1. This appeal filed by the original applicant challenges an order dated 23 February 2015 passed by the Railway Claims Tribunal, Mumbai whereby the Tribunal has dismissed the application for compensation on the ground that the incident does not fall within “untoward incident” as defined under Section 123 (c)(2) of the Railways Act, 1989 and further the deceased was not a bonafide passenger since no ticket was found.

2. I have heard Mr. Rao, learned counsel for the applicant and Mr. Pandian, learned counsel for the respondent.

3. It is the case of the applicant that on 5 August 2006, the deceased alongwith his friend Mr. Sachin Vijay Jewekar was travelling from Nallasopara towards Borivali and the deceased fell down from a moving train between Bhayandar and Nallasopara. It is the case of the applicant that Mr. Sachin Jewekar took the deceased to a private hospital and from the private hospital, the deceased was taken to K.E.M. Hospital, Parel where the deceased died on 10 August 2006. Admittedly, the incident which occurred on 5 August 2006 was not reported to the Station Master or the police authorities on 5 August 2006.

4. On 5 August 2006 when Mr. Sachin Jewekar took the deceased to K.E.M. hospital, Parel there is a mention in the postmortem report dated 10 August 2006 that on 5 August 2006 at 3:15 p.m. when the deceased was brought in, it was stated that the deceased was crossing the railway track at Nallasopara Railway station when he was hit by a running train from behind and he suffered injuries. The deceased was thereafter taken unconscious to a private hospital at Nallasopara and from there, on medical advice, was brought to K.E.M. hospital, Parel where he succumbed to his injuries on 10 August 2006. The only person who took him to K.E.M. Hospital, Parel was Mr. Sachin Jewekar and since the deceased was unconscious, these facts were stated by Mr. Sachin Jewekar to the hospital authorities who have recorded in their medical records, which they have reproduced in their postmortem report.

5. There is no reason why the hospital authorities would state what has been stated unless Mr. Sachin Jewekar had stated so. This statement was made on 5 August 2006 itself at the first available instance to the hospital authorities and therefore it cannot be disbelieved. The subsequent documents dated 8 August 2006 which is a police investigation report and 10 August 2006 which is an inquest panchanama are the documents prepared much after the date of the incident and same were based on what is stated by Mr. Sachin Jewekar where he changed his stand by stating that the deceased fell from a moving train. In my view, in such cases the statement made at the first available instance would be more authentic and since the statement made before the hospital authorities was on 5 August 2006, the same should be accepted rather than what was stated later on by the same person.

6. It is also important to note that the Station Authorities were not informed about the incident. It is not known how, between Bhayandar and Nallasopara the incident occurred and how Mr. Sachin Jewekar took the deceased to the private hospital, since the distance between Bhayandar and Nallasopara is too long. Therefore, the findings given by the Tribunal that the subsequent inquest panchanama and police investigation report cannot be relied upon are justified. However the reasoning given by the Tribunal that the name of Mr. Sachin Jewekar does not appear on these documents is not correct, but nothing turns on that since the statement made before the hospital authority at the first available instance is considered by me for confirming the Tribunal’s order.

7. This is not a case of accidental falling from the train but based on whatever is stated before the hospital authorities it is a case where a person was knocked down while crossing a railway track and therefore it does not fall within the definition of “untoward incident” as defined by the Railways Act, 1989. Since I have held that the incident does not fall within an “untoward incident”, I am not examining the issue of “bonafide passenger” since for claiming compensation a person should not only be a “bonafide passenger” but also should suffer injury or death on account of an “untoward incident”. If any one of the condition is not satisfied the claim is to be rejected and in this case the incident does not fall within the definition of an “untoward incident” and, therefore the Tribunal was justified in rejecting the application.

8. Appeal is dismissed. Civil/Interim Applications, if any does not survive.