The liability of railway is based on 'no fault theory' and the principle of contributory negligence cannot be invoked in cases of 'untoward incidents'.

JUDGMENT

1. The challenge in this appeal under Sec. 23 of the Railway Claims Tribunal Act, 1987 is to the judgment and order dtd. 23/1/2019, passed by the Railway Claims Tribunal, Nagpur Bench at Nagpur dismissing the claim application of the appellants-claimants.

2. The appellant Nos.1 and 2 are the father and mother of the deceased whereas appellant No.3 is the daughter of deceased Roshanlal Dhondulal Tembhare (hereinafter referred to as the claimants). The claimants filed claim application before the Railway Claims Tribunal claiming compensation of Rs.8,00,000.00 on account of death of Roshanlal s/o. Dhondulal Tembhare, who died in an untoward incident i.e. falling down from the running train No.12810 Howrah - Mumbai Mail. The incident occurred on 22/11/2017 near platform No.3 of Amgaon Railway Station. The respondent No.2 is the wife of the deceased. During the pendency of the claim application, respondent No.2 re-married. It is the contention of the learned counsel for the claimants that respondent No.2 has not come forward to challenge the order. The notice of this appeal was duly served on respondent No.2. There is no appearance on behalf of respondent No.2 though she is duly served.

3. The claimants contended that the deceased was residing at Raipur with his family. On 22/11/2017 the deceased purchased a railway ticket Ex. Raipur to Gondia for visiting his native place at Koregaon and boarded Howrah - Mumbai Mail No.12810. The said train was crowded, hence he was standing near the door of the compartment. When the said train reached Amgaon Railway Station, due to push of passengers and sudden jerk of the train, Roshanlal fell down on Platform No.3 of the Amgaon Railway Station and sustained severe injuries to the head and body. He died in the hospital during the course of treatment.

4. Before the Tribunal, the respondent No.2 examined herself as witness AW-1. The Railways examined one witness i.e. Guard of Train No.58206 - Itwari Raipur Local by name Shri Sanjay Yashwant Chandurkar as RW-1. The Tribunal for the reasons recorded and on the basis of the evidence of RW-1 Shri Sanjay Yashwant Chandurkar found that the deceased jumped from the train along with his bag. According to the Tribunal, the action of jumping or alighting from a running train which has no stoppage at a station, is different from the action of falling down and, therefore, is a well planned intentional act. Relying on the evidence of the Guard - RW-1 and the statement of RPF official recorded by the statutory authority which supports the evidence of the Guard, the Tribunal was of the opinion that having regard to the provisions of clause (b) to the proviso to Sec. 124-A of the Railways Act, 1989, the Railway Administration has no liability to compensate, if a passenger suffers from a self inflicted injury. The Tribunal was of the opinion that the evidence placed on record clearly establishes that present was a case of fall while making unsuccessful attempt to jump from the running train which had no scheduled stoppage at Amgaon Railway Station. The Tribunal disbelieved the case of the claimants that the deceased had an accidental fall from the running train during the course of travel.

5. Learned counsel for the appellants submitted that this is a case of accidental fall and the evidence on record is not at all sufficient to infer that the deceased jumped from the running train or tried to alight at the Amgaon Railway Station. Learned counsel relied upon the case of Jameela and others vs. Union of India, reported in AIR 2010 SC 3705 to submit that this is not a case where the deceased died due to his own criminal act or he was in a state of intoxication or he was insane, or he died due to any natural cause or disease. Learned counsel submits that the victims falling down from the train was, thus, clearly accidental.

6. Learned counsel for the railway, on the other hand, invited my attention to the findings recorded by the Tribunal. She submitted that t