Kerala High Court
Chandrasekharan vs Union Of India on 8 August, 2012
Author: Thottathil B.Radhakrishnan
Bench: Thottathil B.Radhakrishnan, K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN
&
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
WEDNESDAY, THE 8TH DAY OF AUGUST 2012/17TH SRAVANA 1934
MFA.No. 62 of 2005 ( )
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OA.253/1996 of RAILWAY CLAIMS TRIBUNAL, ERNAKULAM
.........
APPELLANT(S)/APPLICANT::
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CHANDRASEKHARAN, S/O. NARAYANAN,
VALIYAVEETTIL, VARANAM P.O., PUTHENANGADI
ALLEPPEY DISTRICT.
BY ADVS.SRI.SIBY MATHEW
SRI.A.A.MOHAMMED NAZIR
RESPONDENT(S)/RESPONDENT::
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UNION OF INDIA,
REPRESENTED BY GENERAL MANAGER, SOUTHERN RAILWAY
CHENNAI.
BY ADV. SRI.MURALEEDHARA KAIMAL, ADDL.CGSC
BY ADV. SRI.C.S.DIAS,SC, RAILWAYS
THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON
02/07/2012, THE COURT ON 08/08/2012 DELIVERED THE FOLLOWING:
tss
THOTTATHIL B.RADHAKRISHNAN
&
K.VINOD CHANDRAN, JJ.
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M.F.A.No.62 of 2005
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Dated this the 8th day of August, 2012
JUDGMENT
Thottathil B.Radhakrishnan,J.
C.R.
1.The appellant was injured on 16.9.1995, in an untoward incident as defined in the Railways Act, 1989. Though the Tribunal noted that as per the entries at items 5 and 9 in Part III of the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990, for short, the "Compensation Rules"; he was entitled to a total compensation of Rupees One Lakh, for loss of a thumb and two fingers, it awarded only Rs.58,000/- with 6% interest per annum from 10.10.1996, the date of registration of the case, till payment, on the premise that the applicant had claimed only such amount in his application for compensation filed under section 16 of the Railway Claims Tribunal Act, 1987, for short, the "Tribunal Act". He challenges the quantum.
MFA.62/05 2
2.Supporting the appeal, it is argued that the Tribunal ought not to have restricted the compensation amount from what is provided as per the Compensation Rules, merely on the premise that the applicant had not applied for amendment of his application for compensation. It is also argued that an amount of Rupees Two Lakhs ought to have been awarded as compensation, having regard to the amendment that came into force with effect from 1.11.1997, to the Rules.
3.Per contra, it is argued on behalf of the Railways that the incident having occurred before the 1997 amendment to the Compensation Rules, compensation as per the amended rate is not available at all, and that the impugned award restricting the amount to the extent of the claim made, is the result of the applicant's failure to amend the application.
4.It stands settled by the decision of the Division Bench of this Court in Union of India v. M. Thankaraj [AIR 2000 Ker 91], that quantum of compensation payable under the Railways Act MFA.62/05 3 is to be determined on the basis of the date of occurrence of the cause of action; that is to say, if the claim for compensation is on the basis of injuries suffered as a result of the untoward incident, the date of sufferance of the injuries is the relevant factor. The appellant having been injured before the 1997 amendment to the Compensation Rules, compensation as per the amended rate is not available.
5.Now, in terms of the Compensation Rules that stood as on the date of accident, it is the undisputed position that the applicant was entitled to Rupees One Lakh as compensation. Did the Tribunal err in having restricted it to Rs.58,000/-, merely on the premise that the applicant had claimed only such amount?
