JUDGMENT : 1. The Appeal has been preferred at the instance of the original Applicants whose claim for compensation on account of death of Appellant No. 1’s- husband in an incident of 20 th January, 2010 has been dismissed by the impugned judgment dated 29 th July, 2016. 2. The facts of the case are that the Application for compensation filed in the prescribed form pleads that on 20th January, 2010, the deceased accidentally fell down from unknown local train near Virar railway station while travelling with friends between Borivali-Virar- Palghar railway stations and expired. The deceased had valid II nd class railway ticket bearing No. 44630987, valid for travel between Borivali to Virar railway station and that ticket for Palghar was lost in the untoward incident. Along with Application, the Applicant’s annexed Station Master’s report, copy of Inquest Panchnama, copy of the police report, copy of death certificate, copy of railway ticket, copy of Voter ID card and birth certificate. 3. The claim came to be resisted by Railways contending that as per Station Master’s memo, on 20 th January, 2010, the deceased’s body was found lying at KM No. 60/17 between Virar and Vaitarna station on Up M/Line and there is no evidence to prove that deceased had fallen down from running local train. It was further contended that deceased was not a bona fide passenger. Along with the Written Statement, the copy of the Station Master’s memo, station master’s diary, Divisional Railway Manager’s report and investigation report were produced. 4. The Applicant No. 1 examined herself and deposed that on the date of incident, the deceased was travelling with his friend from Borivali to Palghar when he accidentally fell down from Virar-Dahanu local train near Virar railway station and that he was holding a valid II nd class railway ticket for travelling between Borivali and Virar railway station. She has further deposed that she was informed by the deceased’s friend that the ticket purchased by deceased from Virar for travel between Virar and Palghar station is lost in the incident. 5. The Applicant also examined one Dipak Dattaram Jadhav who was the friend of deceased. He had deposed that on 20 th January, 2010 at night, the deceased met him at Virar railway station and they were proceeding to Palghar to stay at a friend’s place. 5. The Applicant also examined one Dipak Dattaram Jadhav who was the friend of deceased. He had deposed that on 20 th January, 2010 at night, the deceased met him at Virar railway station and they were proceeding to Palghar to stay at a friend’s place. At Virar railway station, the deceased purchased the railway ticket for their journey between Virar to Palghar Station, and tickets were lost in the accident. He had deposed that they boarded Virar-Dahanu train to go to Palghar and due to excessive rush, after train had moved for some distance from Virar railway station, the deceased fell down. He had deposed that he pulled the chain and after the train stopped, he informed the Railway Police and then the deceased was taken to Bhagwati Hospital where he was declared dead. 6. The Trial Court framed the necessary issues as to whether deceased was a bona fide purchaser; and whether the deceased had met with an “untoward incident” and answered both the issues against the Applicant. 7. As regards the issue of being bona fide passenger, the Trial Court perused the Police Report which did not have any mention of any ticket or travelling authority beyond Virar railway station and only Borivali to Virar ticket was found. The Trial Court held that the ticket between Borviali to Virar railway station will not establish valid travel beyond Virar station. 8. On the aspect of untoward incident, the Trial Court noted the Station Master’s Memo informing police at 10.30 p.m., that at K.M. No. 60/17 besides Up line, one person is hit by unknown Up railway train, between Virar and Viatarna railway station, got injured and was taken to Bhagwati Hospital, where he was declared dead. The Trial Court accepted the genuineness of document prepared by railway officials and held that the death had not occurred due to an “untoward incident”. The Trial Court also noted that A.W.-2 had not given any statement to the Police after the incident and his name does not appear in any police report and discarded his evidence. The Trial Court accepted the genuineness of document prepared by railway officials and held that the death had not occurred due to an “untoward incident”. The Trial Court also noted that A.W.-2 had not given any statement to the Police after the incident and his name does not appear in any police report and discarded his evidence. The Trial Court also noted in the statement given to the police by the deceased’s- brother on 1 st February, 2010, he had stated that on 20 th January, 2010, the deceased had gone to Virar for search of a job, and as he did not return home, missing complaint was filed with Kasturba Police Station, Mumbai on 25 th January, 2010 and subsequently, on 1 st February, 2010, he went to Bhagwati Hospital where he found the deceased lying in the Mortuary. 9. Based on the evidence, the Trial Court came to a finding that A.W.-2 was not travelling with deceased and was a planted witness, the deceased was not a bona fide passenger and had not fallen down from the train. The Trial Court further considered the injuries and held that such injuries could only be inflicted on a person who had either been knocked down or run over by some train. 10. Learned counsel appearing for Appellant has taken this Court through the Accident Memo and Station Master’s Memo which records that the deceased was found lying injured near the tracks and was taken to Bhagwati Hospital and that the column of being hit by unknown train had not been ticked. Pointing out to Divisional Railway Manager’s report, he submits that DRM’s report specifically notes that the memo of Government Railway Police mentions that railway ticket from Borivali to Virar was found in possession of the deceased during the personal search. He submits that deceased had a valid ticket for travel between Borivali and Virar and that further ticket was lost in the accident. He submits that the Police Report dated 21 st January, 2010 records that no ticket was found, which is contrary to Government Railway Police’s memo. He would further point out to the Inquest Panchnama and would submit that Panchnama was recorded at Bhagwati Hospital on 21 st January, 2010 and the same does not mention anything as to whether the deceased was run over by an unknown train. 