1. Heard finally with the consent of learned Advocates for the parties.

2. In this appeal, filed under Section 23 of the Railway Claims Tribunal Act, 1987 (for short, ‘the Act of 1987), the challenge is to the judgment and order dated 16.11.2015, passed by the Railway Claims Tribunal, Nagpur Bench, Nagpur, whereby the injury claim filed by the appellant/claimant for compensation under Section 16 of the Act of 1987 was dismissed.

3. Background facts:

It is the case of the appellant that on 19.08.2012 he was travelling from Nagpur to Chandrapur by Jaipur-Secuderabad Express, Train No. 09736. He had a valid journey ticket. It is stated that due to the heavy rush in the train, he was standing near the door. It is further stated that near Bandhak railway station, there was a sudden jerk to the train. The appellant fell from the moving train due to the sudden jerk. He sustained an injury to his right leg. He was carried to the hospital. While taking treatment, his right leg was amputated. It is stated that he was a bona fide passenger. The injury was sustained in an untoward incident. He, therefore, claimed compensation.

4. The respondent-railway filed the reply and opposed the claim. It was contended that the appellant was responsible for the accident. He was standing at the door and while leaning out the door, he lost his balance and fell down. It was a negligent act of the injured. According to the respondent, the appellant/claimant is, therefore, not entitled to claim compensation.

5. The appellant has examined himself as a sole witness. One witness has been examined by the railway. Learned Members of the Tribunal have found that there was no substance in the claim and therefore, the claim was dismissed. The appellant is before this Court in appeal.

6. I have heard learned Advocate Mr R. G. Bagul for the appellant and the learned Advocate Ms Neerja Chaubey for the respondent-railway. Perused the record and proceedings.

7. In the facts and circumstances, following points fall for my determination:

"(i) Whether the appellant proved that on the relevant date, he sustained the injuries due to fall from the running train and as such, it was in an untoward incident

(ii) Whether the appellant was a bona fide passenger travelling with a valid journey ticket"

8. Learned Advocate for the appellant submitted that the appellant was a bona fide passenger travelling with a valid journey ticket from Nagpur to Chandrapur. Learned Advocate submitted that the case sought to be made out by the railway that at Bandhak railway station, the injured tried to de-board the train and in the process, fell down and sustained injury cannot be accepted. Learned Advocate pointed out that the injured was travelling to Chandrapur and therefore, there was no reason for him to get down at Bandhak railway station. Learned Advocated submitted that the approach of the Tribunal was not proper. The evidence has not been properly appreciated.

9. Learned Advocate for the respondent-railway submitted that the incident occurred due to the negligence of the injured. Learned Advocate submitted that there is ample evidence to show that the injured tried to de-board the moving train at Bandhak railway station and in the said incident, he sustained the injury. In short, the learned Advocate supported the judgment & order passed by the learned Tribunal.

10. Admittedly, the journey ticket was recovered from the possession of the injured. The ticket was verified. It was a valid journey ticket for a journey from Nagpur to Chandrapur. The injured person, as can be seen from the journey ticket, was travelling from Nagpur to Chandrapur. The injured had boarded the Jaipur-Secunderabad Express at Nagpur. He fell from the moving train near Bandhak railway station. The Jaipur-Secunderabad Express had no scheduled halt at Bandhak railway station. The claim of the appellant has been rejected on the ground that the incident occurred due to his negligence. On going through the record and evidence, I am of the view that the learned Members of the Tribunal have not properly appreciated the material placed on record and have come to the wrong conclusion.

11. Admittedly, the injured had boarded the train at Nagpur. The incident occurred while travelling from Nagpur to Chandrapur. The accidental falling of any passenger from a moving train is an untoward incident as defined under Section 123(c)(2) of the Railways Act, 1989 (for short ‘the Act of 1989’). The appellant is the injured. In his evidence, he has narrated the first-hand account of the incident. He has stated that due to a sudden jerk near Bandhak railway station, he lost his balance and fell down.

