Prasad A.V. v. Union of India

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH WEDNESDAY, THE 20TH DAY OF JANUARY 2016/30TH POUSHA, 1937 MFA.No. 204 of 2010 ( ) -----------------------AGAINST THE JUDGMENT IN OA 50/2002 of RAILWAY CLAIMS TRIBUNAL, ERNAKULAM DATED 01-10-2010 APPELLANT(S):APPLICANT ---------------------------- PRASAD A.V., S/O.SANKARAN, CHERIYAPARAMBATH HOUSE, P.O.PARAPPANANGADI, MALAPPURAM DISTRICT. BY ADVS.SRI.K.P.SUDHEER SMT.M.SINDHU THANKAM RESPONDENT(S):RESPONDENT ---------------------------------- UNION OF INDIA, OWNING SOUTHERN RAILWAY REPRESENTED BY GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI-01 BY ADV. SRI.M.C.CHERIAN, SC, RAILWAYS BY ADV. SRI.JAMES KURIAN, SC, RAILWAYS THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 20-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MFA.204/2010 ## APPENDIX APPELLANT'S EXHIBITS: ANNEXURE A1:TRUE COPY OF THE NOTICE DATED 23.04.2010 ISSUED BY RAILWAY CLAIMS TRIBUNAL TO THE APPELLANT'S COUNSEL. RESPONDENT'S EXHIBITS:NIL //TRUE COPY// P.A.TO JUDGE **“C.R”** ## **C.T. RAVIKUMAR** # **&** **BABU MATHEW P. JOSEPH, JJ. ======================= M.F.A.No.204 of 2010 ======================= Dated this the 20[th] Day of January, 2015.** ## **J U D G M E N T** ## **C.T. RAVIKUMAR, J.** It is well-nigh settled that a Court or a Tribunal to which a case was remanded by a Superior Court cannot traverse beyond the limits laid down in the order of remand. In other words, the scope of such a case depends on the terms of the order of remand. This position is fairly settled by the Hon'ble Apex Court in the decision in **Jamshed Hormusji Wadia** v. **Board of Trustees, Port of Mumbai** reported in **AIR 2004 SC 1815** and reinstated in many a cases. When that be the position, a seemingly disregard to decide the matter afresh in terms of an order of remand that too, after making a virtual criticism of the said order, M.F.A.No.204/2010 2 by a Tribunal, should be a cause of concern from the point of view of judicial discipline and judicial propriety. The raison d'etre for such remarks would be unravelled by a succinct narration of the factual background of this case, as hereunder:- Train No.6602, Mangalore - Chennai Mail involved in an accident at Kadalundi on 22.6.2001 and the appellant who was a passenger in it sustained injuries. He sustained fracture of right clavicle, fracture of both bones of left forearm, left anterior cruciate ligament (left ACL) tear and left ulnar nerve palsy and such other injuries noted in the Wound Certificate issued from the Medical College Hospital, Kozhikode. He filed O.A.No.50 of 2002 under Section 16 of the Railway Claims Tribunal Act 1987, for compensation in respect of injuries sustained in the said accident. As per judgment dated 12-04-2005, the Railway Claims Tribunal awarded an amount of Rs.1,60,000/- (Rupees one lakh and sixty thousand Only) with interest at the rate of 6% per M.F.A.No.204/2010 3 annum from the date of registration of the case, i.e, 30-012002 till payment. Dissatisfied with the quantum of compensation and contending that it is inadequate, the applicant had earlier approached this Court by filing M.F.A.No.132 of 2005. A Division Bench of this Court considered the said appeal and remitted the case to the Tribunal for fresh consideration in accordance with law. The Tribunal was also directed to afford sufficient opportunity to the appellant-applicant, to adduce further evidence, if he so chooses. Evidently, along with the appeal, certain additional documents were also produced by the appellant/applicant, before this Court. While disposing the said appeal as per judgment dated 10-02-2010, this Court also directed the Registry to forward those additional documents to the Tribunal in a sealed cover along with a copy of the judgment. The impugned judgment in this appeal has been passed by the Tribunal, pursuant to fresh consideration in purported compliance with the directions in the judgment of this Court M.F.A.No.204/2010 4 in M.F.A.No.132 of 2005. A bare perusal of the impugned judgment would reveal that the Tribunal while considering the Original Application pursuant to the remand, made certain comments with respect to the directions and observations made by this Court in the judgment in M.F.A.No.132 of 2005 as is obvious from paragraph 6 of the impugned judgment. 