provides for compensation on account of untoward incident which term has been defined under section 123(c) of the Act. Even when the provisions of section 124A of the Act casts strict liability on the railway administration to pay compensation in any case of untoward incident unless happening of such would be attributed to any of the cases set up in the proviso to the said provision, a new class, i.e. ‘run over’ has been created by the tribunal to reject the claim. This Court fails to appreciate as to how a case of ‘run over’, even though not defined under the Act, has been created by the tribunal to record an adverse finding. Apart from the fact that a power to legislate is not vested in courts, even otherwise a case of ‘run over’ is nowhere distinguishable from an untoward incident. In fact every case of untoward incident is a case of ‘run over’ until such time that the railway administration proves by oral or documentary evidence that the occurrence falls within the categories detailed in ‘proviso’ to section 124A of the Act. It is not in dispute that neither any documentary nor any oral evidence was adduced by the railways to prove this fact. The burden of proof lay on the railways and their failure to do so, the tribunal cannot fill up the lacuna. The judgment and order is based on presumption, speculations and conjectures. Even if the evidence of A.W.2 is to be disbelieved, although the records speak otherwise, yet there is a death which has taken place on a railway track. Every death on