12. It is the case of the railway that the injured person was negligent and therefore, the injury sustained by him was a self-inflicted injury. The railway has come before this Court with twofold contentions. The first contention is that the appellant tried to de-board the train at Bandhak railway station and in the process, fell down. The second defence is that the appellant was leaning out the door of the train at Bandhak railway station and in the process, he lost his balance and fell down. In my view, this contention cannot be accepted. In this factual situation, the defence of negligence or contributory negligence is not available to the railway. In this context, useful reference can be made to the decision of the Apex Court in the case of Union of India .v/s. Rina Devi (2019) 3 SCC 572. Para No. 25 is relevant for this purpose. It is extracted below:

“25. We are unable to uphold the above view as the concept of ‘self inflicted injury’ would require intention to inflict such injury and not mere negligence of any particular degree. Doing so would amount to invoking the principle of contributory negligence which cannot be done in the case of liability based on ‘no fault theory’. We may in this connection refer to judgment of this Court in United India Insurance Co. Ltd. versus Sunil Kumar laying down that plea of negligence of the victim cannot be allowed in claim based on ‘no fault theory’ under Section 163-A of the Motor Vehicles Act, 1988. Accordingly, we hold that death or injury in the course of boarding or de-boarding a train will be an ‘untoward incident’ entitling a victim to the compensation and will not fall under the proviso to Section 124-A merely on the plea of negligence of the victim as a contributing factor.”

13. In Rina Devi (supra), the Hon'ble Apex Court has held that the principle of contributory negligence cannot be invoked in case of liability based on 'no fault theory'. It is held that the liability to pay compensation under the Act of 1989 is based on 'no fault theory'. It is held that death or injury in the course of boarding or de-boarding train will be an untoward incident entitling the victim to compensation and will not fall under the Proviso to Section 124A, merely on the plea of negligence of the victim as a contributing factor. In my view, the law laid down in Rina Devi (supra), supports the contention of the appellant/claimant.

14. In this case, on the basis of the evidence, it has been proved that the injured fell from a moving train. He was a bona fide passenger. The defence of contributory negligence is not available to the railway. The case of the appellant would be covered by the first part of Section 124 A of the Act of 1989. The case would not be covered under any of the clauses to the proviso to Section 124-A. In view of this, I conclude that the injury sustained by the appellant was in an untoward incident. He was a bona fide passenger. As such, I record my findings on both points in the affirmative.

15. The next important issue is as to the quantum of compensation. The quantum of compensation depends on the nature of injury sustained by the injured. The photograph of the appellant is on record. It is seen that his right leg below the knee has been amputated. It is seen that the amputation below the knee is exceeding 3½ inches but not exceeding 5 inches. In my view, therefore, the case of the appellant would be covered by Clause 20 of Part III of the Schedule to Railway Accidents and Untoward Incidents (Compensation) Rules, 1990.

16. The incident occurred prior to 01.01.2017. However, in view of the notification dated 22.12.2016, issued by the Ministry of Railways (Railway Board), the appellant would be entitled to receive the compensation. After amendment of the Schedule to Railway Accidents and Untoward Incidents (Compensation) Rules, 1990, with effect from 01.01.2017, the compensation payable under the various entries has been revised. In view of the amendment, the appellant would be entitled to get compensation of Rs.4,00,000/-. However, in view of the law laid down in the case of Union of India .v/s. Radha Yadav (2019) 3 SCC 410, the appellant shall not be entitled to any interest.

17. Accordingly, I pass the following order:

"(i) The first appeal is allowed.

(ii) The judgment and order dated 16.11.2015 passed by the Railway Claims Tribunal, Nagpur Bench, Nagpur in Claim Application No. OA(IIu)/NGP/2013/ 0117 is quashed and set aside. The claim application is allowed.

(iii) Respondent-railway is directed to pay Rs.4,00,000/-(Rupees Four Lacs Only) towards compensation to the appellant.

(iv) The compensation amount of Rs.4,00,000/-be deposited with the Registry of this Court within four months. If the amount is not deposited within four months, the amount shall carry interest @ of 6% p.a. from the date of this order until realization of the amount.

(v) After depositing the amount, the appellant is permitted to withdraw the balance amount, with accrued interest, if any."

18. The first appeal stands disposed of. No order as to costs. Pending applications, if any, stand disposed of.