Union of India (Uoi) Vs. Satish Patidar and anr. - Court Judgment

Excerpt:
civil - compensation - sections 123, 124a and 124c of railway claims tribunal act, 1987(amended in 1994) - deceased died while attempting to catch running train - respondents being legal representative of deceased filed claim for compensation before railway tribunal - railway tribunal passed award and allowed compensation - feeling aggrieved by quantum of compensation, union of india filed present appeal and cross objection also filed by respondent - contention of appellant is that, provisions regarding untoward incident were inserted in railway act by amending act and they are in force after accident occurred therefore, present case is not covered by amended provisions and respondent entitled to get less amount of compensation - held, on perusal of record it appears that tribunal entertain this case after expiry of limitation period by way condoning delay and giving retrospective effect of amendment act -there is nothing in language of section 123 or section 124a of amendment act to indicate that these provisions are to apply retrospectively - therefore, it shall be presumed that provisions are intended by legislature to have prospective effect - court can condone delay only when right exists - when on date of accident section 124a of amendment act was not in existence, it cannot be said that claimants were entitled to claim for untoward incident - therefore, claimants are not entitled to any compensation for incident which occurred prior to coming into force of amendment - hence, claims tribunal was not right in entertaining claim on basis of law which did not exist on date of accident simply by condoning delay - impugned order of tribunal is hereby set aside - consequently, respondents are not entitled to amount of compensation under section 124c of act - in view of this, cross-objections also dismissed - - state of andhra pradesh, air 1976 sc 1471, the apex court observed as follows :it is well recognised rule of interpretation that in the absence of express words of appropriate language from which retrospectivity may be inferred, a notification takes effect from the date it is issued and not from any prior date. the principle is also well settled that, statutes should not be construed so as to create new disabilities or obligations or impose new duties in respect of transactions which were complete at the time the amending act came into force. prem behari khare, air 1989 sc 1247, the supreme court made the following pertinent observation in this connection :before applying a statute retrospectively the court has to be satisfied that the statute is in fact retrospective. the presumption against retrospective operation is strong in cases in which the statute, if operated retrospectively would prejudicially affect vested rights or the illegality of the past transactions, or impair contracts, or impose new duty or attach new disability in respect of past transaction or consideration already passed. (1995) 2 scc 630 :(air 1996 sc 238) the apex court on the question ofretrospective effect of statutory provision observed as under :even otherwise it is well settled that where statutory provision which is not expressly made retrospective by the legislature seeks to affect vested rights and corresponding obligations of parties, such provision cannot be said to have any retrospective effect by necessary implication. it clearly implies that the right to be compensated for an untoward incident cannot be acquired on a date on which section 124a was not on the statute book. in mulkobai's case (air 2002 madh pra 22) (supra) it has been held thus :in view of the allegations made in the claim petition and the facts found by tribunal, section 124a of the railways act, is clearly invokable for the limited purpose of deciding the jurisdiction of the railways claims tribunal with the interaction and mutual aid of interpretation of section 13 read with section 24 of railway claims tribunal act, 1987 without meaning to decide that section 124a of the railways act, 1989 is retrospective in operation or not, but, so far as jurisdiction of the tribunal is concerned, provisions of section 13(1-a) and section 24 of the railway claims tribunal act, 1987 are amply clear and we have no hesitation to come to the conclusion that it was only the railway claims tribunal, who was having the jurisdiction in view of section 13(1-a) read with section 24 of the railway claims tribunal act, 1987 to give a trial and pass an award in the instant case and the case was rightly if we read this section in conjunction with section 24 of the said act it becomes clear like a noon day, that if a case is pending before the civil court which would have been covered by section 124a of the act of 1989, had the said provision being in force at the relevant time when the accident took place, such case shall stand transferred to railway claims tribunal.s.l. jain, j. 1. union of india has filed the present appeal under section 23 of the railway claims tribunal act, 1987 (hereinafter referred to