Accidental fall from running train constitutes untoward incident for bonafide passenger; affidavit discharges initial burden, shifting to railways on preponderance of probabilities; no-fault compensation with interest awarded.

JUDGMENT :

RAJESH S. PATIL, J.

1) The present first appeal is filed u/s.23 of the Railway Claims Tribunal Act, 1987, challenging the impugned judgment and order dated 5/3/2021 passed by the Railway Claims Tribunal, Mumbai Bench, Mumbai (for short ‘the Tribunal’), in OA (II u)/MCC/1223/2013.

2) The appellants filed Claim Application before the Railway Tribunal. It was the appellants’ case that the husband of the appellant no.1 was travelling as a bonafide passenger from Mumbai Central to Borivali station, on the strength of a second class Railway Privilege Free pass and he accidentally fell down from a running train, thereby sustaining head injuries due to which he died.

3) The Railways filed their reply to the Claim Application and submitted that in the DRM Report dated 16/10/2009, on duty SS/BCT (M) received information that one unknown male lying dead at Km.no.5/104b near point no.126 Platform no.05 at Mumbai Central Railway Station. The Station Master did not mention any reason of the incident in the memo, but the GRP mentioned in the inquest panchanama that the deceased was knocked down by an unknown shunting train and sustained injuries and died on the spot. Trespassing being an offence u/s. 147 of Railways Act and the GRP did not find any travelling authority of railway in possession of the deceased during the personal search, hence, the deceased was not a bonafide railway passenger, therefore, compensation should not be granted to the claimant.

4) Following Issues were thereafter framed by the Tribunal :-

i) Whether the Applicant proves that the deceased was a bonafide passenger of the train, in question, on the relevant day?

ii) Whether the Applicant proves that the death of the deceased had occurred as a result of an Untoward Incident as alleged in the Claim Application?

iii) Whether the Applicant proves that she is the dependent of the deceased within the meaning of Sec.123(b) of the Railways Act?

iv) To what order/relief?

5) The applicant no.1 had examined herself by filing her affidavit dated 13/2/2019 and produced the relevant documents in evidence. She was cross-examined by the railway’s advocate and thereafter, a friend of the deceased working with the railway was also examined as P.W. No.2. The said witness was also cross-examined by the railway’s advocate. Thereafter, the railway examined the Station Superintendent of the Mumbai Central Railway Station who filed his affidavit. He was cross-examined by the advocate appearing for the applicants. The evidence was thereafter closed.

6) Subsequently, the Tribunal heard learned counsel for the parties and by its judgment and order dated 5/3/2021, dismissed the Claim Application. Being aggrieved by the said judgment passed by the Tribunal, the present first appeal has been filed by the original claimant.

7) Following points arise for determination which are as follows:-

(a) Whether interference is required in the impugned judgment and order dated 5/3/2021 passed by the Tribunal ?

(b) Whether the deceased was a bonafide passenger of the train in question at the time of the incident ?

(c) Whether the death of the deceased was occurred as a result of an “untoward incident” ?

(d) Whether any compensation is payable to the appellants being the dependents of the deceased ?

8) Mr. Mohan Rao appearing for the appellants-original claimants submitted that the claimant no.1 had filed her affidavit before the Tribunal and narrated that the deceased was a bonafide passeng