J U D G M E N T

This appeal is filed by the appellants challenging the order dated 05.04.2018 passed in OA II U 093/2017 on the file of the Railway Claims Tribunal, Bengaluru.

2. Heard the learned counsel appearing for the parties.

3. The factual matrix of the case of the claimants/appellants that one Prakash B S (deceased) is the husband of the first appellant and father of second appellant. On 15.11.2016, the deceased was traveling by Sampark Kranthi Express from Birur to Chikkamangaluru and accidentally, he fell down form the train at Railway KM No.211/210 and succumbed to the injuries. The death of the deceased was due to an untoward incident. In this regard, FIR has been registered in UDR No.79/2016 at Arasikere Railway Police Station on 15.11.2016 under Section 174 of Cr.P.C and PM was also conducted. The deceased was working in a private company and the claimants are the dependents on the deceased. Hence, they sought for the statutory compensation.

4. It is the contention of the counsel for the Railway Department that it is not a untoward incident and the deceased was trespassed into the railway track hence, he solely responsible for the death and the act of the deceased is not an accidental death since he has committed criminal trespass into the railway zone illegally.

Hence, prayed to dismiss the claim petition.

5. In order to prove the case of the claimants, the first claimant examined as AW1 and got marked the documents at Ex.A1 to A17. The Tribunal after considering both oral and documentary evidence placed on record rejected the claim petition in coming to the conclusion that the alleged accident is not an untoward incident since he was hit and run over by another train while crossing and trespassing over the railway track on the other side and the alleged accident occurred on account of his own criminal negligence hence, it attract Section 124-A of the Railways Act and the same is a beneficial in nature, thus, the claimants are not entitled for the compensation since they have not established that the death of the deceased was due to untoward incident. Hence, rejected the claim petition. Being aggrieved by the order of the dismissal of the claim petition, the present appeal is filed.

6. The counsel for the appellants would vehemently contend that the deceased was having a valid railway ticket to travel from Bengaluru to Shivamogga. The Tribunal wrongly held that the deceased was illegally trespassed into the railway zone which amounted to criminal trespass into the railway track. The very approach of the Tribunal is against the material on record. The counsel brought to notice of this Court, the charge-sheet which is marked as Ex.A2 wherein the police have observed that while boarding the train, an untoward incident was taken place. But the reason assigned by the Railway Tribunal that it was a criminal act i.e., the deceased trespassed into the railway track illegally and the said observation is against the material on record. The fact that the he was traveling from Bangaluru to Shivamogga is not in dispute and also the Tribunal taken note that he was having a valid ticket at the time of the accident and inspite of it, the Tribunal committed an error in invoking Section 124-A of the Railways Act. The counsel also submits that the claimants are the wife and daughter of the deceased and the daughter was minor at the time of the accident and the same has not been considered by the Tribunal and erroneously comes to the conclusion that the accident was occurred on account of criminal act of the deceased even though the accident was taken place at the time of boarding the train. Hence, it requires interference.

7. The learned counsel for the appellants, in support of the arguments, relied upon two judgments with regard to the compensation. In the case of RANI DEVI vs UNION OF INDIA reported in 2018 ACJ 2681 the Delhi High Court in paragraph 17 held that applying the principles laid down by the Supreme Court in Rathi Menon’