Judgment:
$~ 2 & 3 * % + FAO2652014 IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision:
29. h November, 2018 + UNION OF INDIA ..... Appellant Through: Mr. Jagjit Singh, Senior Standing Counsel for Railways with Mr. A.S. Dateer, Mr. Vipin Chaudhary and Mr. Preet Singh, Advocates. KIRAN KANOJIA versus ..... Respondent Through: Ms. Punam Kumari, Advocate FAO4032017 & CM APPL. 18772/2018 KIRAN KANOJIA UNION OF INDIA ..... Appellant Through: Ms. Punam Kumari, Advocate versus ..... Respondent Through: Mr. Jagjit Singh, Senior Standing Counsel for Railways with Mr. A.S. Dateer, Mr. Vipin Chaudhary and Mr. Preet Singh, Advocates. Mr.Joydeep Ms.Priyata Chakraborty, Curiae) and (Amicus Mazumdar CORAM: HON'BLE MR. JUSTICE J.R. MIDHA JUDGMENT
(ORAL) 1. The parties have challenged the order dated 25th April, 2014 passed by the Railway Claims Tribunal whereby compensation of Rs.3,00,000/- have been awarded to Kiran Kanojia. FAO2652014 & FAO4032017 Page 1 of 11 2. Kiran Kanojia, hereinafter referred to as ‘the claimant’, is the daughter of a washer man named Bhikha Kanojia and resident of a jhuggi in Faridabad. She was picked up by a NGO who helped her in education whereupon she completed her BCA degree and got employment in Infosys at Hyderabad.
3. On 24th December, 2011, the claimant was coming back from Hyderabad to meet her parents by Andhra Pradesh Sampark Kranti Express, Train No.12707 (Coach No.S-5, Berth No.68). She was holding a valid ticket bearing PNR No.4654499444 reserved through Tatkal Scheme. The claimant was sitting on the lower berth near the gate of the coach and the train was passing slowly through Palwal station when a boy snatched her bag containing valuables and she was dragged with the bag towards the gate of the coach. In the meantime, the accomplice of the thief pushed the claimant from behind due to which the claimant fell down from the train and her left leg got entangled in the footboard of the coach. Both the thieves ran away with the bag of the claimant. The claimant cried loudly due to the pain whereupon some passenger pulled the chain and the train stopped. An elderly passenger got down from the train and tied the claimant’s leg with a cloth and made her lie down in the train and later on, the claimant was taken out of the train at Old Faridabad Railway Station where the Travelling Ticket Examiner of Railways took her to Fortis Escort Hospital, Faridabad in the police jeep where her left leg was amputated below knee level on 24th December, 2011. The claimant was discharged from the hospital on 05th January, 2012. The claimant underwent another surgery on 21st January, 2012 for de-bridgement, skin grafting and plaster application. The claimant FAO2652014 & FAO4032017 Page 2 of 11 remained hospitalized from 21st January, 2012 to 27th February, 2017. The photographs of the claimant are on record.
4. On 06th July, 2012, the claimant filed an application for compensation before the Railway Claims Tribunal. Along with the application, the claimant filed the copy of FIR No.1 of 2012 dated 4th January, 2012 under Section 356/379/308 of IPC, copy of statement given to the police, copy of the admission and discharge summary slips from Fortis Escort Hospital, Faridabad with respect to the amputation of left leg below knee and operation for debridement and skin grafting, disability certificate dated 07th March, 2012 assessing her permanent disability as 65%.