as 'act of 1987'), aggrieved by the award dated 12-6-97 passed by the railway claims tribunal, bhopal (hereinafter referred to as tribunal') in original application no. 628/96. the tribunal awarded a sum of rs. 2 lac as compensation to the respondents who are the legal representatives of deceased sadashiv, who died due to a fall from running train.2. the final journey for the deceased began on july 14, 1992, when he boarded 130 up train at thandala for meghnagar. he fell from the train and the train ran over him. the respondents, being the legal representatives of the deceased, filed the claim for compensation before the tribunal after about 4 years of the incident, on 5-8-96.3. the appellant contested the claim of the respondents on the ground that the application is barred by limitation. it was also contended by the union of india that section 124a of the railways act, 1989 (hereinafter referred to as the 'act of 1989), providing for compensation on account of an untoward incident was inserted by railway-amendment act, 1994 (hereinafter referred to as the 'amending act') with effect from 1-8-1994 and the alleged incident, occurred prior to that date. therefore, respondents cannot get the benefit of the amendment. it was further contended that the tribunal has no jurisdiction to entertain the petition.4. the tribunal condoned the delay in filing the application. regarding the jurisdiction of the tribunal, the finding of the tribunal was to the effect that it had jurisdiction to decide the application. the tribunal also held that the deceased was travelling as a bona fide passenger, consequently, it awarded compensation of rs. 2 lac. the tribunal has also awarded interest @ 12% per annum on the said amount. the appellant-railways is seriously aggrieved by the aforesaid order of the tribunal and has filed this appeal challenging the legality and validity of the same.5. the respondents have filed a reply to the memo of appeal. this in fact appears to be a cross-objection, though the same has, been styled as reply. in this reply, which we are treating as a cross-objection, the respondents have submitted that they are entitled to a claim of rs. 4 lac and they have also prayed for enhancing the claim from rs. 2 lac to 4 in view of substitution of rs. 4 lac in place of rs. 2 lac in the schedule of the railway accidents and untoward incidents compensation rules, 1990, with effect from 1-11-97 by gsr 620 (e), dated 25th october, 1997.6. we have heard the learned counsel for the parties.7. shri s. k. mukherjee, learned counsel appearing for the appellant-railways has summarised his attack on the impugned order as under :--1. that, the provisions regarding untoward incident were inserted in railway act by amending act and they are in force with effect from august 1, 1994, therefore, the present case is not covered by the amended provisions as the incident occurred prior thereto, on july 14, 1992. 2. that, the application was barred by limitation; 3. the claim was not triable by railway claims tribunal. 4.that the deceased was travelling without ticket and was not a bona fide passenger, therefore, his legal representatives are not entitled to any claim. 8. per contra, shri b.n. shukla, learnedcounsel for respondents has not only supported the judgment of the tribunal awarding compensation but has also submittedthat the compensation awarded is inadequate and the same be enhanced to rs. 4 lac. he submitted that railway act is a beneficial legislation enacted in the interest of passengers, therefore, it should be interpreted liberally and, should also be given retrospective effect.9. we are mainly concerned with two provisions of the act of 1989 which are enshrined in sections 123 and 124a and two sections of the act of 1987 namely, sections 13 and 17. section 123 of the act of 1989, defines the terms 'accident' and 'dependents' in sub-sections (a) and (b) respectively. sub-section (c) is the material section which we reproduce below. it defines 'untoward incident' as under :--(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 act (prevention) act, 1987 (28 of 1987); or (ii) the making of a violent attack on 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. section 124a of the act of 1989 casts liability for compensation on account of untoward incident. it would be relevant for our purpose to refer to the said section also- '124-a. compensation on account of untoward incident.-- when in the course of working of 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 dependant 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 for 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 stale 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 purposes 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. section 13 of the act of 1987 deals with jurisdiction, power and authority of claims tribunal, which reads as under :-- '13. jurisdiction, powers and authority of claims tribunal : (1) the claims tribunal shall exercise, on and from the appointed day, all such jurisdiction, powers and authority, as were exercisable immediately before that day by any civil court or a claims commissioner appointed under the provisions of the railways act.