Mr. Shahid Husain vs Union Of India
2023 Latest Caselaw 13344 Bom

Bombay High Court

Mr. Shahid Husain vs Union Of India on 22 December, 2023

Author: Madhav J. Jamdar

Bench: Madhav J. Jamdar

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                                                                             Sonali


                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           CIVIL APPELLATE JURISDICTION

                         WRIT PETITION NO.11578 OF 2023

Mr. Shahid Husain                                    ...Petitioner
     Versus
Union of India & Anr.                                ...Respondents


Ms. Deepika Oswal a/w. Kaif Ansari i/b. Ashif Husain, for the Petitioner.

Mr. Suresh Kumar, for the Respondent-Union of India.

Mr. Niranjan Shimpi, for Respondent No.2.

                             CORAM : MADHAV J. JAMDAR, J.

DATED : 22nd DECEMBER 2023 P.C. :

1. At the outset, Ms. Deepika Oswal, learned Counsel appearing

for the Petitioner seeks leave to amend the Writ Petition by adding

the Additional Registrar, Railway Claims Tribunal, