Gujarat High Court
Union vs Kalpanaben on 4 February, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
Print
FA/278/2005 16/ 37 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 278 of 2005
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.K.RATHOD
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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UNION
OF INDIA - Appellant(s)
Versus
KALPANABEN
PRAVIN PATIN W/O DECD. PRAVIN PATIL & 1 - Defendant(s)
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Appearance
:
MR
MUKESH A PATEL for
Appellant(s) : 1,
MR MAHESH B SHAH for Defendant(s) : 1 - 2.
MR
KUNAL M SHAH for Defendant(s) : 1 -
2.
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 04/02/2010
ORAL
JUDGMENT
Heard learned advocate Mr. MA Patel on behalf of appellant Western Railway through General Manager, learned advocate Mr. MB Shah with learned advocate Mr. UM Shashtri appearing for respondent claimants.
This appeal is preferred for jurisdiction and Court fees for Rs. 4,00,000/- challenging award passed by Railway Claims Tribunal, Ahmedabad Banch in claim application no. TAO 100002 dated 12/11/2003. The Railway claims Tribunal has awarded Rs. 4,00,000/- with 9% interest from date of claim petition before Nagpur Railway claims Tribunal to the date of payment along with costs of litigation to both applicants in actual share through account payee cheque. The cheque in favour of applicant no. 2 Dharti Pravin Patil who is minor shall be drawn through mother and natural guardian applicant no. 1 Kalpanaben Pravin Patil.
Learned advocate Mr. Patel has supplied paper book to this Court as well as it supplied to learned advocate Mr. MB Shah. Learned advocate Mr. Patel raised number of contentions on merits before this Court. The date of accident is 29/11/1999, itself is improbable because according to claimant, they received information through public notice.
He submitted that panchnama was drawn on 3/12/1999 even inquest panchnama also drawn in 3/12/1999 and dead body was found there. So, in such circumstances, accident by train is not at all possible.
He submitted that according to case of claimants, along with deceased his grand mother in law was travelling and both were started journey from Jalgaon. Even though, grand mother in law was not examined before Railway Claims Tribunal and no statement was obtained by police authority and claimant remained silent that what happened to grand mother when she reached to Ahmedabad whether she inquired about son in law or not?
He relied upon annexure C at page 40 statement of father of applicant given to police authority dated 4/12/1999. He is having serious doubt about accident and according to him, it may be possible that person has been murdered at some other place and thereafter he was placed to railway track.
He also referred page 16 certificate and page 19 panchnama, where name of witness Madhukar Patil and Girdhar Patil, who have given information are changed. Therefore, he doubted that name of informer is also changed while leading inquest panchnama page 23.
He submitted that informer Kashinath was Gangman. At the time of accident, there was no chain pulling and there is no reporting to Railway authority and while reading inquest panchnama page 25 he described various injuries on the body of deceased and also pointed out time of carried out inquest panchnama on 3/12/1999 page 27. Page 44 is inquiry report of Railway police referred by him. He vehemently submitted that claimant has not made clear discloser of correct facts in claim petition.
He also submitted that even income was not narrated by claimant. No independent witness was examined by claimant. The issue no. 1 and 2 not properly examined by claims Tribunal. The father of deceased was not join as a party, therefore, it amounts to non joining of parties.
He referred section 123 (C)(2) definition of Untoward incident . He also submitted that Rs. 4,00,000/- amount of compensation is maximum but before passing award granting compensation, Railway Accident Claims Tribunal must have to exercise its discretion and that contention has been raised in ground G by appellant. He relied upon section 124 (A) read with Rule 3(1) which rules framed u/s 129 of Railway Act.
He submitted that condition which has been incorporated in section gave discretion to Railway Accident Claims Tribunal to consider facts and circumstances of each case before exercising power of awarding compensation and it is not necessary that in each case of death, Railway Accident Claims Tribunal must have to award Rs. 4,00,000/-.
He also relied upon ground J to M and other relevant grounds mentioned in appeal memo. He also raised contention that Railway Accident Claims Tribunal has no jurisdiction to grant interest in favour of claimants upon amount of compensation. In short, he referred entire paper book minutely before this Court and almost read claim petition, certificate, inquest panchnama, other panchnama, Postmortem report and reply filed by appellant before this Court.
He also raised doubt that in panchnama there was a informer Patil, person who died also Patil and Gangman Kashinath is also Patil. Therefore, according to him, this accident is not occurred while travelling in train and deceased was not bonafied passenger. Therefore, Railway Accident Claims Tribunal has committed gross error in awarding compensation in favour of claimant. Except that he has not relied upon any decision in support of his contention.
Learned advocate Mr. Shah appearing for respondent claimant submitted that deceased was travelling from Jalgaon with his grand mother in law and tickets found from his pocket and he obtained two tickets (one of for himself and another is for his grand mother). Because of short time to boarded train at Jalgaon, due to age of grand mother in law, she was able to get seat in compartment but deceased was not able to get seat or place in same compartment. He was travelling on the date of 29/11/1999 in other compartment. Therefore, grand mother in law was not aware about facts of accident.
