Railway death presumed 'untoward incident' absent eyewitness or records proving trespassing; no onerous burden on claimant to prove boarding; railways must establish trespassing under welfare legislation.

JUDGMENT :

Jitendra Jain, J.

1. This appeal is filed by the original applicants, challenging the order passed by the Railway Claims Tribunal dated 28^th February, 2014 whereby, the application for compensation on account of death of Mr. Valentine D’Souza to be rejected on the ground that various records prove that it is a runover case and the incident occurred due to trespassing i.e. knocked down by unknown train and, therefore, it is not an “untoward incident”.

2. Insofar as the finding with respect to “bonafide passenger” is concerned, same is in favour of the appellant and has not been challenged. Insofar as the finding on dependency is concerned, the reasoning is in favour of the appellant and has not been challenged. However, in concluding paragraph, there appears to be a typo error, wherein, it is stated that the relationship has not been established, though in the previous paragraph, the reasoning is in favour of the appellant. The said typo error is now directed to be corrected and the relationship is also proved and established.

3. The deceased was staying at Naigaon and was employed at Dadar in a Watch Showroom, Rolex Company. It is the case of the appellant that the deceased was travelling from Naigaon to Dadar for his job when they received a call that the deceased has met with an accident. The first class season ticket was found on search and the head was cut from the body. It was on this backdrop that the application came to be filed before the Tribunal, which was rejected and, therefore, the present appeal is filed.

4. I have heard learned counsel for the appellant and the learned council for the respondent.

5. The only issue which arises for my consideration is whether, it is a case of “untoward incident” or it is a case of “trespassing”. The wife of the deceased stepped into the witness box and led the evidence, wherein, in the examination-in-chief, she has set out the routine and also that on 18^th March, 2011, the deceased in the afternoon left the residence for his work and reached Naigaon Railway Station to board the local train for Dadar. In the cross-examination same has not been rebutted or found to be incorrect.

6. Admittedly, there is no eyewitness to the deceased boarding the train. In my view, there cannot be any evidence of boarding a train unless the deceased was accompanied by a co-passenger or by CCTV footage. In this case, none of the two exists. Therefore, to call upon the applicants to prove that the deceased was boarding the train would be imposing impossible onerous burden. This has to be examined in the context of the affidavit of the wife, which has been set out by me earlier. Therefore, the contention that there is no proof of boarding the train cannot be accepted.

7. The incident happened between Naigaon and Bhayander Railway Station. There is no eyewitness to the incident, which shows that the deceased was crossing the railway track and was a trespasser. In the absence of any eyewitness the contention of trespassing, cannot be accepted.

8. Insofar as the submission of the head being separated from the body is concerned, it is possible that the deceased may have fallen and the body must have been cut into pieces by coming under the wheels of the same train or by a train coming from the other side after the deceased fell down. In such a case, when there is no evidence to show how the deceased died and there is no eyewitness to show that the deceased was cr