- (a) relating to the responsibility of the railway administration as carriers under chapter vii of the railways act in respect of claims for -- (i) compensation for loss, destruction, damage, deterioration or non-delivery of animals or goods entrusted to a railway administration for carriage by railway; (ii) compensation payable under section 82a of the railways act or the rules made thereunder; and (b) in respect of the claims for refund of fares or part thereof or for refund of any freight paid in respect of animals or goods entrusted to railway administration to be carried by railway. [(1a) the claims tribunal shall also exercise, on and from the date of commencement of the provisions of section 124a of the railways act, 1989, all such jurisdiction, powers and authority as were exercisable immediately before that date by any civil court in respect of claims for compensation now payable by the railway administration under section 124a of the said act or the rules made thereunder] (2) the provisions of the railways act, 1989 and the rules made thereunder shall, so far as may be, applicable to the inquiring into or determining any claims by the claims tribunal under this act.' (underlined by us) (words in bracket [ 1 inserted by amending act). as the question of limitation is also involved in this case. section 17 of the act of 1987 is also reproduced below :-- '17. limitation.-- the claims tribunal shall not admit an application for any claims- (a) under sub-clause (1) of clause (a) of sub-section (1) of section 13 unless the application is made within three years from the date on which the goods in question were entrusted to the railway administration for carriage by railway; (b) under sub-clause (ii) of clause (a) of sub-section (1) (or as the case may be, sub-section (1a)] of section 13 unless the application is made within one year of occurrence of the accident; (c) under clause (b) of sub-section (1) of section 13 unless the application is made within three years from the date on which the fare or freight is paid to the railway administration : provided that no application for any claim referred to in sub-clause (i) of clause (a) of sub-section (1) of section 13 shall be preferred to the claims tribunal until the expiration of throe months next after the date on which the intimation of the claim has been preferred under section 78b of the railways act. (2) notwithstanding anything contained in sub-section (1), an application may be entertained after the period specified in sub-section (1) if the applicant satisfies the claims tribunal that he had sufficient cause for not making the application within such period.' (words in bracket [ ] inserted by amending act.) in order to appreciate the arguments submitted by the learned counsel for the respondents it is relevant to refer section 24 of the act of 1987, which reads as under :-- '24. transfer of pending cases--(1) every suit, claim or other legal proceeding (other than an appeal) pending before any court, claims commissioner or other authority immediately before the appointed day. [or as the case may be the date of commencement of the provisions of sub-section (1-a) of section 13], being a suit, claim or proceeding the cause of action whereon is based is such that it would have been, if it had arisen after the appointed day, [or as the case may be, the date of commencement of the provisions of sub-section (1-a) of section 13], within the jurisdiction of the claims tribunal shall stand transferred on [that day or as the case may be, date] to the claims tribunal. (2) where any suit, claim or other legal proceeding stands transferred from any court, claims commissioner or other authority to the claims tribunal under sub-section (1),-- (a) the court, claims commissioner or other authority, shall, as soon as may be after such transfer, forward the records of such suit, claim or other legal proceeding to the claims tribunal; (b) the claims tribunal may, on receipt of such records, proceed to deal with such suit, claim or other legal proceeding, so far as may be, in the same manner as an application from the stage which was reached before such transfer or from any earlier stage or de novo as the claims tribunal may deem fit.' (words in bracket [ ] inserted or substituted by amending act)10. sub-clause (c) of section 123 of the act of 1989 was engrafted by an amendment in the act in the year 1994 to meet the extraordinary situation developing on account of tremendous increase in the acts of terrorism and incidents of sudden fall from the trains subjecting the passengers to a grave risk and uncertainties of journey. this amendment came into force with effect from 1-8-94 while the accident in question occurred on 14th july 1992. section 123(c)(2) spells out an 'untoward incident'. accidental falling of any passenger from a train carrying passengers would definitely fall within the meaning of term 'untoward incident' attracting section 124a of act of 