JUDGMENT

Prithviraj K Chavan, J. - This appeal takes an exception to the judgment and order dated 28th February, 2017 passed by the Railway Claims Tribunal, Mumbai Bench, Mumbai.

2. Facts in brief are as follows :-

3. On 12th January, 2010, one Akash Dilip Sapkale, aged about 18 years (for short 'deceased'), who was serving in Hawrah Company, Nerul, Dist. Thane was travelling from Turbhe to Thane by an unknown local train on the strength of IInd class railway ticket valid for his travel from Turbhe to Thane. When the train reached near Rabale Railway Station at K.M. 41/42, due to sudden push of the overcrowded passengers inside the compartment, he fell down from the running train, resulting into serious head injuries and subsequently succumbed to those fatal injuries, leaving behind his mother - Rekha Sapkale, the present appellant. It is contended that she is the sole dependant of the deceased.

4. A claim application was filed before the Railway Claims Tribunal, Mumbai seeking compensation. The Claims Tribunal, after going through the evidence of the appellant on affidavit and having considered the written statement and the record of the respondent, arrived at a conclusion that the presence of the deceased in the Railway premises was unauthorized and consequently he was knocked down by an unknown local train while crossing the railway track, meaning thereby, the Tribunal held that it was the negligence of the deceased, which resulted into his death. As the said act was an offence, it does not fall within the ambit of "untoward incident" as defined in Section 123(c)(2) of the Railways Act, 1989 (for short "Railways Act"). The Tribunal specifically held that it was not a case of accidental fall of the deceased from the running train, for which it laid emphasis on the autopsy report vis-a-vis the inquest panchanama. The Tribunal has also concluded that since no ticket could be traced on the person of the deceased during inquest, he cannot be said to be a bona fide passenger, travelling in a train with a valid ticket or pass.

5. Aggrieved, the appellant has preferred the present appeal.

6. I heard Mr. More, learned Counsel for the appellant and Mr. Pandian, the learned standing Counsel for the respondent.

7. At the outset, Mr. More would argue that the Tribunal has committed a grave error in ignoring the fact that there was not a single eye-witness to the accident. Even the Station Master has not witnessed the accident. The evidence of appellant - Rekha Sakpale has not been rebutted in cross-examination, wherein she has deposed on oath that the deceased, on the day of incident, was travelling from Turbhe to Thane in a IInd class compartment of the local train with a valid railway ticket.

8. He would further argue that the deceased was immediately shifted to the hospital without carrying out a spot panchanama. The Tribunal ought to have accepted that the deceased was a bona fide passenger and should not have jumped to a conclusion that he was travelling without valid ticket or pass. It is submitted that no evidence has been adduced by the respondent, much less, acceptable evidence to substantiate their case that the deceased was crossing the railway track, meaning thereby, he died because of his own criminal act and, therefore, the Tribunal ought to have awarded compensation to the dependant of the deceased. Mr. More has also laid emphasis on the fact that if it was a criminal act under Section 147 of the Railways Act, the Investigating Officer ought to have registered an FIR and charge-sheet should have been filed by the GRP. Thus, he urged to set aside the impugned judgment and order inter alia praying for grant of compensation.

9. Mr. Pandian, learned Counsel for the respondent, on the other hand, has supported the impugned judgment by contending that there is nothing in the impugned judgment by which it can be said that the evidence has not been properly assessed by the Tribunal. There was no reason for the Tribunal to accept the evide