The main legal point established in the judgment is that the Railways Act imposes strict liability or no fault liability in case of railway accidents, and the burden is on the respondent to prove that the incident does not fall within the purview of the Act.

JUDGMENT

Prithviraj K. Chavan, J. - This is an appeal challenging the Judgment and Order passed by the Railway Claims Tribunal Mumbai Bench, Mumbai on 30th June, 2017 in Claim Application No. OA (II u)/MCC/0200/2012 by which the Tribunal dismissed the Claim Application of the appellants who are the dependants of one Shankarlal Giri (for short 'deceased').

2. Briefly stated the facts are as follows;

The deceased was aged about 55 years and was a private car Driver. He was travelling by an unknown local train from Bhandup to Dadar on a strength of a valid second class railway ticket. When the said train reached between Bhandup and Kanjurmarg Railway station, near K.M No.26/1B, due to overcrowded train, he fell off the running train resulting into amputation of both of his legs and ultimately resulting into his death.

3. The appellants, who are claimants, namely his widow and two major sons have moved an application claiming compensation of Rs.4,00,000/- which came to be dismissed by the Tribunal as above.

4. It is the contention of the respondent that the deceased was crossing the railway track and in that process, was hit by an unknown local train, resulting into his death. It is also the stand of the respondent that the deceased was not a bona fide passenger of the train, for, he did not possess valid railway ticket as the G.R.P did not find the one either on his person or near the scene. Act of crossing railway track was an offence under section 147 of the Railways Act, 1989 (for short 'Railways Act') which cannot be termed as an 'untoward incident' as defined under section 123 (2) of the Railways Act.

5. After framing necessary issues and recording the evidence of A.W.1-Keshu Giri (widow of the deceased) and A.W-2 Amarnath Goswami, the Tribunal disbelieved their testimonies and refused to grant compensation.

6. It is held by the Tribunal that there was no eye witness to the incident. Witnesses of the appellants had no personal knowledge as to how the incident had occurred. The Tribunal, however, accepted D.R.M's report, postmortem report, inquest and spot panchanama. While accepting the contention of the respondent, the Tribunal laid emphasis on the opinion of the Police and Panch witnesses to inquest panchanama in basing it's conclusion that it was not an 'untoward incident'. It is also held that the deceased was not a bona fide passenger. As such, the Tribunal had dismissed the application.

7. Heard Mr. More, learned Counsel for the appellants and Mr. Pandian, learned standing Counsel for the respondent.

8. Mr. More has reiterated the grounds raised in the Memo of Appeal by contending that the Tribunal has not only committed grave error in disbelieving the evidence of widow of the deceased and his son-in-law but also reached an erroneous conclusion that the deceased was neither a bona fide passenger nor the incident in question was an untoward incident.

9. It is the contention of Mr. More that in the absence of effective cross-examination of the witnesses, the Tribunal ought not to have held that the deceased was not a bona fide passenger. If it was an offence under section 147 of the Railways Act then why there was no F.I.R? On the contrary, it is contended that a report of accidental death under section 174 of the Cr. P.C was filed and accepted by the Executive Magistrate. He vehemently argued that the respondent has failed to discharge it's burden to prove that it was not an untoward incident. The appellants, therefore, cannot be denied the benefits under the welfare legislation.

10. Mr. Pandian, however, supported the impugned judgment by contending that the Tribunal has rightly placed reliance upon the D.R.M's report and other documents placed on record by the respondent.

11. Admittedly, there was no eye witness. A.W.1- Keshu Giri, in her affidavit in lieu of examination-in-chief has reiterated the facts. A.W.1-Keshu Giri in her affidavit has stated that on the date of the incident, her husband (deceased) had informed her that h