1987.11. the main thrust of the contention of learned counsel for the appellant-railways la that clause (e) of section 123 and section 124a of the act of 1989 came into force from 1-8-1994 and these provisions cannot be applied retrospectively. on the other hand, learned counsel appearing for respondents placing reliance on the principle laid down in vijay shanker v. union of india (1995 (2) tac 664 : (1995 aihc 6309) (ker)), contended that aforesaid provisions of 1987 act are benevolent in nature and are required to be given effect to retrospectively, therefore, should be applied to all the cases instituted subsequent to 1-8-1994, notwithstanding the fact that occurrence took place prior to that day.12. there is no doubt that legislature has plenary powers and subject to certain constitutional restrictions can -- legislate either prospectively or retrospectively, within the fields assigned to it. however, cardinal principle of governing construction of statutes is that those dealing with substantive rights, unless made retrospective either expressly or by necessary implication, are deemed to be prospective, whereas those dealing with procedural aspects are deemed to have retrospective operation. in other words, legislature is competent to create certain rights or obligations by means of retrospective legislation, but intention to make a law retrospective shall be presumed only if it can be gathered from the use of clear and unambiguous words and phrases by the legislature in the text thereof.13. in this context, certain pronouncements of apex court may profitably be referred to. in punjab tin supply co. chandigarh v. central government, air 1984 sc 87 the apex court observed thus:--'all laws which affect substantive rights generally operate prospectively and there is a presumption against their retrospectively if they affect vested rights and obligations unless the legislative intent is clear and compulsive. such retrospective effect may be given where there are express words giving retrospective effect or where the language used necessarily implies that such retrospective operation is intended. hence the question whether a statutory provision has retrospective effect or not depends primarily on the language in which it is couched. if the language is clear and unambiguous effect have to be given to the provision in question in accordance with its tenor.......'in sri vijayalakshmi rice mills. new contractors co. etc. v. state of andhra pradesh, air 1976 sc 1471, the apex court observed as follows :--'....it is well recognised rule of interpretation that in the absence of express words of appropriate language from which retrospectivity may be inferred, a notification takes effect from the date it is issued and not from any prior date. the principle is also well settled that, statutes should not be construed so as to create new disabilities or obligations or impose new duties in respect of transactions which were complete at the time the amending act came into force.'in mithilesh kumari v. prem behari khare, air 1989 sc 1247, the supreme court made the following pertinent observation in this connection :--'before applying a statute retrospectively the court has to be satisfied that the statute is in fact retrospective. the presumption against retrospective operation is strong in cases in which the statute, if operated retrospectively would prejudicially affect vested rights or the illegality of the past transactions, or impair contracts, or impose new duty or attach new disability in respect of past transaction or consideration already passed.............'in the case of r. rajgopal reddy (dead) by l.rs. v. padmini chandrasekharan, (dead) by l.rs. (1995) 2 scc 630 : (air 1996 sc 238) the apex court on the question ofretrospective effect of statutory provision observed as under :--'even otherwise it is well settled that where statutory provision which is not expressly made retrospective by the legislature seeks to affect vested rights and corresponding obligations of parties, such provision cannot be said to have any retrospective effect by necessary implication.' (also see air 1957 sc 540 in this connection).thus, the golden rule of construction of an enactment involving vested right is that in the absence of anything fn the enactment to indicate that it is to have retrospective operation, it shall be construed to have a prospective operation.14. now, let us avert to the provisions involved in the instant case, the right of a bona fide passenger to be compensated for a loss incurred as a result of an untoward incident was included in the act with effect from 1-8-1994, when sub-section (c) of section 123 and section 124a of 1989 act were introduced. there can be little doubt that these provisions deal with substantive rights of a bona fide railway passenger. these rights were recognized with effect from 1-8-1994. there is nothing in the language of section 123 or section 124a to indicate that these provisions are to apply retrospectively. therefore, it shall be presumed that the provisions are intended by the legislature