IMPORTANT POINT
In railway accident claims, the concept of 'no fault theory' applies, meaning that the victim's negligence cannot be used to deny compensation for untoward incidents.

JUDGMENT/ORDER

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

2. In this appeal, filed under Sec. 23 of the Railway Claims Tribunal Act, 1987 (For short 'the Act of 1987') challenge is to the judgment and order dtd. 18/11/2016 passed by the Railway Claims Tribunal, Nagpur Bench, at Nagpur whereby the learned Member of the tribunal dismissed the claim filed by the appellants under Sec. 16 of the Act of 1987.

3. Background facts: Deceased -Shaikh Arshad Patel was the husband of appellant No.1 and father of appellant No.2. It is the case of the appellants that deceased alongwith his mother had gone to Nanded to meet his sister. On the same day, they were returning back to Aurangabad by Devgiri Express, train No.17058 with valid journey ticket from Nanded to Aurangabad. The mother of the deceased was sitting in the bogie. The deceased had gone towards the door of the bogie. It is stated that the deceased due to rush in the train and sudden jerk to the train fell from the running train at KM 276/9-277/0 near Pergaon Railway Station. The mother of the deceased during the course of journey heard the commotion and came to know from the co-passenger that one passenger had fallen down from the train. When she got down from the train at Aurangabad Railway Station the deceased was not in the bogie. She then realized that her son had fallen from the train. She went to home and informed the same to appellant No.1 and her husband. On next day, the dead body of the deceased was found by the key-man at the spot. It is stated that deceased was traveling with valid journey ticket. Deceased died in an untoward incident. The appellants being the dependent of the deceased claimed the compensation.

4. Respondent-Railway filed the written statement and opposed the claim. It was contended that the deceased was not bonafide passenger. It was further contended that the death was not in an untoward incident. According to the respondent, the deceased was negligent while traveling in the train and therefore, he met with an accident.

5. Learned Member of the Tribunal framed as many as four issues. Appellant No.1 examined herself as a sole witness in support of the claim. Respondent-Railway examined the loco pilot of the said train as RW-1. Learned member of the Tribunal on consideration of the evidence found that there was no substance in the claim and dismissed the claim. Being aggrieved by this order of the Tribunal the appellants are before this Court.

6. I have heard learned Advocate for the appellants and the learned Advocate for the respondent. Perused the record and proceedings. In view of the facts and circumstances following points fall for my determination.

(i) Whether the deceased died in an untoward incident as understood by the provisions of Sec. 123(c)(2) of the Railways Act, 1989 ? (ii) Whether the deceased was bonafide passenger traveling on the Devgiri Express with valid journey ticket ?

7. Learned Advocate for the appellants submitted that the learned Member of the Tribunal has failed to consider the cogent and concrete evidence adduced by the appellants to prove the material facts. Learned Advocate took me through the judgment and order passed by the learned Member of the Tribunal and submitted that the learned Member of the Tribunal has mis-directed himself in deciding the matter by drawing inference on conjectures and surmises. Learned Advocate submitted that the journey ticket for two passengers was recovered from the shirt pocket of the deceased at the time of inquest panchanama. Learned Advocate submitted that this fact corroborates the case of the appellants that the deceased and his mother were traveling together in the train. Learned Advocate submitted that the evidence on record is sufficient to accept the case of the appellants that the deceased had boarded Devgiri Express at Nanded with his mother and during the course of journey he fell from running train near Pergaon. Learned Advocate submitted that the