He submitted that on behalf of appellant before Railway Accident Claims Tribunal, none was examined in support of their defence. He also submitted that tickets found from pocket of deceased is not disputed by appellant. He submitted that whatever contention raised by learned advocate Mr. Patel before this Court none of contention was raised by appellant before Railway Accident Claims Tribunal.
He also submitted that submission made by learned advocate Mr. Patel as if that he was arguing criminal matter of murder case but not arguing matter in compensation case. The relevancy of Postmortem report, inquest panchnama and statement of father obtained by police are considered by Railway Accident Claims Tribunal and it was found that on the date of accident, deceased was having genuine railway tickets for travelling and he was died due to accident as Untoward incident has been happened. Therefore, deceased was bonafied passenger found dead body in place of railway authority, which was found by Gangman Kashinath Patil. Thereafter, it was informed to station master and station master has called Police authority where it was made clear that accident has been occurred within premises/place belonging to Railway authority. Therefore, he submitted that Railway Claims Tribunal has rightly examined matter, for that, Railway Claims Tribunal has not committed any error which would require interference by this Court.
He also submitted that Railway Tribunal has jurisdiction to grant interest as per recent decision of Orissa High Court in case of Union of India & Anr. Vs. Trilochan Nayak & ors reported in AIR 2009 Orissa 91.
Learned advocate Mr. Shah submitted that in definition of Untoward incident such kind of incidents are covered which has been rightly considered by Railway Accident Claims Tribunal. For that, no interference would require by this Court.
I have considered submission made by both learned advocates and I have perused judgment passed by Railway Accident Claims Tribunal. The claim petition was filed initially before Nagpur Bench. Thereafter, it was transferred to Ahmedabad Bench.
According to claimant Kalpanaben Pravin Patil, on 4/12/1999 there was a news in local papers Deshdoot and Lokmat that between Chavalkheda and Dharangaon railway station, deceased had fallen down from Puri Okha Express and died on the spot. According to claimants, deceased had purchased second class ordinary ticket no. 35835025 for two adults (i.e. for himself and another is for mother in law) travelling from Jalgaon to Ahmedabad on 29/11/1999 and boarded the train. Due to heavy rush of passengers and pushes, deceased fell down between Chavalkheda and Dharangaon Railway station and he died on the spot.
The written statement filed by appellant before Railway Tribunal denying all averment of claim application generally but in particular stated that tickets mentioned by claimant was not sold at its booking window. The liability has been denied by appellant.
Thereafter, issues have been framed by Railway Accident Claims Tribunal. On behalf of claimant, widow of deceased submitted her own affidavit and she was cross examined at length by Shri A. B. Gautum, learned advocate for appellant. The claimant no. 1 produced and proved following documents. The detailed references to such of documents as are relevant would be made shortly are as under:
1. Original Ticket Exh.A/1
2. Certificate of Accident Exh.A/2
3. Panchnama of place of Exh.A/3 occurrence
4. Inquest Panchnama Exh.A/4
5. Investigation Report Exh.A/5
6. Post-mortem Report Exh.A/6
7. Paper cutting Exh.A/7
8. Statement of Ramchandra Patil Exh.A/8
9. Marriage Invitation Card Exh.A/9
10.Ration card Exh.A/10
11.Photograph of the applicant Exh.A/11
12. Visiting card of National Pariwar Corporation Exh.A/12 During cross examination, claimant no. 1 explained that her grand mother told her about incident because she was accompanying deceased. She is very old and unable to move and residing in her native village in Maharashtra. The claimant no. 1 further stated that her grand mother had occupied seat in different compartment than the compartment boarded by her late husband. It is necessary to note that appellant did not lead any evidence in rebuttal.
Thereafter, matter was heard by Railway Accident Claims Tribunal. The Railway Accident Claims Tribunal has decided issue no. 1 whether deceased was bonafied passenger on 29/11/1999 in train no. 8401 or not? The claimants have produced tickets vide exh A/1 which was issued on 29/11/1999 from their Railway Station for journey from Jalgaon to Ahmedabad. It is for two adults. It is in accordance with case of claimant. While in written statement respondent had asserted that ticket was not issued from its window. The said assertion was not pursued at the time of final argument. The ticket on the face of it, appears to be genuine and proper. In view of this ticket, it is held that deceased was bonafied passenger in train no. 8401 and was travelling from Jalgaon and she travelling from Jalgaon to Ahmedabad on 29/11/1999 with other passengers. Therefore, Railway Accident Claims Tribunal has come to conclusion that claimant has proved satisfactorily by producing relevant documents on record which has not been disproved by appellant and held that deceased was travelling with valid and proper ticket on the date of accident.
