MARIUM & ANR V. UNION OF INDIA

FAO/65/2015

AI Insights

The case involves an appeal by the widow and son of a deceased man, Kallu, who was allegedly a bona fide passenger on an EMU train and fell off due to a sudden jerk, leading to his death. The Railway Claims Tribunal initially dismissed their compensation claim, doubting the authenticity of the train ticket found on the deceased. The High Court, referencing the Supreme Court's decision in Rathi Menon v. Union of India, overturned the Tribunal's decision, recognizing the deceased as a bona fide passenger and entitled to compensation under the amended Railway Accidents and Untoward Incidents (Compensation) Rules, 2016, which increased the compensation for death from Rs.4 lakh to Rs.8 lakh.

• Counselvise Citation: [2017] 140 COUNSELVISE.COM (IT) 722075 (HC-DELHI)
• Appeal Type: Others
• Pronouncement Date: 11-08-2017
• Assessment Year: misc
• Other Referred Cases: Rathi Menon v. Union of India, Union of India v. Aggala Dilleswara Rao, Pramath Kumar Jena v. Union of India, Radha Yadav v. Union of India, Sardar Tajender Singh Gambhir v. Sardar Gurpreet Singh
• Laws Referred To: Railways Act, Railway Accidents and Untoward Incidents (Compensation) Amendment Rules, 2016
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: JOYDEEP MAZUMDAR; MOMOTA BHATTACHARYA
• Assessee Lawyers: YOGESH SWAROOP
• Keywords: Compensation; Bona fide passenger; Untoward incident; Railway Claims Tribunal; EMU train; Accident report; Detailed accident report
• Section: 123; 124A

