Delhi High Court
Setu Niket vs Union Of India & Ors on 19 November, 2015
Author: Rajiv Sahai Endlaw
Bench: Chief Justice, Rajiv Sahai Endlaw
* THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 1089/2013 & CM No.2073/2013
Pronounced on: 19.11.2015
SETU NIKET ..... Petitioner
Through: Ms. Esha Mazumdar, Adv.
Versus
UNION OF INDIA & ORS ..... Respondents
Through: Mr. Sanjay Jain, ASG with
Mr.Arun Bhardwaj, CGSC, Mr.Sarfaraz
Ahmed, Ms. Aastha Jain, Ms.Neha Garg,
Mr.Apurva Varma, Ms.Honey Kumari and Mr.
Akash Nagar, Advs. for UOI
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
G. ROHINI, CHIEF JUSTICE:
1. This petition by way of Public Interest Litigation is filed with the
following prayers:-
"(a) to quash Section 129 of the Railways Act, 1989 as ultra
vires Article 14 and 21 of the Constitution;
(b) to quash the Railway Accidents and Untoward Incident
(Compensation) Rules, 1999 providing for Rs.4,00,000/- as the
maximum amount of compensation in case of death or
permanent disability;
(c) to direct the Respondents to appoint a committee of experts
including members of Respondent No.2 and other independent
experts to formulate proper policy or standard to determine
compensation till the same is formulated by the Parliament."
2. We have heard the learned counsel for both the parties.
3. The Railways Act, 1989 (hereinafter referred to as „the Act‟) has
been enacted repealing the Indian Railways Act, 1890. Chapter XIII of
W.P.(C) No.1089/2013 Page 1 of 12
the Act, comprising Sections 123 to 129, deals with the liability of
Railway Administration for death and injury to passengers due to
accidents. Section 125 provides for making an application for
compensation to the Claims Tribunal established under Section 3 of the
Railway Claims Tribunal Act, 1987 (for short „the RCT Act‟) for
compensation under Section 124A of the Act. Section 124 provides for
the liability of Railway Administration for payment of compensation for
the loss occasioned by the death of a passenger or personal injury or
damage to the goods as a result of an accident to a train, whereas
Section 124 or Section 124A provides for the liability of Railway
Administration for payment of compensation for the loss occasioned on
account of an untoward incident. Both Section 124 and Section 124A of
the Act make it clear that the liability of the Railway Administration
shall be to such extent as may be prescribed by the Rules made under
the Act.
4. In exercise of the powers conferred under Section 129 of the Act,
the Central Government made Rules to carry out the purposes of
Chapter XIII of the Act. The said rules, called the Railway Accidents
and Untoward Incidents (Compensation) Rules, 1990 (for short „the
Compensation Rules‟) inter alia provide that the maximum
compensation that can be claimed is Rs.4 Lacs for death and permanent
disability.
5. The vires of Section 129 and the provisions of the Compensation
Rules are sought to be questioned by the petitioner on the following
grounds:
(i) Conferring of power upon the Central Government under Section
129 of the Act to determine the upper limit of compensation by
W.P.(C) No.1089/2013 Page 2 of 12
way of Rules amounts to delegation of essential legislative
function of the Parliament.
(ii) In the absence of any provision in the Act laying down the
standards for fixation of the limit upto which the compensation
can be granted, the impugned Rules are liable to be declared null
and void on the ground of excessive delegation.
(iii) The very object of RCT Act, 1987 is defeated by limiting the
compensation that can be granted by the Tribunal to Rs.4 Lacs.
(iv) The upper limit of Rs.4 Lacs as compensation in case of a rail
accident is not in parity with the compensation provided in case of
accidental deaths or permanent disability by other means.
6. For proper appreciation of the above contentions, it is necessary
to notice the relevant statutory provisions of the Railways Act, 1989:
"Section 124. Extent of liability
When in the course of working a railway, an accident occurs,
being either a collision between trains of which one is a train
carrying passengers or the derailment of or other accident to a
train or any part of a train carrying passengers, then whether or
not there has been any wrongful act, neglect or default on the
part of the railway administration such as would entitle a
passenger who has been injured or has suffered a loss to
maintain an action and recover damages in respect thereof, the
railway administration shall, notwithstanding anything
contained in any other law, be liable to pay compensation to
such extent as may be prescribed and to that extent only for
loss occasioned by the death of a passenger dying as a result of
such accident, and for personal injury and loss, destruction,
damage or deterioration of goods owned by the passenger and
accompanying him in his compartment or on the train,
sustained as a result of such accident.
Explanation.--For the purposes of this section "passenger"
includes a railway servant on duty."
