JUDGMENT

Anil Satyavijay Kilor, J.

1. This appeal is directed against the judgment and award dated 24th April, 2008, passed by the Railway Claims Tribunal, granting sum of Rs. 4,00,000/- towards compensation along with interest @ 6% p.a., to the claimants/respondents.

2. The facts leading to the present appeal are that, the respondent/claimants filed a claim petition under section 16 of the Railway Claims Tribunal Act 1987 (herein after referred as 'Act, 1989'), before the Railway Claims Tribunal, seeking compensation on account of death of their son Rajesh in an untoward incident.

3. It is the case of the claimants/respondents that deceased Rajesh was travelling from Thane to Parbhani by Mumbai-Nanded "Nandiram Express", train - No. 7605 and while returning from the toilet due to sudden jerk to the running train, accidentally he fell down from the running train near Parbhani Railway Station and was seriously injured in the said accident. He died in the hospital during treatment.

4. The railway/appellant in its written statement resisted the claim on the ground that the injuries found on the body of the deceased were self inflicted. The appellant further in its written statement denied that the deceased was the bona fide passenger. It is also the case of the appellant that the alleged 'untoward incident' does not fall within the ambit of section 123(c)(2) read with section 124-A of the Act, 1989, therefore, the claim petition is not maintainable.

5. Learned Tribunal by impugned judgment and award dated 24th April, 2008, granted a sum of Rs. 4,00,000/- to the respondents/claimants, the same is under challenge in the present appeal.

6. Heard Shri Nitin Lambat learned counsel for the appellant/railway and Shri Harsulkar learned counsel for the respondent.

7. Shri Lambat learned counsel for the railway/appellant, submits as follows:

(a) Merely because body was lying on the railway track, it cannot be presumed that deceased accidentally fell down from the running train and died in 'untoward incident'.

(b) Injuries on the deceased were self inflicted and therefore, grant of compensation under section 123(c) and section 124(a) of the Act 1989, is erroneous.

(c) Filing of an affidavit by the claimants, is not sufficient to discharge their burden to prove the fact of untoward incident.

(d) In absence of any other evidence led by the claimants, proving the said untoward incident, only on the basis of spot panchanama and inquest panchanama, holding that the deceased fell down from the running train and died in the untoward incident, is erroneous.

(e) If at all the deceased Rajesh had fallen down from the running train, it would be improbable that he would be lying in the middle of the track in an injured condition.

8. Per contra Shri Harsulkar, learned counsel for the respondent No. 1 and 2/applicants, submits as under:

(i) In the matters like present one, the Tribunal has to decide the case on circumstances and preponderance of probabilities.

(ii) In the present matter there are four circumstances which are in favour of the claimants, namely:

(1) The deceased Rajesh was holding valid journey ticket which is not denied by the railway or it is not the case of the railway that said ticket is bogus.

(2) The injured Rajesh was brought to the hospital by the appellant Railway.

(3) Nature of injuries noticed on the body of the injured Rajesh.

(4) Had the dash given by Railway Engine the body would have cut into pieces whereas the body of Rajesh was intact.

9. To consider the rival contentions of the parties, I have gone through the record and impugned judgment with the help of the learned counsels for the parties.

10. The Hon'ble the Supreme Court of India in the case of Union of India vs. Rina Devi reported 2018 ACJ 1441, has held that initial burden to prove that injured or deceased was bona fide passenger for which claim for compensation could be maintained, is on the claimant which can be discharged by filling affidavit for relevant facts and the burden will