The issue no. 2 is also examined whether deceased died on that date due to 'untoward incident' or not? The claimant stated in affidavit that deceased was accompanied by her grand mother means mother's mother. The grand mother had occupied different compartment as told by her. The deceased had boarded different compartment and fell down from train between Chavalkheda and Dharangaon. Therefore, Railway Accident Claims Tribunal has come to conclusion that it is clear that dead body of deceased was discovered only 3/12/1999. It is apparent from inquest panchnama which was prepared on that date from 15.05 hrs to 15.55 hrs. It is clearly mentioned there that panchas and police officers were lead by Kashinath Gangman, to show place where dead body was lying. The party reached that place and found dead body of 35 years old person. It had deteriorated so much, so that his private parts could not be observed. Some parts of body had been eaten by forest animals, others had swelled. The panchnama of place of occurrence exh A/3 which was also prepared on the same day 3/12/1999 from 17.15 to 17.55 hrs mentioned that place of incident is situated on Dhule Bhusaval railway line, near line there is a telephone pole bearing km. no. 281(1)/2. There is a blood on earth. The distance between telephone pole and dead body is 50ft. In short, it established that deceased fell down between Chavalkheda and Dharangaon.
The police made report to Taluka Magistrate, Dharangaon exh A/5 in which it is mentioned that Shri D. K. Pardeshi, Railway Station Master, Chavalkheda had informed that on 3/12/1999 at 12.30 hrs in Eastern Railway, at Km. 287/(1)-2 deceased fell down and died.
The police recorded statement of father of deceased which was exhibited at A/8. It was recorded on 4/12/1999. In this, father of deceased explained in what circumstances, deceased had gone to his married sister's house and was returning with grand mother in law. When his grand mother in law informed them about fact, he and father of applicant no. 1 started searching and then learnt about falling down of deceased and died. There was no witness to manner in which deceased fell down from train but Railway Accident Claims Tribunal has come to conclusion that it is obvious surrounding circumstances that he had fallen down from train. The dead body was found that place on high line between Chavalkheda and Dharangaon where deceased had no business to be present otherwise. His dead body was discovered by Gangman who informed Station Master who in turn told Police and all of them vehemently say that deceased had fallen down from train. It could not have been otherwise.
Therefore, Railway Accident Claims Tribunal has come to conclusion that in view of above evidence which are on record, deceased was victim of 'untoward incident' in terms of section 123(C)(2) of Railway Acts 1989. Therefore, issue no. 2 is also decided by Railway Accident Claims Tribunal while coming to conclusion that deceased died due to 'untoward incident'.
The question of dependency also examined by Railway Accident Claims Tribunal. The deceased was married. The Marriage invitation Card produced on record exh A/9 and photographs of marriage vide exh A/11 were produced. In his statement to police exh. A/8, father of deceased clearly stated that deceased was married and his daughter in law was pregnant. In case of death, due to 'untoward incident', wife and daughter of deceased are dependent u/s 123(b)(i) of Railways Act 1989. The parents can also be dependent if they were actually dependent on deceased but no such circumstances has been brought on record. Therefore, Railway Accident Claims Tribunal has come to conclusion that wife and daughter of deceased are dependent of deceased and they are entitled to compensation.
The Railway Accident Claims Tribunal has decided issue no. 4 and considered case of claimant u/s 124 (A) of Railway Act 1989 and amount of compensation which has been fixed under provision of Railway Act u/s 124 (A) is not matter of discretion. It is prescribed by schedule to Railway accident and Untoward Incident Compensation Rules 1990 as per part I of said schedule in case of fatal 'untoward incident, Rs. 4,00,000/- is payable by respondent. Accordingly, order has been passed by bench of Ahmedabad of Railway Tribunal on 12/11/2003.
In view of observation made by Railway Accident Claims Tribunal as referred above whatever documents have been referred by learned advocate Mr. Patel raising doubt in each document before this Court when such documents have not been challenged by appellant before Railway Accident Claims Tribunal. The appellant has not produced any rebuttal evidence before Railway Accident Claims Tribunal in respect to documents which are produced by claimant from exh. A/1 to A/12. The Railway Accident Claims Tribunal has considered each and every documents and examined it on the basis of evidence of claimant and statement of father obtained by police, panchnama, inquest panchnama, and statement of Gangman and also considered information given by Station master of appellant.
Therefore, contention which has been raised by learned advocate Mr. Patel while scrutinizing each document in his own manner creating doubt in his mind that such incident is not occurred at all and it is not untoward incident to present accident such incident not occurred on 29/11/1999 and information was received by claimant on 3/12/1999. From very beginning, he started argument with doubt but it is necessary to note that no such doubt raised by appellant before Railway Accident Claims Tribunal. None was examined by appellant before Railway Accident Claims Tribunal. Even original tickets which were found from pocket of deceased issued for Jalgaon to Ahmedabad by booking office of Jalgaon is also not doubted and no person from Jalgaon booking window was examined before Railway Accident Claims Tribunal. Means tickets produced by claimant has been proved before Railway Accident Claims Tribunal and on that basis, in absence of rebuttal evidence considering relevant provision of Railway Act 1989 section 123(C)(2) and Section 124 (A) with Rule 1990 part I of schedule has been properly considered while applying facts of present case and on that basis, claimant has satisfied requirement of section. Therefore, Railway Accident Claims Tribunal has rightly come to conclusion that deceased was died as bonafied passengers and it amounts to untoward incident and widow and minor daughter are dependent. They are entitled Rs. 4,00,000/- being amount of compensation because there is no discretion is available to Railway Accident Claims Tribunal to varried amount of compensation.