W.P.(C) No.1089/2013 Page 3 of 12
....
Section 124A. Compensation on account of untoward
incident
When in the course of working a railway an untoward incident
occurs, then whether or not there has been any wrongful act,
neglect or default on the part of the railway administration such
as would entitle a passenger who has been injured or the
dependant of a passenger who has been killed to maintain an
action and recover damages in respect thereof, the railway
administration shall, notwithstanding anything contained in any
other law, be liable to pay compensation to such extent as may
be prescribed and to that extent only for loss occasioned by the
death of, or injury to, a passenger as a result of such untoward
incident:
Provided that no compensation shall be payable under this
section by the railway administration if the passenger dies or
suffers injury due to--
(a) suicide or attempted suicide by him;
(b) self-inflicted injury;
(c) his own criminal act;
(d) any act committed by him in a state of intoxication or
insanity;
(e) any natural cause or disease or medical or surgical
treatment unless such treatment becomes necessary due to
injury caused by the said untoward incident.
Explanation. For the purposes of this section, "passenger"
includes-
(i) a railway servant on duty; and
(ii) a person who has purchased a valid ticket for travelling by
a train carrying passengers, on any date or a valid platform
ticket and becomes a victim of an untoward incident."
Section 128. Saving as to certain rights.-- (1) The right of
any person to claim compensation under section 124 29 [or
section 124A] shall not affect the right of any such person to
recover compensation payable under the Workmen‟s
Compensation Act, 1923 (8 of 1923), or any other law for the
time being in force; but no person shall be entitled to claim
compensation more than once in respect of the same accident.
W.P.(C) No.1089/2013 Page 4 of 12
(2) Nothing in sub-section (1) shall affect the right of any
person to claim compensation payable under any contract or
scheme providing for payment of compensation for death or
personal injury or for damage to property or any sum payable
under any policy of insurance.
Section 129 - Power to make rules in respect of matters in
this Chapter. (1) The Central Government may, by
notification, make rules to carry out the purposes of this
Chapter.
(2) In particular, and without prejudice to the generality of the
foregoing power, such rules may provide for all or any of the
following matters, namely:--
(a) the compensation payable for death;
(b) the nature of the injuries for which compensation shall be
paid and the amount of such compensation.‟
7. It is also relevant to refer to Rules 3 and 4 of the Compensation
Rules which read as under:
"Rule 3. Amount of compensation. (1) The amount of
compensation payable in respect of death or injures, shall be as
specified in the Schedule.
(2) The amount of compensation payable for an injury not
specified in Part II or Part III of the Schedule but which, in the
opinion of the Claims Tribunal is such as to deprive a person of
all capacity to do any work, shall be [rupees four lakhs].
(3) The amount of compensation payable in respect of any
injury (other than an injury specified in the Schedule or
referred to in sub-rule (2) resulting in pain and suffering, shall
be such as the Claims Tribunal may after taking into
consideration medical evidence, besides other circumstances of
the case, determine to be reasonable:
Provided that if more than one injury is caused by the same
accident, compensation shall be payable in respect of each such
injury:
Provided further that the total compensation in respect of all
such injuries shall not exceed [rupees eighty thousand].
(4) Where compensation has been paid for any injury which is
less than the amount which would have been payable as
compensation if the injured person had died and the person
W.P.(C) No.1089/2013 Page 5 of 12
subsequently dies as a result of the injury, a further
compensation equal to the difference between the amount
payable for death and the already paid shall become payable.
(5) Compensation for loss, destruction or deterioration of
goods or animals shall be paid to such extent as the Claims
Tribunal may, in all the circumstances of the case, determine to
be reasonable."
Rule 4. Limit of compensation. --
Notwithstanding anything contained in Rule 3, the total
compensation payable under that rule shall in no case
exceed [rupees four lakhs] in respect of any one person."
8. A plain reading of Section 124 and Section 124A of the Act
shows that when in the course of working a railway an accident or an
untoward incident occurs then whether or not there has been any
wrongful act, neglect or default on the part of the Railway
Administration, a passenger who was injured or killed is entitled for
compensation. In other words, there is no obligation on the part of the
claimants of the deceased/injured to prove whether there was a wrongful
act, neglect or default on the part of the Railway Administration.
However, the total compensation payable under Section 124 and Section
124-A of the Act shall not exceed Rupees Four Lacs prescribed under
Rule 4 of the Compensation Rules.
