A violent attack by a single person on a running train constitutes an 'untoward incident' within the meaning of Section 123(c) of the Railways Act, 1989.

BHASKAR BHATTACHARYA, J. :- This appeal under Section 23 of the Railway Claims Tribunal Act, 1987 is at the instance of a claimant and is directed against the order dated September 8, 1998 passed by the Calcutta Bench of the Railway Claims Tribunal in Accident Claim Application No. 2067 of 1997 by which the tribunal rejected the claim of the appellant.

2. The appellant, as the mother of the injured victim, filed a claim for the injury suffered by her son for throwing of stone on a running train being No. 5621 near New Jalpaiguri Station on 25th October, 1996. According to the appellant, while travelling in the sleeper class of the said train, the victim suffered an injury in his right eye because of throwing of stone by some miscreants near the New Jalpaiguri Station, as a result, he was admitted to the Railway Hospital at Katihar. He was discharged on 26th October, 1996 from that Hospital and was readmitted to the Military Hospital at Jhansi on 28th October, 1996. From the certificate of the Eye Specialist, it appears that he became total blind in his right eye and thus, disfigured. It was alleged in the application supported by affidavit that there was an attack by a mob on the train near the New Jalpaiguri Station and the coach in which he was travelling was hit by thousands of stones. A supporting affidavit had been filed by one P. N. Gogai who was a fellow passenger and he has confirmed that there was a mob-attack on the train.

3. The claim application was opposed by the Railway Administration by filing written statement.

4. Although, the Railway Authority was directed to file an affidavit vide order dated July 14, 1998, for the reasons best known to it, the Railway did not comply with such direction. However, at the time of hearing, the representative of the Railway disputed the fact that there was violent attack on the train by a mob on that day. According to the representative of the Railway, there was no report with the Railway to show that there was such an attack by a mob on the particular train on 25th October, 1996.

5. The Tribunal below came to the conclusion that there was nothing on record to show that there was a mob attack on the train on that particular date except the affidavits affirmed in support of the claim. The Tribunal was of the view that if thousands of stones were thrown at the coach, there would have been other cases of injury among the fellow passengers and as such, it was a case of an isolate incident of stone throwing and such incident could not come within the definition of 'untoward incident' as provided in Section 123 (c) of the Railways Act, 1989.

6. The Tribunal, thus, dismissed the application although it expressed its sympathy to the victim for the loss of his right eye.

7. Being dissatisfied, the claimant has come up with the present appeal.

8. Mr. Paul, the learned advocate appearing on behalf of the appellant, vigorously contended that in spite of specific direction given by the Tribunal, the Railway having failed to affirm affidavit disputing the allegation of the claimant that there was a mob attack on the train, the Tribunal below erred in law in not drawing adverse inference against the Railways for not affirming such affidavit.

9. Mr. Paul further contends that if it is assumed for the sake of argument that it was a stray incident of stone throwing, even then, the case comes within the definition of 'untoward incident' within the meaning of Section 123 (c) of the Railways Act. He, therefore, prays for setting aside the order passed by the Tribunal and for passing an award on the ground that the incident complained of has disfigured the face of his client's son.

10. Mr. Gupta, the learned advocate appearing on behalf of the Railways, on the other hand, has opposed the aforesaid contention advanced on behalf of the appellant and has supported the view taken by the Railway Tribunal. In support of such contention, he has relied a decision of the learned single Judge of Bombay High C