The Railway Accident Claims Tribunal has rightly awarded 9% interest from the date of filing application before Nagpur Railway Claims Tribunal to the date of payment along with costs of litigation because for that, Railway Tribunal has jurisdiction to grant or award interest amount upon amount of compensation as per recent decision of Apex Court reported in 2009 (8) JT SC 525 in case of Tahazhathe Parayil Sarabi and Ors Vs. Union of India, which has been relied by this Court while deciding same issue in case of Union of India Vs. Ashokbhai Govindbhai Patni reported in AIR 2009 Guj 149 where in para 8, 9 and 10 are quoted as under:
8. The Apex Court in case of Union of India v. Prabhakaran Vijay Kumar and others reported in (2008) 9 SCC 527 has made following observations in Para.10, 11, 12, 14, 17, 44 to 51 which are quoted as under :
10. We are of the opinion that it will not legally make any difference whether the deceased was actually inside the train when she fell down or whether she was only trying to get into the train when she fell down. In our opinion in either case it amounts to an accidental falling of a passenger from a train carrying passengers . Hence, it is an untoward incident as defined in Section 123(c) of the Railways Act.
11. No doubt, it is possible that two interpretations can be given to the expression accidental falling of a passenger from a train carrying passengers , the first being that it only applies when a person has actually got inside the train and thereafter falls down from the train, while the second being that it includes a situation where a person is trying to board the train and falls down while trying to do so. Since the provision for compensation in the Railways Act is a beneficial piece of legislation, in our opinion, it should receive a liberal and wider interpretation and not a narrow and technical one.
Hence in our opinion the latter of the abovementioned two interpretations i.e. the one which advances the object of the statute and serves its purpose should be preferred vide Kunal Singh vs. Union of India (2003) 4 SCC 524(para 9), B. D. Shetty vs. CEAT Ltd. (2002) 1 SCC 193 (para 12), Transport Corporation of India vs. ESI Corporation.
12. It is well settled that if the words used in a beneficial or welfare statute are capable of two constructions, the one which is more in consonance with the object of the Act and for the benefit of the person for whom the Act was made should be preferred. In other words, beneficial or welfare statutes should be given a liberal and not literal or strict interpretation vide Alembic Chemical Works Co. Ltd. vs. The Workmen AIR (para 11), Lalappa Lingappa and others vs. Laxmi Vishnu Textile Mills Ltd. 852 (para 13), S. M. Nilajkar vs. Telecom Distt. Manager (2003) 4 SCC 27(para 12) etc.
14. In our opinion, if we adopt a restrictive meaning to the expression accidental falling of a passenger from a train carrying passengers in Section 123(c) of the Railways Act, we will be depriving a large number of railway passengers from getting compensation in railway accidents. It is well known that in our country there are crores of people who travel by railway trains since everybody cannot afford traveling by or in a private car. By giving a restrictive and narrow meaning to the expression we will be depriving a large number of victims of train accidents (particularly poor and middle class people) from getting compensation under the Railways Act. Hence, in our opinion, the expression accidental falling of a passenger from a train carrying passengers includes accidents when a bona fide passenger i.e. a passenger traveling with a valid ticket or pass is trying to enter into a railway train and falls down during the process. In other words, a purposive, and not literal, interpretation should be given to the expression.
17. Section 124A lays down strict liability or no fault liability in case of railway accidents. Hence, if a case comes within the purview of Section 124A it is wholly irrelevant as to who was at fault.
44. In India, Article 38(1) of the Constitution states the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life .
45. Thus, it is the duty of the State under our Constitution to function as a Welfare State, and look after the welfare of all its citizens.
46. In various social welfare statutes the principle of strict liability has been provided to give insurance to people against death and injuries, irrespective of fault.
47. Thus, Section 3 of the Workmen s Compensation Act 1923 provides for compensation for injuries arising out of and in the course of employment, and this compensation is not for negligence on the part of the employer but is a sort of insurance to workmen against certain risks of accidents.
48. Similarly, Section 124A of the Railways Act 1989, Sections 140 and 163A of the Motor Vehicles Act, 1988, the Public Liability Insurance Act, 1991 etc. incorporate the principle of strict liability.
