Valmiki J. Mehta, J. (Oral)

1. This first appeal is filed under Section 23 of the Railway Claims Tribunal Act, 1987 impugning the judgment of the Tribunal dated 8.2.2012 which has dismissed the claim petition.

2. The claim petition has been dismissed because the Tribunal holds that when the train is being placed at a platform it is not a ‘train carrying passengers’ as per the meaning of the expression as found in Section 123(c) of the Railways Act, 1989 and therefore there is no untoward incident for the Railways to be fastened with the liability of compensation.

The relevant paras of the impugned judgment dated 8.2.2012 reads as under:-

“The Untoward Incident, as defined under Section 123 (c) of the Railways Act, 1989 is reproduced below:-

“123. “untoward incident” means-

(1) (i) the commission of a terrorist act within the meaning of sub-section (1) of section (3) of the Terrorist and Disruptive Activity (Prevention) Act, 1987; or

(ii) the making of a violent attack or the commission of robbery or dacoity; or

(iii) the indulging in rioting, shoot-out or arson, by any person in or on any train carrying passengers, or in a waiting hall, cloak room or reservation or booking office or on any platform or in any other place within the precincts of a railway station; or

(2) the accidental falling of any passenger from a train carrying passengers.”

Thus, as per Item 2 above, only that incident is to be qualified as untoward, in which accidental falling of any passenger has taken place from a train carrying passengers (emphasis supplied). The legislative intent underlying Section 123(c)(2) of the Railways Act is not to include those incidents as Untoward Incidents, wherein the accidental falling has occurred from a train not carrying passengers, say a goods train, a parcel train or an empty rake under shunting movement for placement or removal from the platform. Since in the instant case, the incident of falling down while boarding has occurred on a empty rake, which was in process of being placed at the platform as a part of shunting movement, so as to take the form of a train, and the passengers had not at all boarded it, the said empty rake at the relevant time of the alleged incident cannot be termed as a train carrying passengers. Hence, the incident in question does not come under the purview of an Untoward Incident, as defined under the Act and as alleged in the claim application.”

3. The admitted facts are that the deceased Sh. Devender Nath Gourd died in an untoward incident on 28.8.2010 while trying to board the Shalimar Express train when it was being put on platform. The admitted facts in this regard are contained in paras 6.1 to 6.4 of the impugned judgment and which read as under:-

“6. Examination of Evidence:-

Examining the evidence including the oral and documentary evidence adduced by the applicant and the respondent, and the submissions of the Learned counsel for both sides, the following points emerge:-

6.1 The case of the applicant, as pleaded in the claim application, is that she along with her husband Devender Nath Gourd (s.d) were going from Jammu to New Delhi in Shalimar Express Train. There was heavy rush in the train. When the deceased was in the process of boarding the train, he fell down from the train and received fatal injuries in the accident. The accident occurred on account of negligence of the Railways. The ticket of the deceased was lost during the said accident.

6.2 The documents, placed on record by the applicant, as indicated in Para 3 above are examined as under:-

6.2.1 Copy of Police Report (AW1/4):- It reveals in the statement of the applicant given to the police at the spot that they were to go by Shalimar Express Train to Delhi. At about 9.00 p.m., when Shalimar Express Train was being placed on Platform No.3, her husband tried to board the train, slipped, fell down on the platform and sustained fatal injuries. The statement of the eye witness Ramesh Kumar reveals that he along with th