Prafulla Kumar Samal Vs. Union of India - Court Judgment

ORISSA HIGH COURT: CUTTACK. FAO No.498 OF 200.From an award dated 16.6.1998 passed by the Railway Claims Tribunal, Bhubaneswar Bench, Bhubaneswar in O.A. No.37 of 1998. ----------Prafulla Kumar Samal . …… Appellant …… Respondent -VersusUnion of India For Appellant : M/s. D.P.Sarangi, K.C. Baral, P.C.Patnaik & N.C. Singh. For Respondent : Mr. A.K. Mishra. -----------------------------------Date of Judgment:

12. 11.2012 -----------------------------------PRESENT : THE HONOURABLE SHRI JUSTICE M.M. DAS M. M. DAS, J.The case of the appellant is that he was a constable in Railway Protection Force. On receiving a command certificate from the A.S.I. on 27.1.1996 and on being directed by the O.I.C. of the R.P.F. Post, Talcher, to move in the next available goods train (as passenger train is plied only once a day in the route) to proceed to the accident site on the railway track in between Budhapank and Talcher under Budhapank Railway Station, he carried out the command and proceeded to the place of accident immediately in the next available goods train. He was travelling in the Driver’s Cabin with arms on his shoulder and instructed the driver to stop the train for a while at the site of accident so as to enable him to safely get down from the train, 2 for guarding the site. On arrival near the accident site, the Driver of the goods train stopped the train and when the appellant was in the process of getting down from the Driver’s cabin, i.e., while one of his legs was on the foot rest and other was about to touch the ground, the goods train suddenly started moving giving a severe jerk, in consequence of which, the appellant could not control his balance and fell down on the metal part of the railway track and in the process, one of his legs was pulled inside the railway track resulting in dismemberment of his left leg. In course of treatment, was amputed his left leg below hip with a stump left not exceeding 5”. in length. He was shifted to the hospital at Dera Colliery, Talcher and later to the Orthopedic Ward of S.C.B. Medical College and Hospital, Cuttack, where he was treated as an in-door patient from 28.1.1996 to 8.3.1996. He became a little fit by 27.8.1996. The appellant claims to have spent about Rs. 60,000/- towards the cost of medicine, transport, doctor’s fees, purchase of blood, cost of attendant, cost of pathological examination etc. out of which, only a sum of Rs. 6,968/was reimbursed by the railway authorities. On account of physical disability, the appellant was taken out of employment as a constable in the Railway Protection Force and was accommodated in an inferior post of Care Taker carrying less salary, perks, privileges and promotional prospectus. The appellant thereafter filed a claim petition, being O.A. No.37 of 1998, under the provisions of Railways Act, 1989, as amended before the Railway Claims Tribunal, 3 Bhubaneswar Bench, Bhubaneswar claiming compensation of Rs. 3,20,000/- as provided in Item No.17 of Part-III of Schedule-E of the Railway Accidents and Untoward Incident (Compensation) Amendment Rules, 1997. The Claims Tribunal disposed of said O.A. No.37 of 1998 on 16.6.1998 awarded an amount of Rs. 1,60,000/and directed payment of the same to the appellant within 30 days from the date of the award and in the event of delay, to pay interest @ 12% per annum for the period of delay beyond 30 days from the date of award + an amount of Rs. 5,000/- towards cost. In paragraph-5 of the award, the Tribunal has observed as follows:“As regards compensation, the medical certificates filed by the applicant amply show that he was amputated below hip as a result of the injuries sustained by him and we ourselves saw him in person when he appeared in the court. For the amputation below hip with stump not exceeding 5”. in length, the Railway Accident (Compensation) Rules, 1990 lay down a compensation of Rs. 1,60,000/- at serial No.17 of Part III of the Schedule to these rules. Though this is too little a compensation for the disablement with which he will spend the rest of his life that is all that is admissible to him under law. We find that he is a matriculate and was working as a constable which comes under Group “C”. and on his disablement which he suffered in discharge of his duties, the Railways have employed him as a Care Taker in the Loco Running Room which comes under Group “D”.. We leave it to the better judgment of the Railways whether he should be employed in a sedentary job as a Clerk which would be at least be at par with his status before.