49. However, apart from the principle of strict liability in Section 124A of the Railways Act and other statutes, we can and should develop the law of strict liability de hors statutory provisions in view of the Constitution Bench decision of this Court in M.C. Mehta s case (supra). In our opinion, we have to develop new principles for fixing liability in cases like the present one.
50. It is recognized that the Law of Torts is not stagnant but is growing. As stated by the American Restatement of Torts, Art 1; vide D. L. Lloyd:
Jurisprudence:
The entire history of the development of the tort law shows a continuous tendency, which is naturally not uniform in all common law countries, to recognize as worthy of legal protection, interests which were previously not protected at all or were infrequently protected and it is unlikely that this tendency has ceased or is going to cease in future.
51. There are dicta both ancient and modern that the known categories of tort are not closed, and that novelty of a claim is not an absolute defence. Thus, in Jay Laxmi Salt works (P) Ltd. vs. The State of Gujarat. JT 1994 (3) Learned advocate Mr.Joshi has filed sick note. Therefore, the matter is adjourned to 9.5.2008. 492 (vide para 7), the Supreme Court observed:
Law of torts being a developing law its frontiers are incapable of being strictly barricaded .
52. In Ashby vs. White (1703) 2 Ld. Raym 938, it was observed (vide Pratt C.J.):
Torts are infinitely various, not limited or confined .
53. In Donoghue vs. Stevenson (1932) AC 562 (619) (HL), it was observed by the House of Lords (per Macmillan, L.J.):
The conception of legal responsibility may develop in adaptation to altering social conditions and standards. The criterion of judgment must adjust and adapt itself to the changing circumstances of life.
54. The above view was followed in Rookes vs. Barnard (1964) AC 1129 (1169) (HL) and Home Officer vs. Dorset Yacht Co. Ltd (1970) 2 All ER 294 (HL).
9. The question of interest, whether Railway Claims Tribunal is competent to grant interest pendente lite or future interest without any specific provisions regarding payment of interest either in Railways Act or in Railways Claims Tribunal Act ? The aforesaid question raised before the Orissa High Court in case of Union of India & Anr. v. Trilochan Nayak & Ors reported in AIR 2009 ORISSA 91. Relevant observations of aforesaid decision are in Para.11 to 16 and 21 are quoted as under :
11. The learned counsel for the appellant railway further submitted that the Tribunal can award interest only if the Act authorized the Tribunal to award interest on the amount of compensation. As the Railways Act and Rules are silent regarding payment of interest on the awarded compensation, the Tribunal has no jurisdiction to award interest and it has illegally awarded the interest from the date of filing of the application. The Tribunal could have awarded interest only after the compensation was determined by it and as per Section 127 of the Act the railway authorities are liable to pay the amount to the claimants. Therefore, interest is to be awarded from the date of the award and not from the date of the application. In support of his contention he has cited the decision of the Bombay High Court in the case of Mahadeo Laxman Kumare and another v. Union of India reported in 2005 (1) TAC 5 507 (Bombay) (DB) where it was held that interest is payable only from the date of the award. He also cited a decision of this Court in the case of Union of India v. Kasinath Behera & Others, reported in 2006 (III) CLR 309 (FAO Nos.331 of 2005) wherein this Court allowed the interest from the date of the award till the date of payment and not from the date of the application.
12. Learned counsel appearing for the respondents claimants, however, cited a decision of a Division Bench of the Kerala High Court in the case of Union of India v. Brigeet Chacko, reported in 2007 (4) TAC 518 (Ker.) : AIR 2007 Ker 268 wherein it was held that the interest is payable from the date of application at such rate at the discretion of the Tribunal. The Tribunal can consider bank rate also. It may take into consideration the other statutory provisions from the said purpose.
13. From the above rival submissions of the parties and from the provisions of the statute, it is clear the Railways Act and Rules do not contain any provision to award interest on the amount of compensation.
14. The Tribunal awarded the compensation as per the Schedule of the Railways Act in exercise of its judicial discretion and can award interest on the compensation amount taking into consideration the provisions under Section 34 of the Civil Procedure Code. The Civil Procedure Code lays down the procedure to be adopted in civil Courts and its principles may be applicable to other Courts. It provides for a fair procedure for redressal of disputes in accordance with law. Law determines the legal rights of the individuals and it contains provisions either to be enforced, applied for restraining from doing certain acts. Justice is administered in Courts, keeping in mind the law applicable in the facts and circumstances of the case. Court has a right to decide a case which fall within its jurisdiction.
15. As per Section 34 of the Civil Procedure Code interest may be awarded to the plaintiff in the suit mainly dividing into three heads : (1) interest approved prior to the institution of the suit, (2) additional interest on the principal sum adjudged from the date of the suit to the date of the decree; (3) further interest on the principal sum adjudged from the date of the decree to the date of the payment.
