The incident of falling under a moving train constituted an untoward incident, entitling the appellants to compensation under Section 124-A of the Railways Act.

JUDGMENT :

1. Being aggrieved by the dismissal of their claim application filed before the Railway Claims Tribunal, the widow and children of one Shankar Gangaram Dhotre have preferred this appeal under Section 23 of the Railway Claims Tribunal Act, 1987 against the judgment and order dated 28th October 2015, passed by the Railway Claims Tribunal, Nagpur. By this appeal, the appellants are seeking to set aside the said judgment and order and are seeking a compensation from the respondent Railways on account of the death of the said Shankar Gangaram Dhotre claiming that he died in an untoward incident on 4th April 2011.

2. The brief facts are that the deceased had undertaken a journey from Pandharpur to Mudkhed and boarded a train from Pandharpur along with his family. When the train reached Kurduwadi railway station, the deceased alighted to bring some water for his children. Soon thereafter, the train started moving and he tried to board the moving train and during this effort, he slipped and fell down under the train and both his legs were cut. In an injured state he was taken to the various hospitals and finally at one in Nanded where he died.

3. It is the case of the appellants that the deceased along with Malanbai – his wife, Sitabai – daughter, Anil and Sachin – sons as well as cousin brother in law of the deceased, Shri Uttam More, undertook this journey from Pandharpur to Mudkhed having a bonafide ticket which was purchased by the brother-in-law. As such, the deceased was a bonafide passenger. That at Kurduwadi railway station, he fell down while trying to re-board the train and his legs came under the train and got cut. That, this fact is substantiated by the Memo dated 4th April 2011 issued by the Deputy Station Manager, Kurduwadi at 8.30 hours, wherein it is mentioned that the guard of train no.51434 UP Pandharpur Nizamabad passenger informed through walkie talkie that one unknown person was run over by the train and his legs got cut off. That, therefore, this is an untoward incident and that appellants being dependants are eligible for compensation under Section 124-A of the Railways Act, 1989 (the "Railways Act").

4. The Tribunal rejecting the testimony of AW1 Malanbai, the widow of the deceased, as being contradictory, held that the deceased was not having a valid journey ticket in his possession and as such, was not a bonafide passenger of the train. With respect to the journey ticket for the said journey, placed on record by the appellants before the Tribunal, it was observed that the ticket placed on record was a manipulated and a procured one. The Tribunal held that mere filing of a train ticket alleged to be of the deceased would not prove that the deceased was a bonafide passenger on the train in the facts of the case.

5. The Tribunal also rejected the claim of the appellants with respect to the incident being an untoward incident observing that if anybody attempts to board a moving train, it was nothing short of a suicidal act. It was observed by the Tribunal that the deceased tried to board the train which was already moving and had gained momentum and in normal circumstances any person would not risk his life in trying to get into a moving train which is leaving the platform and has gained momentum. This, the Tribunal held, is a suicidal act and a suicidal act could not be construed to be an untoward incident under any circumstance. The Tribunal observed that if suppose the train had just started and because of an untoward incident, death took place, then in accordance with the decision in the case of Jameela and others Vs. Union of India [(2010) 12 SCC 443] may be on the facts of a case, there would be an untoward incident and compensation could be awarded, however, if the train has gathered speed, like in the facts of the present case, it cannot be said that negligence is ordinary negligence. Holding thus, the Tribunal concluded that the deceased was not involved in an untoward incident as defined in Sectio