P. Alexander and Lizy Alexander v Union of India and Another

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU WEDNESDAY, THE 26TH DAY OF JULY 2017/4TH SRAVANA, 1939 MFA.No. 133 of 2011 (F) ------------------------ AGAINST THE JUDGMENT IN OA 1/2010 of RAILWAY CLAIMS TRIBUNAL, ERNAKULAM DATED 03-08-2010 APPELLANTS/APPLICANTS: ---------------------- 1. P.ALEXANDER, AGED 44 YEARS, S/O. PHILOPPOSE, RESIDING AT SWARALAYAM, MARTHANDAPURAM, MULAVANA.P.O., KUNDARA, KOLLAM. 2. LIZY ALEXANDER, AGED 39 YEARS, W/O. ALEXANDER, RESIDING AT SWARALAYAM, MARTHANDAPURAM, MULAVANA.P.O., KUNDARA, KOLLAM. BY ADV. SRI.MARTIN G.THOTTAN RESPONDENTS/RESPONDENTS: ----------------------- 1. UNION OF INDIA AND ANOTHER GENERAL MANAGER, EAST COAST RAILWAY, BHUBANESWAR.P.O., PIN-603112. 2. THE GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI-600003. R1-R2 BY ADV. SRI.C.S.DIAS,SC, RAILWAYS THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 26-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **P.N. RAVINDRAN & DAMA SESHADRI NAIDU, JJ. --------------------------------------------------** ## **M.F.A.No.133 of 2011** **-------------------------------------------------Dated this the 26[th] day of July 2017** ## **JUDGMENT** ## _**Dama Seshadri Naidu, J.**_ _— —_ The appellants the husband and wife are the claimants in O.A.Nos.1 and 2 of 2010, filed independently. The Railway Claims Tribunal, Ernakulam Bench, through a common judgment disposed of both the O.As. But strangely, the appellants have filed only one appeal against the common judgment. 2. The facts in brief are that the appellants with their two minor children, were travelling on 13.2.2009 by the Coromandal Express between Howrah and Chennai. When the train reached a place near Cuttack, it met with an accident. The appellants and their two minor children were injured: lacerated wounds on the MFA No.133 of 2011 2 first appellant's head and also a severe knock on his back bone; in addition, the second appellant and the children have suffered severe shock and trauma. 3. As seen from the record, both the appellants were admitted into the Railway Hospital on 14[th] February 2009 and were discharged on 16[th] February 2009. They were initially paid ex-gratia of `10,000/-. 4. Contending that they have sustained grievous injuries and that they have lost their personal belongings, including gold worth about `81,000/-, the first appellant filed O.A.No.1 of 2010 claiming one lakh rupees, and the second filed O.A.No.2 of 2010 for two lakh rupees. Through a common judgment dated 3[rd] August 2010, the Railway Claims Tribunal, Ernakulam Bench, awarded `10,000/- to the first appellant and `11,000/- to the second appellant, along with interest at 6% per annum from the date of default. To be specific, the order directs the Railway to pay the compensation within sixty days from the date of the order. In default, it should pay interest at 6% per annum. MFA No.133 of 2011 3 5. In this appeal, both the appellants jointly have taken various pleas. Sri.Martin G.Thottan, the learned counsel for the appellants, has submitted that the appellants were compensated meagerly, though they suffered grievous injuries. He has submitted that the appellants’ hospitalization for two days underlines the severity of accident. Even the minor children, according to her, have been subjected to trauma, and they had still been reeling from the shock of the accident. She has further contended that the Railway Claims Tribunal has wrongly applied Section 113 of the Railways Act, 1989 (“the Act”); it has no application, though. After taking us through Annexure A3, the complaint filed by the appellants before the Railway authorities, the learned counsel would contend that the appellants have lost personal belongings including gold worth about `81,000/. In this regard his singular contention is that Section 124 of the Act, which deals with the Railway Administration’s liability for death and injury to passengers due to accident should govern the issue. In the end, he has submitted that under Section 124 the MFA No.133 of 2011 4 appellants are entitled to the compensation they have claimed, especially, for the personal belongings they have lost. 6. On the other hand, Sri Dias, the learned standing counsel for the respondent Railways, has submitted that initially there were two claim petitions and in the eye of law, two judgments, though the Tribunal has rendered the findings through a common judgment. So, the appellants having taken independent proceedings ought to have filed two appeals. According to him, this appeal before us could be taken as an appeal against the award or judgment in O.A.No.1 of 2010. In other words, the learned Standing Counsel contends that about the appellants’ losing personal belongings, there is no appeal in the eye of law. 7. Confining to the facts, the learned Standing Counsel has also contended that absent any cogent proof that the appellants had actually lost their personal belongings, it is almost impossible for the railway authorities—for that matter, even for the Tribunal or this Court—to quantify any loss. According to him, any indulgence by this Court by MFA No.133 of 2011 5 directing compensation for a claim with no proof would open flood gates for false and spurious claims should an accident ever occur. 