MAJIDAN BIBI Vs. UNION OF INDIA

JUDGEMENT

(1.) I.A. No. 5238/2014 - This interlocutory application has been filed for condoning the delay of 311 days in preferring the instant appeal.

(2.) Learned counsel for the appellant/claimant has argued that the learned Tribunal has committed error by holding that the injury sustained by the deceased(Md. Mithun) who was travelling from Tata to Howrah by Ispat Express, Train no. 2872, on 07.08.2010, was self-inflicted. It is contended that the burden lies on the Railways to prove that the falling of deceased from the train was due to criminal act or negligence on the part of part of the deceased and the injury sustained was self-inflicted which comes within the purview of the Exceptions (a) to (e) of the proviso to Sec. 124-A of the Railways Act,1989(hereinafter to be referred as 'the Act'). It is submitted that the witnesses have stated that the deceased was in the habit of taking gutka and he was standing near the door of the compartment and a passenger was sitting on the foot-board of the door. That the deceased had leaned out of the door of the compartment to spit in order to avoid the spit falling on the person sitting on the foot board of the compartment due to which he fell down. It is urged that even if the statement of the witnesses is believed to be true then the fall of the deceased cannot be termed as a 'criminal act' and the Railway Administration cannot escape the liability to pay the compensation under Sec. 124-A. Learned counsel has relied on the decision of the Apex Court in the case of Jameela and ors. Vs. Union of India, reported in (2010) 12 SCC 443 wherein the Supreme Court has held that even if the deceased fell down from a train due to his own negligence it will not be a reason to deny the compensation under Sec. 124 A of the Act. It is contended that the Tribunal has not appreciated the provisions of the law as enshrined under Sec. 124-A of the Act and without any material evidence the Tribunal has dismissed the claim of the appellant/claimant hence, the impugned judgment is fit to be set aside.

(3.) Per contra, learned counsel for the respondent has contended that co-passenger, namely, Ravi Kumar Sahu has categorically stated that the deceased, Md. Mithun was habituated to taking 'gutka' and when he leaned out of the door of the compartment to spit he was hit by the overhead electric pole which proves that the deceased sustained injuries on account of his own fault and criminal negligence hence the injury sustained is self inflicted injury. It is submitted that the finding of the learned Tribunal is based on the evidence of the co-passenger and the Railway is not responsible to pay any compensation as the incident is covered under the Exception clauses (a) to (e) of the proviso of Sec. 124-A of the Act.