Hon’ble Anil Kumar, J.—Heard Sri Brijesh Kumar Shukla, learned counsel for the appellant and Sri Amrendra Nath Tripathi, learned counsel for the respondent.

By means of present appeal under Section 23 of the Railway Claims Tribunal Act, 1987, appellant has challenged the judgment and award dated 17.3.2009 passed by Railway Claims Tribunal, Lucknow in O.A. NO. 0600030 (Nand Lal Galey and others v. Union of India).

2. Facts, as pleaded by the claimant/respondent in claim petition are that deceased Nand Lal Galey, resident of village -Lapchoo, post-Lapchoo Tea Estate, Police-Station- Rangli Hat, District Darzling, West Bangal and was engaged as private security guard in a establishment at Delhi.

On 9.10.2005 after purchasing of valid ticket, he was returning from New Delhi to Jalpaiguri by Train No. 4056 Bramhaputra Express during Dashehra festival. on 10.10.2005, when the train reached West Central Kabin at pole No. 1599 near Mughalsarai railway station, Nand Lal Galey fell down from the train, sustained several injuries. In this regard, an F.I.R. was lodged at G.R.P. Police Station, Mughalsarai and two G.R.P. Constables, namely, Constable No. 372 Sanjay Awasthi and Constable No. 4687 Vijay Pal has carried him to Loco hospital where after examining by doctors of Loco Hospital, he was declared dead.

3. In view of the said factual background, a claim petition has been filed by the claimant before the Railway Claims Tribunal on the ground that deceased Nandlal Galey was traveling on valid ticket in Train No. 4056 Bramhaputra Express and he was fell down from the train on 10.10.2005 which comes within the definition of untoward incident, so compensation may be awarded to him.

4. On behalf of appellant/defendant a written statement has been filed inter alia stating taking a defense that neither he was the bona fide passenger of the train nor he was incidentally fell down from the train so the claim petition, as filed by the claimant, does not fulfill the necessary ingredients of Section 123 or 124-A of the Railway Act, 1989. The Railway Claims Tribunal, on the basis of pleading and material on record and after hearing learned counsel for the parties, allowed the claim petition by judgment and award dated 17.3.2009 thereby awarding a sum of Rs. 4,00,000/- by way compensation alongwith 7% interest.

5. Sri B.K. Shukla, learned counsel for the appellant while challenging the impugned judgment and award submits that the deceased was not a bona fide passenger at the time of incident shown in the incident register as 9.00 p.m. when the train reached Mughalsarai station at 9.40 p.m and depart at 10.00 p.m. so the alleged incident does not cover from the provisions as provided under Sections 123 and 124-A of the Railway Act,1989, hence the appeal liable to be allowed.

6. Sri Amrendra Nath Tripathi, learned counsel for the respondent while defending the impugned judgment submits that the petitioner is bona fide passenger having valid ticket with him and due to accident which took place on 10.10.2005 he fall down from train No. 4056 Bramhaputra Express near Mughalsarai railway station. In this regard, necessary F.I.R. has been lodged thereafter doctor of Loco hospital after examining him has declared as dead, so keeping in view of the said fact, judgment given by Railway Claims Tribunal is perfectly valid and in accordance with law as laid down by Hon’ble the Apex Court in the case of Union of India v. Prabhakaran Vijaya Kumar and others, (2008) 9 SCC 527 and this Court in the case of Smt. Akhtari v. Union of India, 2009 (27) LCD 240.

7. I have heard learned counsel for the parties and going through the record.

Section 123(c)(2) defines the accidental falling of any passenger from a train carrying passengers as one of the untoward incidents referred to in the said provision. If literal meaning is given to such provision, it may result in holding that only when a passenger falls down from a train, the same can be termed as untoward incid