Interpretation of the definition of 'untoward incident' and the scope of liability and compensation under the Railways Act.

1. The appellants have claimed to be parents of the deceased Sanjay who died in accident. The learned counsel for the appellant has submitted that the deceased was a valid ticket holder and while he was waiting for boarding on train at the side of railway track, due to air pressure of the running train i.e. Gwalior Mail the deceased fell down on the track of the train and received injuries. On account of which he succumbed to death. Such an accident is covered under the definition ?untoward incident? as defined in Section 123 (c). Therefore, the respondents are liable to compensate his death to the claimants, it has been submitted that Railway Claim Tribunal has failed to appreciate the facts of the case correctly and has dismissed the Appellants claim on the ground that since neither the deceased was travelling in train nor was boarding on train when the accident took place, therefore, such accident is not covered under the definition ?untoward incident? as has been defined in Section 123 (2).

2. Learned Counsel for the appellant has also relied upon the following decision in support of the appellants claim.

3. In Union of India Vs. Ahalya Prusti and another 2010 (4) T.A.C. 687 (Ori.) the word “accident to train” “all other accident to train” scope of the word had been considered and it was held that the Supreme Court by interpreting under Section 124 in the judgment in Union of India Vs. Sunil Kumar Ghosh, 1984 A.C.J. 719 (S.C.) held that “if a passenger tumbles inside the compartment or stepping train or part of the train. It may be doubtless, an accident to the passenger but not to the train, what was contemplated under Section 124 was only all” other accident to a train “ad not accident to the passenger”.

4. In this case no negligence on the part of the deceased was found as the railways could not prove it, in conclusion it was held that by virtue of amendment of Section 123 (c) and Section 124-A, it is only accident to the train but also an untoward incident in which somebody got affected, the latter would be entitled to compensation.

5. In Union of India Vs. Prabhakaran Vijaya Kumar and others 2008 (2) T.A.C. 777(S.C.) the Supreme Court has discussed the definition of “untoward incident” in Section 123 (c) as well as Section 124-A of the Railways Act. In this case also the deceased fell on to the railway tract and was run over by Train No. 6349 Parasuram Express. The eyewitness of the case had deposed that he saw one girl running towards the train and trying to enter the train and she fell down. He has further stated that the deceased Abja had attempted to board the train and fell down from the running train. The Tribunal had held that this was not an 'untoward incident' within the meaning of the expression in Section 123(c) of the Railways Act, 1989 as it was not an accidental falling of a passenger from a train carrying passengers. The Supreme Court held that it will not legally make any difference whether the deceased was actually inside the train when she fell down or whether she was only trying to get into the train when she fell down. In our opinion in either case it amounts to an 'accidental falling of a passenger from a train carrying passengers'. Hence, it is an 'untoward incident' as defined in Section 123(c) of the Railways Act.

6. In view of the aforesaid submissions we have examined the order impugned passed by the Learned Tribunal as well as the other records available before us. At this stage the appellants have placed the statement of one eyewitness Ram Darshan who had stated that when the deceased was waiting for train on the side track, one another train had passed away and on account of air pressure of the said train he lost the balance of his body consequently he fell down and received severe injuries which resulted to his death. Thus, it is obvious that it was not a case of accident to be covered under the definition of "untoward incident". Section 123 (c) has defined the word “untoward inci