Mere absence of ticket does not negate bonafide passenger status; affidavit suffices to discharge burden. Falling from running train is untoward incident under no-fault liability, entitling dependents to enhanced compensation with interest from accident date.

JUDGMENT :

RAJESH S. PATIL, J.

1) The present first appeal has been filed u/s. 23 of the Railway Claims Tribunal Act, 1987, challenging the impugned judgment and order dated 24/9/2019, passed by the Railway Claims Tribunal, Mumbai IInd Bench, Mumbai (for short ‘the Tribunal’), dismissing the Claim Application No.OA (IIU) MCC/2015/0380.

2) The appellant had filed Claim Application before the Tribunal claiming compensation on account of death of her son - Mahadev Udhav Gaikwad, who died in the untoward incident on 30/8/2014. The Tribunal dismissed the Claim Application No.OA (IIU) MCC/2015/0380, on 24/9/2019. Hence, the appellant is challenging the impugned judgment and order passed by the Tribunal by way of first appeal before this Court.

3) The appellant’s case is that on 26/8/2014, the deceased Mahadev Udhav Gaikwad was traveling from Mankhurd Railway Station to Kurla Railway Station, when he accidentally fell down between Mankhurd and Govandi railway stations from the running local train due to which he sustained head injuries. He was taken to the Shatabdi Hospital by public, where on duty doctor examined him and directed to shift him to the Sion Hospital for better treatment. He was shifted to the Sion Hospital. However on 30/8/2014, while he was under treatment, he died.

4) The appellant as depandant, thereafter, filed an application claiming compensation of Rs.4,00,000/- before the Tribunal, on account of the death caused to Mahadev Udhav Gaikwad in the ‘untoward incident’ along with interest at 18% p.a.

5) The Respondent – Railway contested the said application by filing their written statement and raised an objection on the basis of D. R. M Report. However, they admitted that the deceased accidentally fell down from the running local train.

6) After the issues were framed, the appellant filed her affidavit dated 9/7/2019 and in her deposition, she narrated the facts as stated by her in her claim. She also mentioned there that her deceased son was a bonafide passenger holding a railway ticket which is lost in the accident. On behalf of the railway, they did not examine any witness, hence the evidence was closed.

7) The Tribunal, thereafter, heard learned counsel for the parties and answered Issue No. 2 – whether the deceased suffering injuries and died in an “untoward incident” in favour of the appellant. So also, the Issue No. 3 - whether the railway is protected under the exceptional clause of Section 124(A) of the Railways Act and was not liable to pay compensation, was answered again in favour of the appellant. Further, Issue No. 4 – whether the applicant is the only dependant of the deceased, was answered in favour of appellant. However, the Tribunal held the Issue No. 1 - about deceased being a “bonafide passenger” of the train in question at the time of the accident against the appellant, on the reasoning that in the inquest panchanama, a railway ticket was not found, therefore, the deceased was not a bonafide passenger as termed under Railways Act.

8) Hence, being dissatisfied by the judgment and order passed by the Tribunal, present first appeal has been filed by the appellant challenging the findings answered of Issue No. 1.

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

(a) Whether interference is required in the impugned judgment and order dated 24/9/2019 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 compensa