Judgement Text

" FAO 65/2015 Page 1 of 9 $~21 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision:11th August, 2017 + FAO 65/2015 & CM 4232-33/2015 MARIUM & ANR ..... Appellants Through: Mr. Yogesh Swaroop, Advocate versus UNION OF INDIA ..... Respondent Through: Mr. Joydeep Mazumdar and Ms. Momota Bhattacharya, Advocates CORAM: HON'BLE MR. JUSTICE J.R. MIDHA JUDGMENT (ORAL) 1. The appellants have challenged the order dated 24th July, 2014, whereby their application for compensation had been dismissed by the Railway Claims Tribunal. 2. The appellants are the widow and son of late Kallu and they had filed an application for compensation before the Claims Tribunal claiming that on 30th December, 2010, Kallu was travelling with a valid second class railway ticket from Shahdara to Delhi by EMU train and he fell down due to sudden jerk when the train was passing through Kailash Nagar Railway line. The Claims Tribunal doubted the claim made by the appellants on the ground that intimation of the dead body lying at the railway track was given after about one hour of the train passed by. The Claims Tribunal further doubted the train ticket recovered from the body of the deceased. The Claims FAO 65/2015 Page 2 of 9 Tribunal held that the deceased was not a bona fide passenger of the train and it was a case of run over. 3. Learned counsel for the appellant urged at the time of the hearing that the train ticket was recovered from the body of the deceased. The Detailed Accident Report has been filed by the police according to which an information was received from PCR caller No.9990171566 whereupon the investigating officer went to the spot and found the dead body near the railway track between K.M. Pillar No.2/18 and K.M. Pillar No.2/19 near Kailash Nagar, Delhi. According to the post mortem report, the deceased suffered head injuries. The report filed by the police contains the photographs of the deceased. According to the site plan, the body was found lying along with the track between K.M. Pillar No.2/18 and K.M. Pillar No.2/19. The police seized the railway ticket from the body of the deceased. 4. This Court is satisfied that the deceased was a bona fide passenger of EMU train and he fell down from the said train between K.M. Pillar No.2/18 and K.M. Pillar No.2/19. This Court further holds the incident to be an untoward incident within the meaning of Section 123 and Section 124A of the Railways Act. 5. The next question arises for consideration is whether the appellant is entitled to Rs.4 lakh as per the original claim before the Railways Claims Tirbunal or Rs.8 lakhs as per the Railway Accidents and Untoward Incidents (Compensation) Amendment Rules, 2016. 6. The Railway Accident (Compensation) Rules, 1990 has been amended by Railway Accidents and Untoward Incidents (Compensation) Amendment Rules, 2016 w.e.f. 01st January, 2017. By the said amendment, the compensation for death has been enhanced from Rs.4 lakhs to Rs.8 FAO 65/2015 Page 3 of 9 lakhs. 7. In Rathi Menon v. Union of India, (2001) 3 SCC 714, Rathi Menon, a Commerce graduate of 22 years, secured a job in Bangalore and was called for an interview at Trichur. On her way back to Bangalore on 3rd September, 1999, she boarded the Island Express (bound for Bangalore) at 8.00 P.M. from Palakkad Railway Station. After the train started moving and when it collected momentum, her ill-luck prompted her to have a face wash for which she moved to the wash basin situated next to the door of the train. While washing her face the train jerked violently at a turning and in that impact she was thrown off the running train during the night. Her spinal cord was ruptured and she turned a paraplegic and remained immovable forever. After she fell down, the wheels of the train ran over her right arm severing it from the shoulder point forever. The train, not knowing what it did to one of its lawful and innocent passengers, continued its running leaving the paraplegic on the track itself on that dreadful night. It was physiologically impossible for the young lady to move her leg from the position where she fell. Her right leg happened to remain on the rail-track, and unless a Good Samaritan had passed by that track during the night she had to remain there unmoved. As none like that came the poor female human being remained on the track bleeding and unattended by anyone. Alas, within half an hour another train came along the same track which, without knowing that a badly mauled human being was lying ahead, ran over her right leg causing a sudden amputation of that leg also. Thus, within the span of less than an hour, she became a one-handed and one-legged paraplegic. All those disasters happened during the night of 3rd September, 1996. While she remained on the track unattended by any one she happened FAO 65/2015 Page 4 of 9 to be spotted by an engine driver who was shunting a railway engine. He got her removed from that scene to the district hospital, and then to a Medical College Hospital where she had to undergo a long period of hospitalization and remained immovable forever. 8. The Railway Claim Tribunal awarded Rs.6 lakh along with interest @ 15% per annum which was challenged before the Kerala High Court on the ground that the Claims Tribunal awarded compensation beyond the amount prescribed in the Railway Accident and Untoward incidents (Compensation) Rules 1990. The Division Bench of the High Court allowed the appeal and reduced the compensation amount. The Supreme Court reversed the judgment of the Division Bench of the High Court and restored the order of the Claims Tribunal. The Supreme Court held that the compensation amount has to be determined according to the Rules prescribed at the time of making the order for payment of the compensation. Relevant portion of the said judgment is reproduced hereunder: “12. As the above facts are not disputed by the Railway Administration the appellant was relieved of the burden to prove those facts averred in her claim petition. Thus, the only question which remained for the Claims Tribunal to decide was regarding the amount of compensation payable to her. Now the only question remaining is whether the High Court was so helpless that learned Judges could not confirm the amount awarded to her by the Claims Tribunal. xxx xxx xxx 16. The liability of the Railway Administration in such a case would be to pay compensation, but the extent of such compensation is as may be prescribed which means prescribed by the rules made under the Act. Section 129 of the Act empowered the Central Government to make such rules. FAO 65/2015 Page 5 of 9 17. The Railway Accident Compensation Rules 1990 (for short the Rules) were made by the Central Government in exercise of the powers conferred on it by Section 129 of the Act. Rule 3(1) says that the amount of compensation payable in respect of death or injuries shall be as specified in the Schedule. The Rules as well as the Schedule were amended with effect from 1.11.1997. After the amendment Rule 3(2) reads thus: “3.