The petitioners are wife and son respectively of a Railway porter by name K.V. Devassikutty who died in an accident that occurred at the Alwaye Railway Station on 3.3.2003. The case of the petitioners is that while pulling a trolley by the said Mr. Devassikutty was thrown to the railway track on which a goods train was passing. The two legs of Mr. Devassikutty beneath the waist were cut off and he lost his fingers on the hand. Even though he was taken to the Hospital at Alwaye and later to the General Hospital, Ernakulam, he succumbed to the injuries on the very same day. The petitioners have approached this court invoking the extra ordinary jurisdiction of this court for awarding compensation for the death of said Devassikutty.

2. I have heard counsel appearing for the petitioners and Standing Counsel for Railways. Even though detailed counter affidavit is filed stating that Railway is not liable to pay compensation as the said Mr. Devassikutty, a licenced Porter is not an employee, the incident that led to loss of life of the said Devassikutty is not denied by the Railways. Obviously therefore, this court has to assume that the said Devasikutty died in the incident as stated by the petitioners. Besides this, petitioners have produced Ext.P1 Death Certificate. Ext.P2 Post-Mortem Certificate and F.I.R. filed by the Railway Police namely, Ext.P3, to prove their case and the last of the documents namely, the FIR contain the statements of the co-worker who has given the first information as follows:

“I am a Porter handing luggage and parcels in the Aluva Railway Station. I am here to report that, today (3.3.03), one Devassy of Aluva, a co-worker of mine was injured by a goods train which hit him at Aluva main Railway Station and died while treatment in the Ernakulam General Hospital. I reported for duty at about 8 AM. Then my colleague Mr. Devassy was also with me. While the deceased, Hidrose and I were pulling a trolley containing luggage to be loaded in the Trivandrum-Bilaspur Express Train form South to North in Aluva Railway Station, as a result of the trolley hitting against a stone on the platform, the said Devassy who was holding the handle of the trolley slipped away from the handle and was thrown into the 3rd track between the 5th boggy (tanker), of the ILS goods, which was running through that track from Aluva, run over the said Devassy and causing privation of two legs from the waist of the said Devassy and his fingers were cut off, the train immediately stopped, Hidrose, Nazeer and I along with others lifted Devassy from the track and took him in a stretcher brought in the portico and in a car brought him to the Government Hospital, Aluva and the Doctor, after examination sent him for further treatment to the Ernakulam General Hospital and while on treatment due to the intensity of the injuries, today (3.3.03) at about 10.30 AM the said Devasy succumbed to his injuries, and I came here to report that. The said deceased Devassy is about 52 years old and his Badge No. is 357. He is a native of Aluva.”

The question to be considered is whether the petitioners are entitled to claim compensation for the death of the victim. Even though petitioners contended that the victim was employed with the Railways as an employee, I am unable to accept this proposition because a licensed Porter is not an employee under the Railways. Even though counsel for the petitioners contended that licensed Porters are entitled to free travel in the Railways and Medical facilities, I do not think such facility extended to licensed Porters make them employees. However, still I feel the alternate claim of the petitioners that they are entitled to compensation for the death of Deveassikutty caused in an untoward incident under Section 124A of the Railways Act, 1989, can be considered. For easy reference the section is extracted herein:

“Compensation on account of untoward incident:- When in the course of working a railway an untoward inciden