Bhasi s/o Krishnan and Ambika w/o Bhasi v. Union of India

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.M.JOSEPH** **& THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **TUESDAY, THE 10TH DAY OF SEPTEMBER 2013/19TH BHADRA, 1935** **MFA.No. 182 of 2010 (D) ------------------------** **AGAINST THE ORDER/JUDGMENT IN OA 179/2009 of RAILWAY CLAIMS TRIBUNAL, ERNAKULAM DATED 12-05-2010** ## **APPELLANT(S)/APPLICANTS:** **------------------------** **1. BHASI,S/O.KRISHNAN,MARASSERY HOUSE, MARAVANCHERY DESOM, CHENGALLUR VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT, PIN-680312.** **2. AMBIKA,W/O.BHASI,MARASSERY HOUSE, MARAVANCHERRY DESOM, CHANGALLUR VILLAGE MUKUNDAPURAM TALUK, THRISSUR DISTRICT, PIN-680 312.** **BY ADV. SRI.P.V.CHANDRA MOHAN.** **RESPONDENT(S)/RESPONDENTS:** **--------------------------** **UNION OF INDIA,REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI 625 104.** **BY ADVS. SMT.REZIYA.P.A.,SC, RAILWAYS & SRI.C.R.SYAMKUMAR.** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 10-09-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **amk** ## **K.M.JOSEPH & A.HARIPRASAD, JJ.** ## **------------------------------------------------** ## **M.F.A No.182 OF 2010** **------------------------------------------------Dated this the 10[th ] day of September, 2013.** ## **J U D G M E N T** ## **K.M.Joseph, J.** Appellants are the applicants before the Railway Claims Tribunal, Ernakulam Bench. They filed an application seeking compensation under Section 16 of the Railway Claims Tribunal Act, 1987. The claim arose from the death of their son due to an untoward incident. The Tribunal allowed the application and directed to pay a sum of Rs.4,00,000/- to the appellants equally. It is further ordered that 50% of the award amounts of both the appellants shall be deposited in a Nationalized Bank near their residence for a period of five years and the FDRs handed over to the appellants. The Bank was also to be advised to disburse the interest being accrued on these deposits periodically to the appellants. The respondent was given 45 days to comply with the terms of the order, failing which the appellants will be entitled to 6% interest per annum also from the date of default. ## **M.F.A No.182 OF 2010 2** 2. Aggrieved by the refusal to grant interest from the date of the application, the appellants are before us. 3. We heard the learned counsel for the appellants and also the learned counsel for the respondent. According to the learned counsel for the appellants, the appellants are entitled to get interest from the date of the petition. Learned counsel for the appellants relied on the judgment of the Apex Court in _**Thazhathe Purayil Sarabi v. Union of India (2009(4) K.L.T 370 (SC))**_ 4. We asked the learned counsel for the appellants as to whether the appellant had actually laid a claim in the petition seeking interest from the date of the petition. The answer to the query was that the claim form does not contemplate the relief of interest as such and it is true that no claim was laid for interest in the claim form. 5. However, it is the contention of the learned counsel for the appellant that even if interest is not claimed as such, still the Tribunal has jurisdiction to grant interest. In this connection, the learned counsel drew our attention to the judgment of the _**Rup Ram**_ . _**v. Harphul (A.I.R 1921 Lahore 125)**_ ## **M.F.A No.182 OF 2010 3** 6. Learned counsel appearing on behalf of the respondent also in fact brought to our notice of the judgment of the Apex Court in _**Tejinder Singh Gujral v. Inderjit Singh and Another (2007(1) SCC 508)**_ . That is a case which arose no doubt under the Motor Vehicles Act. In the course of the judgment, the Apex Court inter alia held as follows :- “17. So far as the question of interest is concerned, it is true that the same need not be claimed specifically. Interest is granted by way of compensation but, as has been held in Abati _Bezbaruah v. Dy. Director General, Geological Survey of India_ the same must be a reasonable one. In _Abati Bezbaruah_ this Court directed payment of interest only at the rate of 9% per annum, whereas the rate of interest awarded in favour of the claimant was @ 12% per annum.” 7. In this case we are concerned with no doubt the claim made under the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990. Though, we are not unmindful that there may be distinction between compensation and damages as such, we do not think we must be detained by such consideration. In fact, we pose the question as to whether there is any difference when ## **M.F.A No.182 OF 2010 4** a person who is penniless who seeks compensation under the Rules and a rich man seeking compensation under the Rules. In case of death, the amount payable as “compensation” is fixed at Rs.4,00,000/-. Be he a pauper or a millionaire he is entitled only to the same amount in case of death in an untoward incident. Could it not be said that juristically compensation aims at restoring the person in terms of money to the position in which he would have been, whereas it is not strictly so in case of damages and therefore the context of the Rules in question could it not be said that it is more akin to damages rather than compensation. While these questions do occur to us we do not consider the matter further in view of few circumstances. In the first place, we notice that in the Railways Act, 1989, Section 124A provides for compensation on account of untoward incident. The very word “compensation” is employed in the Section. 