2. Evidently, the Tribunal has made such comments which are absolutely unwarranted and uncalled for, in the matter of disposal of the said Original Application. After making such unwarranted and unnecessary comments, the Tribunal held that the matter has to be dealt with as per law, i.e., the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990 as amended in 1997 (hereinafter referred to as 'the Rules'). As noticed hereinbefore, this Court also directed the Tribunal only to consider the matter afresh in accordance with law. This fact was duly taken note M.F.A.No.204/2010 5 of by the Tribunal as can be seen from paragraph 2 of the impugned judgment. Still in Paragraph 3 of the impugned judgment, the Tribunal held:- “Considering the High Court order to dispose the appeal within six months and with no sign of the applicant being interested in adducing evidence or in pursuing his case, the Tribunal has no option but to dispose the case based on all additional documents taken on record. The applicant has filed a large number of medical bills, which have taken on record”. (underline supplied) 3.At the very outset, we may say that it is ununderstandable as to how and why the Tribunal formed such an opinion that it had no option but to dispose of the case based only on the additional documents taken on record when the Tribunal itself correctly understood the direction in the judgment in M.F.A.No.132 of 2005 as a direction for fresh consideration of the application, in accordance with law. M.F.A.No.204/2010 6 Needless to say that in such circumstances, the Tribunal was bound to consider the oral and documentary evidences tendered, at the first instance, based on which it passed the judgment which was interfered with by this Court in M.F.A.No.132 of 2005 besides the additional documents which were forwarded for its consideration, after affording an opportunity to the parties and in accordance with law. But at the same time, the appendix of the impugned judgment would make it appear that neither the applicant nor the respondent produced any documentary as also oral evidence before the Tribunal. In this context, it is also relevant to note that as per judgment dated 12-04-2005, which was challenged by filing M.F.A.No.132 of 2005, the Tribunal had earlier granted a compensation of Rs.1,60,000/- and the said amount was also ordered to carry interest at the rate of 6% from the date of its filing till realisation. But as per the impugned judgment, the Tribunal found that actually the appellant is entitled to only for a total compensation of M.F.A.No.204/2010 7 Rs.1,12,000/-. Thereafter, the Tribunal made observations and comments in regard to the judgment of this court in M.F.A.No.132 of 2005 in and vide paragraph 6 of the impugned judgment and then ordered that its earlier order dated 12.4.2005 whereby Rs.1,60,000/- was granted as compensation, would stand. In other words, virtually, the Tribunal restored its earlier order/judgment dated 12.4.2005 that was set aside by this court in the appeal. 4.Now, in this appeal, the appellant challenges the judgment dated 01-10-2010 in O.A.No.50 of 2002 passed by the Tribunal. The main contention of the appellant is that the Tribunal has passed the order in total disregard to the judgment passed by this Court in M.F.A.No.132 of 2005 and also the relevant provisions under the Railway Accidents and Untoward Incidents (Compensation) Rules as amended in 1997 (for short 'the Rules'). The learned counsel for the appellant contended that the Tribunal merely referred to Rule M.F.A.No.204/2010 8 3(3) of the Rules to hold that for all non-scheduled injuries, the appellant is entitled only to a maximum compensation of Rs.80,000/-, without making any discussion as to the nature of the injuries and their impact and why he is not entitled to Rs.4,00,000/- as compensation. It is also contended by the learned counsel for the appellant that the impugned judgment itself would reveal that the appellant had produced a number of medical bills evidently pertaining to the prolonged treatment at various hospitals in connection with the injuries sustained by him in the accident. But, a bare perusal of the impugned judgment would reveal that they were not at all taken into consideration, it is submitted. Per contra, the learned counsel appearing for the respondent submitted that the Tribunal considered the entitlement of the appellant to compensation for the injuries sustained by him and a careful perusal of the impugned judgment would reveal that the maximum amount of compensation which could be granted for such injuries was in fact, granted to the appellant. M.F.A.No.204/2010 9 It is contended that in such circumstances, the judgment and order of the Tribunal call for no interference. 