The deceased died in an untoward incident and was a bona fide passenger, and the defence of negligence or contributory negligence was not available.

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 09.05.2017 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 Ruprao Barde. Appellant Nos.2, 3 and 4 are the children of the deceased. The appellants claimed that on 02.01.2013, the deceased, while boarding in a Train No. 18029 Shalimar Express at Nagpur Railway Station after purchasing a valid journey ticket, fell down. He sustained injuries. He was carried to the hospital and while taking the treatment in the hospital, he succumbed to the injuries sustained in the incident. According to the appellants, the deceased died in an untoward incident, as understood by Section 123 clause (c) sub-clause (2) of the Act of 1989. The deceased was having a valid journey ticket. The journey ticket was lost in the incident.

4. The respondent-railway filed the written statement and opposed the claim. It was contended that the death was not in an untoward incident, inasmuch as the deceased fell down while boarding the running train. The deceased was negligent. It was further contended that the ticket was not recovered from the person of the deceased or from the spot of the incident at the time of the spot panchanama. According to the respondent-railway, the deceased was not a bona fide passenger travelling with a valid journey ticket. The ticket was not recovered on the spot.

5. The parties adduced the evidence before the Tribunal in support of their rival contentions. The learned Members of the Tribunal, on consideration of the evidence, found that the claim was without substance and 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 Mr. K.P. Mirche 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 finding of fact recorded on both the counts by the Tribunal is not consistent with the record and evidence. Learned Advocate submitted that the circumstances available on record, if considered in totality, would indicate that there was a possibility of loss of ticket. Learned Advocate pointed out that an inquest panchanama was carried out in the hospital after three to four hours of the incident. Learned Advocate further pointed out that the spot panchanama was drawn after 25 hours of the incident. Learned Advocate pointed out that there is no mention in the spot panchanama that the spot was inspected by the police either before drawing panchanama or at the time of panchanama. Learned Advocate submitted that if the deceased had entered the platform without ticket and attempted to board the train without a ticket then he would have been caught. Learned Advocate submitted that therefore, the inference has to be drawn that the deceased had purchased the ticket tried to board the train. Learned Advocate further submitted that guard of the concerned train has stated that the deceased tried to board the moving train and in the process, fell down on the track. Learned Advocate submitted that the accidental falling of any passenger from a train carrying passengers while boarding the train is covered under the definition of an “untoward incident.” In order to seek support to his c