JUDGMENT :

G.A. SANAP, J.

1. Heard finally with the consent of learned Advocates for the parties.

2. In this appeal, filed under Section 23 of the Railway Claims Tribunal Act, 1987 (for short ‘the Act of 1987), the challenge is to the judgment and order dated 10.01.2020, passed by the Railway Claims Tribunal, Nagpur Bench, Nagpur, whereby the claim filed by the appellants/claimants for compensation under Section 16 of the Act of 1987 was dismissed.

3. Background facts:

Appellant No. 1 is the wife of the deceased. Appellant Nos. 2, 3 and 4 are the children of the deceased. Appellant Nos. 5 and 6 are the parents of the deceased Shrikrushna Dode. The appellants claimed that on 13.04.2016, the deceased, after purchasing a valid journey ticket, boarded the Tapti-Ganga Express at Jalgaon Railway Station to go to Surat. The appellants contended that after boarding the train, the deceased fell from the moving train at Jalgaon Railway Station and died while undergoing medical treatment in the hospital. According to the appellants, the deceased was a bona fide passenger, with a valid journey ticket. The deceased died in an untoward incident.

4. The respondent-railway filed the written statement and opposed the claim. According to the respondent-railway, the deceased was not a bona fide passenger travelling with a valid journey ticket. The ticket was not recovered from the spot. It is further contended that the deceased, while crossing the railway track, was either run over by any train or dashed by any train. The death, according to the railway, was therefore not in an untoward incident.

5. The parties adduced evidence before the Tribunal. The learned Member of the Tribunal, on consideration of the evidence, found that the claim was without substance and therefore, ultimately dismissed the claim. Being aggrieved by this judgment and order, the appellants have come before this Court in appeal.

6. I have heard the learned Advocate Ms Sumesha Chaudhary for the appellants and the learned Advocate Ms Neerja Chaubey for the respondent. Perused the record and proceedings.

7. In the facts and circumstances, the following points fall for my determination:

(i) Whether the deceased died in an untoward incident as understood by the provisions of Section 123(c)(2) of the Railways Act, 1989?

(ii) Whether the deceased was a bona-fide passenger travelling with a valid journey ticket?

8. Learned Advocate for the appellants submitted that the learned Member of the Tribunal has not properly appreciated the evidence adduced by the appellants. Learned Advocate took me through the evidence of witness No. 2-Devchand Tayade, examined by the appellants and submitted that the evidence of this witness is sufficient to prove that the deceased, after purchasing a valid journey ticket, had boarded the Tapti-Ganga Express to go to Surat at Jalgaon Railway Station. Learned Advocate submitted that the possibility of the loss of a ticket cannot be ruled out inasmuch as the deceased was shifted at 2:00 p.m. to the hospital in an injured condition. Learned Advocate submitted that the spot panchanama as well as the inquest panchanama are silent about seizure of the clothes of the deceased. Learned Advocate submitted that the DRM report is based on the material collected during the course of the statutory inquiry. Learned Advocate pointed out that in his report, the DRM has concluded that the deceased fell from the running train due to his negligence. The DRM has concluded that the deceased might have been standing near the door in a careless manner and due to his negligence, he might have fallen from the running train and died. Learned Advocate submitted that this conclusion, drawn by the DRM, is against the case of the respondent-railway, as sought to be pleaded in the written statement. Learned Advocate submitted that the defence of negligence or contributory negligence in the factual situation would not be available to the railway. Learned Advocate pointed out that the learned Memb