5.We have already referred to the manner in which the Tribunal considered the entitlement of the appellant to compensation pursuant to the remand of the case by this Court as per judgment in M.F.A.No.132 of 2005 dated 12.10.2010. Paragraph 2 of the impugned judgment itself would reveal that M.F.A.No.132 of 2005 was filed by the appellant alleging inadequacy of the compensation granted as per judgment dated 12.4.2005. The said paragraph would show that the Tribunal took note of the fact that this Court virtually observed that the Tribunal had not quantified compensation considering the fractures of ulnar nerve palsy, his prolonged treatment at various hospitals, his loss of income etc. and further that the Tribunal was also directed thereunder to consider the factum of prolonged treatment, medical records and the additional documents which were M.F.A.No.204/2010 10 produced by the appellant. The impugned judgment itself would reveal that those documents produced by the appellant before this Court were forwarded to the Tribunal along with a copy of the judgment in the M.F.A.No.132 of 2005, for fresh consideration in accordance with law. As per the judgment, the appellant was directed to be given an opportunity to adduce further evidence, if he chooses. Annexure-A1 produced in this appeal would reveal that after the remand of the case, the Tribunal directed the appellant to produce the copy of the appeal within seven days from 23.4.2010. What exactly was the purpose of such a direction is not discernible from the impugned judgment. The impugned judgment would also reveal that the appellant had produced several medical bills and they were also taken on record. But, there is absolute absence of any discussion based on the same despite the direction in the judgment in M.F.A.No.132 of 2005. It appears that the Tribunal refrained from considering the medical bills produced holding that M.F.A.No.204/2010 11 there is no provision for taking into account such medical bills and in that matter prolonged treatment and loss of earning capacity. We will consider its merits, a little later. 6.Paragraph 2 of the impugned judgment itself would reveal that the Tribunal was very much astute to the fact that M.F.A.No.132 of 2005 was filed by the appellant-applicant attributing inadequacy of compensation and in the judgment passed thereon, this Court observed that the approach of the Tribunal was unsustainable. Still, while considering the matter afresh, the tribunal held that the appellant is actually entitled only to Rs.1,12,000/-. Thereafter, the Tribunal went on to observe:- “The Honourable High Court of Kerala had opined that the “approach made by the Tribunal, in our view, is unsustainable to say the least”. However, the Honourable High Court has not indicated in its order why the approach of the Tribunal was unsustainable, even though it would appear that the High Court felt it was obvious. The Tribunal is, M.F.A.No.204/2010 12 however, unable to decipher how its approach was unsustainable and without any clarification from the Honourable High Court of Kerala, it can only deal with the case as per law, which in this case is, “The Railway Accidents and Untoward Incident (Compensation) Rules, 1990 as amended in 1997.” 7.After making such comments Tribunal observed that it had already awarded a compensation of Rs.1,60,000/- as per its earlier judgment dated 12.4.2005 and there was no need to reduce the compensation and finally held that the said order of the Tribunal dated 12.4.2005 would stand. In other words, the Tribunal virtually, restored its order dated 12.4.2005 granting an amount of Rs.1,60,000/-. The impugned judgment itself would reveal that as per judgment in M.F.A.No.132 of 2005, this Court set aside the said judgment dated 12.4.2005 passed by the Tribunal for a compensation of Rs.1,60,000/-. But, then as per the impugned judgment the Tribunal held:- “The order of this Tribunal dated 12.4.2005 M.F.A.No.204/2010 13 ## therefore stands.” 8.When this Court exercising the appellate jurisdiction set side the said judgment of the Tribunal passed earlier on 12.4.2005 how could the Tribunal hold that the very same order would stand. The manner in which the Tribunal made comments on the judgment of this Court as is obvious from the aforeextracted paragraph 6 and the ultimate order holding that its earlier order set aside by this Court would stand, could not be appreciated as the approach and attitude, cause concern from the point of view of judicial discipline and judicial propriety. 