Union of India v. Sumathy Sajeevan and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE R.BASANT** **&** **THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN** **TUESDAY, THE 28TH JUNE 2011 / 7TH ASHADHA 1933** **MFA.No. 57 of 2010()** **------------------------------** **( THE JUDGMENT DATED 03/08/2009 OF THE RAILWAY CLAIMS TRIBUNAL ERNAKULAM BENCH IN OA.NO.OAU/ERS/2007/0027) ....................** ## **APPELLANT(S): RESPONDENT IN THE O.A.** **-----------------------------------------------------------------** **UNION OF INDIA, REPRESENTED BY THE GENERAL MANAGER, SOUTERN RAILWAY, CHENNAI.** **BY ADV. SRI.T.P.M.IBRAHIM KHAN,SR.SC, RAILWAYS SRI.C.S.DIAS,SC, RAILWAYS** ## **RESPONDENT(S): APPLICANTS IN THE O.A.** **---------------------------------------------------------------** **1. SUMATHY SAJEEVAN, AGED 37 YERS, WIFE OF LATE SAJEEVAN, VALIYAVEETTIL HOUSE, PARLAM VILLAGE, VENGINISSERY.P.O., THRISSUR DISTRICT KERALA STATE.** **2. SREEJITH (MINOR) SON OF LATE SAJEEVAN VALIYAVEETTIL HOUSE, PARLAM VILLAGE, VENGINISSERY P.O., THRISSUR DISTRICT, KERALA STATE.** **3. SRUTHY (MINOR), DAUGHTER OF LATE SAJEEVAN, VALIYAVEETTIL HOUSE, PARLAM VILLAGE, VENGINISSERY.P.O., THRISSUR DISTRICT, KERALA STATE.** **BY ADV. SRI.DILIP J. AKKARA** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 28/06/2011, ALONG WITH M.F.A.NO.199/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **R. BASANT & K. SURENDRA MOHAN, JJ.** **------------------------------------------------M.F.A. Nos. 57 & 199 of 2010 ------------------------------------------------Dated this the 28[th ] day of June, 2011** ## **JUDGMENT** ## **Basant,J.** These appeals are directed against the same impugned order passed by the Railway Claims Tribunal under Sec.124A of the Railways Act read with Sec.16 of the Railway Claims Tribunal Act. The claimants are the wife and two minor children of deceased Sajeevan who was found dead with injuries on the railway track. He was travelling from Chennai on that day. According to the claimants, he was travelling from Chennai to Aluva and he was found lying dead with injuries on the railway track after Angamali before Aluva. Angamali was the last stop of the train and Aluva was the next stop where deceased Sajeevan allegedly wanted to get down. The claimants alleged that the deceased was the victim of an untoward incident. He must have accidentally fallen from the train, they contended. 2. The claimants filed an application with a petition to condone the delay. The delay was condoned by the Tribunal. The respondent/Railway resisted the claim on various pleas. It ## **M.F.A. Nos. 57 & 199 of 2010** -: 2 :- was contended that the ticket having not been recovered, it cannot be assumed that he was a bona fide passenger with ticket. It was further contended that the accident must have taken place after the deceased got down from the train and was walking along the railway track. Thus, in short, the contention was that the death did not take place as a result of injury suffered in any untoward incident. 3. Parties went to trial on these contentions. On the side of the claimants, the 1[st] claimant/wife/widow examined herself as P.W.1. She had not witnessed the incident. She confirmed that he was travelling from Chennai to Aluva. His father had fallen sick and he had to hurriedly proceed to Vypeen from Aluva. In short, her evidence conveys that there was no necessity whatsoever for deceased Sajeevan to get down at Angamali and walk along the railway track. 4. On the side of the claimants, a witness was examined as P.W.2. He was a co-passenger along with deceased Sajeevan. He explained that Sajeevan was travelling along with him till they reached Angamali and after Angamali, Sajeevan had got up from his seat to get down at the next station i.e., Aluva. His seat **M.F.A. Nos. 57 & 199 of 2010** -: 3 :- was allegedly offered to P.W.2. 5. Exts.A1 to A9 were marked on the side of the claimants. A crime was registered by the police. Final report was filed after investigation. The police, it appears, had come to the conclusion that the deceased after getting down from train was walking along the railway track when he was run over by a train. The claimants evidently had produced the relevant police documents to show that the police had come to such a conclusion irrationally and no data whatsoever. 6. On the side of the respondent/Railway, Ext.R1 investigation report submitted by the Officer of the Force was produced. That is only a reiteration of the contents of the final report submitted by the police after investigation. 7. The Tribunal, on an anxious evaluation of all the relevant circumstances, came to the conclusion relying on the evidence of P.W.1 that the deceased was travelling from Chennai to Aluva with a valid ticket. The inability of the claimants to produce the ticket was not reckoned by the Tribunal as relevant in any manner. 8. On the more important question as to whether the **M.F.A. Nos. 57 & 199 of 2010** -: 4 :- deceased had suffered injuries in an untoward incident or when he was walking along the track after getting down at Angamali, the Tribunal chose to believe the evidence of P.W.2. The Tribunal also relied on the broad probabilities that emanated from the evidence of P.W.1. The deceased had to alight at Aluva to proceed to Vypeen to meet his ailing father. There was no necessity whatsoever for the deceased to get down at Angamali. More over, the evidence of P.W.2 clearly indicated that the deceased got up from his seat after Angamali to get down at Aluva, the next stop. There was no semblance of data to suggest that the deceased could have got down at Angamali and would have chosen to walk along the railway track. 