JUDGEMENT

4. In view of pleading of both the parties, and relevant documents produced on record, this Tribunal framed the following issues for just and proper adjudication of the Claim Application on merit within ambit of law.

5. That, in order to establish the claim, the Applicant No. 1 Mr.

Karim Khaled Khan, stepped into the witness-box and filed the Affidavit in lieu of his examination-in-chief on record. He deposed that, on 30.10.2016 the deceased was travelling from Bhayander to Dahisar Railway Station by unknown train. When the train was running in between Mira Road and Dahisar railway station, at K.M. no. 36/14 A and 36/15 A, due to rush and push by the co-passengers the deceased accidentally fell down from the train. The Applicant stated that the deceased was in possession of a second class season ticket from Borivali to Bhayander Railway Station. The Railway Pass was recovered it was mentioned in the Inquest report, but was lost subsequently.

6. In the cross-examination of Applicant No.1 Mr. Karim Khaled Khan, it was suggested on behalf of Respondent- Railway, that the deceased was not a bonafide passenger. But, the AW-1 Mr. Karim Khaled Khan, turned-down this suggestions put forth on behalf of Respondent.

7. We have heard the Ld. Counsels appearing for the Applicant and Respondent. We have also gone through the documents filed by the Counsel for the Applicant and entire documents produced on record. It is not put into controversy that the victim succumbed to injuries received to him during the course of Railway accident. Before embarking into the merits of the matter, it would be appropriate to set-

forth the relevant provisions of the Railways Act 1989.

In the backdrop of aforesaid legal provisions, we proceed to scrutinize the evidence produce on record. It is also imperative to bear in mind that the provisions of Evidence Act as well as Procedural law are not strictly applicable to the proceeding before this Tribunal.

ISSUE NO.1, 2 & 3

8. All these issues being interconnected with each other are taken up together for better appreciation of evidence on record.

We have carefully perused the SS/Dahisar’s memo issued to the GRP that the deceased had fallen down while travelling on footboard of train in between Dahisar and Mira Road railway station, at K.M. no. 36/14 A and 36/15 A. The Inquest Panchnama disclosed that the deceased fell down from an unknown local train. The DRM report disclosed that the deceased had fallen down while travelling near the door of the train in negligent and careless manner.

The Respondent failed to discharge its burden to falsify the pleadings of claimant. After considering the attending circumstances mentioned above, it is discernable that while travelling near the door of an unknown train the deceased fell down from the moving train and sustained fatal injuries.

9. In the case of Jameela & Ors vs. Union of India reported 2020 (12) SCC 375, the Hon’ble Apex court has held that the manner in which the accident is sought to be reconstructed by the Railways, that the deceased was standing at the open door of the train compartment from where he fell down, is called by the Railways itself as negligence. Now negligence of this kind which is not very uncommon on Indian trains is not the same thing as a criminal act mentioned in clause (c) to the proviso to Sec. 124-A. A criminal act envisaged under clause (c) must have an element of malicious intent or mens-rea. Bare act of standing at the open doors of the compartment of a running train may be a negligent act, even a rash act but, without anything else, it is certainly not a criminal act. Thus, the case of the Railways must fail even after assuming everything in its favour.

10. It is settled proposition that provisions of section 124-A are based on the principle of strict liability or no fault liability and it is mandated that the railway administration is bound to pay the compensation regardless of any wrongful act, negligence or default on the part of the