5. The Railways contested the claim petition by denying each and every averment made in the claim petition and raising false defence. The defence raised by the Railways is as under:-
"(i) The applicant was not holding any valid pass or ticked issued by Railway administration and was not travelling in the train as alleged and, therefore, is not a passenger within the meaning of Section 2(29) of the Railways Act. (ii) The alleged incident is not covered under Sections 123, 124 and 124A of the Railways Act and therefore, the applicant is not entitled to any compensation under the law. (iii) The application is totally vague as it does not disclose the full particulars of the incident. (iv) The applicant has not suffered any financial loss or any kind of loss on account of the alleged injuries in the alleged untoward incident and is, therefore, not entitled to any compensation. (v) The applicant’s claim is exorbitant, imaginary and without any FAO2652014 & FAO4032017 Page 3 of 11 basis. Even otherwise, the application is wholly misconceived, groundless and unsustainable in law. (vi) The applicant has no legal or valid cause of action against the respondent and as such, the application is bad and deserves dismissal. (vii) The application is totally baseless, false and it is a fit case, where the Tribunal should exercise the jurisdiction vested under the law and dismiss the application while imposing costs on the applicant. (viii) The Tribunal has no territorial jurisdiction to entertain and try the application. (ix) The Railways denied that the claimant was travelling from Secundrabad to Nizamuddin by A.P. Sampark Kranti Express and was sitting on the lower berth next to the exit gate while the train was passing slowly through Palwal Railway Station; one unknown gunda boy snatched her bag which contained her railway ticket and valuable and she was dragged towards the exit gate because of the force of snatching the bag or the other gunda boy pushed her from behind and thus, she fell down out of the train and those boys jumped out of the train and both of them ran away with the bag as alleged. The Railway also denied that the left leg of the applicant was badly injured because of its being entangled with the foot rest of the train and later on same night her left leg below the knee was amputated in Fortis Escorts Hospital, Faridabad. The Railway further denied that the alleged incident had taken place on 24th December, 2011 near Palwal Railway Station, as alleged. All such and other allegations are false and frivolous even to the own knowledge of the claimant and there is no iota of truth therein. FAO2652014 & FAO4032017 Page 4 of 11 (x) The Railway even denied that the applicant was travelling with Tatkal reserved ticket dated 23rd December, 2011 booked on 22nd December, 2011 from Lingampaly Railway Station PNR46549444 by sleeper class coach S-5 Berth 68. (xi) The Railway further denied that the left leg of the applicant was amputated below knee on 24th December, 2011 or debridement and skin grafting was on 21st January, 2012 in Fortis Escorts Hospital by doctor Anuj Dogra or she remained under treatment from 24th December, 2011 to 05th January, 2012 and 21st January, 2012 to 27th November, 2012 as alleged. It was also denied that because of amputation of left leg below knee causes problem in walking and working or because of having been pushed out of train and snatching of her bag cash Rs.20,000/- and gold chain worth Rs.32,749/- and other personal articles amounting to Rs.7,000/- were lost or total costs of alleged lost goods comes to Rs.59,749/-. (xii) The Railways filed the following documents along with their written statement: detailed investigation report by Railway Protection Force; copy of FIR No.1 of 2012 dated 4th January, 2012 under Section 356/379/308 of IPC; copy of the admission and discharge summary slips from Fortis Escort Hospital, Faridabad with respect to the amputation of left leg below knee and operation for debridement and skin grafting 6. On 21st November, 2012, the learned Tribunal rejected the objection of territorial jurisdiction; framed the issues and directed the applicant to lead evidence whereupon the applicant filed her evidence by way of affidavit on 04th December, 2012. FAO2652014 & FAO4032017 Page 5 of 11 7. Vide award dated 25th April, 2014, learned Claims Tribunal awarded compensation of Rs.2,00,000/- for amputation of left leg under Item 20 of Part II of Schedule of Railway Accidents and Untoward Incident (Compensation) Rules, 1990. The Railway Claims Tribunal further awarded compensation of Rs.1,00,000/- under Rule 3 of Railway Accidents and Untoward Incident (Compensation) Rules, 1990. The total compensation awarded is Rs.3,00,000/-.
8. In FAO2652014, the Railways has challenged the award on the ground that the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990 provide for compensation of Rs.2,00,000/- whereas the Railway Claims Tribunal has awarded compensation of Rs.3,00,000/-. According to the Railways, the additional compensation of Rs.1,00,000/- awarded by the Railway Claims Tribunal is without jurisdiction.
9. In FAO4032017, the claimant is seeking enhancement of the compensation amount from Rs.3,00,000/- to Rs.5,00,000/- in view of the amendment of the Schedule of compensation of Railway Accidents and Untoward Incident (Compensation) Rules, 1990 w.e.f. 01st January, 2017. The claimant is also seeking ex-gratia compensation for hospitalization under the circular of the Railway Board.