8. The learned Standing Counsel has further contended there is a cap on the luggage the passengers could carry. To elaborate, he has submitted that the first and second appellants could carry 40 kgs., each, and their minor children could have carried 20 kgs., each. As all the four passengers carry the luggage on their own account—individually—there ought to have been four claim petitions, independently. 9. In the end, the learned Standing Counsel concludes that the common judgment of the Tribunal is unassailable and warrants no interference. 10. Heard Sri Martin G.Thottan, the learned counsel for the appellants, and Sri Dias, the learned Standing Counsel appearing for the Railway, besides perusing the records. 11. As to the compensation paid for the injuries, we reckon, it was based on the certificates issued by the treating doctors, who in fact MFA No.133 of 2011 6 opined that the injuries are minor. Absent any further proof, we hold that the compensation awarded to the claimants is adequate. 12. We do not wish to go into the technicality whether the appellants ought to have filed two claim petitions. They ought to have, in our opinion. But because the legislation is beneficial, and the adjudication is at the behest of the aggrieved who have sustained injuries and have also allegedly lost their valuables, we shun any technical adjudication. 13. Examined further, even if we assume that Section 124 of the Act will apply, and the appellants are entitled to compensation for their personal belongings, we cannot ignore the fact that the law mandates that the passengers in advance should file a declaration before the railway authorities about the belongings they were carrying. Further, absent any proof about the belongings, including gold ornaments, it is impossible for the authorities to ascertain the loss and—most importantly—to distinguish the spurious claims from the genuine ones. MFA No.133 of 2011 7 Given the complications, even impracticalities, such claims may lead to, the Tribunal, we reckon, has rightly negatived the appellants’ contentions. 14. As seen from the award, the interest granted on the compensation to the appellants was only from the date of default, i.e. after sixty days from the date of the judgment. The Supreme Court as well as this Court has, however, taken a consistent view that the compensation should carry interest from the date the case was registered. In fact, the Supreme Court in _Thazhathe Purayil Sarabi v. Union of Indi_ ~~_a_~~ _[1]_ has held: 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 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. When there is no specific provision for grant of interest on any amount due, the Court and even Tribunals have been held to be 1 2009(4) KLT 370(SC) MFA No.133 of 2011 8 entitled to award interest in their discretion, under the provisions of S.3 of the Interest Act and S.34 of the Civil Procedure Code. ## 15. A learned Division Bench of this Court in _Union of India v_ ## _Brigeet Chacko[2]_ has held: There is no provision under the Railways Act or Rules regarding payment of interest. Under Section 4A of the Workmen's Compensation Act, interest is payable from the date of accident as that is the date when the compensation becomes due as held in Pratap Narain Singh Dev v. Sreenivas Salathra (1976) 1 SCC 289 and Oriental Insurance Co. v. Khajuni Devi and others (2002) 10 SCC 567) . In the Motor Vehicles Act also there is no specific provision regarding payment of interest on the compensation awarded. But in view of the various Apex Court decisions, it is now settled that interest is payable from the date of application at such rate at the discretion of the Tribunals. While awarding interest, tribunal can consider the bank rate also. Here the interest was ordered only from the registration of the case that too only at the rate of 6% per annum. We are of the opinion that the Railway Tribunal used the discretion correctly. In any event, we are of the opinion that the above direction need not be interfered in an appeal and no substantial injustice is caused as interest is payable for the delay in payment of compensation. Considering the increase in money value and facts and circumstances of the case, we see no ground to interfere in the order to pay interest on the amount of compensation at 6% per annum from the date of registration of the case. Hence appeal is dismissed. 2 2007(3) KLT 603 MFA No.133 of 2011 9 16. So also another Division Bench in Nalini _v Union of India[3]_ to which one of us (P. N. Ravindran J) is a member has re-iterated that proposition. 17. Thus, we hold that on the amount awarded, the appellants should get interest from the date of their filing the claim petitions till the date the railways pays the amount. With these observations, we dispose of the appeal. **sd/- Dama Seshadri Naidu, Judge** _css/_ **==> picture [468 x 38] intentionally omitted <==** _true copy_ _P.S.TO JUDGE_ 3 2008(3) KLT 17