JUDGMENT/ORDER 1. Heard. 2. In this appeal, filed under Sec. 23 of the Railway Claims Tribunal Act, 1987 (For short 'the Act of 1987') challenge is to the judgment and order dtd. 17/2/2009 passed by the Railway Claims Tribunal, Nagpur Bench, at Nagpur whereby the learned Member of the Tribunal allowed the claim filed by the respondent under Sec. 16 of the Act of 1987 and awarded the compensation. 3. Background facts: Respondent is the mother of the deceased Sheikh Riyaz S/o. Sk Faiyaz. On 1/3/2002, at about 12:30 a.m., the deceased alongwith AW-2- Sk. Firoz S/o. Sk. Issaq Kureshi went to Jalgaon Railway Station for proceeding to Nandurbar by Bhusawal-Surat Passenger Train No. 178. The deceased purchased two railway tickets for Rs.27.00 each, one for himself and another for AW-2. At about 1:15 a.m., they boarded Bhusawal-Surat Passenger Train No. 178. It is stated that while the train was proceeding between Pardhi and Chawalkheda railway station, some persons attacked the deceased and AW-2. The deceased was brutally assaulted and thrown out of the train near Km No.281/10-11 between Dharangaon and Chawalkheda railway station. The deceased sustained serious injuries and succumbed to the same. AW-2 was also thrown out of the train after merciless beating. He also sustained serious injuries, however he survived. It was stated that deceased died in an untoward incident and therefore, the appellant - railway is liable to pay compensation. 4. The appellant-Railway filed reply and opposed the claim. It was contended that the deceased was not bonafide passenger. Railway ticket was not recovered at the time of the inquest panchanama/spot panchanama. Deceased and AW-2 were traveling without tickets. The report was not made either by police or any passenger that the deceased and AW-2 were thrown out of the train. It was stated that the deceased did not die in an untoward incident. The injury might have been sustained in a quarrel with other passengers. It was therefore self inflicted injury due to his own criminal act. 5. Learned Member of the Tribunal framed as many as four issues and answered all the issues in favour of the respondent. Appellant-railway is therefore before this Court in appeal. 6. I have heard learned Advocate for the appellant and the learned Advocate for the respondent. Perused the record and proceedings. In view of the facts and circumstances following points fall for my determination. Appellant-railway is therefore before this Court in appeal. 6. I have heard learned Advocate for the appellant and the learned Advocate for the respondent. Perused the record and proceedings. In view of the facts and circumstances following points fall for my determination. < WXY>(i) Whether the deceased was bonafide passenger with valid ticket for a journey ? (ii) Whether the deceased was thrown out of the train by copassengers and as such, death was caused in an untoward incident ?</ WXY> 7. Learned Advocate for the appellant submitted that AW-2 has admitted in his evidence that on trivial issue there was exchange of words between deceased and some copassengers and therefore, the deceased and AW-2 were got involved in the quarrel. Learned Advocate submitted that therefore, death was not in an untoward incident. Learned Advocate pointed out that the case in question would fall under the proviso to Sec. 124 -A of the Railways Act, 1989 (for short 'the Act of 1989'). The injuries sustained were self inflicted injuries because of criminal act committed by deceased and AW-2. Learned Advocate therefore submitted that there is no evidence to prove that the deceased died in an untoward incident, as understood by Sec. 123(c) (1) (i), (ii) and (iii) of the Act of 1989. Learned Advocate further submitted that the journey ticket was neither recovered from the spot nor it was recovered from the possession of AW-2. Learned Advocate therefore submitted that the deceased was traveling without journey ticket and therefore, the respondent was not entitled to get the compensation. 8. Learned Advocate for the respondent submitted that the learned Member of the Tribunal has properly appreciated the evidence and on the basis of the available evidence rightly accepted the claim of the respondent. Learned Advocate pointed out that the deceased and AW-2 were thrown out of the running train by co-passengers in a quarrel and therefore, as per Sec. 123(c)(1)(ii) and (iii) the death in question was in an untoward incident. Learned Advocate pointed out that no complaint was lodged against the deceased or AW-2 by co-passengers with regard to beating or assault by the deceased or AW-2. Learned Advocate took me through the evidence of AW-2 and submitted that his evidence with regard to assault by the co-passengers on him and the deceased is sufficient to prove the incident. Learned Advocate pointed out that no complaint was lodged against the deceased or AW-2 by co-passengers with regard to beating or assault by the deceased or AW-2. Learned Advocate took me through the evidence of AW-2 and submitted that his evidence with regard to assault by the co-passengers on him and the deceased is sufficient to prove the incident. Learned Advocate submitted that the railway did not take appropriate care to provide protection to the passengers and therefore, railway was responsible to pay compensation. Learned Advocate further submitted that AW-2, who was traveling with the deceased has stated that the deceased had purchased two tickets, one for himself and one for him for Rs.27.00. He has stated that the railway tickets were with the deceased and when the deceased was thrown out of train, the tickets were lost. Learned Advocate, therefore, submitted that the affidavit filed by AW2, a co-passenger with deceased, is sufficient to discharge the burden cast on the respondent to prove that the deceased was bonafide passenger traveling with the valid journey ticket. In this context, he has relied on the decision in the case of Union of India .v/s. Rina Devi ., (2019) 3 SCC 572 9. Learned Member of the Tribunal, on appreciation of the evidence, has accepted the contention of the respondent on both the counts. It is the case of the respondent that the copassengers due to some trivial incident beat deceased and AW2 and thrown them out of the running train. In view of this factual position, before proceeding to the evidence, it would be necessary to consider the provisions of Sec. 123(c)(1)(i), (ii) and (iii). As per clause (ii), an 