10. The claimant’s case falls in Item 20 of the Schedule of Railway Accidents and Untoward Incident (Compensation) Rules, 1990 which provides for compensation of Rs.2,00,000/-. However, the aforesaid Schedule has been amended by the Central Government w.e.f. 01st January, 2017 and the compensation amount has been enhanced from Rs.2,00,000/- to Rs.4,00,000/-. FAO2652014 & FAO4032017 Page 6 of 11 11. In Union of India v. Rina Devi, 2018 SCC OnLine SC507 the Supreme Court interpreted the Railway Accidents and Untoward Incidents (Compensation) Rules, 2016 and held that if the compensation amount under the pre-amended rules along with interest is more than the enhanced compensation, the claimants would be entitled to the higher amount. The relevant portion of the Supreme Court judgment is reproduced hereunder:
15. 3. ……………………Wherever it is found that the revised amount of applicable compensation as on the date of award of the Tribunal is less than the prescribed amount of compensation as on the date of accident with interest, higher of the two amounts ought to be awarded on the principle of beneficial legislation. Present legislation is certainly a piece of beneficent legislation. 15.4. Accordingly, we conclude that compensation will be payable as applicable on the date of the accident with interest as may be considered reasonable from time to time on the same pattern as in accident claim cases. If the amount so calculated is less than the amount prescribed as on the date of the award of the Tribunal, the claimant will be entitled to higher of the two amounts. This order will not affect the awards which have already become final and where limitation for challenging such awards has expired, this order will not by itself be a ground for condonation of delay. Seeming conflict in Rathi Menon (supra) and Kalandi Charan explained accordingly. The 4-Judge Bench judgment in Pratap Narain Singh Deo(supra) holds the field on the subject and squarely applies to the present situation. Compensation as applicable on the date of the accident has to be given with reasonable interest and to give effect to the mandate of beneficial legislation, if compensation as provided on the date of award of the Tribunal is higher than unrevised amount with interest, the higher of the two amounts has to be given. Sahoo (supra) stands (Emphasis Supplied) FAO2652014 & FAO4032017 Page 7 of 11 12. In Pappi v. U.O.I. Case No.OA(II)U/1037/2011, decided on 10th May, 2018, the Railways Claims Tribunal has elucidated the principles laid down in Rina Devi (supra) as under :-
"legislation lakhs, being a beneficial “……………………If the liability to pay arises on the date of accident then in respect of accident which has taken place before 01.01.2017 (i.e. when through a notification amount was enhanced to Rs eight lakhs), the liability was for Rs four lakhs. If interest at 9% were to be worked out till the date of award and if the amount reckoned is found to be less than eight the compensation payable will be only eight lakhs with 9% interest from the date of the award. On the other hand, if the computation results in a figure which is more than eight lakhs as now prescribed, then the tribunal will award four lakhs with interest at 9% from the date of accident till the payment is made. On a computation for our own guidance, we notice that in every case where an accident has taken place 11 yrs. 1 month and 10 days before the date when the adjudication is done, it will mean that compensation at 9% on four lakhs will exceed eight lakhs as is now provided. Consequently, in such cases where accident has taken place before 1.1.2017, compensation that could be awarded would be on the basis of the amount prescribed ( that is, 4 lacs) as on the date of accident with interest. In all other cases the compensation shall be Rs eight lakhs with interest at 9% from the date of the award. It cannot be interest from the date of accident on Rs eight lakhs for accident taking place before 01.01.2017 only because we have compared the sums of what the compensation would be, if the amount were to be worked out on four lakhs and eight lakhs respectively and adopt the amount which is more, that is beneficial to the claimants. The qualifying period of 11 yrs. 1 month and 10 days must be seen as the period when interest is calculated. There could be occasions where we deny interest because of the conduct of the applicant or because there has been enormous unexplained delay in filing the application and FAO2652014 & FAO4032017 Page 8 of 11 we may have reserved the issue of interest to be considered at the time of judgement even while allowing the application after condonation of delay. In all such cases there is no warrant for awarding interest from the date of accident. Since in this case the accident has occurred before 1.1.2017 and the amount of 4 lacs with interest at 9 % from the date of accident will yield less than Rs 4 lacs towards component of interest and the total will be less than Rs 8 lacs, there shall be an award for Rs.8,00,000/- being the higher amount with interest @ 9% from the date of award till the date of payment.” (Emphasis Supplied) 13. The Railway Accidents and Untoward Incidents (Compensation) Rules, 2016 came into force on 1st January, 2017. The untoward incident in question occurred on 24th December, 2011 is prior to amended Railway Accidents and Untoward Incidents (Compensation) Rules, 2016 coming into force. The amount of Rs.2 lakhs with interest from the date of accident would yield less than Rs.4,00,000/-. In that view of the matter, applying the principles laid down in Rina Devi (supra), the claimant is held entitled to Rs.4,00,000/-, being the higher amount.