9.The observations and comments of the Tribunal against the judgment of this Court in M.F.A.No.132 of 2005 as also the tenor of the ultimate order as noted hereinbefore virtually deserve to be deprecated in a strong language. However, we are refraining from making any such M.F.A.No.204/2010 14 comments, though we are tempted to employ strong terms, bearing in mind a decision of the Hon'ble Apex Court in **Braj Kishore** v. **Union of India** reported in **1997 (1) KLT Case No.80 (page 60).** The Apex Court in the said decision held thus:- “No greater damage can be caused to the administration of justice and to the confidence of people in judicial institutions when judges of higher courts publicly express lack of faith in the subordinate judges. It has been said, time and again, that respect for judiciary is not in hands by using intemperate language and by casting aspersions against lower judiciary. It is well to remember that a judicial officer against whom aspersions are made in the judgment could not appear before the higher court to defend his order. Judges of higher courts must, therefore, exercise greater judicial restraint and adopt greater care when they are tempted to employ strong terms against lower judiciary. 10.We may hasten to add that we shall not be understood to have held that merely because of the matter was remanded by this Court, the Tribunal should have granted enhanced compensation. This Court in the judgment M.F.A.No.204/2010 15 in M.F.A.No.132 of 2005, though observed that the approach of the Tribunal was unsustainable, directed the Tribunal only to consider the aspects highlighted therein, in accordance with law. We are only holding that in such circumstances instead of making such comments and observations, an appropriate consideration with reference to the legal and factual position should have been made by the Tribunal on such aspects, as well. The impugned judgment by a single member of the Tribunal also carries the insinuation that the earlier judgment in the said Original Application, dated 12.4.2005 passed by a Division Bench of the Tribunal is also not in conformity with the relevant provisions of the Rules. 11.We will appreciate the challenge against the impugned judgment in another angle as well. A bare perusal of the impugned judgment would reveal that after granting an amount of Rs.32,000/- for the 'scheduled injuries' under M.F.A.No.204/2010 16 item No.34 of Part II, the Tribunal considered the question of compensation payable for the 'non-scheduled injuries'. In that context, it is to be noted that besides fracture of radius and ulna of one limb, the appellant had also sustained fracture to clavicle and ulnar nerve palsy. The medical records already produced and the bills revealing continuation of treatment for the injuries sustained years after the accident, were not at all considered by the Tribunal despite the direction of this Court. The appellant had evidently taken up the contention that he had prolonged treatment and even in this appeal it is specifically stated that he had to undergo four surgeries in connection with the injuries sustained in the accident. The medical records including the medical bills pertaining to such prolonged treatment were produced even going by the impugned judgment. As noticed hereinbefore, the tribunal declined to consider them holding the view that there is no provision for taking into account such medical bills and the prolonged treatment as also the loss of earning M.F.A.No.204/2010 17 capacity. With respect to the observation of the Tribunal that there is no provision for taking into account the loss of earning capacity one can only say that it is only an observation without taking into account the provisions under Rule 3(2) of the Rules which reads thus:- ## “3. **Amount of Compensation** (1) xx xx xx (2) The amount of compensation payable for 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 any work, shall be rupees four lakhs.” 12.It is evident from Rule 3(2) of the Rules that the maximum amount of Rs.4,00,000/- can be granted in a case where the Tribunal arrives at an opinion that owing to the non-scheduled injuries a person was deprived of all capacity to do any work. Therefore, it is incorrect to say that there is no provision for taking into account loss of earning capacity. In this context, it is to be noted that besides sustaining a M.F.A.No.204/2010 18 fracture on the clavicle the appellant had ulnar nerve palsy as well. If the appellant had to undergo four surgeries and still could not recover from the impact of the injuries, it is a matter befitting a consideration for deciding whether or not the injuries sustained would