2. It is the case of the appellant that consequent upon permanent disability, he consistently suffered from various ailments 4 and completely lost his physical ability. He was unable to move without assistance of others and being not sufficiently literatured could not understand the purport of the award dated 16.6.1998 inasmuch as the copy of the said award was also not communicated to him for which he could not approach the Tribunal for correction of the typographical error with regard to the quantum of compensation awarded which according to him should have been Rs. 3,20,000/instead of Rs. 1,60,000/- as per the amended Rules. It is his further case that on receiving a notice from the Tribunal with regard to destruction of the records of O.A. No.37 of 1998, on 14.4.2004, the appellant managed to obtain a copy of the award and on scrutiny of the same through his counsel, he found that the quantum of award has been mentioned as Rs. 1,60,000/- instead of Rs. 3,20,000/-. He therefore, filed a petition under section 13 (1-A) of the Railway Claims Tribunal Act read with section 152 of the C.P.C. for correction of the typographical error committed in the impugned a ward. The learned Tribunal rejected the said application though it held that apparently there appears to be mistake as the said amount of Rs. 1,60,000/- is awarded without taking into consideration the amended provisions. The amended entry No.17 prescribes Rs. 3,20,000/- as compensation. In spite of such observation, the said application was rejected by the learned Tribunal, which held that the Tribunal also committed an error in awarding the compensation when it was the case of the appellant himself that he was travelling 5 in a goods train and not in a train carrying passengers and came to the finding that on the basis of his own pleading, the appellant was not entitled to any compensation before the Railway Claims Tribunal, but observing that the Tribunal has no authority to reconsider the case declined to allow the correction of the mistake by making observation as follows:“We find that on the basis of its own pleading, the applicant was not entitled for any compensation before the RCT. However, we have no authority to re consider the case, but at the same time we cannot allow to compound the mistake and perpetuate injustice by allowing the applicant to get more when he was entitled for nothing. We cannot exercise our inherent powers under Rule 44 of Procedure Rule when other avenues under RCT Act were available. The applicant had other remedies open by way of suit or otherwise and more so when he was a railway employee. Another aspect of this application is that it is made after a lapse of four years. We do not find it expedient to interfere with the order/judgment passed by the Tribunal on 16.6.1998. The said application of the appellant was registered as Misc. Case No.47 of 2004. Being aggrieved by the said order, the present appeal has been filed which was originally numbered as MFA No.1 of 2004 and, thereafter, renumbered as FAO No.498 of 2007.

3. In this appeal, the appellant made a prayer to the following effect: “The appellant, therefore, prays that this Hon’ble Court may be pleased to admit this appeal, call for the records from the Tribunal below and after hearing, set aside the impugned award so far as it relates to grant of compensation of Rs. 1, 60,000/- and award an amount of Rs. 3,20,000/- with consequential 6 benefits including interest and costs in favour of the appellant and against the respondent; And grant such other relief/reliefs as this Hon’ble Court deem fit and proper in the facts and circumstances of this case; And the appellant as in duty bound, shall ever pray.”

. It, thus, transpires that the appellant has challenged both the original award passed on 16.6.1998 in O.A. No.37 of 1998 as well as the order rejecting his application to correct the said award passed in Misc. Case No.47 of 2004.