Interest prior to the date of suit is not a matter of procedure, but the law on the subject may be considered under the following two heads i.e. (i) where there is a stipulation for payment of interest at a fixed rate and (ii) where there is no stipulation For payment of interest. As there is no provision under the Railways Act or the Railway Tribunals Act to award interest, the jurisdiction of the Tribunal will come under the head of 'there is no express stipulation for payment of interest'. If there is no express stipulation for payment of interest, a person is entitled to interest only where a right to it or an authority for its allowances or payment, is conferred by the Statute. Since Section 124 of the Railways Act authorizes a right of compensation in the even of injury or death in a railway accident which is known as untoward incident. Therefor, the Tribunal can grant interest on the compensation amount from the date of the application.
16. The provisions if Interest Act, 1978 are also clear that in any proceedings for the recovery of any debt or damages or in any proceedings in which a claim for interest in respect of any debt or damages already is made, the Court may, if it thinks fit, allow interest to the persons entitled to the debt or damages or to the person making such claim, as the case may be, at a rate not exceeding the current rate of interest, for the whole or part of the following period that is to say; (a) if the proceedings relate to a debt payable by virtue of written statement at a certain time then from the date when the debt is payable to the date of institution of the proceedings; (b) if the proceedings do not relate to any such debt then from the date mentioned in this regard in a written notice given by the person entitled or the person making the claim to the person liable that interest will be claimed to the date of institution of the proceedings.
21. As there is no prohibition either in the Railways Act or Railways Claims Tribunal Act to award interest on the compensation for the injury or death in an untoward incident, the Tribunal has not committed any error in awarding interest in view of the above mentioned provisions of the Interest Act and the Civil Procedure Code. The question formulated at paragraph-3(b) is answered accordingly. Therefore, this Court is not inclined to interfere with the impugned orders passed by the Railways Claims Tribunal, Bhubneshwar Bench, Bhubneshwar.
10. The Apex Court in case of Tahazhathe Purayil Sarabi & Ors. v. Union of India reported in JT 2009 (8) 525 has made following observations in Para.17 to 23 which are quoted as under :
17. The Courts are consistent in their view that normally when a money decree is passed, it is most essential that interest be granted for the period during which the money was due, but could not be utilized by the person in whose favour an order of recovery of money was passed. As has been frequently explained by this Court and various High Courts, interest is essentially a compensation payable on account of denial of the right to utilise the money due, which has been, in fact, utilized by the person withholding the same. Accordingly, payment of interest follows as a matter of course when a money decree is passed. The only question to be decided is since when is such interest payable on such a decree. Though, there are two divergent views, one indicating that interest is payable from the date when claim for the principal sum is made, namely, the date of institution of the proceedings in the recovery of the amount, the other view is that such interest is payable only when a determination is made and order is passed for recovery of the dues.
However, the more consistent view has been the former and in rare cases interest has been awarded for periods even prior to the institution of proceedings for recovery of the dues, where the same is provided for by the terms of the agreement entered into between the parties or where the same is permissible by statute.
18. Accordingly, we are unable to sustain the order of the Railway Claims Tribunal directing payment of interest on default of the payment of the principal sum within a period of 45 days. As we have indicated hereinbefore, when there is no specific provision for grant of interest on any amount due, the Court and even Tribunals have been held to be entitled to award interest in their discretion, under the provisions of Section 3 of the Interest Act and Section 34 of the Civil Procedure Code.
19. In Jagdish Rai & Brothers Vs. Union of India [(1999) 3 SCC 257], this Court, while considering grant of interest in respect of an amount awarded in an arbitration proceeding under Section 9 of the Arbitration Act, 1940 read with Section 34 of the Civil Procedure Code, observed that there are four stages of grant of interest. Firstly, from the stage of accrual of cause of action till the filing of the arbitration proceedings; secondly, during pendency of the proceedings before the arbitrator; thirdly, future interest arising between the date of the award and the date of the decree; and fourthly, interest arising from the date of the decree till realization of the award. This Court held that although the claim for interest had been made before the Court in which proceedings for making the Award the Rule of the Court were pending, the High Court ought to have further examined whether the appellant was entitled to any interest after the decree was made in terms of the award. This Court went on to observe that the Courts have taken a view that the award on interest under Section 34 of the Civil Procedure Code is a matter of procedure and ought to be granted in all cases where there is a decree for money unless there are strong reasons to decline the same. In the said case, this Court modified the decree of the Court of the Subordinate Judge by including a direction for payment of interest @12% per annum 21 from the date when the award was made the Decree of the Court of the Subordinate Judge, till realization.
20. A similar view was expressed by a Three Judge Bench of this Court in Hindustan Construction Co. Ltd. Vs. State of Jammu & Kashmir [(1992) 4 SCC 217].
21. Though, both the two aforesaid cases were in relation to Awards having been made under the Arbitration Act, a principle has been enunciated that in cases where a money award is made, the principles of Section 34 of the Civil Procedure Code and Section 3 of the Interest Act could be invoked to award interest from the date of the Award till the realisation thereof.
