JUDGMENT : 1. This appeal is against the judgment of Railway Claims Tribunal, Nagpur (hereinafter referred to as the “Tribunal” for the sake of brevity) in Claim Petition No. OAIIu/NGP/2011/0133 dated 29.03.2012. The appellant was travelling in a railway from Gondia to Bhandara on 23.01.2010 by purchasing a railway ticket. He boarded train no. 8030 Hawarha-Kurla Express in general compartment. Due to rush and jerk in the compartment, he fell down from the running train and sustained injuries to his left leg and right leg also. Railway Authority taken him for treatment and admitted in Government Hospital, Bhandara. His left leg was amputed below the knee. Due to the untoward incident, the appellant sustained permanent disability, therefore, claim petition was filed. 2. The Tribunal recorded its findings holding that appellant was not having valid railway ticket. He was selling the fruits in the railway without any license. While alighting from the train, he fell down. It was not untoward incident and, therefore, Railway is not liable to pay the compensation. 3. Heard learned Counsel Ms. Hemlata Dhande holding for learned Counsel Shri Sable for the appellant. She has pointed out the evidence of the appellant and cross-examination by the side of railway. Learned Counsel has pointed out the judgment of this Court in the case of First Appeal No. 305 of 2010 decided on 01.07.2017. Learned Counsel has submitted that even though, he was a vendor without any license then also, the burden shifts on the railway to prove the defence. She has pointed out para 20 and 21 of the judgment and submitted that in view of the judgment of this Court, the appellant is entitled for the compensation. Learned Counsel has pointed out the judgment in the case of Savitra Devi and ors. Vs. Union of India reported in I (2018)ACC 449 (Del.). Learned Counsel has submitted that the findings based on the investigation conducted by RPF without examining any witness on their behalf and rejection of statement recorded by GRP cannot be sustained. The findings based upon unacceptable evidence cannot be sustained. Learned Counsel has submitted that the respondent not examined any witness. The burden is not discharged by the respondent as held in First Appeal No. 305 of 2010, The Union of India Vs. Dhurpatabai w/o Kondiba Gomsale dated 01.07.2017. The findings based upon unacceptable evidence cannot be sustained. Learned Counsel has submitted that the respondent not examined any witness. The burden is not discharged by the respondent as held in First Appeal No. 305 of 2010, The Union of India Vs. Dhurpatabai w/o Kondiba Gomsale dated 01.07.2017. At last submitted that appellant has sustained 50% permanent disability and, therefore, as per amended Schedule, Part-III of the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990, he is entitled for compensation of Rs.4,00,000/. 4. Heard learned Counsel Shri Lambat for the respondent. He has pointed out the cross-examination and submitted that appellant was selling fruits in the running train. After receiving money from the passenger, he hurriedly alighted the train. The accident took place due to his own negligence and, therefore, he is not entitled for any compensation. 5. Perused the record. From the record, it appears that statement of appellant recorded by GRP not filed on record. Learned Counsel Shri Lambat has submitted that it was for the appellant to produce his statement, but not filed on record. It is pertinent to note that to prove the defence, it was for the respondent to examine the concerned police officer who recorded the statement of appellant, but not examined any witness by the respondent. In examination-in-chief, the appellant has stated that he had purchased the ticket and boarded from Gondia in Hawarah-Kurla Express. While alighting from the train, he fell down from the running train. This particular evidence is not challenged. The purchase of ticket stated by the appellant is not denied in his cross-examination. Issues are framed by the Tribunal, the burden in respect of one of the issues was on the respondent. It appears from the record that burden is not discharged by the respondent. 6. Even, it is assumed that the appellant was selling fruits in the running train, then also he is entitled for compensation. In the case of Dhurpatabai (cited supra), the fact appears to be the same. It was the case that the injured was travelling from Basmat to Nandpur by train no. 582 selling various articles. He fell down from the running train due to jerk. He was held entitled for the compensation. Therefore, it is clear that even the appellant fell down while selling the fruit is entitled for the compensation. In para nos. It was the case that the injured was travelling from Basmat to Nandpur by train no. 582 selling various articles. He fell down from the running train due to jerk. He was held entitled for the compensation. Therefore, it