The main legal point established in the judgment is that the definition of 'untoward incident' should receive a liberal and wider interpretation, and the principle of contributory negligence cannot be invoked in cases of liability based on 'no fault theory'.

JUDGMENT :

G.A. SANAP, J.

1. In this appeal, filed under Section 23 of the Railway Claims Tribunal Act, 1987 (hereinafter referred to as “the Act of 1987” for short) challenge is to the judgment and order dated 30.03.2016 passed by the Railway Claims Tribunal, Nagpur Bench, Nagpur, whereby the claim for compensation filed by the appellants came to be dismissed.

2. Background facts:

Appellant no. 1 is the wife of the deceased and appellant nos. 2 to 4 are the children of the deceased. The appellants claim that deceased Gautam and his family members had gone to Tuljapur. On 10.06.2011, the deceased was travelling by Train No. 51285 i.e. Bhusaval-Nagpur passenger from Tuljapur to Ajni Nagpur with his relatives. They claim that when the train reached Butibori Railway Station, the deceased got down from the train to purchase snacks. Before the deceased came back, the train started. The deceased tried to board the train and in the process, he fell down. He was crushed under the wheel of the train and died on the spot. It is stated that the deceased was a bona fide passenger travelling with a valid journey ticket. The death was in an untoward incident.

3. The respondent-Railway filed written statement and opposed the claim. In sum and substance, the respondent-Railway denied the material facts pleaded in the claim petition. It was contended that the death was due to the negligence of the deceased and as such the death was not in an untoward incident. It was further contended that the deceased was negligent and responsible for the accident.

4. The parties have adduced evidence before the Tribunal. The Tribunal, on consideration of evidence, found that there was no substance in the claim and dismissed the claim. Being aggrieved by this judgment and order, the appellants have come before this Court in appeal.

5. I have heard Mr. Kunal Mirache, learned advocate for the appellants and Ms. Neerja Choube, learned advocate for the respondent. Perused the record and proceedings.

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

(i) Whether the deceased was a bona fide passenger travelling by the train in question with a valid journey ticket?

(ii) Whether the deceased died in an untoward incident within the meaning of Section 123(c) of the Railways Act, 1989?

7. Learned advocate Mr. Kunal Mirache for the appellants submitted that the respondent-Railway has admitted that the deceased was a bona fide passenger travelling with a valid journey ticket. Learned advocate submitted that even if the defence of respondent-Railway is accepted as it is, even then the claim could not have been rejected on the ground of negligence on the part of the deceased. Learned advocate submitted that in this case, the deceased fell while boarding the moving train at Butibori Railway Station. Learned advocate submitted that the injuries sustained by the deceased while boarding the train would fall within the expression “accidental falling of a passenger from train carrying passengers” which is an “untoward incident” as defined under Section 123(c)(2) of the Railways Act, 1989 (hereinafter referred to as “the Act of 1989”). Learned advocate, in order to seek support to this submission, has relied on the decision of the Hon’ble Apex Court in Union of India vs. Prabhakaran Vijaya Kumar and Others, AIR 2009 SC (Supp.) 383. Learned advocate submitted that the death would fall in the first part of Section 124-A of the Act of 1989. Learned advocate submitted that the act of the deceased could not be said to be intentional and as such the injuries sustained by the deceased could not be said to be self-inflicted injuries. Learned advocate submitted that the defence of negligence or contributory negligence will not be available to the respondent-Railway inasmuch as the liability is based on the principle of “no fault theory.” Learned advocate submitted that the case on hand will not fall within any of the clauses under the Proviso to Section 124-A. Learned adv