8. This is followed by the Rules namely the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990. Through the body of the Rules the word compensation figures. We also cannot be unmindful of the following observations of the Apex ## **M.F.A No.182 OF 2010 5** ## Court in the decision in _**Thazhathe Purayil Sarabi v. Union of India (2009(4) K.L.T 370 (SC))**_ . “13. Admittedly, neither the Railway Claims Tribunal Act, 1987, nor the Railways Act, 1989, make provision for payment of interest on any awarded amount. While S.16 of the 1987 Act prescribes the procedure for making an application to the Claims Tribunal, the right to receive compensation is contained in Ss.124 and 124 A comprising Chapter XIII of the 1989 Act dealing with the liability of the Railway Administration for death and injury to passengers due to accidents. Even though there is no provision in either of the Acts for payment of interest on the awarded sum, there is no denying the fact that the right to claim compensation accrued on the date of the incident, although, compensation has been held in Rathi Menon's case (supra) is to be computed from the date of the Award of the Claims Tribunal. In cases where the statute does not make any specific provision for payment of interest on any awarded sum, the power of the Courts to grant interest can also be referred to from the provisions of the Interest Act, 1978 and the Code of Civil Procedure. S.3 of the Interest Act 1978, which confers power on the Court to allow ## **M.F.A No.182 OF 2010 6** interest reads as follows : - _“_ _**3. Power of court to allow interest** .-- (1) 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 paid is made, the Court may, if it thinks fit, allow interest to the person 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 instrument 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:_ - _PROVIDED that where the amount of the debt or damages has been repaid before the institution of the proceedings interest shall not be allowed under this section for the period after such repayment._ ## **M.F.A No.182 OF 2010 7** - _(2) Where, in any such proceedings as are mentioned in sub-section (1), --_ - _(a) judgment, order or award is given for a sum which, apart from interest on damages, exceeds four thousand rupees, and_ - _(b) the sum represents or includes damages in respect of personal injuries to the plaintiff or any other person, or in respect of a person's death,_ _then, the power conferred by that sub-section shall be exercised so as to include in that sum interest on those damages or on such part of them as the Court considers appropriate for the whole or part of the period from the date mentioned in the notice to the date of institution of the proceedings, unless the court is satisfied that there are special reasons why no interest should be given in respect of those damages._ - _(3) Nothing in this section,--_ - _(a) shall apply in relation to --_ - _(i) Any debt or damages upon which interest is payable as of right, by virtue of any agreement; or_ - _(ii) any debt or damages upon which payment of interest is barred, by virtue of an express agreement;_ - _(b) shall affect--_ - _(i) the compensation recoverable for the dishonour of a_ ## **M.F.A No.182 OF 2010 8** _bill of exchange, promissory note or cheque, as defined in the Negotiable Instruments Act, 1881; or_ - _(ii) the provisions of Rule 2 of Order II of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908);_ - _(c) shall empower the Court to award interest upon interest.”_ 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 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 ## **M.F.A No.182 OF 2010 9** till 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. ” Therefore we will proceed on the basis that what is contemplated under the Act and the Rules is 'compensation'. The power of the Tribunal to award interest is also beyond the pale of any dispute in view of the judgment of the Apex Court which we have referred to. 9. Order 7 Rule 7 of the C.P.C reads as follows :- _“_ _**7. Relief to be specifically stated** .- Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed_ ## **M.F.A No.182 OF 2010 10** _by the defendant in his written statement.”