JUDGMENT

MANOJ JAIN, J

1. Appellants have taken exception to order dated 13.04.2015 passed by learned Railway Claims Tribunal, Principal Bench, Delhi whereby their claim petition has been dismissed.

FACTUAL MATRIX

2. One Krishan Shah was working as water supplier in the area of Palam, Delhi. On 15.02.2011, he went to Palam for supplying water. He was returning home by train i.e. Mandor Express. His brother Mr. Naresh Kumar went to Bijwasan Railway Station to meet and receive him. At about 10.00 PM, Mandor Express reached the platform but before the train could come to halt, Naresh saw someone falling down from the train, on account of heavy rush of the passengers. Though other passengers, travelling in the train, had informed the Guard that a man had fallen down but the Guard did not pay any heed to such words and gave signal and resultantly, train left the platform.

3. When, Naresh rushed there, he learnt that the person fallen down from the train was none other than his brother Krishan Shah. The Station Master was informed about the incident which resulted in registration of DD No. 18A. Police also reached the spot for necessary investigation.

Fact remains that the death of Krishan Shah was instantaneous.

PROCEEDINGS BEFORE TRIBUNAL

4. Wife and children of Krishan Shah (hereinafter referred to as deceased) filed claim petition before Railway Claim Tribunal under Section 16 of the Railway Claims Tribunal Act, 1987 and Section 124 & 124 A of Indian Railways Act, seeking compensation on account of said mishap.

5. Respondent Northern Railways filed written statement disputing the said claim, contending that they were not liable to pay compensation as deceased was not a „bonafide passenger‟ and that he had not fallen down from any running train. It was contended that incident in question was though unfortunate but it did not come within the purview of „untoward incident „as defined in the Railways Act.

6. On the basis of stands taken in the pleadings, following issues were framed: -

(i) Whether the deceased was a victim of the alleged untoward incident and whether the alleged untoward is covered Under Section 123 (C) of the Railways Act 1989?

(ii) Whether the deceased was a bonafide passenger of Mandor Exp. on 16.03.2013 at the time of the alleged untoward incident?

(iii) Whether the claim application of the applicant is maintainable?

(iv) Whether the applicant is entitled to receive compensation, as claimed for?

7. In order to substantiate her claim, Ms. Renu Devi (widow of deceased Krishan Shah) entered into witness box as AW1.

8. From the side of the Railways, DRM report was filed and no oral evidence was adduced.

9. Learned Tribunal came to the conclusion that deceased was not a bonafide passenger of the train and there was nothing to indicate that he had fallen down from any such train. It was observed that the claimants had failed to discharge the onus placed on them and the deceased appeared to have died in the circumstances other than suggesting a fall from a train of a bonafide passenger and resultantly, claim petition was dismissed.

10. This is how the appellants are present before this Court by filing appeal under Section 23 of Railways Act, 1989.

RIVAL CONTENTIONS

11. Contentions of the appellants are as under: -

(i) It is a clear case of „untoward incident‟ even as per the documents placed on record by the Railways and various eyewitnesses had specifically stated in their statements made to the police under Section 161 Cr.P.C. that they were present at the platform when they had seen deceased falling down from the train due to heavy rush of the passengers and Tribunal has not considered the said record.

(ii) Claimants were required to show the preponderance of probability only which stood revealed in view of the testimony of AW1 and the record produced by Railways including the Divisional Railway Manager Report (DRM report). Thus, it was very clear that death was on account untoward incident.

(iii) Mere non-recovery of ticket would not me