to have a prospective effect.15. true it is, that interpreting section 124a of 1989 act, reading it in consonance with section 13(1)(a) of 1987 act learned judges constituting a division bench of kerala high court in vijay shanker's case (1995 (2) tac 664) (supra) have held that section 124a has retrospective effect and have granted compensation in respect of an accident which took place on 26-7-88. however, we are unable to persuade ourselves to endorse the view taken in the case of vijay shanker (supra). sub-section (1)(a) of section 13 merely invests the claims tribunal with powers to exercise on and from the date of commencement of the provisions of section 124a of the railways act, 1989, all such jurisdiction, powers and authority as were exercisable immediately before that date by any civil court in respect of claims for compensation now payable by the railway administration under section 124a of the said act or the rules made thereunder.prior to 1-8-1994, the civil courts had no jurisdiction to grant compensation in respect of an untoward incident occurred without any negligence on the part of railways, therefore, such jurisdiction as was not vested prior to 1-8-1994 in the civil court cannot be deemed now to have been transferred to the claims tribunal. words 'now payable by the railway administration under section 124a' used in section 13(1-a) of 1987 act indicate that such claims were not payable by the railway administration prior to insertion of sub-section (1-a). this view finds support in the observation made in paragraph no. 23 of the judgment of the apex court passed in the case of rathi menon v. union of india, 2001 (2) tac 250 : (air 2001 sc 1333), to the effect that relevance of the date of untoward incident lies in the fact that right to claim compensation from the rail' way administration would be acquired by the injured on that date. it clearly implies that the right to be compensated for an untoward incident cannot be acquired on a date on which section 124a was not on the statute book.16. our attention has also been invited to the case of sadhram v. state of h.p. (1996 (1) tac 786 (hp)) wherein a division bench of high court of himachal pradesh, in the context of deletion of provisions in respect of limitation under section 166(3) of motor vehicles act, 1988, has held that a claim, time barred before corning into force of the amendment, but not filed till the date could be filed after that date. in our view this principle has no application to the instant case inasmuch as right to be compensated for a motor accident was always there. only limitation prescribed for enforcement, of that right was taken off the statute, whereas, in present case there was no right to the passenger and corresponding obligation over the railway administration vested on the date of occurrence. it cannot be concluded that right is enforceable in respect of all the untoward incidents, no matter how much anterior in time to the date of coming into force of section 124a, they occurred. such a construction would be unwarranted.17. the retrospectivity is an artificial deeming, signifying that it was something which was really not. artificiality and make belief are jointly repugnant to law albeit they tend to cater to human welfare, therefore, the courts apply the general presumption that enactment is not intended to have retrospective effect. on reading sections 123(c) and 124b of the act of 1989 we find that they are prospective in nature and do not cover past events. past events remained untouched by the sweep of the aforesaid amendment which has come into force subsequent to the date of accident. as the accident in the case occurred prior to the coming into force of the amending act the same cannot be covered by amendment.18. close attention must be given to the language of the statutory provisions for determining the retrospectivity. no express provision has been made to make the amendment retrospective. it also does not appear that the presumption against retrospectivity has been rebutted by necessary implication. the amending act creates a new obligation on the railways. it cannot be given a retrospective effect unless such a construction follows from express words or by necessary implication.19. the learned counsel for the respondent also contended that while construing the provisions of benevolent legislation the court should adopt a construction which advances the policy of the legislation to extend benefit rather than a construction which has the effect of curtailing the benefit, but while interpreting beneficial legislation also, the duty of the judicature is to act upon the true intention of the legislation i.e. mens legis. primarily, the language employed is the determining factor of intention. the words used in section 124a of 1989 act or in the amending act of 1994 do not indicate that the parliament intended to apply the section with retrospective effect. it is not for the court to invent something which it does not find within the words of the act.20. where the words of that statute are clear, plain and