_ 10. No doubt, the decision in _**Rup Ram v. Harphul (A.I.R 1921 Lahore 125)**_ was a case where the suit was decreed with interest though interest was not specifically asked for. The High court was considering the appeal by the defendant and it was therein the court took the view as follows :- “ _O.7, R.7, lays down that it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. This, of course, is subject to the limitation that this “other relief” is not inconsistent with relief claimed in the plaint. The granting of interest, not specifically asked for in a suit for money, cannot be regarded as an inconsistent relief and therefore a Court has discretion to award interest subsequent to the institution of the suit._ ” 11. No doubt it can be said that Order 7 Rule 7 provides for the discretion with the trial court to grant relief even though it is not specifically asked. We also take the view that even if interest is not ## **M.F.A No.182 OF 2010 11** specifically asked for, if it could be granted otherwise, there is a discretion with the court to grant interest. We would think that it would advance the cause of justice to adopt such a view. 12. We must also consider the effect of Tribunal under the Rules in question not being a court as such. In this connection, no doubt notice Section 18 of the Railway Claims Tribunal Act, 1987, which reads as follows :- - _“ .-_ _**18. Procedure and powers of Claims Tribunal**_ - _(1) The Claims Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 (5 of 1908), but shall be guided by the principles of natural justice and, subject to the other provisions of this Act and of any rules, the Claims Tribunal shall have powers to regulate its own procedure including the fixing of places and times of its enquiry._ - _(2) The Claims Tribunal shall decide every application as expeditiously as possible and 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._ - _(3) The Claims Tribunal shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely :-_ ## **M.F.A No.182 OF 2010 12** - _(a) summoning and enforcing the attendance and of any person_ - _examining him on oath;_ - _(b) requiring the discovery and production of documents;_ - _(c) receiving evidence on affidavits;_ - _(d) subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), requisitioning any public record or document or copy of such record or document from any office;_ - _(e) issuing commissions for the examination witnesses or of_ - _documents;_ - _(f) reviewing its decisions;_ - _(g) dismissing an application for default or deciding it ex parte;_ - _(h) setting aside any order of dismissal of any application for default or any order passed by it ex parte;_ - _(i) any other matter which may be prescribed.”_ 13. We may also refer to Rule 20 of the Railway Claims ## Tribunal (Procedure) Rules, 1989, which reads as follows :- - _**“ (20) Procedure and powers of Tribunal** .- The Tribunal shall have for the purposes of discharging its functions under this Act, the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely :-_ ## **M.F.A No.182 OF 2010 13** - _(a) summoning and enforcing the attendance and of any person_ - _examining him on oath;_ - _(b) requiring the discovery and production of documents;_ - _(c) receiving evidence on affidavits;_ - _(d) subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), requisitioning any public record or document or copy of such record or document from any office;_ - _(e) issuing commissions for the examination witnesses or of_ - _documents;_ - _(f) reviewing its decisions;_ - _(g) dismissing an application for default or ex parte;_ - _(h) setting aside any order of dismissal of any application for default or any order passed by it ex parte.”_ 14. We have already noticed that under Section 18(1) the Tribunal is not bound by the procedure laid down by the Code of Civil Procedure, but it is to be guided by the principles of natural justice and subject to the other provisions of the Act and of any rules, it has the power to regulate its own procedure. We have already noticed the judgment of the Apex Court in _**Thazhathe Purayil Sarabi v. Union of India (2009(4) K.L.T 370 (SC))**_ , ## **M.F.A No.182 OF 2010 14** wherein the court has assured to the Tribunal, the power of the civil court in the matter of applying Section 34 of the Code of Civil Procedure. If that be so, and as we find nothing which would in any way militate against the application of the principle under Rule 7 Order 7 to the Tribunal also, particularly in the matter of granting interest which the Apex Court itself has held can be granted by the Tribunal, we would think that the claim of the appellants for interest from the date of the petition must be granted. In such circumstances, we allow the appeal. The impugned order is stand modified and we direct that the appellants will be entitled to claim interest from the date of the petition till the date of payment at the rate of 6%. **K.M.JOSEPH, JUDGE.** **A.HARIPRASAD, JUDGE.** **//True copy//** **P.A to Judge** amk