is clear that even the appellant fell down while selling the fruit is entitled for the compensation. In para nos. 20 and 21 of the above cited judgment, this Court has held that when the injured says that he purchased the ticket and was travelling with valid ticket, then burden shifts on the railway. Para nos. 20 and 21 of the cited judgment are reproduced below: [20] “Per contra, by relying upon the judgment of Rajasthan High Court in the case of Union of India Vs Hari Narayan Gupta and another, 2008 ACJ 822 , it is submitted by learned counsel for the respondents, that merely because the ticket was not found, it cannot be said that deceased was travelling without valid ticket. In this judgment it was held that the normal presumption is that a passenger in a railway holds a valid ticket. Hence, the burden is upon the railway administration to prove that he was not having a valid ticket. It was held that when a person dies in an accident by falling from running train, it is not possible for the legal representatives to produce the ticket. Hence, in absence of production of ticket also it can be held that deceased was a bona fide passenger. Thus, once evidence on record proves that deceased had accidentally fallen from the train which resulted into his death, then the presumption will follow that he was travelling with valid ticket. Naturally the burden stands shifted on the railway administration to prove otherwise. [21] In the present case evidence on record had proved that the cause of death was accidental fall from the running train and therefore, presumption is that deceased was a bona fide passenger having a valid ticket. The burden was then shifted on the railway administration to prove that deceased was travelling without ticket. The railway administration has not led any evidence to rebut that presumption. As observed by the Tribunal in this respect, there is ticket checking staff and railway police to apprehend the persons who are travelling without ticket. The evidence of such staff has not been led. The railway administration has not led any evidence to rebut that presumption. As observed by the Tribunal in this respect, there is ticket checking staff and railway police to apprehend the persons who are travelling without ticket. The evidence of such staff has not been led. Merely because deceased was a hawker selling articles in the train, it would not be proper to infer that he was travelling without ticket. When the burden is on the party to prove a particular fact, the burden is to be discharged by the party by adducing evidence. Hence, merely on the assumption and presumption, it cannot be said that deceased was not a bona fide passenger”. [7] In the case of Savitri Devi (cited supra), it is held by High Court that: “Findings based on the investigation conducted by RPF without examining any witness on their behalf and rejection of statements recorded by GRP cannot be sustained. Findings based upon unacceptable evidence cannot be sustained”. [8] In the present case, respondent not examined the Police Officer who had conducted the investigation in respect of the accident. The defence raised by the railway not proved. [9] The claimant has proved the amputation of his leg, the medical disability certificate is at Exh. A.50, which shows that the appellant has sustained 50% disability. The certificate is issued by Medical Board. The report submitted by the Vijay Tayade, Police Constable, Railway Police, Gondia to Medical Officer shows that the injured fell down from the train 8030 on platform no. 1 at Bhandara Railway Station. His left leg has been injured from the knee. He also prayed for recording the statement of injured. Therefore, it is clear that the statement of injured/appellant is in the possession of GRP. Respondent was at liberty to examine the officer of GRP. On the other hand, statutory authority recorded the statement of appellant. It is at Exh. A.39. It shows that the appellant was travelling by valid journey ticket. He was standing near the basin. Due to heavy rush and push by the passenger, he fell down. The defence raised by the respondent not proved. Hence, the Tribunal not evaluated the evidence properly and, therefore, wrong findings are recorded. [10] In that view of the matter, the appeal is allowed with no order as to costs. He was standing near the basin. Due to heavy rush and push by the passenger, he fell down. The defence raised by the respondent not proved. Hence, the Tribunal not evaluated the evidence properly and, therefore, wrong findings are recorded. [10] In that view of the matter, the appeal is allowed with no order as to costs. [11] The respondent is directed to pay the compensation of Rs.4,00,000/-(Rupees Four Lakhs only) to the appellant within a period of three months, failing which amount shall carry interest at the rate of 7.5% per annum from the date of this order. [12] The appeal is disposed of.