JUDGMENT U.K. Dhaon, J.
1. This is an appeal against the judgment and award dated 23rd October, 2002 passed by the Railway Claims Tribunal, Luclwow, thereby awarding a sum of Rs, 4,00,000/- by way of compensation to the respondent.
2. The case of the respondent in brief had been that he was travelling by Amritsar-Howrah Express on 17th September, 2000 with a second class journey ticket. He started his journey from Ambala to Patna on 16th September, 2000 by purchasing a second class journey ticket. On 17th September, 2000, when the train was passing near Tilhar Railway Station in District Shahjahanpur, the respondent was going to toilet in the railway compartment and fell down from the compartment due to sudden and violent jerk of the train, as a result of which he sustained severe and grievous injuries in both of his legs, which were ultimately amputated. According to him, he lost his journey ticket during the course of the incident in question.
3. The appellant-Railways filed written statement and contested the claim on the ground that the respondent was not a bona fide passenger of the train in question and the incident does not come within the definition of 'untoward incident' as the respondent was travelling on the roof of the train at the time of accident, which was a criminal act.
4. The learned Claims Tribunal framed issues in the case, recorded evidence and after appraisal thereof came to the conclusion that the incident in question comes within the definition of 'untoward incident' and considering all the facts and circumstances of the case, passed the award, thereby awarding a sum of Rs. 4,00,000/- to the respondent. Aggrieved by the said judgment and award, the present appeal has been filed.
5. We have heard the learned Counsel for the parties at length and have gone through the record.
6. The case of the respondent from the very beginning had been that he was travelling in Amritsar-Howrah Express on 17th September, 2000 in a second class compartment. He started his journey from Ambala to Patna on 16th September, 2000 and on 17th September, 2000 when the train was passing near Tilhar Railway Station in District Shahjahanpur, he was going to toilet and fell down from the compartment due to sudden and violent jerk of the train, as a result of which he sustained grievous injuries and ultimately both his legs were amputated.
7. As against it, the case of the Railway had been that the respondent was not a bona fide passenger of the train and further he was travelling on the roof of the train and he fell down and a report of that fact was made by one of the employees of the Railway and it was recorded in a document. Under these circumstances the respondent himself was negligent and was liable to be prosecuted under the Railways Act and the Railway as such is not liable to pay compensation.
8. We have considered this argument of the learned Counsel for the Railway and we find no force in it.
9. It is said that one Anil Kumar had reported to the Station Master that one passenger dropped and fell down from the roof of the train. It is also said that the respondent himself fell down from the roof of the compartment and got himself injured, which is a criminal act punishable under Section 156 of the Railways Act and this incident is not covered within the definition of 'untoward incident'. It may be mentioned that one Anil Kumar, Switchman of the Railway had reportedly informed the Station Master, Sri S.D. Khan, who made an entry to that effect in a document on the report of the Switchman, Anil Kumar. Thus this fact as to whether the respondent was travelling in the train aforesaid is not denied. Neither Sri S.D. Khan, Station Master on duty was examined before the Tribunal nor Anil Kumar, Switchman of the Railways has been Examined. None of these two relevant and important witnesses have been examined by the Railway to support its case that the respondent was sitting on the roof of the compartment and fell down from there and sustained injuries. There is also no evidence showing as to whether Anil Kumar himself is the eye-witness of that falling of the respondent from the roof of the compartment. This entry in the railway document is just for the sake of entry and has absolutely no evidentiary value in the eye of law particularly when nobody had been examined for and on behalf of the Railway to support this contention that the respondent was travelling in the train and was sitting on the roof of the compartment and from that place he slipped and sustained injuries. Therefore, this case of the Railway cannot at all be believed that the respondent sustained injuries when he fell from the roof of the compartment. As against it, there is positive statement of the injured himself and he has stated on oath that he was travelling inside the compartment. He was going to toilet in the running train. The train in question stopped all of a sudden and due to mighty jerk he became disbalanced and fell down from the compartment and sustained injuries. There is no reason to discard his testimony in any manner. Thus the Claims Tribunal was fully justified in awarding the amount to the respondent and in our opinion the findings recorded by the Tribunal suffer with no illegality or impropriety.
10. In the result, the appeal fails and is dismissed. The amount, which is in deposit before this Court as well as before the Tribunal shall be allowed to be withdrawn by the claimant/respondent. The balance amount, if any, shall be deposited by the appellant within a period of four weeks from today before the Tribunal. On deposit so being made, the claimant/respondent shall be allowed to withdraw the same also without furnishing any security.