9. The contention of the petitioner is that Rule 4 of the Rules under
which the Central Government has prescribed the upper limit of
compensation payable under Section 124 and Section 124-A of the Act
is beyond the scope of legislative power, particularly in view of the fact
that no guidance has been given under the Act as to how the power
conferred under Rule 4 is to be exercised. Hence, according to the
petitioner Rule 4 of the Compensation Rules as well as Section 129 of
W.P.(C) No.1089/2013 Page 6 of 12
the Act which conferred unguided power on the delegate are liable to be
declared illegal and are liable to be quashed.
10. We may at the outset point out that Section 128 of the Act
provides that the right of the claimant under Section 124 or Section
124A shall not affect the right of any such person to recover
compensation payable under the Workmen‟s Compensation Act, 1923
or any other law for the time being in force. Section 128 further
provides that no person shall be entitled to claim compensation more
than once in respect of the same accident. On a reading of Section
124/124A together with Section 128 of the Act, it is evident that the
right of any person to claim compensation before the Claims Tribunal as
indicated in Section 124/124A shall not affect the right of any such
person to recover compensation payable under any other law for the
time being in force. While interpreting the purport of Section 128 read
with Section 124/124A of the Act, the Supreme Court in
Rathi Menon vs. Union of India, (2001) 3 SCC 714 held:
"25. ...... This means that the party has two alternatives,
one is to avail himself of his civil remedy to claim
compensation based on common law or any other statutory
provisions, and the other is to apply before the Claims
Tribunal under Section 124 or 124-A of the Act. As he
cannot avail himself of both the remedies he has to choose
one between two. The provisions in Chapter XIII of the Act
are intended to provide a speedier remedy to the victims of
accidents and untoward incidents. If he were to choose the
latter that does not mean that he should be prepared to get a
lesser amount. He is given the assurance by the legislature
that the Central Government is saddled with the task of
prescribing fair and just compensation in the Rules from time
to time. The provisions are not intended to give a gain to the
Railway Administration but they are meant to afford just and
reasonable compensation to the victims as a speedier
measure. If a person files a suit the amount of compensation
will depend upon what the court considers just and
reasonable on the date of determination. Hence when he
W.P.(C) No.1089/2013 Page 7 of 12
goes before the Claims Tribunal claiming compensation the
determination of the amount should be as on the date of such
determination."
11. As could be seen from the settled legal position, the upper limit of
compensation payable under Section 124 and Section 124-A of the Act
prescribed by the Central Government under the Compensation Rules in
no way deprives the claimant to claim higher compensation by availing
the other remedies as provided under Section 128 of the Act. It is also
relevant to note that the Railway Claims Tribunal has been established
under Section 3 of the RCT Act, 1987 to exercise the jurisdiction,
powers and authority conferred on it by or under the said Act. RCT Act,
1987 is a special legislation enacted by the Parliament for creating a
speedy remedy of adjudicating claims arising against Railway
administration. Section 13 of the RCT Act, 1987 which provides for the
jurisdiction, powers and authority of Claims Tribunal may be extracted
hereunder for ready reference:-
"Section 13. Jurisdiction, powers and authority of Claims
Tribunal.--(1) The Claims Tribunal shall exercise, on and
from the appointed day, all such jurisdiction, powers and
authority as were exercisable immediately before that day by
any civil court or a Claims Commissioner appointed under the
provisions of the Railways Act,--
(a) relating to the responsibility of the railway administrations
as carriers under Chapter VII of the Railways Act in respect of
claims for--
(i) compensation for loss, destruction, damage, deterioration or
non-delivery of animals or goods entrusted to a railway
administration for carriage by railway;
(ii) compensation payable under section 82A of the Railways
Act or the rules made thereunder; and
W.P.(C) No.1089/2013 Page 8 of 12
(b) in respect of the claims for refund of fares or part thereof or
for refund of any freight paid in respect of animals or goods
entrusted to a railway administration to be carried by railway.
[(1A) The Claims Tribunal shall also exercise, on and from the
date of commencement of the provisions of section 124A of the
Railways Act, 1989 (24 of 1989), all such jurisdiction, powers
and authority as were exercisable immediately before that date
by any civil court in respect of claims for compensation now
payable by the railway administration under section 124A of
the said Act or the rules made thereunder.]
(2) The provisions of the 6 [Railways Act, 1989 (24 of 1989)]
and the rules made thereunder shall, so far as may be, be
applicable to the inquiring into or determining, any claims by
the Claims Tribunal under this Act."
