. The Full Bench of Andhra Pradesh High Court in Kurukundu Balakrishnaiah's case , dealt with the expression 'untoward incident' in Section 124-A of the Act and held that the railway administration is not liable to pay any compensation in case of death or injuries to a passenger travelling in a railway due to his negligence or default. The facts in the said case are clearly distinguishable and as such the judgment does not advance the case of the respondent No. 1.
12. Perusal of the judgment and order passed by the Tribunal discloses that the finding of the Tribunal that the deceased was not a bona fide passenger was arrived primarily on the ground of variance in the evidence of Taslima Bi (sic Mehar Parveen) and her cousin Saheb Khan. According to Taslima (sic Mehar Parveen) the deceased was travelling with second class ticket bearing No. 24661 which was informed by her cousin Saheb Khan, whereas Saheb Khan deposed that he was not aware of the number of the ticket which was purchased by deceased. No doubt the version of Taslima Bi (sic Mehar Parveen) that the deceased was travelling on a ticket having particular number has not been established. The first information report also did not disclose the name of the deceased. These facts by themselves, in my opinion, are not sufficient to hold that respondent No. 1 has discharged its burden of proving that deceased was not a bona fide passenger. It is pertinent to note that in the present case it is not disputed that deceased was travelling in the ill-fated train. Therefore, the burden of proving the fact that he was not a bona fide passenger lies on the railway administration merely because widow of the deceased probably in anxiety to claim compensation from respondent No. 1 has come out with a version which is not established by itself would not be sufficient to deprive the dependants of compensation on account of death of the deceased in the accident. As stated above, the ratio of the decision given by the Division Bench of Madhya Pradesh High Court with which I respectfully concur is squarely attracted in the present case. In my opinion, the evidence on record is not sufficient to hold that respondent No. 1 has discharged its burden of proving that deceased was not a bona fide passenger. I, therefore, hold that the Tribunal was not justified in dismissing the application for compensation filed by the applicants.
13. The respondent No. 1, therefore, is liable to pay compensation of Rs. 2,00,000 on account of death of Abdul Rub in rail accident which occurred on 9.7.1992 and further liable to pay interest thereon at the rate of 6 per cent per annum from the date.
14. The next question arises for consideration is, whether the applicants are not the dependants of deceased as contended by Mr. Lambat, learned Counsel for respondent No. 1. At the outset, I fail to understand as to how the respondent No. 1 can contend in these appeals that the applicants are not the dependants of the deceased inasmuch as the Tribunal has given a finding that applicants are the dependants of the deceased in terms of Section 123 of the Act. Respondent No. 1 having not filed any cross-objection in appeal preferred by the applicants and respondent Nos. 2 and 3, in my opinion, respondent No. 1 is not entitled to urge that the applicants are not the dependants of the deceased. Be that as it may, even if the argument of Mr. Lambat is considered in the light of Section 123 of the Act, I do not find any infirmity in the finding recorded by the Tribunal that the applicants are also the dependants and they are also entitled to share in the compensation. At this stage, I would like to mention that Mr. Dahat, learned Counsel appearing for the widow and minor daughter of the deceased has fairly conceded that the applicants are also the dependants and as such they are entitled to a share in the compensation.
15. The next issue is about the apportionment of compensation between the applicants and respondent Nos. 2 and 3. In my opinion, the legal representatives of the applicant No. 1, applicant No. 2 and the respondent Nos. 2 and 3 are entitled to the compensation of Rs. 2,00,000 along with interest thereon in equal shares.
16. For the aforesaid reasons, the impugned order passed by the Railway Claims Tribunal is quashed and set aside. Respondent No. 1 is held liable to pay compensation of Rs. 2,00,000 along with interest thereon at the rate of 6 per cent per annum from the date of filing of the application, i.e., 19.11.1992 till the date of deposit to the legal representatives of the applicant No. 1, applicant No. 2 and respondent Nos. 2 and 3 in equal shares. That respondent No. 1 shall deposit the compensation and the interest before the Railway Claims Tribunal, Nagpur within a period of 12 weeks. After the deposit is made the Tribunal shall pay the compensation along with corresponding interest in terms of this judgment to the parties except to respondent No. 3 who is still a minor. The compensation payable to the respondent No. 3 shall be deposited in any nationalised bank for such period as the Tribunal thinks fit until respondent No. 3 attains majority and till such time the interest due on such amount shall be paid to respondent No. 2 who is the guardian of respondent No. 3. The appeals are disposed of in the aforesaid terms with no order as to costs.