11. He would further point out to the Inquest Panchnama and would submit that Panchnama was recorded at Bhagwati Hospital on 21 st January, 2010 and the same does not mention anything as to whether the deceased was run over by an unknown train. 11. He would further submit that A.W.-2 had specifically deposed that deceased had purchased railway ticket from Virar to Palghar and had boarded the train and therefore, the initial burden is discharged. He submits that in the cross-examination, there is no admission elicited so as to shake the testimony. 12. Per contra, learned counsel appearing for Respondent would submit that case of A.W.-2 is that he saw the deceased falling down from the running train and pulled the chain and informed the Railway Police and had taken him to Bhagwati Hospital. He submits that none of the documents mentions A.W.-2, and there is no statement given by him to the Police. He submits that the Police recorded the statement of the brother who stated that on 25 th January, 2010, he had lodged missing complaint with Kasturba Police Station, Mumbai and on 1 st February, 2010, he had gone to Bhagwati Hospital and identified his brother. He submits that similarly, the deceased’s wife had deposed that they had taken search of the deceased and had been informed by the Police that the deceased was in Borivali’s Bhagwati Hospital in the mortuary. He would further point that she has further stated that the police had handed over the Railway Identity Card and Railway ticket. 13. The following point would arise for determination :- (i) Whether the Railway Claims Tribunal, Mumbai was justified in rejecting the Claim for Compensation by holding that the death of deceased was not result of an “untoward incident”, and that he was not a bona fide passenger? As to Point No. (i) :- 14. The case of Appellants is that deceased had accidentally fallen down from the unknown railway train near Virar railway station on 20 th January, 2010 while travelling between Borivali-Virar-Palghar railway stations holding valid ticket. 15. Before proceeding to the facts, it will be apposite to refer to the relevant statutory provisions. Section 123(c) of the Railways Act, 1989 defines an “untoward incident”, which reads thus: “123. 15. Before proceeding to the facts, it will be apposite to refer to the relevant statutory provisions. Section 123(c) of the Railways Act, 1989 defines an “untoward incident”, which reads thus: “123. (c) "untoward incident" means-- (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 or 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 .” 16. Section 124-A provides for ‘no fault liability compensation’ to be paid for the loss occasioned by reason of “untoward incident” subject to the exceptions carved out in clauses (a) to (e) of the proviso, and reads thus: “124-A. Compensation on account of untoward incidents.- When in the course of working 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 dependent 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 of loss occasioned by the death of, 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 purpose 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.” 17. Coming to the records, the Station Master’s memo of 20 th January, 2010 records that the information was received that a male was found lying near Up M-line tracks at Kms. 60/17 between Virar and Vaitarna railway station and had sustained injury on head and left leg and was taken to Bhagwati Hospital for medical treatment. The investigation of the incident was conducted by the Police who had recorded statements of the deceased’s wife and brother on 1 st February, 2010. The deceased’s brother had stated that on 20 th January, 2010, the deceased, at about 6.30 p.m., had gone to Virar in search of work and as he did not return home, on 25 th January, 2010, missing complaint was filed with Katurba Police Station and on 1st February, 2010, he received the information that deceased was lying in the mortuary of Bhagwati Hospital where he went and identified the deceased. The statement of brother has been corroborated by the statement of deceased’s wife given to the Police. She further stated that she received the wallet of the deceased in which Railway Identity Card and Railway Ticket was found. Based on the reports, the Divisional Railway Manager concluded that deceased was knocked down while crossing the railway tracks and that Government Railway Police found Railway Ticket No. 44630987 for travel between Borivali to Virar railway stations in possession of deceased, during the personal search. The Inquest Panchnama dated 21 st January, 2010 does not record finding of any ticket and records that no valuable ornaments were found with the deceased. 18. The reports will establish the fact that the deceased was found lying injured near the railway tracks between Virar and Vaitarna station. The question is whether the deceased had boarded the train from Virar for onward journey and had accidentally fallen down from the train. In support of their case, the Claimants have examined the wife of the deceased as A.W.-1 and friend of the deceased as A.W.-2. 19 . The question is whether the deceased had boarded the train from Virar for onward journey and had accidentally fallen down from the train. In support of their case, the Claimants have examined the wife of the deceased as A.W.-1 and friend of the deceased as A.W.-2. 19 . A.W.-1 had deposed that on 20 th January, 2010, the deceased was travelling with friend from Borivali-Virar-Palghar and she was informed by her husband’s friend that deceased had fallen down from running train and later, the Police also informed her that her husband had fallen down from the train. The deposition is contrary to the statement given to Police on 4 th February, 2010, where she had stated that she along with other family members were trying to take search of husband when she was informed by Government Railway Police that her husband was lying dead in the mortuary of Bhagwati Hospital. In the statement given to the Police, she had not stated that her husband was travelling from Borivali to Palghar and there is no mention about A.W.