14. Learned Tribunal has awarded additional compensation of Rs.1,00,000/- which is under challenge in this appeal by Railways. Rule 3(v) empowers the Railway Claims Tribunal to award of compensation for loss of goods. In the present case, the claimant has lost her bag including a gold chain and pendant weighing 16.17 grams, cash amount of Rs.20,000/-, two bed sheets, clothes and two new purses for gift. The claimant has proved the bill of the gold chain as Ex.A7, according to which the cost of the gold chain and the pendant was Rs.32,749/-. The claimant has proved that she lost her bag containing valuables. The claimant has filed an additional affidavit FAO2652014 & FAO4032017 Page 9 of 11 before this Court in terms of order dated 03rd October, 2018 in which she has deposed she lost goods totaling of Rs.59,749/- (Rs.20,000/- cash, gold chain worth Rs.32,749/-, and personal articles worth Rs.7,000/-).
15. The Claim Circular No.2/2014 issued by the Railway Board contains provision of grant of ex-gratia compensation of Rs.5,000/- for hospitalization up to thirty five days, Rs.1,000/- per week for indoor treatment up to further six months and Rs.500/- per week up to further five months.
16. The compensation of Rs.1,00,000/- awarded by the learned Tribunal is treated as compensation under Rule 3(v) for loss of goods namely bag containing gold chain and pendant weighing 16.17 grams purchased by the claimant for Rs.32,479/-, cash amount of Rs.20,000/- and other goods as well as ex-gratia compensation payable in injuries cases under Claims Circular No.2/2014.
17. The claimant is entitled to compensation of Rs.4,00,000/- as per Item 20 of the Schedule of Railway Accidents and Untoward Incident (Compensation) Rules, 2016 as amended from 01st January, 2017 and compensation of Rs.1,00,000/- as compensation for loss of goods under Rule 3(v) and ex-gratia compensation for injuries. The claimant is entitled to total compensation of Rs.5,00,000/-.
18. Vide order dated 08th May, 2018, this Court observed that the Railways have raised false claims and, therefore, prosecution of the officers responsible for raising false claim is warranted under Section 209 of Indian Penal Code.
19. On 22nd May, 2018, learned Senior Standing Counsel for Railways handed over the affidavit of Deputy Chief Claim Manager, Claims Northern FAO2652014 & FAO4032017 Page 10 of 11 Railways which contains the written apology on behalf of the Railways. The written apology of the Railways is accepted subject to cost of Rs.2,00,000/- to be paid by the Railways.
20. Both the appeals are disposed of in above terms. Pending application is also disposed of.
21. The Railways deposited Rs.2,21,274/- with the Registrar General of this Court in terms of order dated 08th August, 2014 after deducting TDS of Rs.5,318/- and Rs.1,38,076/- in terms of order dated 21st September, 2017 after deducting TDS of Rs.9,519/-. As such, a total sum of Rs.3,59,350/- has been deposited by the Railways. The Railways is directed to deposit the balance compensation amount and the cost of Rs.2,00,000/- with the Registrar General of this Court within four weeks from today.
22. List for disbursement of the aforesaid amount on 18th January, 2019.
23. This Court appreciates the assistance rendered by counsels for both the parties in this matter.
24. Copy of this judgment be given dasti to the counsels for the parties under signature of the Court Master. J.R. MIDHA (JUDGE) NOVEMBER29 2018 dk FAO2652014 & FAO4032017 Page 11 of 11