Accidental fall from moving train in heavy rush is untoward incident; tribunal's rejection ignoring co-passenger evidence, relying on non-eyewitness speculation, and perverse findings reversed without remand.

Judgment :-

1. This appeal is filed by the original applicants, who are dependents of the deceased Mr. Arogyaraj Chetiyar, to challenge an order of the Railway Claims Tribunal, Mumbai (‘Tribunal’), whereby the original application came to be rejected on the ground that Mr. Arogyaraj Chetiyar did not die on account of an “untoward incident” within the meaning of Section 123(c) (2) of the Railways Act, 1989.

2. I have heard Mr. Khosla, learned counsel for the original applicants and Mr. Agrawal, learned counsel for the Railways.

3. On 20 June 2009, the deceased met with an accident near Jogeshwari Railway Station at around 14:13 hrs. He was admitted to Cooper Hospital at around 14:50 hrs. and, thereafter, moved to K.E.M. Hospital.

4. The deceased expired on the same day at 22:00 hrs. while undergoing treatment at the hospital. The postmortem was carried out at K.E.M. Hospital.

5. The Applicants, thereafter, made an application to the Tribunal for compensation under the Railways Act which came to be rejected and it is on this backdrop that the present appeal has been filed by the applicants.

6. The only issue which arises for my consideration is whether the Tribunal was justified in rejecting the application on the ground that the deceased was not a bonafide passenger and further the incident does not fall within an “untoward incident” as defined by the Railways Act, 1989.

7. The first issue which needs to be addressed is whether the deceased were a bonafide passenger. As per the police report dated 20 June 2009, two railway tickets, issued at 13:51 hrs. for travel from Goregaon to Churchgate was found from the pocket of the deceased. The tickets are enclosed in the compilation of document at page 96. The Tribunal after giving a finding that the deceased was a bona fide passenger has given a finding that issue no.1 is to be decided against the applicants. In my view, this finding is self-contradictory and also contrary to the material on record which I have referred to above. There appears to be non-application of mind by the Tribunal on this issue in its operative part in paragraph 11 of the impugned order. In any case, I am satisfied based on the police report and the ticket which is enclosed in the compilation of documents that the deceased was a bona fide passenger. Therefore, this finding of the Tribunal is reversed.

8. Coming to the issue of an “untoward incident,” the applicants have led the evidence of co-passenger who was traveling alongwith deceased. He was cross examined by the railways. In the evidence of the co-passenger, he has stated that at 13:30 hrs. (1.30 p.m.), he met the deceased near his house and both decided to go to Churchgate. They purchased two tickets to travel from Goregaon to Churchgate Railway Station and the tickets were kept with the deceased. The co-passenger also stated that they boarded a fast local train going towards Churchgate Railway Station and near Jogeshwari Railway Station due to excessive rush, the deceased accidentally fell down from a moving local train. He alighted at Andheri Station and returned back to Jogeshwari Railway Station and found the deceased in an injured condition. He also in his evidence stated that police did not record his evidence.

9. Though the co-passenger was a relevant witness, who had filed affidavit of evidence in lieu of examination-in-chief and was also cross examined, the Tribunal has not referred to his evidence in the impugned order at all. The contention o