6.Section 18 of the Tribunal Act provides, inter-alia, that the tribunal shall not be bound by the procedure laid down in the Code of Civil Procedure, but shall be guided by the principles of natural justice and, subject to the other provisions of the MFA.62/05 4 Tribunal Act and any rules, it shall have the power to regulate its own procedure. It further provides that ordinarily, every application shall be decided on a perusal of documents, written representations and affidavits and after hearing such oral arguments as may be advanced. The Tribunal Act came into force in 1987 when the Indian Railways Act, 1890 was in force. The 1890 Act was repealed as per section 200 of the Railways Act, 1989. It was only with effect from 1.8.1994 that the term 'untoward incident' was included in section 123 of the Railways Act and corresponding eligibility for compensation was prescribed in terms of section 124 A of that Act. In re its preamble, as it initially stood, Tribunal Act is enacted to provide for establishment of Tribunal for inquiring into and determining claims against the railway administration for, among other things, compensation for death or injury to passengers occurring as a result of railway accidents. The term 'untoward incident' was inserted into the preamble of the Tribunal Act with effect from 1.8.1994. However, the Railway Claims Tribunal Procedure Rules, 1989, for short, the Tribunal MFA.62/05 5 Rules, which was in force while the aforesaid amendments came, remained without any consequential amendment. They are statutory. They remain unchanged. Pithily put, the Railway Claims Tribunal (Procedure) Rules, 1989, for short, the "Tribunal Rules", do not, in terms, apply to claims for compensation on account of "untoward incidents". That being so, the forms prescribed under the Tribunal Rules, do not ipso facto, or stricto senso, apply to applications for compensation on account of untoward incidents; at any rate, to refuse relief on ground that the application for compensation is not in proper form. We say this particularly because, we see that the Tribunal Rules provides for three prescribed forms of applications; though, none among them relate to application for compensation for loss caused as a result of an untoward incident, even though section 1A read with section 16 of the Tribunal Act enables the tribunal to decide on such an application. We may note that the Compensation Rules came in 1990, after the issuance of the Tribunal Rules in 1989. Prescriptions as to the compensation payable in respect of MFA.62/05 6 death and injuries were made in the Schedule to the Compensation Rules. Applying specificity as a doctrine and tool for interpretative priorities, it has to be held that the Compensation Rules would pithily govern, in preference to the Tribunal Rules. We say this only to affirm that even if there is any deficit or lacuna in the contents of the application for compensation for death or injury on account of an untoward incident, the tribunal shall not treat it as fatal, to deprive the claimant of compensation due in terms of the Railways Act and the Compensation Rules, for death or injury resulting out of an untoward incident as defined in that Act.
7.Now, the provision in section 124 A of the Railways Act enjoining payment of compensation on account of untoward incident, is made casting liability on the railway administration to pay such compensation, notwithstanding anything contained in any other law. That is an affirmative legislative action in consonance with the constitutional context that India is a socialist state and it secures to all its citizens; among other MFA.62/05 7 things, social and economic justice. It runs in rhyme with the constitutional mandates, to promote and protect economic justice; to secure that the operation of the legal system promotes justice, including by ensuring that opportunities for securing justice are not denied to any citizen by reason of any disability, including economic. The protective cover of eligibility to equality before law and equal protection of the laws, as a fundamental right, would also apply, in the context.
- See for support, Articles 38, 39A and 14, apart from the Preamble to the Constitution of India. In this view of the matter, the ultimate aim of the relevant provisions of the Railways Act, Tribunal Act and the Compensation Rules, is to provide succor and support to the unfortunate ones who become the victims of untoward incidents in connection with the railways, either dying or getting injured. Having in mind these holistic constitutional and legislative contours, it cannot but be held that an application for compensation for an untoward incident, that too, for an injury which is listed in the Schedule to the Compensation Rules, ought not to be rejected MFA.62/05 8 or decided by granting any amount of compensation other than that which is prescribed in the Schedule to the Compensation Rules, provided that, there is pleading and proof, or, admission as to such sufferance.
8.In the aforesaid view of the matter, it is not necessary for us to dwell further as to whether the appellant's application for compensation ought to have been amended. He has the right to compensation in terms of the Schedule to the Compensation Rules as it stood as on the date of the accident. That eligibility is statutory. He cannot be taken to have foregone any part of it. He is, therefore, entitled to the entire compensation due in terms of the Schedule to the Compensation Rules, notwithstanding that his application stated a lesser amount as the claim. Tribunal is within jurisdiction, power and duty to grant complete compensation due in terms of the Railways Act, Tribunal Act and the Schedule to the Compensation Rules in all cases of sufferance of death and in cases of injuries covered by that Schedule. This statutory duty of the Tribunal is the MFA.62/05 9 constitutional responsibility of that authority, emanating out of the corresponding constitutional rights and statutory rights of the victims. Tribunal cannot rest on the shortcomings and infirmities in the applications of the injured or those who claim on behalf of the dead, if the claim is on the basis of an untoward incident as defined in the Railways Act. Even if the application is made for an amount lesser than that prescribed in the Schedule to the Compensation Rules, it is the bounden duty of the Tribunal to grant the compensation due in terms of that schedule. That is the constitutional eligibility of the injured and the dependents of the dead; the victims, a class which can be easily identified as challenged sector of the society.
9.In the result, this appeal is allowed ordering that the compensation that the respondent railway establishment shall pay the appellant is Rupees One Lakh with 6% interest per annum thereon, from the date of the application before the tribunal, namely, 10.10.1996. Any amount already deposited or MFA.62/05 10 paid would be given due credit to, as against the aforesaid. The appellant is also awarded an amount of Rs.3000/- as costs of this appeal. If the payment in terms of this appellate award is not made within a period of 45 days from today, the rate of interest payable would stand enhanced to 12% per annum. The respondent is directed to remit such amount, failing which the appellant shall be entitled to recover it.
Sd/-
THOTTATHIL B.RADHAKRISHNAN Judge.
Sd/-
K.VINOD CHANDRAN Judge.
kkb.