IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR.

FIRST APPEAL NO. 419 OF 2019 APPELLANTS: 1. Smt. Sunita Wd/o Manohar Gajbhiye, (On R.A.) Aged 35 years, Occupation - Household

2. Akshay S/o Manohar Gajbhiye, Aged 19 years, Occupation - NIL.

3. Purnabai Wd/o Tukaram Gajbhiye, Aged 65 years, Occupation - NIL All Resident of - Nilaj, Gonddumbri, At Po. Palsgaon, Tah. Sakoli, Dist. Bhandara-441805.

V E R S U S RESPONDENT : Union of India, (On R.A.) Through its General Manager, South East Central Railway (Bilaspur Zone), Bilaspur-495001.

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Shri R. G. Bagul, Advocate for appellants.

Mrs. Neerja Chaubey, Advocate for respondent-sole.

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CORAM: ABHAY AHUJA, J.

DATE OF RESERVING JUDGMENT : 03/10/2022 . DATE OF PRONOUNCING JUDGMENT : 10/10/2022 .

JUDGMENT :

1. By this first appeal, the appellants viz. the widow of the deceased Shri Manohar Gajbhiye, his son and the deceased's mother have challenged the decision dated 06/02/2019 of the Railway Claims Tribunal, Nagpur rejecting their claim made under the Railways Act, 1989 (the "Railways Act").

2. The deceased travelled from Gondia to Rewral in the general coach of a passenger train on valid journey ticket, and deboarded at Rewral. After alighting, as there was no foot overbridge, the deceased was walking along the track with head loads and got hit by Train No.18421 passing through Rewral in the UP direction. The evidence as analyzed and discussed by the Tribunal clearly establishes and concludes that the deceased died due to the hit from the fast moving Train No.18421 on the UP-line while walking beside the railway track at Rewral Station after travelling by the passenger train on a valid journey ticket. These facts are more or less well established and there is no error apparent or perversity in these findings of fact.

3. However, the Tribunal has observed that the deceased was carelessly walking on the track and died due to his own negligent act. The Tribunal also concludes that though the deceased was a bonafide passenger till he deboarded at Rewral Railway Station, while walking on the track when he got hit by a train, he was not a bonafide passenger at the time of said incident. The Tribunal also holds that this was not a case of an untoward incident as defined in Section 123(c)(2) of the Railways Act, therefore, question of compensation under Section 124-A of the Railways Act would not be arise.

4. Shri Bagul, learned counsel for the appellants would submit that at the relevant time, there was no foot overbridge on the said platform at Rewral for the passengers to cross over and exit the station and therefore, the deceased had to walk along the railway track No.3. Learned counsel would submit that as per Right to Information (RTI) query, reply and information which has been filed in this Court vide pursis dated 02/02/2022, the work for the foot overbridge had commenced on 07/05/2016 and completed on 30/12/2018 and the same was opened for passengers on 31/12/2018. He would submit that pursuant to another communication filed by the Railways, it is confirmed that there was no foot overbridge at Rewral Station on the date of the incident. He would submit that therefore, prior to the foot overbridge being opened for passengers, every time, a passenger train came to Rewral Station, the passengers had to alight on the platform and then to exit the Station, they either had to walk along with the Railway track or cross it. He would submit that this clearly suggests negligence on the part of the Railway Authorities and the deceased died for no fault on his part. He would submit that the deceased was a bonafide passenger and the Railway Authorities have nowhere proved that the passenger died or suffered injury due to any of the exceptions set out in the proviso to Section 124-A of the Railways Act.

5. Shri Bagu