Attempting to board a moving train and falling constitutes an 'untoward incident' under the Railways Act, entitling the victim to compensation regardless of negligence.

JUDGMENT :

G.A. Sanap, J.

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 30.09.2004 passed by the Railway Claims Tribunal, Nagpur Bench, Nagpur, whereby the claim filed by the appellant-claimant under Section 16 of the Act of 1987 for compensation was dismissed.

2. Background Facts:-

Deceased Tulshidas was the husband of the appellant. On 29.11.2003, after purchasing a journey ticket, he boarded Gondia-Ballarshah train at Brahmapuri Railway Station for Sindewahi. It is stated that due to sudden jerk, he fell from moving train. He sustained injuries and died due to the injuries sustained by him. It is stated that he was a bona fide passenger. The death was in an untoward incident.

3. The Respondent-Railway filed written statement and opposed the claim. It was contended that the death was not in an untoward incident. According to the Respondent, the deceased tried to board a moving train at Brahmapuri Railway Station and in the process his hand slipped from the handle of the door of the compartment and he fell down. The incident occurred due to the negligence of the deceased.

4. Before the Tribunal, the parties adduced evidence. The appellant has examined herself as AW1. She has also examined one independent witness, who was an eye-witness to the incident. She has relied upon documentary evidence. The respondent-Railway has examined one witness. Learned Members of the Tribunal, on consideration of the evidence, came to the conclusion that the death was not in an untoward incident and therefore dismissed the claim. Being aggrieved by this judgment and order, the appellant is before this Court in appeal.

5. I have heard Mr. Atul Mahajan, learned Advocate for the appellant and Ms. N. G. Choubey, learned advocate for the Respondent. Perused the record and proceedings.

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

1. Whether the deceased was a bona fide passenger travelling by the train in question with a valid journey ticket ?

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

7. Mr. Atul Mahajan, learned advocate for the appellant submitted that the Tribunal has recorded a finding that the deceased was a bona fide passenger travelling with a valid journey ticket. Learned advocate submitted that the Tribunal, without considering the evidence on record and the provisions of law, has recorded a finding that the death was not in an untoward incident. Learned advocate submitted that the finding recorded by the Tribunal that the incident occurred due to the negligence of the deceased while boarding a moving train and as such, it would not be an untoward incident, cannot be sustained. Learned advocate submitted that even death while boarding a moving train is covered within the definition of an "untoward incident". In order to seek support to his submission, he has relied upon the decision of the Hon'ble Apex Court in Union of India v. Prabhakaran Vijaya Kumar and others, reported at AIR 2009 SC (Supp) 383.

8. Ms. N.G. Choube, learned Advocate for the respondent-Railway, in short, supported the judgment and order passed by the Tribunal. Learned advocate submitted that the evidence adduced by the appellant as to the actual occurrence of the incident is self-contradictory and therefore, reliance cannot be placed on such evidence. Learned advocate submitted that the incident occurred due to the negligence of the deceased and therefore, the Tribunal was right in rejecting the claim.

9. It is the case of the appellant that the deceased, after purchasing a valid journey ticket, boarded the train in question. It is stated that due to sudden jerk to the train, he fell from the moving train and died due to the injuries sustained by him. As against this, it is the case of the respondent- Railway that the deceased tried to board a