unambiguous, they are reasonably susceptible to only one meaning, the courts are bound to give effect to that meaning irrespective of consequence (see nelson motis v. union of india, air 1992 sc 1981). if the words used are capable of one construction only, it would not be open to the courts to adopt any other hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the act. when the words used in the statute or section are not open to diverse meaning, they call for no interpretation. therefore, where language is clear and plain and section 124a creates a new obligation against the railways, the presumption against retrospectivity applies, even if the provisions are benevolent.21. learned counsel for respondents submitted that in union of india v. mulkobai, 2002 (1) mplj 407 : (air 2002 madh pra 22) and p.a. narayanan v. union of india. air 1998 sc 1659, it has been held that section 124a of the act of 1989 will have retrospective effect, but the argument is fallacious. in both the judgments this point has been left undecided. in mulkobai's case (supra) the court stated thus :--'we do not wish to go into that question in this case and leave it open.'in p.a. narayanan's case, in paragraph 10, the court stated thus :--'we do not wigh to go into that question in this case and leave that issue open. we are resting our case on the breach of common law duty of reasonable care, which lies upon all carriers, including the railways.'22. in a recent case -- new india assurance company ltd. v. asha rani, 2002 air scw 5259 (5260) : (air 2003 sc 607) an amendment made in section 147 of the motor vehicles act, 1988 by amending act of 1994 was not given retrospective effect by three judges bench of the supreme court on the ground that, amendment is neither clarificatory, nor amplification of the preexisting provision.23. therefore, we are of the view that clause (c) of section 123 and section 124a inserted by amending act cannot legitimately be pressed in service for testing the question of liability of the railways on the date of incident incident occurred on july 14, 1992 when such definition of untoward incident was not in the statute book.24. regarding point no. 2, it was contended by shri mukherjee that under clause (b) of sub-section (1) of section 17 of 1987 act quoted earlier the limitation is one year from the date of occurrence of the accident and in this case claim has been filed after four years and the same is barred by limitation. as against this, shri shukla submits that sub-section (2) referred to above, which is a non-obstante clause provides that application can be made after the period specified in sub-section (1), if the applicant satisfies the claims tribunal that there is sufficient cause for not making the application within such period. it is true that the tribunal had jurisdiction to entertain the application even after the period specified in sub-section (1) of section 17, but when there is no right the question of limitation to enforce that right cannot arise.25. the object of statute of limitation is not to create any right but to prescribe period within which legal proceedings may be instituted for enforcement of right which exists under substantive law. even if the court has power to condone the delay, it has no power to create any right. the court can condone the delay only when the right exists. when on the date of the accident section 124a was not in existence, it cannot be said that the claimants were entitled to claim for untoward incident. untoward incident as defined in section 123c was unknown to the act of 1989 on the date of the incident. therefore, the claimants are not entitled to any compensation for the incident which occurred prior to the coming into force of the amendment. hence, the claims tribunal was not right in entertaining the claim on the basis of the law which did not exist on the date of the accident simply by condoning the delay.26. now, we come to point no. 3 raised by counsel for appellant. in mulkobai's case (air 2002 madh pra 22) (supra) it has been held thus :--'in view of the allegations made in the claim petition and the facts found by tribunal, section 124a of the railways act, is clearly invokable for the limited purpose of deciding the jurisdiction of the railways claims tribunal with the interaction and mutual aid of interpretation of section 13 read with section 24 of railway claims tribunal act, 1987 without meaning to decide that section 124a of the railways act, 1989 is retrospective in operation or not, but, so far as jurisdiction of the tribunal is concerned, provisions of section 13(1-a) and section 24 of the railway claims tribunal act, 1987 are amply clear and we have no hesitation to come to the conclusion that it was only the railway claims tribunal, who was having the jurisdiction in view of section 13(1-a) read with section 24 of the railway claims tribunal act, 1987 to give a trial and pass an award in the instant case and the case was rightly transferred by the civil court.'thus, the tribunal has jurisdiction to consider the case under section 124a of the railway act but it does not mean that section 124a of the act of 1989 has retrospective effect. section 13(1-a) only says that tribunal shall have jurisdiction to decide the cases of untoward incident also. if we read this section in conjunction with section 24 of the said act it becomes clear like a noon day, that if a case is pending before the civil court which would have been covered by section 124a of the act of 1989, had the said provision being in force at the relevant time when the accident took place, such case shall stand transferred to railway claims tribunal. this is clear from the words used in section 13(1-a). 