Bombay High Court
Shri Sisupalan Vallikalayil & Another vs Union Of India & Another on 27 January, 2016
Equivalent citations: 2016 (3) ABR 125, (2016) 165 ALLINDCAS 510 (BOM), (2016) 4 MAH LJ 154, (2016) 4 ACJ 2751, (2018) 7 ALLMR 441 (BOM), (2016) 4 BOM CR 353
Author: R.K. Deshpande
Bench: R.K. Deshpande
fa381.03.J.odt 1/9
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.381 OF 2003
1] Shri Sisupalan K. Vallikalayil,
Aged about 58 years,
Occupation - Nil.
2] Smt. Subhadra w/o Sisupalan K.
Vallikalayil,
Aged about 47 years,
Occupation - Nil.
Both R/o M.D. Alone Building,
Mohan Nagar, Yashwant Colony,
Nagpur Road, Wardha,
Dist. Wardha. ....... APPELLANTS
...V E R S U S...
Union of India,
through its General Manager,
Central Railway,
Mumbai. ....... RESPONDENT
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Shri Vilas N. Deshpande, Advocate for Appellants.
Shri Z.S. Shekhani, Advocate, holding for Shri R.G. Agrawal,
Advocate for Respondent.
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CORAM: R.K. DESHPANDE, J.
DATE: 27 th
JANUARY, 2016.
ORAL JUDGMENT
1] In Claim Application No.28/OAII/RCT/NGP/2001, the Railway Claims Tribunal, Bench at Nagpur, by its judgment and order dated 13.03.2003, has directed the respondent-Railway Authorities to ::: Uploaded on - 17/02/2016 ::: Downloaded on - 31/07/2016 02:29:55 ::: fa381.03.J.odt 2/9 pay to the appellants a sum of Rs.4,00,000/- towards compensation on account of death of one Siju S. Vallikalayil, caused due to falling down from Train No.2615 (G.T. Express) while travelling on 17.06.2000.
This appeal is by the claimants, who are seeking further enhancement of compensation in this appeal under Section 23 of the Railway Claims Tribunal Act, 1987.
2] The appellants/claimants have paid the court fee of Rs.25/-, as required by Article 13 under Schedule II of the Maharashtra Court Fees Act, 1959. It is the preliminary objection raised, based upon the decision of this Court in the case of Betel Stores by Proprietor Krishna Bonde v. State of Maharashtra, reported in 1991(1) Mh.L.J. 823, urging that this is an order passed under Section 16(1) of the Railways Claims Tribunal Act, which is an "award" within the meaning of Article 3 under Schedule I of the Maharashtra Court Fees Act, and the claimants have to pay the court fee on the amount or the value of the award sought to be set aside or modified according to the scale prescribed under Article 1 under the said Schedule, which is one-half of the amount prescribed in the scale.
3] Shri Deshpande, the learned counsel appearing for the claimants, has invited my attention to the proviso below sub-section (2) of Section 16 of the Railway Claims Tribunal Act, and has urged that the ::: Uploaded on - 17/02/2016 ::: Downloaded on - 31/07/2016 02:29:55 ::: fa381.03.J.odt 3/9 application before the Railway Claims Tribunal was for the claim under sub-section (1-A) of Section 13 of the said Act, and, therefore, no court fee was payable in respect of the claim so made. According to him, the appeal is not from the decree or order having the force of the decree, and, therefore, the office was right in holding that it is governed by Article 13 under Schedule II of the Maharashtra Court Fees Act, which has been complied with by the appellants, and there is no dispute in respect thereof.
4] On merits of the matter, it is urged by the learned counsel for the appellants/claimants that the Railway Claims Tribunal has failed to consider the claim for compensation over and above Rs.4,00,000/-.
According to him, the compensation of Rs.4,00,000/- directed to be paid by the Tribunal is towards no fault liability, as contemplated under Section 124-A of the Railways Act, 1989, and that does not prevent the claimants from claiming the compensation over and above Rs.4,00,000/-
by establishing that it was due to wrongful act, neglect or default on the part of the railway administration, which is the cause of death of the deceased. Further, according to the learned counsel for the respondent, the claimants are not entitled to compensation over and above Rs.4,00,000/-, which is the amount prescribed under Section 124-A of the Railways Act.
::: Uploaded on - 17/02/2016 ::: Downloaded on - 31/07/2016 02:29:55 ::: fa381.03.J.odt 4/9 5] The points for determination are as under:
[i] Whether in an appeal under Section 23 of the Railway
Claims Tribunal Act, 1987 arising out of an application under Section 16(1) read with Section 13 (1-A) the court fee payable is as required by Article 13 under Schedule II of the Maharashtra Court Fees Act, 1959, or under Article 3 of Schedule I of the said Act?
[ii] Whether the claimants are entitled to claim compensation over and above Rs.4,00,000/- under Section 124-A of the Railways Act, 1989 upon establishing that the death in question was caused due to wrongful act, neglect or default on the part of the railway administration?
6] As to point No.[i]:
Section 16 of the Railway Claims Tribunal Act deals with the application to the Claims Tribunal and it is reproduced below:
16. Application to Claims Tribunal.--(1) A person seeking any relief in respect of the matters referred to in sub-section (1) [or sub-section (1-A)] of section 13 may make an application to the Claims Tribunal.::: Uploaded on - 17/02/2016 ::: Downloaded on - 31/07/2016 02:29:55 ::: fa381.03.J.odt 5/9
(2) Every application under sub-section (1) shall be in such form and be accompanied by such documents or other evidence and by such fee in respect of the filing of such application and by such other fees for the service or execution of processes as may be prescribed:
Provided that no such fee shall be payable in respect of an application under sub-clause (ii) of clause (a) of sub-section (1) [or, as the case may be, sub-section (1-A)] of section 13.