-2 in her statement. Similarly, the deceased’s brother had stated to the Police that on the date of incident, the deceased had gone to Virar for search of work and that as he did not return home on 25 th January, 2010, he lodged a missing police complaint with the Kasturba Police Station and ultimately he found that the deceased had expired on 1 st February, 2010. The brother’s statement also does not mention A.W.-2. These statements are given to the Police on the day when brother of the deceased had identified the body of deceased. If A.W.-1 was aware that the deceased had gone to Palghar with his friend and was informed by the friend about the incident, there was no question of taking search and filing missing complaint after five days of the incident and finding the deceased in the mortuary after ten days of the incident. The deposition of A.W.-1 cannot be relied upon when read in light of the statements given to the police immediately upon the body of deceased being found in the mortuary. 20. The deposition of A.W.-1 cannot be relied upon when read in light of the statements given to the police immediately upon the body of deceased being found in the mortuary. 20. Now coming to evidence given by A.W.-2, he had deposed that on the date of accident, he and deceased had met at Virar railway station and were going to Palghar to stay at friend’s place and that deceased had purchased II nd class railway ticket for the journey between Virar and Palghar and they both had boarded the train. He had further deposed that he had pulled the chain and informed the Railway Police at Virar railway station, and then took him to Bhagwati Hospital. The Police report clearly states that upon receiving information from Station Master, with help of Hamals, the deceased was taken to Bhagwati Hospital. If A.W.-2 had pulled the chain, upon seeing the incident, he would have accompanied the deceased to Bhagwati Hospital and would have immediately informed the family members of deceased. When the statement given by brother and wife of deceased to the Police is compared with the statement given by A.W.-2, it is evident that A.W.-2 is a planted witness. The testimony of A.W.-2, being concocted has rightly been discarded. 21. The deposition of A.W.-1 and A.W.-2 cannot be accepted as proof of the fact that the deceased had boarded the train at Virar for onward travel to Palghar. The statement given to the police establishes that the deceased had gone to Virar in search of the job and therefore, there is no question of the deceased having fallen down from the train between Virar and Vaitarna station to qualify as “untoward incident” under Section 123(c)(2) of Railways Act, 1989. The only possible explanation for the deceased lying injured on the track is that he was hit by an unknown local train between Virar and Vaitarna station. 22. As regards the issue of being bona fide passenger, a valid railway ticket was found for travel between Borivali and Virar station on body of the deceased. The ticket being found on the deceased corroborates the statement given by brother that the deceased had gone to Virar for the purpose of work. The deceased was found lying near Vaitarna railway station, which is next station after Virar and he was found lying injured near the tracks. The ticket being found on the deceased corroborates the statement given by brother that the deceased had gone to Virar for the purpose of work. The deceased was found lying near Vaitarna railway station, which is next station after Virar and he was found lying injured near the tracks. Contrary to the statement given to the police, A.W.-1 had deposed that deceased was going to Palghar to stay at friend’s place. In event, the deceased intended to travel to Palghar, there is no reason as to why he will purchase the ticket only for travel between Borivali to Virar and not a ticket for the entire journey from Borivali to Palghar. A.W.-1 had deposed that she was informed by the deceased’s friend who was travelling with him that her husband has purchased ticket for travel between Virar and Palghar and the same is lost. The evidence, apart from the fact that it is contrary to her statement to the police, does not mention name of the alleged friend. It has to be assumed that the friend would be A.W.-2, whose testimony has been held to be concocted. The deposition of A.W.-1 and A.W.-2 does not discharge the initial burden of stating the relevant facts when considered in light of attending circumstances. 23. The law is settled by various decisions which have held that the Claimants’ discharge their initial burden once all relevant facts had been stated by filing Affidavit of evidence. However, it needs to be noted that the deposition by itself is not sufocient to discharge the burden of proving that deceased had purchased the tickets and boarded the train. The deposition has to be considered in light of the attending circumstances and in the present case, finding of ticket upto Virar establishes that the deceased was intending to travel only up to Virar. The statements given to the police proves that A.W.-2 was not accompanying the deceased and thus, there is no evidence to show that deceased had boarded the train at Virar for his onward journey to Palghar. As the Appellants have failed to discharge the initial burden, the onus does not shift to Railways and therefore, it is not proved that deceased had died due to an “untoward incident” and that he is a bona fide passenger. Point No. (i) is accordingly, answered against the Appellants. 24. Resultantly, the First Appeal stands dismissed. 25. As the Appellants have failed to discharge the initial burden, the onus does not shift to Railways and therefore, it is not proved that deceased had died due to an “untoward incident” and that he is a bona fide passenger. Point No. (i) is accordingly, answered against the Appellants. 24. Resultantly, the First Appeal stands dismissed. 25. In view of dismissal of First Appeal, nothing survives for consideration in pending Interim/Civil Applications, if any, and the same stand disposed of.