1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR FIRST APPEAL NO. 586 OF 2011 APPELLANT :- Ashok s/o Parasram Bhasmote aged 29 years, r/o Vicharpur, Tahsil Salekasa, Distt. Gondia. ...VERSUS... RESPONDENT :- Union of India Its General Manager, South East Central Railway, Bilaspur (C.G.). ------------------------------------------------------------- Mr. S.K. Sable Advocate for the appellant. ------------------------------------------------------------- CORAM : A.B. CHAUDHARI,J. DATED : 25.11.2011 COURT'S ORDER : This appeal at the instance of the claimant is directed against the judgment and Award dated 1.6.2011 passed by the Railway Claims Tribunal, Nagpur, in Claim Application No. OAIIu/NGP/2010/0100 dismissing the claim application filed by the appellant/claimant. 2. In support of appeal, Mr.Sable, learned counsel for the appellant, made the following submissions : (i) the appellant has lost his both the legs since the railway train ran over his legs and that is why the Tribunal committed an error in not awarding compensation by holding the claim to be not under the category of untoward incident. 2 (ii) There is evidence of appellant himself and it is not in dispute that the appellant was a bona fide passenger. In para 4 of his examination-in-chief he clearly deposed that he fell down from the running train while alighting from the train at Salekasa railway station and sustained injuries. Evidence of the appellant was therefore required to be believed and the Tribunal erred in not doing so. (iii) Respondent/railway examined Sitaramaiya RW1, the guard of the train. But his evidence is not relevant on the point of accident and, therefore, there are no reasons why the Tribunal should have given any importance to the evidence tendered by the railways. (iv) In the light of the decision of supreme court in Union of India v. Prabhakaran – (2008) 9 SCC 527 the Tribunal ought to have awarded statutory compensation to the appellant. 3. This Court by order dated 25.7.2011 had called for record and proceedings from the Tribunal which have been received. Having heard learned counsel for the appellant and after going through the record and proceedings, the only point that arises for my determination is : “Whether the accident in which the claimant lost his both the legs would fall under the category of untoward incident within the meaning of Section 124 of the Indian Railways Act?” 4. I have perused the evidence of the appellant. He 3 did not examine any other witness. There is no doubt that the appellant was a bona fide passenger. In para 4 of his evidence, the appellant stated that he fell down from the running train at Salekasa railway station and sustained the injuries on his head. Thereafter he became unconscious and does not know what happened thereafter. He stated that it was none of his fault and it was due to negligence of the railways and hence was untoward incident. He has not examined any other witness to show how both his legs were cut. His evidence in the examination-in-chief therefore falls short of the requirement. The cross-examination of appellant however indicated following admissions given by him - “After purchasing the sweet I was going towards the railway station Salekasa. I was going on the platform of railway station after crossing over the railway track for going to my village at Bijapur by the another train from Salekasa railway station. I was hit by some unknown train while coming towards the railway station Salekasa and both of my legs cut down. The contents of my claim application that I fell from the train No. 8029 are not correct. It is not correct to say that I filed the false claim application. It is not correct to say that I committed the criminal act of trespassing the railway track.” 5. The aforesaid admissions in the cross- examination clearly show that he was hit by some other train because he was crossing another railway track for 4 going to his village after alighting from the train and was hit by some unknown train coming towards Salekasa railway station and in that both his legs were cut. In my opinion, this admission clearly falsifies the case of the appellant that he fell down from train No. 8029 in which he was travelling as a bona fide passenger. The above evidence is clinching and without going into the evidence tendered by the railways, it is clear that no case of untoward incident was at all proved by the appellant nor there is any preponderance of probability for the Court to draw an inference even remotely that there could be untoward incident. On the contrary, the possibility of appellant crossing the railway track which was obviously an act of trespassing and some other train hitting him is clearly borne out from his evidence in the cross- examination. Under the circumstances, I answer above point in negative. There is no substance in this appeal. F.A. No. 586/11 being devoid of merit is dismissed summarily. JUDGE /TA/