22. In the instant case, the claim for compensation accrued on 13th November, 1998, when Kunhi Moosa, the husband of the Appellant No.1, died on account of being thrown out of the moving 22 train. The claim before the Railway Claims Tribunal, Ernakulam, (O.A.No.68/1999) was filed immediately thereafter in 1999. There was no delay on the part of the claimants/appellants in making the claim, which was ultimately granted for the maximum amount of Rs.4 lakhs on 26th March, 2007. Even if, the appellants may not be entitled to claim interest from the date of the accident, we are of the view that the claim to interest on the awarded sum has to be allowed from the date of the application till the date of recovery, since the appellant cannot be faulted for the delay of approximately 8 years in the making of the Award by the Railway Claims Tribunal. Had the Tribunal not delayed the matter for so long, the appellants would have been entitled to the beneficial interest of the amount awarded from a much earlier date and we see no reason why they should be deprived of such benefit. As we have indicated earlier, payment of interest is basically compensation for being denied the use of the money during the period 23 which the same could have been made available to the claimants.
23. In our view, both the Tribunal, as also the High Court, were wrong in not granting any interest whatsoever to the appellants, except by way of a default clause, which is contrary to the established principles relating to payment of interest on money claims.
Recently in case of Ramdhan & Ors Vs. Union of India and Anr reported in 2009 ACJ 2487 Bombay High Court has considered similar aspect and discussed it in para 9 which is quoted as under:
9. Despite quoting the above evidence, the Tribunal held that there was no untoward incident. Surprisingly enough the Tribunal has referred to the scheme of the Act and stated in the impugned order and in particular para 9 that, Railway Administration has fixed the maximum number of passengers, which may be carried by it and that the numbers so fixed are exhibited in a conspicuous manner inside and outside of railway compartment and still the Applicant did not bother to observe the same and made his entry in the compartment knowingly well that there was heavy rush. I quote the said portion of paragraph 9 of the impugned judgment which reads:
It is crystal clear that for each compartment of every description of carriage the Railway Administration has fixed the maximum number of passengers, which may be carried by it and that the numbers so fixed are exhibited in a conspicuous manner inside or outside, but, in spite of that the Applicant did not bother to observe the same and made his entry in the compartment knowingly well that there was heavy rush....
To my mind, the above finding recorded by the Railway Claims Tribunal which consists of judicial and technical members, is ridiculous and does not show any regard to the fact that in the local railway train in Mumbai, people are required to travel and board the train despite heavy rush. The Hon ble Supreme Court of India has taken into consideration several factors including the above and it would be profitable to quote para Nos. 8 to 12, 14 and 17 of judgment in the case of Union of India Vs. Prabhakaran Vijaya Kumar & others reported in 2008 ACJ 1895 which read thus : 8. However, the evidence of D. Sajja, DW 1, who was the Stationmaster at the railway station corroborates the evidence of PW 2. DW 1 had deposed that he saw one girl running towards the train and trying to enter the train and she fell down. He has further stated that the deceased Abja had attempted to board the train and fell down from the running train. For this reason, the Tribunal held that this was not an untoward incident within the meaning of the expression in section 123 (c) of the Railway Act. 1989, as it was not an accidental falling of a passenger from a train carrying passengers.
9. In appeal, Kerala High Court was of the view that the deceased sustained injuries, even according to the respondents, in her anxiety to get into the train which was moving. Hence, the High Court held that the deceased came within the expression accident falling of a passenger from a train carrying passengers which is an untoward incident , as defined in section 123 (c) of the Railways Act, 1989.
10. We are of the opinion that it will not legally make any difference whether the deceased was actually inside the train when she fell down or whether s he was only trying to get into the train when she fell down. In our opinion in either case it amounts to an accidental falling of a passenger from a t rain carrying passengers .
Hence, it is an untoward incident as defined in section 123 (C) of the Railways Act.
11. No doubt, it is possible that two interpretations can be given to the expression accidental falling of a passenger from a train carrying passengers , the first being that it only applies when a person has actually got inside the train and thereafter falls down from the train, while the second being that it includes a situation where a person is trying to board the train and falls down while trying to do so. Since the provision for compensation in the Railways Act is a beneficial piece of legislation, in our opinion, it should receive a liberal and wider interpretation and not a narrow and technical one. Hence, in our opinion, the latter of the above mentioned two interpretations, I.e., the one which advances the object of the statute and serves its purpose should be preferred vide Kunal Singh v. Union of India, (2003) 4 SCC 524 (para 9); B.D. Shetty v. CEAT Ltd., (2002) 1 SCC 193 (para 12); Transport Corporation of India v. E.S. I. Corporation, (2000) 1 SCC 332; etc.
