Bombay High Court
Ismail Bee W/O. Late Mohd. Osman ... vs Union Of India, Thr. General ... on 31 July, 2017
Bench: I.K. Jain
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.5084 OF 2016
01] Ismail Bee w/o Late Mohd. Osman,
Age about 39 years, Occ. Labour.
02] Tayaba d/o Late Mohd. Osman,
Age about 17 years, Occ. Education.
03] Nazayha d/o Late Mohd. Osman,
Age about 15 years, Occ. Education.
04] Mohd. Javeed s/o Late Mohd. Osman,
Age about 11 years, Occ. Education.
Petitioner Nos.2 to 4 are minors,
represented by their natural guardian
mother Petitioner No.1.
All r/o Door No.6-1-522/130,
Mahabharat Nagar, Khairatabad,
Hyderabad. .... Petitioners
-- Versus -
Union of India,
Through General Manager,
South Central Railway, 3rd Floor,
Rail Nilayam, Secundarabad :
PIN Code No.500 071. .... Respondent
Shri V.M. Deshpande, Advocate for the Petitioners.
Shri N.P. Lambat, Advocate for the Respondent sole.
CORAM : KUM. INDIRA JAIN, J.
DATE : JULY 31, 2017.
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ORAL JUDGMENT :-
Rule. Rule made returnable forthwith. Heard finally
with the consent of the learned Counsel for the parties.
02] The challenge in petition is to the orders dated
24/04/2014 and 09/12/2015 passed by the Railway Claims
Tribunal, Nagpur rejecting applications for condonation of delay
and bringing the legal representatives of original claimant on
record.
03] The facts giving rise to the petition may be stated in
brief as under :
i. Mohd. Osman, husband of petition no.1 filed claim
petition before the Railway Claims Tribunal for grant of
compensation for the injury sustained by him in
railway accident. The original claimant died during
pendency of petition on 08/04/2012. Prior to his
death, claimant had filed an affidavit in view of
evidence on 14/03/2012. Respondent also adduced
evidence and the matter was fixed for arguments of
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both the parties. That time, petitioners having
realized that the legal representatives of claimant
have not been brought on record moved an
application for bringing the legal representative of
claimant along with applications for condonation of
delay and setting aside abatement. Those
applications were rejected by the Tribunal vide
impugned orders. Hence, the present petition.
04] Heard Shri V.M. Deshpande, learned Counsel for
petitioners and Shri N.P. Lambat, learned Counsel for respondent
sole.
05] It is not in dispute that the original claimant filed
affidavit in lieu of evidence on 14/03/2012. The death of Mohd.
Osman on 08/04/2012 is also not in dispute. It is a matter of
record that after the parties adduced evidence, matter was fixed
for arguments.
06] Petitioners submitted that delay of 2 years and 350
days was caused as the Counsel for petitioners was not aware of
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death of the original claimant. The next submission is that
petitioner no.1 is the only lady to look after minor children and
as they lost the sole breadwinner in family, she could not timely
inform her Counsel. According to petitioners, delay is not willful
and impugned orders need to be set aside.
07] Per contra, learned Counsel for respondent submitted
that the Tribunal has recorded comprehensive reasons based on
the settled position of law. It is submitted that there is no
sufficient cause to condone inordinate delay and writ petition
deserves to be dismissed. Learned Counsel urged that in case
delay is condoned, responsibility of payment of interest may not
be saddled on respondent.
08] With the assistance of the learned Counsel for the
parties, this Court has gone through the impugned orders. The
learned Tribunal based on the principle, ignorance of law is not
an excuse rejected applications assigning the reasons that delay
has not been properly explained. Needless to state that law of
limitation is not meant to defeat the rightful claim of the parties.
At the same time, it is expected that inordinate delay in claiming
the relief should be properly explained.
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09] In the present case, petitioner no.1 is the widow of
original claimant and other petitioners are minor children.
Respondent has not denied that petitioner no.1 has to look after
the other petitioners. It is not seriously disputed that deceased
claimant was the sole breadwinner in family.
10] It is significant to note that claim petition filed by
original claimant had travelled along and reached the stage of
final arguments. In such circumstances, where the injured has
claimed compensation on account of an injury caused to him in
railway accident and met with the death during pendency of
petition, it would be quite unjustifiable to deny an opportunity to
petitioners to step into the shoes of original claimant, being the
legal representatives. The circumstances clearly indicate that
there was no willful or intentional delay on the part of
petitioners. In this premise, petition deserves to be allowed.
11] At the same time, Tribunal to take care of
apprehension of respondent that Railways would be saddled with
unnecessary responsibility for the delay caused at the hands of
petitioners while deciding the factum of interest if arises.
Accordingly, the following order :
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ORDER
I. Writ Petition No.5084/2016 is allowed in terms of
prayer Clauses (1) & (2).
II. Impugned orders are set aside.
III. Matter is remanded to the Railway Claims Tribunal,
Nagpur for fresh decision in accordance with the
law.
IV. Rule is made absolute in above terms.
V. No costs.
(Kum. Indira Jain, J.)
*sdw
