MANISHA Vs. UNION OF INDIA

JUDGEMENT

(1.) BEING aggrieved by the judgment and Award dated 12.4.2002 in Claim Application No.87 of 2000 made by Railway Claims Tribunal, Nagpur, dismissing the claim application in entirety, the present appeal was filed by the claimant.

(2.) IN support of appeal, Mr. Deshpande learned counsel for the appellant, argued that the Tribunal has recorded a categorical finding that the deceased was a bona fide passenger and this finding is fully supported by documentary evidence in the form of Spot Panchanama which indicated that a valid ticket for passenger train from Nagpur to Pulgaon was found on the person of the deceased. The deceased had fallen down from the train and was cut into pieces and he being a bona fide passenger the case in question was a case of untoward incident, for which the Tribunal ought to have awarded compensation. According to the learned counsel for the appellant, the finding of the Tribunal that the deceased was run over by the goods train is perverse and not based on any satisfactory evidence but on the interested version of the employee of the Railways. The Tribunal ought not to have accepted this case, particularly when no pleadings to that effect were averred in the written statement. The insertion in para 3 of the reply of the respondent Railways before the Tribunal about the deceased trespassing and then getting run over while crossing the railway track is required to be ignored and the case sought to be made out on the basis of the said inserted pleadings will have to be rejected since the appellant was having no notice of such insertion, as can be seen from the orders of this Court made on 5.11.2009 in these proceedings. He argued that the evidence of the wife of deceased was required to be believed and the testimony of the evidence produced by the Railways was required to be rejected. The deceased admittedly being a bona fide passenger, there was no reason to assume that he would come under a goods train, as stated by the respondent.

(3.) I have gone through the impugned judgment and Award made by the Tribunal so also the evidence tendered by both the parties before the Tribunal. I have gone through the documents placed on record of the Tribunal. Having heard learned counsel for rival parties, at the outset, I find that there is a finding recorded by the Tribunal that a ticket was found on the person of the deceased where spot panchanama was made and accordingly there is a mention thereof in the panchanama. The real question is, whether the deceased came under the passenger train or under a goods train and therefore the burden to prove that he was run over by the goods train and not by the passenger train was surely on the respondent. This Court will have therefore to see whether the said burden of proof was discharged by the respondent or not.