Railway Accidents; Prasad A.V. Vs. Union of India [Kerala High Court, 20-01-2015]

Railway Accidents and Untoward Incidents (Compensation) Rules, 1997 –  R. 3 (2) & 124 – Amount of Compensation – Extent of liability – Railway Tribunal – Remand – 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.

Railway Tribunal


IN THE HIGH COURT OF KERALA AT ERNAKULAM

C.T. RAVIKUMAR & BABU MATHEW P. JOSEPH, JJ.

M.F.A.No.204 of 2010

Dated this the 20th Day of January, 2015

AGAINST THE JUDGMENT IN OA 50/2002 of RAILWAY CLAIMS TRIBUNAL, ERNAKULAM DATED 01-10-2010

APPELLANT(S):APPLICANT

PRASAD A.V.

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

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, 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 annum from the date of registration of the case, i.e, 30-01- 2002 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 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 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. 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 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 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. 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 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 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:-