Amitav K. Gupta, J. - (1.) I.A. No. 5238/2014 - This interlocutory application has been filed for condoning the delay of 311 days in preferring the instant appeal. Learned counsel for the respondent has opposed that no sufficient cause and reasonable explanation has been given for condoning the delay. Heard. Considering the reasons assigned in paras 3, 4 and 5 of the supporting affidavit, sufficient cause and reasonable explanation has been given, accordingly, delay in preferring the instant appeal is hereby condoned. I.A. No. 5238/2014 stands allowed. I.A. No. 1669 of 2016 This interlocutory application under Order 22, Rule 2 of the Code of Civil Procedure has been filed for deleting the name of appellant no. 1, namely, Majidan Bibi who died on 26.02.2015 and in support of the same death certificate has been filed as Annexure-1. It is submitted by the learned counsel for the appellant that the claim application was preferred by the mother and father of the deceased-Md. Mithun who died on 07.08.2010 due to fall from the train in which he was travelling as a passenger. That during the pendency of the appeal appellant no. 1 has died and the right to sue survives upon appellant no. 2, i.e. the father of the deceased. Learned counsel for the respondent is in attendance. In view of the submission name of appellant no. 1 is permitted to be deleted from the cause title. Learned counsel shall carry out necessary correction in the cause title in course of the day. I.A. No. 1669 of 2016 is disposed of. M.A. No.391 of 2014 This appeal is directed against the order dated 02.08.2013 passed by Member(Technical), Railway Claims Tribunal, Ranchi in Case no. OA(IIU)/RNC/2011/0046 whereby learned Member, Railway Claims Tribunal, Ranchi has rejected the claim for compensation.
(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 Section 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 Section 124-A. Learned counsel has relied on the decision of the Apex Court in the case of Jameela and ors. v. 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 Section 124 A of the Act. It is contended that the Tribunal has not appreciated the provisions of the law as enshrined under Section 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 Section 124-A of the Act.;