MOHSINA & ORS V. UNION OF INDIA & ORS

FAO/242/2013

AI Insights

The case involves an appeal by Mohsina and her minor son against the Union of India, challenging the decision of the Railway Claims Tribunal which had dismissed their application for compensation following the death of Sameer Saifi, Mohsina's husband, in a train accident. The appellants argued that the incident constituted an 'untoward incident' under the Railways Act, which should entitle them to compensation. The High Court, referencing the Supreme Court's decision in Rathi Menon v. Union of India, held that the compensation should be determined according to the rules in effect at the time of the judgment, not at the time of the accident. Consequently, the court awarded Rs.8 lakh as per the amended rules effective from January 1, 2017.

• Counselvise Citation: [2017] 140 COUNSELVISE.COM (IT) 678998 (HC-DELHI)
• Appeal Type: Others
• Pronouncement Date: 10-08-2017
• 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: A S DATEER; JOYDEEP MAZUMDAR
• Assessee Lawyers: ARUNA MEHTA
• Keywords: Compensation; Condonation of delay; Illiteracy; Railway Claims Tribunal; Untoward incident; Poverty
• Section: 123; 129; 124A

Judgement Text

" FAO 242/2013 Page 1 of 10 $~14 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision: 10th August, 2017 + FAO 242/2013 MOHSINA & ORS ..... Appellants Through: Ms. Aruna Mehta, Advocate versus UNION OF INDIA & ORS ..... Respondents Through: Mr. A.S. Dateer, Advocate Mr. Joydeep Mazumdar, Advocate for Railways CORAM: HON'BLE MR. JUSTICE J.R. MIDHA JUDGMENT (ORAL) C.M. Appl. 8848/2013 1. Dismissed as not pressed. C.M. Appl. 16668/2014 2. The application for amendment of application for condonation of delay application is allowed. 3. Application is disposed of. C.M. Appl. 16669/2014 4. The appellants are seeking condonation of delay of 804 days in filing the appeal on the ground that appellant no.1 is an illiterate and poor lady; she lost her husband in the train accident; her father-in-law was pursuing the FAO 242/2013 Page 2 of 10 case before the Claims Tribunal; her father-in-law expired, whereupon her mother-in-law threw her out from the matrimonial home and she is residing with her father who is also handicapped; she was working as a maid servant to make both ends meet; her cousin came from abroad on 02nd May, 2013 and felt pity over her and made enquiries from the Claims Tribunal and thereafter, helped her in filing the appeal. 5. Considering the extreme poverty and illiteracy of the appellants, the application is allowed and the delay in filing the appeal is condoned subject to the condition that the appellants would not be entitled to interest for the delayed period of 804 days. FAO 242/2013 6. The appellants have challenged the impugned order whereby the Railway Claims Tribunal has dismissed the appellants’ application for compensation. 7. Appellant No.1 is widow, appellant No.2 is the minor son and respondent No.2 is the mother of late Sameer Saifi. On 25th November, 2009, the dead body of late Sameer Saifi was found on platform No.4 of Shahdara Railway Station with injuries on the head and face. The Railway Police recovered Rs.100/- cash, a telephone diary and ticket No.42028922 from the purse of the deceased. The Railway Police called Shahabuddin on phone No.9211579131 from telephone diary recovered from the body of the deceased whereupon Shamsheer, younger brother of deceased, and Shahbuddin, father-in-law of the deceased went to the spot and identified the body of Sameer Saifi, son of Nawab Ali, aged 22 years, resident of 262, Giri Market, Loni, Ghaziabad. The police initiated the proceedings under FAO 242/2013 Page 3 of 10 Section 174 Cr.P.C. and sent the body for post-mortem. The Railway Security conducted an investigation and recorded in its report that the deceased fell down while getting down from a moving train. 8. Learned Tribunal dismissed the claim petition holding that the deceased was run over by EMU-GD-5 Train and was not a victim of an untoward incident. 9. Learned counsel for the appellant urged at the time of the hearing that the incident in question is an untoward incident which is clear from the report of the Railway Security. 10. Learned counsels for the respondent No.1 have produced the original record which contains the report of the Railway Security which clearly records that the deceased fell down from the train while getting down on the platform. In that view of the matter, the incident in question is clearly an untoward incident within the meaning of Section 123 and 124A of the Railways Act. 11. 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 12. 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 lakhs. 13. 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 FAO 242/2013 Page 4 of 10 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 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 FAO 242/2013 Page 5 of 10 and remained immovable forever. 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. 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 FAO 242/2013 Page 6 of 10 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 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 FAO 242/2013 Page 7 of 10 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.” 14. 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: “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 FAO 242/2013 Page 8 of 10 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) 15. 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. 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) 16. 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. FAO 242/2013 Page 9 of 10 17. 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. 18. 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). 19. The appeal is allowed and the compensation of Rs.8 lakh is awarded to the appellants along with interest @ 9% per annum w.e.f. the date of filing of the application i.e. 20th May, 2010 upto the date of payment. However, the appellants shall not be entitled to the interest for the period of 804 days. Respondent No.1 is directed to deposit the compensation amount along with interest with UCO Bank, Delhi High Court Branch by means of a cheque drawn in the name of UCO Bank A/c Mohsina within 30 days. 20. Upon the aforesaid amount being deposited, UCO Bank, Delhi High Court Branch shall keep the said amount in fixed deposit till further orders so that the amount starts earning interest from the date of deposit. 21. Learned counsel for the appellants submits that the appellants are poor persons and are not liable to pay any Income Tax and they shall furnish Form 15G to counsel for respondent No.1 so that the TDS is not deducted from the compensation amount. 22. List for disbursement of the amount on 18th September, 2017. FAO 242/2013 Page 10 of 10 23. The appellants shall remain present in Court on the next date of hearing along with passbooks of their savings bank account near the place of their residence as well as PAN Cards and Aadhaar Cards. 24. Copy of this judgment be given dasti to learned counsels for the parties under signature of Court Master. AUGUST 10, 2017 rsk J.R. MIDHA, J. "