deprive him of all capacity to do any work and if so, whether he is entitled to enhanced compensation. However, these aspects were not at all considered by the Tribunal. The impugned judgment also would reveal that the appellant had produced medical bills before the Tribunal in addition to the documents produced before the passing of the earlier judgment dated 12.4.2005, by the Tribunal. However, in the appendix what is stated is that the appellant/applicant had not produced any oral or documentary evidence. In the context of tortious liability of the railway administration it is relevant to refer to Section 124 of the Railways Act, 1989 which reads thus:- **“Extent of liability** .- When in the course of working a railway, an accident occurs, being either a collision between trains of which one is a train carrying passengers or the M.F.A.No.204/2010 19 derailment of or other accident to a train or any part of a train carrying passengers, then whether or not there has been any wrongful act, neglect or default on the part of the railway administration such as would entitle a passenger who has been injured or has suffered a loss to maintain an action and recover damages in respect thereof, the railway administration shall, notwithstanding anything contained in any other law, be liable to pay compensation to such extent as may be prescribed and to that extent only for loss occasioned by the death of a passenger dying as a result of such accident, and the personal injury and loss, damage or deterioration of goods owned by the passenger and accompanying him in his compartment or on the train, sustained as a result of such accident.” (underline supplied) 13.A close scrutiny of Section 124 would reveal that if in an accident, a train passenger was injured or has suffered a loss, he could maintain an action for recovery of damages, for the personal injury. True that the Tribunal is bound by the Rules and it can consider the quantum of compensation only in accordance with the provisions of the Railways Act and 'the M.F.A.No.204/2010 20 Rules'. The long and short of the discussion is that the impugned judgment in O.A.No.50 of 2002 dated 1.10.2010 is liable to be set aside partially to enable the Tribunal to consider all aspects, as mentioned in this judgment and also in the judgment in M.F.A.No.132 of 2005. Accordingly, it is set aside to the extent it declined to consider the documents produced prior to the passing of the judgment dated 12.4.2005 and subsequent to the remand of the case as per judgment of this Court in M.F.A.No.132 of 2005 for the aforementioned purposes. We are making it clear that we have not interfered with the judgment to the extent it granted Rs.1,60,000/- as compensation and further that as a consequence of the finding thereon to the effect that the earlier judgment dated 12.4.2005 would stand, the rate of interest granted thereunder would also stand impliedly granted under the impugned judgment in respect of the said amount. The case is remitted to the Tribunal for fresh consideration in accordance with law on the aforementioned M.F.A.No.204/2010 21 aspects, taking into account the observations of this Court in this judgment as also the judgment in M.F.A.No.132 of 2005 dated 10.2.2010 and all the relevant provisions under the Railways Act, 1989 as also the Rules. Needless to say that, if the additional documents which were forwarded by this Court along with the judgment in M.F.A.No.132 of 2005, were not taken on record or not legally brought on record, the Tribunal shall afford sufficient opportunity to the appellant to bring all such documents legally on record. Taking into account the fact that the Original Application is of the year 2002, the Tribunal shall make an endeavour to dispose of O.A.No.50 of 2002 as expeditiously as possible, at any rate, within a period of six months from the date of receipt of a copy of this judgment. We also made it clear that we have not held that the appellant is entitled to enhanced compensation by virtue of being deprived of all capacity to do any work or on any other grounds and essentially, those are matters to be decided in accordance with law. This appeal is allowed as M.F.A.No.204/2010 22 above. Registry is directed to forward a copy of this judgment to the Tribunal immediately. On its receipt, the Tribunal shall cause issuance of notices to the parties for their appearance and shall proceed with the case in such a manner to finally dispose of the matter within the time stipulated hereinbefore. **C.T. RAVIKUMAR JUDGE** **BABU MATHEW P. JOSEPH JUDGE** AVS