4. During the course of hearing of the appeal, this Court on 4.11.2011, while considering the question of delay, in Misc. Case No.761 of 2007, passed the following order:“Heard. Even though the S.R. indicates that there is a delay of 6 years and 31 days in filing the appeal, it appears that the appeal was originally filed as M.F.A. on 15.10.2004, i.e., within time, being an appeal against the order rejecting the application for review passed by the learned Railway Claims Tribunal as well as the original order passed in O.A. No.37 of 1998. The review order having been passed on 1.9.2004 in Misc. Case No.47 of 2004, I find that the appeal is not time barred if it is confined to the review order. In view of the above, there being no delay, the Misc. Case is accordingly allowed holding that the appeal will be confined to be one against the review order. The Misc. Case is accordingly disposed of”.. Hence, this appeal is confined to the order under Annexure-4 passed on 1.9.2004 in Misc. Case No.48 of 2004. Though the said order has been mentioned as an order under review by this Court in its order 4.11.2011, it can also be construed to be an order on an application filed for correcting the quantum of award as originally made in view of the amended rules”

5. Mr. Sarangi, learned counsel for the appellant submitted that the learned Tribunal, in the impugned order, while rejecting the prayer of the appellant to carry out necessary correction with regard to the quantum of compensation awarded in accordance with the amended Rules of 1997, has acted wholly without jurisdiction in entering into the merit of the award passed by the self-same Tribunal earlier, which was sought to be corrected. He further submitted that since it is well settled in law that the Railway Accident and Untoward Incident (Compensation) Amendment Rules, 1997 is not prospective in nature, but retrospective. In support his above contention, he relied upon the decision in the case of Union of India, represented by the General Manager, South Eastern Railway, Calcutta v. Smt. Ahalya Prusti and another, 2008 (II) CLR 824.He also relied upon the decision of the Supreme Court in the case of Rathi Menot v. Union of India, 2001 ACJ 72.(SC) and submitted that the Supreme Court has categorically laid down in the said decision that the rules as amended can be made applicable if it has come into force by the date the award is passed even though the incident occurred prior to the amendment of the rules. Hence the learned Tribunal, while awarding Rs.1,60,000/- as compensation in favour of the appellant, has committed a clerical error in not awarding the amount as contemplated under the aforesaid Rules.

6. Mr. A. Mishra, learned counsel for the respondent – Railways, on the contrary, strenuously urged that the power of review 8 by the Railway Claims Tribunal, being akin to the power of the civil court under Order – 47, Rule 1 CPC, the law laid down by the Supreme Court in the case of Kalpataru Agroforest Enterprises v. Union of India, (2002) 3 SCC 69.that review cannot be allowed on the basis of subsequent decision by the superior court is applicable to this case and, therefore, the ratio of the decision relied upon by the appellant in the case of Rathi MeNo.(supra) cannot be applied to the facts of this case as by the date, the award was passed by the learned Tribunal, the said decision of the Supreme Court was not pronounced, which is a subsequent decision rendered after passing of the award.

7. The moot question, therefore, which arises for consideration in this appeal, is as to whether the law as laid down in the case of Rathi MeNo.(supra) should have been applied by the learned Tribunal while considering the application filed by the appellant to correct the quantum of award as awarded by the learned Tribunal.

8. A reading of the facts involved in the case of Rathi MeNo.(supra) gives a clear picture of the concern of the apex Court with regard to the series of maladies faced by the unfortunate claimant therein. The Supreme Court in the said case struck down the view of the High Court that the incident having occurred prior to the amended rules came into operation the same cannot be applied and held that the Claims Tribunal must consider what the rules prescribed at the time of making an order of payment of the compensation. Relying upon 9 various earlier decisions of the Supreme Court, it accepted the proposition that if any benefit is conferred by the amendment of the rule keeping in view the scheme of the Act, the said benefit should be available on the date, when the case is finally adjudicated.

9. In the case of Rathi MeNo.(supra), the Supreme Court, describing the facts of the said case with regard to the multiplicity of misfortune faced by Rathi Menon, the victim in a heart touching manner and considering the rules as amended in 1997, concluded that the Central Government, while changing the figure in the compensation amount after an interval of a decade, was only influenced by the desire to update the money value of the compensation. It further observed that in other words, what you were to pay ten years ago to one person cannot be the same if it is paid today in the same figure of currency notes. It is for the purpose of meeting the reality that Central Government changed the figures. It went on to hold as follows in paragraph – 29 of the said judgment:“29. The unjust consequence resulting from the interpretation which the Division Bench placed can be demonstrated in another plane also. If a person who sustained injury in a railway accident or in an untoward incident was disabled from making an application immediately and he makes the application a few years hence, is he to get the compensation in terms of the money value which prevailed on the date of the accident ?. Suppose a Tribunal wrongly dismissed a claim after a few years of filing the application and the claimant approaches the High Court in appeal. As it happens quite often now, some High Courts could take up such an appeal only after the lapse of many years and if the appeal is decided in favour of the claimant after so many years, what a pity if the amount awarded is only in terms of the figure indicated on the date of the accident.”