12. It may be added that the RCT Act, 1987 precedes the Railways
Act, 1989. Thus, the reference to Chapter VII of the Railways Act
under Section 13(1)(a) of the RCT Act, 1987 was to the repealed Indian
Railways Act, 1890. It may also be pointed out that Chapter VII of the
repealed Railways Act, 1890 deals with the responsibility of the
Railway Administration as carriers and Section 82-A specifically
provides for the liability of the Railway Administration in respect of
payment of compensation for loss occasioned by the death of a
passenger dying as a result of accidents to train carrying passengers and
for personal injury. Section 82A(2) limits the liability of the Railway
Administration to ten thousand Taka. It is evident that Section 82-A of
the repealed Act corresponds to Section 124-A of the Railways Act,
1989. Section 124A was inserted to the Railways Act, 1989 by way of
amendment w.e.f. 01.08.1994 and simultaneously there was an
amendment to Section 13 of the RCT Act, 1987 inserting sub-Section
(1A) thereby conferring jurisdiction on the Railway Claims Tribunal in
W.P.(C) No.1089/2013 Page 9 of 12
respect of claims for compensation under Section 124A of the Railways
Act also.
13. Thus, it is clear that the Railway Claims Tribunal has been
constituted only for the purpose of the determination of the
compensation under Section 124 and Section 124A of the Railways Act.
The intention of constitution of the Railway Claims Tribunal is to
provide a expeditious and efficacious remedy to the victims of accidents
and untoward incidents. If the claimant chooses to claim higher
compensation based on common law or any other statutory provisions as
provided under Section 128 of the Act, he may do so by initiating
proceedings before the appropriate forum. Therefore, there is no merit
in the contention of the petitioner that the very object of establishing the
Railway Claims Tribunal is defeated.
14. The contention that the power conferred on the Central
Government to fix the upper limit of the compensation under Section
124 and Section 124A of the Act by making the Rules in exercise of the
power conferred under Section 129 of the Act would amount to
excessive delegation was also considered by the Supreme Court in Rathi
Menon (supra) and it was held:
"23. The collocation of the words "as may be prescribed"
in Section 124A of the Act is to be understood as to mean "as
may be prescribed from time to time". The relevance of the
date of untoward incident is that the right to claim
compensation from the Railway Administration would be
acquired by the injured on that date. The statute did not fix
the amount of compensation, but left it to be determined by
the Central Government from time to time by means of rules.
This delegation to the Central Government indicates that it
was difficult for the Parliament to fix the amount because
compensation amount is a varying phenomenon and the
Government would be in a far advantageous position to
ascertain what would be the just and reasonable
compensation in respect of a myriad different kinds of
W.P.(C) No.1089/2013 Page 10 of 12
injuries by taking into account very many factors. What the
legislature wanted was that the victim of the accident must be
paid compensation and the amount must represent a reality
which means the amount should be fair and reasonable
compensation. Government have the better wherewithals to
ascertain and fix such amount. It is for the said reason that
the Parliament left it to the Government to discharge that
function. Sections 124 and 124A of the Act speak the same
language that "the Railway Administration shall be liable to
pay compensation." As pointed above, it is the liability of
the Railway Administration to "pay compensation to such
extent as may be prescribed". Hence the time of ordering
payment is more important to determine as to what is the
extent of the compensation which is prescribed by the rules
to be disbursed to the claimant."
15. In the light of the ratio laid down by the Supreme Court, the
challenge to Section 129 of the Act on the ground that the same has
conferred on the Central Government excessive and unguided power is
also liable to be rejected.
16. The further submission of the petitioner is that the upper limit of
compensation of Rs. 4 lacs was fixed by the Central Government under
the Compensation Rules long back in the year 1997 and thereafter the
Central Government failed to revise the same by amending the Rules
suitably.
17. Under Section 129 of the Act, the Central Government is
empowered to make Rules by notification "to carry out the purposes of
this Chapter". One of the purposes of the said Chapter i.e. Chapter XIII
is that the victims of Railway accidents and untoward incidents must get
compensation. Though the word "compensation" is not defined in the
Act or in the Rules, it would mean giving back an equivalent in money
for loss sustained. Thus, the compensation must represent equivalent or
substitute of equivalent value for the loss or injury. In the case of Rathi
Menon (supra), it was laid down by the Supreme Court that the Claims
W.P.(C) No.1089/2013 Page 11 of 12
Tribunal must consider what the Rules have prescribed at the time of
making the order for payment of compensation. Therefore, it is
obligatory on the part of the Central Government to update the amount
of compensation taking into consideration the substantial change in the
money value and the impact it has caused in the cost of living. We,
therefore, deem it appropriate to direct the respondent Nos. 1 and 2 to
consider the issue of updating the upper limit of compensation
prescribed under Rules 3 & 4 of Compensation Rules and take the
appropriate steps in accordance with law.
18. The writ petition is accordingly disposed of.
CHIEF JUSTICE
RAJIV SAHAI ENDLAW, J.
NOVEMBER 19, 2015 pk W.P.(C) No.1089/2013 Page 12 of 12