In terms of the aforesaid proviso, if the application is under sub-clause (ii) of clause (a) of sub-section (1) or, under sub-section (1-A) of Section 13, then court fee is not payable.
7] Section 13 (1-A) of the said Act also becomes relevant, in view of the provisions in Section 16 reproduced above, and the same runs as under:
13. Jurisdiction, powers and authority of Claims Tribunal.-- (1) The Claims Tribunal .....
(a) .....
(i) .....
(ii) .....
(b) .....
[(1-A) The Claims Tribunal shall also exercise, on and from the date of commencement of the provisions of section 124-A 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 124-A of the said Act or the rules made thereunder.] ::: Uploaded on - 17/02/2016 ::: Downloaded on - 31/07/2016 02:29:55 ::: fa381.03.J.odt 6/9 The provision of sub-section (1-A) of Section 13 confers a jurisdiction upon the Claims Tribunal to decide the application for compensation under Section 124-A of the said Act.
8] The Railway Claims Tribunal has entertained the application under Section 16(1) read with Section 13 (1-A) of the Railway Claims Tribunal Act and Section 124-A of the Railways Act, and has granted compensation of Rs.4,00,000/- as is prescribed under Section 124-A of the Railways Act. Undisputedly, there was no court fee payable nor it was actually paid on the application filed before the Railway Claims Tribunal. The present appeal is preferred under Section 23 of the Railway Claims Tribunal Act, before this Court. The appellants -
claimants are not challenging the order passed by the Railway Claims Tribunal awarding them compensation of Rs.4,00,000/-, but they are seeking enhancement of such compensation. It is not in dispute that neither the Railways Act, nor Railway Claims Tribunal Act, or the rules framed thereunder provides the payment of court fee in an appeal under Section 23 of the Railway Claims Tribunal Act. In view of this, no fault can be found with payment of court fee as provided in Article 13 under schedule II of the Maharashtra Court Fees Act, 1959. The Point No. [i] is answered holding that court fee is payable in such appeal, as required by Article 13 under schedule II of the Maharashtra Court Fees Act, 1959.
::: Uploaded on - 17/02/2016 ::: Downloaded on - 31/07/2016 02:29:55 ::: fa381.03.J.odt 7/99] Coming to the decision of this Court in Betel Stores Case relied upon by Shri Shekhani, it was certainly not a case for the claim under Section 13(1-A) of the Railway Claims Tribunal Act read with Section 124-A of the Railways Act. In the said decision, the exemption from payment of court fee granted under the proviso below sub-Section (2) of Section 16 of the Railway Claims Tribunal Act was not available. The decision is, therefore, not applicable to the facts of the present case and the law laid down in the said decision that the Court fee payable in an appeal under Section 23 of the Railway Claims Tribunal Act is governed by Article 3 of Schedule 1 of the Maharashtra Court Fees Act, shall not govern the present case.
10] As to point No.[ii]:
The question of interpretation of the provision of Section 124-A of the Railways Act, 1989, is required to be considered.
Section 124-A is therefore reproduced below:
[124-A. Compensation on account of untoward incidents.
-- 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 ::: Uploaded on - 17/02/2016 ::: Downloaded on - 31/07/2016 02:29:55 ::: fa381.03.J.odt 8/9 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.] Perusal of Section 124-A shows that the payment of compensation as prescribed therein, is towards "no fault liability", and it is not necessary for the claimant, if it is a case of an untoward incident, to establish any wrongful act, neglect or default on the part of the railway administration in order to get the compensation prescribed. What is required to be established is that an injury has been caused or death has occurred, as a result of an untoward incident. However, this does not prevent the claimant from claiming the compensation over and above an amount of Rs.4,00,000/- upon establishing any wrongful act, neglect or default on ::: Uploaded on - 17/02/2016 ::: Downloaded on - 31/07/2016 02:29:55 ::: fa381.03.J.odt 9/9 the part of the railway administration, which is the cause death or injury.
The Railway Claims Tribunal has therefore, to permit the claimants, if they want to claim the compensation more than Rs.4,00,000/-, to establish any wrongful act, neglect or default on the part of the railway administration resulting in an untoward incident causing the death or injury. The Tribunal has failed to consider this aspect of the matter, and therefore, the matter is required to be remitted back to the Tribunal to provide such opportunity to the appellants - claimants to claim the compensation more than Rs.4,00,000/-, upon establishing any wrongful act, neglect or default on the part of the railway administration.
11] In the result, the appeal is allowed. The matter is remitted back to the Railway Claims Tribunal to permit the appellants - claimants to lead evidence to establish any wrongful act, neglect or default on the part of the railway administration resulting in an untoward incident causing death of deceased Siju S. Vallikalayil in the present case.
The parties to appear before the Railway Claims Tribunal on 29.02.2016.
The Tribunal shall decide the matter within a period of three months from the date of first appearance of the parties before it.
JUDGE NSN ::: Uploaded on - 17/02/2016 ::: Downloaded on - 31/07/2016 02:29:55 :::