JUDGMENT

Valmiki J. Mehta, J.(Oral)--The challenge under Section 23 of the Railway Claims Tribunal Act, 1987 is to the impugned judgment dated 29.4.2011 by which the claim petition was dismissed.

2. The Railway Claims Tribunal dismissed the claim petition on the ground that the facts in the present case do not show any untoward incident as per Section 123(c) and Section 124A of the Railways Act, 1989 because the deceased was travelling on the roof of the train. Travelling on roof of the train therefore in effect amounts to criminal negligence and self-inflicted injuries whereby Railways are not liable.

3. The relevant observations made by the Railway Claims Tribunal in this regard are contained as under:-

"From the perusal of record and arguments advanced by the parties, I observe that onus lies on the applicants to prove the `untoward incident' and if the respondent takes the plea of exceptional clause to the proviso of section 124 A of the Railways Act 1989 in their pleadings, then the onus shifts towards the respondent's side. In order to prove the exceptional clause (b) to the proviso of section 124A of the Railways Act, 1989 the respondent relied upon the Police Investigation Report R1, total containing 23 pages, and DRM Report RW1/A alongwith the evidence of Sh. Rajinder Meena, Inspector Police Station Delhi Cantt., who was I.O. of the case. RW1 Sh. Rajinder Meena, Inspector Police Station Delhi Cantt. in his examination in chief stated that on 23.2.2006, he was chowki incharge of Shahdara police post and he conducted the Investigation of the case vide DD No.8, dated 23.2.2006, PP Railway Shahdara, Old Delhi Railway Station and during the investigation, the statements of Sh. Sanjay (brother of the deceased) and one Prem Chand were recorded by the police and the same were verified by the I.O. The aforesaid statements of the witnesses alongwith their signatures were placed at pages 20, 21 & 23 of the Police Investigation Report R1, which was submitted before the Tribunal by the I.O. Sh. Rajendra Meena. I also observed that the signature of Sh. Sanjay (brother of the deceased) at pages 20 & 23 of the Police Investigation Report R1, were compared with the signature of Sh. Sanjay (brother of the deceased), who was examined as AW1 before the Tribunal on 16.7.2007 and both the signatures were tallied/matched with each other. Hence, it is clear that statement, which was recorded later on before the Tribunal was not found trustworthy, because was an after thought and the earlier statements of Sh. Sanjay, recorded during investigation, were not tutored one, because there was absolutely no valid reason for the concerned police official to record the false statement of the aforesaid witness, Sh. Sanjay. Moreover the documents i.e. R1, total containing 23 pages alongwith the DRM report RW1/A came into existence at an undisputed point of time and therefore there was no reason for the concerned police official to create a false document. All the documents were prepared in the ordinary course of duties by the Govt. officials and the genuineness and veracity of the aforesaid documents cannot be doubted. The applicants also could not elicit any material thing from the cross examination of RW1. In the instant case, the evidence of witness Sh. Sanjay stands falsified from the contents of document AW1/4."

4. A reading of the aforesaid findings and conclusions of the Railway Claims Tribunal shows that statement of Sh. Sanjay who was travelling with the deceased Sachin was disbelieved because in the original statement he had said to the concerned authorities that he and the deceased were travelling on the roof of the train and Sachin fell down from the roof of the train as a result of which he died.

5. In my opinion, there is no illegality in the findings of the Railway Claims Tribunal because obviously the statement made in the first instance will have more credibility than a subsequent statement before the Railway Claims Tribunal and