'all such jurisdiction powers and authority as were exercisable immediately before that date by any civil court in respect of claims for compensation now payable by railway administration under section 124a.' what the section means is the authority exercisable by civil court prior to the commencement of amending act shall now be exercised by the claims tribunal from the date of commencement of section 124a. to put it differently but for the amendment in section 13 of 1987 act, the cases falling under section 124a would have been triable by civil court. thus, the tribunal has jurisdiction to entertain the case under section 124a after the amendment but in this case the accident occurred on july 14, 1992 and on that date the provisions of sections 123c and 124a of the act of 1989 were not in existence and on that basis the respondents could not have filed any claim case. before coming into force of the amending act the cases of untoward incident could have been based only on the allegation that the incident occurred due to the negligence of the railways staff and they were entertainable by the civil court. such claim could have been filed under sections 123 and 124 of the act of 1989 and after amendment such cases are to be transferred to claims tribunal. after the coming into force of the amending act, claims tribunal can entertain a case under section 124a but it does not open flood gates for filing the cases regarding the accidents which occurred prior to the amendment. in this case the tribunal would have had the jurisdiction to entertain the case if accident would have occurred after the commencement of the amending act but it could not have awarded any compensation in respect of untoward incident which occurred prior to the amendment.27. this brings us to point no. 4. learned counsel for the appellants contended that the deceased was not a bona fide passenger, as the claimants could not establish that he purchased the ticket. the burden to prove that the deceased had a valid ticket during his journey which he proceeded cannot be placed on dependents. obviously, such burden of proof is impossible to be discharged by the dependents who can have no means of knowledge whether the deceased before boarding the train had purchased the valid ticket. it is likely that such a deceased passenger has a valid ticket but the same was lost in accident. to place the onus of proof on the dependents would amount to denial of the benefit of legislation to them for reasons beyond their control. in the case before us the presumption has to be drawn that the deceased was a bona fide passenger. therefore, we affirm the finding of the tribunal that the deceased was a bona fide passenger.28. the upshot of the above discussion is that :--(1) the provisions regarding untoward incident were inserted in railway act by amending act and they are in force with effect from august 1, 1994 and the present case is not covered by the amended provisions, as the incident occurred prior thereto on july 14, 1992. (2) that the amendment in section 17 of the act of 1987, which prescribes period within which legal proceeding may be instituted for enforcement of right which exist under substantive law does not create any new right and, therefore, the claims tribunal was not right in entertaining the claim on the basis of the law which did not exist on the date of the incident simply by condoning the delay. (3) after coming into force of the amending act, railway claims tribunal has jurisdiction to entertain a claim for untoward incident under section 124a but the present claim relates to an incident which occurred prior to the coming into force of the amending act. therefore, claimants could have filed the case only on the basis of common law alleging the negligence of the railways before the civil court and in such an eventuality after amendment the case would have been liable to be transferred to the claims tribunal. a provision of such transfer cannot give jurisdiction to the tribunal to entertain a case giving retrospective effect to section 124a of 1989 act. 29. in the result, while affirming the finding of the claims tribunal that the deceased was a bona fide passenger, we allow this appeal. the impugned order of the tribunal 18 hereby set aside. consequently, respondents are not entitled to any compensation under section 124c of the act of 1989. in view of the above, the cross-objections also stand dismissed. costs as incurred.