(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 work, shall be Rupees four lakhs.” 18. Item No.2 of Part III of the Schedule relates to amputation below shoulder with stump less than 8 from tip of acromion for which an amount of Rs.3.20 lakhs is shown as the compensation. 19. Item 20 in Part III of the Schedule relates to amputation below knee with stump exceeding three and a half inch but not exceeding five inches, for which an amount of Rupees two lakhs is shown as compensation. 20. Before the said amendment of the Rules and the Schedule which came into effect on 1.11.1997 the above amounts were respectively two lakhs (instead of rupees four lakhs) and 1.40 lakhs (instead of 3.20 lakhs) and one lakh (instead of two lakhs). Such amounts were revised by the Central Government in 1990. The revision of the rates was made after 8 years and thus the new rates were incorporated by amending the Schedule. xxx xxx xxx 23. The collocation of the words “as may be prescribed” in Section 124-A 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 Parliament to fix FAO 65/2015 Page 6 of 9 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 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 a fair and reasonable compensation. The Government has the better wherewithals to ascertain and fix such amount. It is for the said reason that Parliament left it to the Government to discharge that function. Sections 124 and 124-A 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. xxx xxx xxx 25. …… 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 goes before the Claims Tribunal claiming compensation the determination of the amount should be as on the date of such determination.” 9. The Supreme Court further held that where the appeals are pending before the High Court, the scale of compensation shall depend on the date on which the High Court delivers the judgment. Relevant portion of the judgment is reproduced hereunder: FAO 65/2015 Page 7 of 9 “29. The unjust consequence resulting from the interpretation which the Division Bench placed can be demonstrated in another plane also. If a person who sustained injury in a railway accident or in an untoward incident was disabled from making an application immediately and he makes the application a few years hence, is he to get the compensation in terms of the money value which prevailed on the date of the accident? Suppose a Tribunal wrongly dismissed a claim after a few years of filing the application and the claimant approaches the High Court in appeal. As it happens quite often now, some High Courts could take up such an appeal only after the lapse of many years and if the appeal is decided in favour of the claimant after so many years, what a pity if the amount awarded is only in terms of the figure indicated on the date of the accident. 30. From all these, we are of the definite opinion that the Claims Tribunal must consider what the Rules prescribed at the time of making the order for payment of the compensation.” (Emphasis Supplied) 10. The Supreme Court explained the rational for granting compensation as per prescribed Rules at the time of making order as under: “24.…….. when you pay the compensation in terms of money it must represent, on the date of ordering such payment, the equivalent value. xxx xxx xxx 27………Rupee value is not an unchanging unit in the monitory system. Students of economic history know that currency value remained static before the Second World War. But the post World War II witnessed the new phenomenon of vast fluctuations in money value of currency notes in circulation in each nation. When the U.S. Dollar has registered a steep upward rise, currencies in many other countries made downward slip. What was the value of one Hundred rupees twenty years ago is vastly different from what it is today. This substantial change has caused its impact on the cost of living also. FAO 65/2015 Page 8 of 9 28……… what you were to pay ten years ago to one person cannot be the same if it is paid today in the same figure of currency notes. It is for the purpose of meeting the reality that Central Government changed the figures.” (Emphasis Supplied) 11. Following Rathi Menon (supra), Andhra Pradesh High Court and Division Bench of Calcutta High Court have applied the amended schedule as on the date of adjudication in Union of India v. Aggala Dilleswara Rao, 2006 ACJ 1470; Pramath Kumar Jena v. Union of India, AIR 2012 Ori 32 and Radha Yadav v. Union of India, 2017 SCC OnLine Cal 420 respectively. 12. It is well settled that the appeal is the continuation of the claim petition and the power of the Appellate Court is co-extensive with that of the Claims Tribunal. Reference may be made to Sardar Tajender Singh Gambhir v. Sardar Gurpreet Singh, 2014 (10) SCC 702. 13. Applying the principles laid down by the Supreme Court in Rathi Menon (supra), this Court holds that the appellant is entitled to compensation of Rs.8 lakh according Schedule to Railway Accidents and Untoward Incidents (Compensation) Amendment Rules, 2016 (as on the date of this judgment). 14. The appeal is allowed and a compensation of Rs.8 lakh along with interest @ 12% per annum from the date of filing of the claim petition filed before Railway Claims Tribunal is awarded to the appellants. 15. The respondent is directed to deposit the aforesaid amount with UCO Bank, Delhi High Court Branch by means of a cheque drawn in the name of UCO Bank A/c Marium within a period of four weeks. 16. Learned counsel for the appellants submits that the appellants are poor FAO 65/2015 Page 9 of 9 persons and not assessed to Income Tax and they shall furnish Form No.15G to counsel for the respondent so that no TDS is deducted from the compensation amount. 17. The appeal and the pending applications are disposed of. 18. List for disbursement of the compensation amount on 21st September, 2017 at 02:30 p.m. 19. The appellants shall remain present in Court on the next date of hearing along with passbook of their savings bank accounts near the place of their residence as well as PAN Card and Aadhaar Card. 20. Copy of this judgment be given dasti to counsels for the parties under signatures of the Court Master. AUGUST 11, 2017 rsk J.R. MIDHA, J. "