. 10 Holding thus, it was concluded by the apex Court that the benefit of amendment should be available on the date, when the case is finally adjudicated. The facts of the present case also clearly exhibit the multiplicity of misfortune faced by the appellant victim in the accident, though may not be to that degree or dimension as was faced by Rathi Menon.

10. Considering the scheme of the Act, it clearly shows that the aforesaid Act is a beneficial piece of legislation and law is well settled that interpretation of the provision of such an enactment is to be made liberally and further technicalities should not stand on the way for rendering justice to a victim seeking relief under such Statute. Justice to be rendered to the victim claiming relief of compensation under a beneficial piece of legislation is bound to contain component of benevolence, mercy and humanitarian aspect.

11. At this juncture, what strikes most is Portia’s speech in Shakespeare’s “Merchant of Venice”. given in the strict Court of Venice, where Portia speaks :“The quality of mercy is not strained. It droppeth as the gentle rain from heaven, Upon the place beneath. It is twice blessed. It blesseth him that gives and him that takes. It is mightiest in the mightiest, It suits the throned monarch better than his crown. His scepter shows the force of temporal power, His staff of office symbolizes his earthly power. The attribute to awe and majesty, And the respect that is due to a king, Wherein doth sit the dread and fear of kings; 11 And this is where we fear kings; But mercy is above this sceptred sway, It is enthroned in the hearts of kings, It is an attribute to God himself. And earthly power doth then show likest God’s, And we become like God. Where mercy seasons justice. be Therefore thy plea, Jew, Though consider justice this: Though you want justice, think about this: That in the course of justice none of us, If we just had to depend upon justice Should see salvation; we do pray for mercy, None of us would be saved from damnation; we pray for mercy, And that same prayer doth teach us all to render, And that prayer teaches us all to be, The deeds of mercy. I have spoke thus much merciful. I have spoken so much To mitigate the justice of thy plea, To soften that part of your suit which asks for pure justice, Which, if thou follow, this strict court of Venice, Must needs give sentence against the merchant there. We have to give a sentence that condemns the merchant over there. Hence, it is found that the application filed by the appellant for correcting the quantum of award, should not be treated as an application for review of the earlier award. Further, the Member of the learned Tribunal hearing the said petition, could not have come to the conclusion that the award itself was contrary to law, when the said award already attained finality, as it was never challenged by the respondent – Railways and also the Member could not have sat in 12 appeal over its earlier order. The only purpose for filing the aforesaid application by the appellant was to correct the quantum of award as per the amended rules, which the Tribunal should have awarded, while passing the award.

12. This Court, therefore, finds that the learned Tribunal was wrong in rejecting the prayer of the appellant and not correcting the quantum of award from Rs.1,60,000/- to Rs.3,20,000/- in accordance with the aforesaid rules, as amended.

13. The impugned order, therefore, is set aside with the direction that the appellant will be entitled to a compensation of Rs.3,20,000/- (Rupees three lakhs twenty thousand) with interest @ 8% per annum from the date of the original award till the date of payment. The respondent – railways shall deposit the awarded amount with interest before the learned Tribunal within a period of six weeks hence failing which interest @ 12% per annum shall be payable on the awarded amount from today till payment.

14. The appeal is, accordingly allowed, but circumstances without cost. …………………… M.M. Das, J.Orissa High Court, Cuttack. November 12th , 2012/Himansu in the 13