(Prayer: Civil Miscellaneous Appeal filed under Section 23 of the Railway Tribunal Act, against the Judgment dated 07.07.2015 made in O.A.(II-U)No.153 of 2014 on the file of the Railway Tribunal, Chennai Bench.)

1. This Civil Miscellaneous appeal is filed by the appellants who are the claimant against the order dated 07.07.2015 and made in O.A.No.(II-U)No.153 of 2014 by the Railway Claims Tribunal, Chennai Bench dismissing the claim petition filed by the appellants, who are the wife and son of the deceased.

2. The appellants herein have contended before the Tribunal that the deceased Vasumalaiyan was a passenger in a train to Chennai. On 1.4.2014 and while he was travelling on a train to Chennai he had accidentally fallen down from the running train at the western end of Perambur Loco Works Railway Station under the over bridge at KM 07/25 up slow line, sustained grievous injuries and died at the place of accident. They have alleged that the journey ticket was not found at the inquest.

3. The respondent has alleged that the deceased was not at all a passenger. The incident came to light only when the Key man noticed that one male dead body was found lying near the track and that there was no record of chain pulling or detention of the train on the alleged date of incident. The respondent have contended that there was no untoward incident and hence denied liability to pay compensation.

4. Before the Tribunal the 2nd appellant examined himself as AW1 and marked A1 to A3 the respondent produced the Loco Pilot, Assistant Loco Pilot and RPF staff. They have all alleged that no untoward incident was reported on the said date. The Tribunal had come to the conclusion that the burden of proving the untoward incident is on the appellant and thus dismissed the application. Thus the present appeal.

5. The appellants have alleged that the deceased was a passenger while the respondent have alleged that he was not. The Key issue is whether the deceased was a passenger. The fact remains that the body of the deceased was found by the Key man at the track at KM 07/25 on the up slow line below Perambur Loco Works Bridge. The respondent would allege that there was no record of chain pulling or detention of any train and therefore there was no untoward incident. The respondent has no explanation as to how the deceased got upto there. The Railway line at the spot is a very busy line and the incident happening at night, it is possible nobody noticed the deceased falling down from the train. Merely because nobody saw the deceased falling that could not make the incident foul. The respondent found the body on the track. It is therefore their responsibility to explain how a body with injury was found there. Admittedly there is no records to show that the deceased was run over by any train therefore it can be presumed that the deceased fell from the train at night and nobody noticed him falling. Many trains pass by that section and it is unclear on which train the deceased traveled. Therefore the evidence of Loco Pilot of a certain train will not to absolute evidence to disprove the case of the appellant. It is evident that the deceased died of injuries from falling from the train. Therefore it is concluded that the deceased died only due to a fall from the running train and thus it is an untoward incident within the meaning of Sec.123(c)(2) of Railways Act.

6. As per Section 123(c)(2) of the Railways Act, 1989 (hereinafter referred to as the Act), ‘untoward incident’ includes the accidental falling of any passenger from a train carrying passengers.

7. In this regard, it is useful to refer to Section 123(c) of the Act, which reads thus:

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

(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 ca