12. It is well settled that if the words used in a beneficial or welfare statute are capable of two constructions, the one which is more in consonance with the object of the Act and for the benefit of the person for whom the Act was made should be preferred. In other words, the beneficial or welfare statutes should be given a liberal and not literal or strict interpretation vide Alembic chemical works Co. Ltd. v. Workmen, AIR 1961 SC 647 (para 7); Jeewanlal Ltd. v. Appellate Authority, AIR 1984 SC 1842 (para 11); Lalappa Lingappa v. Laxmi Vishnu Textile Mills Ltd., AIR 1981 SC 852 (para 13); S. M. Nilakjar v. Telecom Distt. Manager, (2003) 4 SCC 27 (para 12 ); etc.
14. In our opinion, if we adopt a restrictive meaning to the expression accidental falling of a passenger from a train carrying passengers in section 123 (c) of the Railways Act. We will be depriving a large number of railway passengers from getting compensation in railway accidents. It is well known that in our country there are crores of people who travel by the railway trains since everybody cannot afford travelling by air or in a private car.
By giving a restrictive and narrow meaning to the expression we will be depriving a large number of victims of train accidents (particularly poor and middle class people) from getting compensation under the Railways Act. Hence, in our opinion, the expression accidental falling of a passenger from a train carrying passengers includes accidents when a bona fide passenger, I. e., a passenger travelling with a valid ticket or pass is trying to enter into a railway train and falls down during the process. In other words, a purposive, and not literal, interpretation should be given to the expression.
17. Section 124-A lays down strict liability or no fault liability in case of railway accidents. Hence, if a case comes within the purview of section 124-A it is wholly irrelevant as to who was at fault. (Emphasis supplied).
In light of decision of Bombay High Court as referred above having almost identical facts that there is no evidence produced by railway to prove contention that deceased was knocked down by engine of train while crossing the railway track. In such circumstances, whether passenger died due to accident fall from the train and claimants are entitled to compensation which has been held that yes, merely because railway ticket was not found on the person of deceased, it cannot be concluded that he was not a bona fide passenger.
In light of aforesaid two decisions as referred above and considering reasoning given by Railway Accident Claims Tribunal in detailed, after examining each and every documents which are produced by claimant and on that basis fact has been satisfactorily proved before Railway Accident Claims Tribunal that deceased had purchased two tickets and ticket number was given by claimant as well as original ticket was produced for Tribunal and statement of father obtained by police and dead body was found in the area of Railway authority which was informed by Gangman Kashinath. Thereafter, it was informed to Station master and then station master informed to police authority. This are the surrounding circumstances rightly appreciated by Railway Accident Claims Tribunal does not suggest to have any doubt or suspicious about facts which stated by claimants.
Learned advocate Mr. Patel vehemently argued matter from very beginning that it is a doubtful case but, for that, appellant has not led any evidence before Railway Accident Claims Tribunal. Even inquiry report prepared by Railway authority also not produced on record before Railway Tribunal.
Therefore, according to my opinion, Railway Tribunal has not committed any error while deciding application filed by claimants and Railway Accident Claims Tribunal has rightly come to conclusion that such incident is covered by definition of 'untoward incident' u/s 123 (C)(2) of Railway Act and claimants are entitled amount of compensation as per schedule 1 of Rule 90 read with section 124 (A) of Railway Act 1989.
Learned advocate Mr. Patel has not relied upon any decision in support of his submission. Considering provision of section 124(A) read with Rule 1990 Part I of said schedule, there is no discretion with Railway Accident Claims Tribunal to reduce amount of compensation from Rs. 4,00,000/- which has been rightly awarded with 9% interest. For that, also Tribunal is having jurisdiction, which has been held by Apex Court as considered by this Court as referred above.
Therefore, contention raised by learned advocate Mr. Patel can not be accepted, hence, rejected. There is no substance in present first appeal preferred by appellant, therefore, same is dismissed. Ad interim relief granted by this Court stand vacated.
No doubt request is made by learned advocate Mr. Patel to extend interim relief granted by this Court, but it can not be accepted in light of facts that accident is dated 29/11/1999 and judgment passed by Railway Tribunal on 12/11/2003. In all more than 10 years have passed, widow and minor remained without compensation till today.
Therefore, it is directed to Railway Accident Claims Tribunal, Ahmedabad in claim application no. TAO 100002 to pay Rs. 1 Lac by A/c payee cheque in name of Kalpanaben Pravin Patil after proper verification. The rest of amount is to be invested in name of claimants Kalpanaben Pravin Patil (widow of deceased) and Dharti Pravin Patil (daughter of deceased) in Nationalized Bank for a period of five years but FDR is to be remained with Railway Claims Tribunal, Ahmedabad.
It is further directed to Railway Accident Claims Tribunal to incorporate a condition with Nationalized Bank where amount will be deposited so, claimant Kalpanaben Pravin Patil must get monthly interest regularly by A/c payee cheque. In case if bank account number is given by her, then monthly interest amount is to be directly credited by Nationalized Bank without fail in her bank account regularly till FDR is become mature. Thereafter, it is open for respondent claimants to withdraw entire amounts if they so require after giving application to Railway Claims Tribunal for withdrawal of entire amounts.
(H.K.RATHOD, J) asma Top