The main legal point established is that the death of the deceased due to falling from the running train qualified as an untoward incident under Section 123(c) of the Railways Act, 1989.

Heard learned counsel for the appellant and learned counsel for the respondent on this miscellaneous appeal.

2. This miscellaneous appeal has been preferred by the appellant against the order dated 19.12.2011 passed by the Member (Technical), Railways Claims Tribunal, Patna Bench, Patna in Claim Application No. OA000112/2002 whereby the learned Tribunal dismissed the claim application of the appellant.

3. Factual matrix of the case is that the appellant filed Claim Application No. OA000112/2002 for awarding compensation to the tune of Rs. 4,00,000/- on account of death of his son in the Railway accident with the case in succinct that on 07.04.2002 his son, namely, Mirja Jafir Beg was travelling by Train No. 3151 UP Sealdeh-Jammu Tawi Express from Dehri-On-Sone to Sasaram. The compartment of the aforesaid train in which his son was traveling was crowded. There was heavy rush inside the coach and the passengers were jostling with each other. So his son was standing near the gate and due to aforesaid rush and jostling, he fell down from the running train at Km 556/15 near Mathuri Bridge (1.5 Km away from Dehri-On-Sone station) and died on the spot near the track. In buttress of his case, the appellant examined himself as AW-1 and one other witness namely Shabbir Ahmad as AW-2.

4. After hearing the parties and perusing the record, the learned Tribunal dismissed the aforesaid claim case of the appellant.

5. Being aggrieved and dissatisfied with the aforesaid order, the appellant has preferred this miscellaneous appeal.

6. It is submitted by learned counsel for the appellant that the appellant was travelling by Train No. 3151 UP Sealdeh-Jammu Tawi Express from Dehri-On-Sone to Sasaram and he fell down from the train due to heavy rush and jostling inside the coach and died on the spot. AW-2 Shabbir Ahmad has supported the factum of witnessing the deceased in the aforesaid train. In the inquest report, police has reported the death of the deceased due to falling from the running train. Post mortem report also goes to corroborate the aforesaid case of the claimant as the doctor has found several injuries on the head of the deceased including fracture injury as anti-mortem injury and has opined the cause of death due to shock and hemorrhage caused by heavy hard and blunt substance. I.O. after investigation of the case submitted final report finding that the deceased has died due to falling from the running train. But the learned Tribunal ignoring the aforesaid evidence dismissed the case of the appellant merely on conjecture and surmises, hence the impugned order is liable to be set aside.

7. On the other hand, learned counsel for the respondent advocating the correctness and validity of the impugned order submitted that it is not a case of untoward incident rather of run over and there is no evidence on record that the deceased was travelling by the aforesaid train and died due to falling from the running train. It is further submitted that the dead body was found near the railway track which itself rules out the death of the deceased due to falling from the running train as in the case of falling from the train, dead body would have been found far from the track and not closed to the track. It is further submitted that the I.O. of the case without making proper investigation of the case and examining the local witnesses has submitted the final form on the very date of reporting of the accident by the Station Master and the said report is doctored one.

8. From perusal of the record, it appears that AW-2 Shabbir Ahamad has stated in his examination-in-chief that on 07.04.2002 he went Dehi-on-Sone station along with Mirza Zafir Beg who was going to Sasaram from Dehri-on-Sone. Mirza Zafir Beg had purchased a valid second class ticket at Dehri-On-Sone station and boarded the Train No. 3151 UP Sealdeh-Jammu Tawi Express to travel from Dehri-On-Sone to Sasaram. There was heavy rush in the general compartment and due to said rush, the dece