9. The learned Standing Counsel for the Railway assails this finding of the Tribunal. But we find that the finding of the Tribunal is in tandem with broad probabilities that are revealed from the evidence of P.W.1 and the specific evidence tendered by P.W.2. The finding of the Tribunal, we find, is cogent, reasonable and acceptable. There is no semblance of a suggestion that any article carried by the deceased on his return journey from Chennai was available at the place where he was **M.F.A. Nos. 57 & 199 of 2010** -: 5 :- found dead. That is an indication certainly, though not conclusive in itself, to suggest that he had not got out from the train and was not walking along the railway track. At any rate, we find no necessity to disagree with the conclusion of the Tribunal. The challenge raised by the Railway must therefore fail. 10. The next controversy is about the interest payable. The Tribunal had awarded interest at the rate of 7.5% per annum. The death had taken place on 14/5/2002. The application was made under Sec.125 along with an application for condonation of delay on 29/8/05. After condoning the delay in filing the application, the Tribunal had registered the Original Application on 9/8/07. The Tribunal, in these circumstances, directed payment of interest at the rate of 7.5% per annum with effect from 9/8/07 only. The learned counsel for the claimants contends that the Tribunal had erred grossly in so directing payment of interests only from the date of registration of the Original Application. That is an artificial and irrelevant date for the purpose of awarding interest. The accident had taken place on 14/5/02. The claim petition along with the prayer for **M.F.A. Nos. 57 & 199 of 2010** -: 6 :- condonation of delay was filed on 29/8/05. At any rate, the Tribunal had no justification to postpone the date of payment of interest to 9/8/07 and not award interest from 29/8/05 the date on which the claim was formally lodged before the Tribunal. The learned counsel for the claimants contends that the delay from 29/8/05 to 9/8/07 was not, at any rate, attributable to the claimants and hence the course adopted by the Tribunal of directing payment of interest only from the date of registration of the O.A. is not legally sustainable. 11. The learned counsel appellants/claimants relies on the decision in **Sunderlal v. Union of India** (2009 (4) KLT SN 77 - Case No.72) in support of his contention. 12. We are in complete agreement with the learned counsel for the appellants/claimants. The date 9/8/07 fixed by the Tribunal has no reasonable and rational nexus to the award of interest. Certainly, interest must have been awarded from the date on which the claim was lodged - even assuming that the claim is not maintainable from the date of the accident because of the lapse on the part of the claimants of not having preferred the claim in time. We are in agreement with the learned counsel **M.F.A. Nos. 57 & 199 of 2010** -: 7 :- for the claimants that interest must, at any rate, have been awarded from the date of the application i.e., 29/8/05. 13. The learned counsel for the Railways contends that, at any rate, the award of interest at the rate of 7.5% per annum is not justified. The learned counsel relies on Sec.34 of the Cr.P.C. and points out that normally interest should have been awarded at a rate not exceeding 6% per annum. The learned counsel relies on the decision in **Thazhathe Purayil Sarabi v. Union of India** (2009 (4) KLT 370 [SC]). 14. In the said decision the Supreme Court had awarded interest at the rate of 6% per annum from the date of the claim petition to the date of the award and at 9% per annum thereafter. The Tribunal had not awarded any interest in that case and the Supreme Court felt that a conjoint reading of Sec.3 of the Interest Act and Sec.34 of the Cr.P.C. must certainly clothe the Tribunal with jurisdiction to award interest though no specific provision is available in the relevant Statute authorising payment of interest. The learned counsel submits that, at any rate, interest above the rate of 6% per annum is not justified from the date of the claim to the date of the award. The learned **M.F.A. Nos. 57 & 199 of 2010** -: 8 :- counsel for the claimants, on the contrary, contends that such a plea has not been raised by the Railways in their Memorandum of Appeal. 15. We take note of Sec.3 of the Interest Act which permits the courts to allow interest to the person entitled to the amount at a rate not exceeding the current rate of interest. In **Sarabi** (supra), the Supreme Court has not laid down the proposition that interest above the rate of 6% per annum cannot or should not be awarded. The Supreme Court drew inspiration from Sec.3 of the Interest Act and in that view of the matter, we are of the opinion that the award of interest granted at the rate of 7.5% per annum from the date of the claim petition to the date of payment is eminently justified. In **Sarabi** (supra) the Supreme Court had in fact awarded interest at the rate of 9% per annum for one segment of time. **Sarabi** cannot be pressed into service in support of the contention that interest above 6% cannot ever be granted. Normally, in the absence of valid reasons contra, interest must be awarded by the Railways Claims Tribunal in the claims staked under Sec.125 of the Railways Act at the current rate of interest payable by banks in respect of deposits from the **M.F.A. Nos. 57 & 199 of 2010** -: 9 :- date of the claim to the date of payment. ## 16. **In the result:** (a) M.F.A.No.57/2010 is dismissed. (b) M.F.A. No.199/2010 is allowed. - (c) It is directed that interest shall be payable at the rate of 7.5% per annum as directed by the Tribunal from the date of the claim petition i.e., 29/8/05 to the date of the payment. (d) The impugned order is upheld in all other respects. Sd/- **R. BASANT (Judge)** **Sd/-** **K. SURENDRA MOHAN (Judge)** ## **Nan/** **//true copy// P.S. to Judge**