( 1 ) THIS appeal is by the appellant being aggrieved by the order made by the Railway Claims Tribunal, Bangalore Bench, oni 28-8-1992 in O. A. No. 85/ 1992 holding that the application of the appellant for compensation under Section 13a (II) of the Railway Claims Tribunal Act ('the Act' for short) was not maintainable.

( 2 ) WE have heard the learned Counsel on both sides.

( 3 ) THE case of the appellant is that when he was about to board the Bangalore-Hyderabad Express Train, a heavy iron girder which was loosely and carelessly fixed for electrification work, suddenly fell on the train and thereafter on him causing grievous injuries to him. Therefore, he approached the Claims Tribunal seeking compensation under the provisions of Section 13a (II) of the Act. The Tribunal considering the maintainability of the application under S. 82-A of the Indian Railways Act, 1890, (Section 124 of the present Act, 1989), held that the application was not maintainable and directed the appellant to seek remedy before appropriate forum. Hence, this appeal.

( 4 ) SRI A. V. Gangadharappa, learned counsel appearing for the appellant, argued that there was a clear averment in the claim petition that while the appellant was boarding the Bangalore-Hyderabad Express Train, a heavy iron girder which was loosely and carelessly fixed for electrification work, suddenly fell on the train and then on him, as a result of which, he sustained grievous injuries. That being so, the Tribunal ought to have seen that S. 82-A (Section 124 of the new Act) was attracted as the incident amounted to accident occurring therein and that this word 'accident' came to be considered by the Supreme Court in Union of India v. Sunil Kumar Ghosh (AIR 1984 SC 1737 ). Indeed he submits that he cited this judgment before the Tribunal which was good enough to extract para-13 of the said judgment; yet it failed to apply its mind to the law laid down by the Supreme Court, which is in favour of the appellant. Sri Gangadharappa, further argued that the conclusion of the Tribunal holding that the application was not maintainable was erroneous and the same was liable to be reversed.

( 5 ) SRI N. S. Sanjay Gowda, learned counsel appearing for Sri N. S. Srinivasan, who, is the Standing Counsel for Railways, however, argued that the respondent nowhere admitted the case of the appellant that a heavy iron girder which was loosely and carelessly fixed for electrification work suddenly fell on the train and thereafter on the applicant by which he sustained injuries and on the other hand he denied the said contention. He however submitted that the decision rendered by the Hon'ble Supreme Court in Sunil Kumar's case (AIR 1984 SC 1737) (supra), could be distinguished on the facts of this case, in as much as if there was no accident at all as a result of either collusion between two trains or derailment of the train, as found in Section 82a (I) of the Act, therefore the view taken by the Tribunal was justified.

( 6 ) THE facts in Sunil Kumar's case (AIR 1984 SC 1737) were as follows (at 1738) :-". . . . The respondent was travelling by a train in his capacity as a bona fide passenger. While the bogie in which the respondent was travelling was being shunted at a Railway Station, the respondent accidentally fell down from the train, near the water column at the end of the platform, and his right hand was crushed by that part of the train which was being shunted. As to how exactly the respondent sustained the injury, the versions of the parties differ. The District Judge did not accept the version of the respondent that the bogie in which he was travelling received a sudden jerk and he fell down on that account. The Railway Administration on the other hand contended that the respondent sustained the injury in the manner described in the relevant contemporaneous record (Assistant Station Master's Diary) namely : "the injury was sustained by the appellant in going to the rear end of the train and possib

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