'untoward incident' means the making of a violent attack or the commission of robbery or dacoity. As per clause (iii), an 'untoward incident' means indulging in rioting, shoot-out or arson. As per clause (c) (1) (ii) the making of violent attack is an 'untoward incident'. It is to be noted that while traveling the violent attack could be made by co-passengers or in the commission of robbery or dacoity. It is the case of the respondent that in this case violent attack was made by the co-passengers. The deceased and the AW-2 were mercilessly beaten and thrown out of the train. It is to be noted that while traveling the violent attack could be made by co-passengers or in the commission of robbery or dacoity. It is the case of the respondent that in this case violent attack was made by the co-passengers. The deceased and the AW-2 were mercilessly beaten and thrown out of the train. In my view, the incident in question would be an untoward incident covered under Clause (c)(1)(ii) of Sec. 123 of the Act of 1989. 10. It is to be noted that no report was lodged against deceased or AW 2 by any co-passenger with regard to the attack by them on any co-passenger. AW-2, who was an eye witness to the entire episode of assault on him and the deceased, has placed on record the first hand account of the incident. It is to be noted that the deceased and the AW-2 were thrown out of the running train by the co-passengers after merciless beating. The investigation conducted by the railway police on a report of AW-2 did not lead to arrest of the assailants of the deceased and AW-2. In my view, therefore the case in question would covered by sub clause (ii) of clause (c)(1) of Sec. 123 of the Act of 1989. 11. The FIR filed by AW-2 is a part of the record. In the FIR, it is stated that after tu tu mai mai (exchange of words) the co-passenger left the said place and came back alongwith 20 boys. After sometime, they assaulted and attacked on AW-2 and deceased in a cruel manner. This fact has been supported by contemporaneous documentary evidence. The dead body of the deceased was found between two railway stations. The railway administration is responsible to provide security and ensure the safety of the passenger. If the railway had taken care and ensured the safety, the incident in question would not have occurred. In the facts and circumstances, the case would not be covered by any of the clauses of proviso to Sec. 124-A of the Act of 1989. The act of throwing out the deceased and AW-2 by co-passengers after merciless beating and attack, by no stretch of imagination, could be said to be an act committed by them in state of intoxication or an act causing a self inflicted injury. The act of throwing out the deceased and AW-2 by co-passengers after merciless beating and attack, by no stretch of imagination, could be said to be an act committed by them in state of intoxication or an act causing a self inflicted injury. The case in question, in my view, would be covered by first part of Sec. 124-A of the Act of 1989. Therefore, I have no reason to disagree with the findings recorded by the Tribunal that death in question was in an untoward incident. Therefore, the submission advanced on this point by the learned Advocate for the appellant has to be rejected. 12. The next important question is as to whether the deceased was bonafide passenger traveling with valid journey ticket ? Learned Advocate for the respondent relied upon decision in the case of Rina Devi (supra) and submitted that the affidavit filed by AW-2 is sufficient to discharge initial burden that the deceased was traveling with valid journey ticket. The Hon'ble Apex Court has considered this issue in the case of Rina Devi (supra). Para No. 29 of this case would be relevant for the purpose of this case. It is extracted below: < WXY>"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."</ WXY> 13. In this case, the Hon'ble Apex Court has held that mere absence of ticket with injured or deceased passenger will not negative the claim that he was bonafide passenger. It is held that initial burden will be on claimant which can be discharged by filing an affidavit of relevant facts and burden will then shift on railway and the issue can be decided on the facts shown or the attending circumstances. It is held that initial burden will be on claimant which can be discharged by filing an affidavit of relevant facts and burden will then shift on railway and the issue can be decided on the facts shown or the attending circumstances. This will have to be dealt from case to case on the basis of the facts found. In my view, in this case, the initial burden has been discharged by the respondent. The railway has not adduced any evidence to disprove this fact. In my view, therefore, the proposition of law laid down in the case of Rina Devi (supra) would be squarely applicable to this case and helpful to the case of the respondent. As such, I record my finding on both the points in the affirmative. In view of this, I do not find any substance in the appeal. The appeal is accordingly dismissed. 14. Learned Advocate for the parties submits that in view of the notification issued by Ministry of Railways (Railway Board) dtd. 22/12/2106 in case of death claim the appellant shall be liable to pay compensation of Rs.8, 00, 000.00 (Rs. Eight Lacs Only). Learned Advocates further submits that respondent is entitled to get compensation of Rs.8, 00, 000.00 but without interest. 15. It is pointed out that the appellant has deposited the amount of Rs.4, 39, 667.00 (Rs. Four Lacs Thirty Nine Thousand Six Hundred and Sixty Seven Only) in this Court. 16. In view of the decision of the Hon'ble Apex Court in the case of Union of India .v/s. Radha Yadav, (2019) 3 SCC410 the respondent may not be entitled to get the interest. 17. Since the appellant has deposited Rs.4, 39, 667.00 (Rs. Four Lacs Thirty Nine Thousand Six Hundred and Sixty Seven Only), the appellant would be required to deposit the balance amount of Rs.3, 60, 333.00 (Rs. Three Lacs Sixty Thousand Three Hundred and Thirty Three only). The balance amount of Rs.3, 60, 333.00 be deposited within four months from today with the Registry of this Court. 18. Respondent would be entitled to get the accrued interest on already deposited amount, if not withdrawn. After deposit of the amount the respondent is permitted to withdraw the entire amount, with accrued interest, if any. 19. The first appeal stands disposed of, accordingly.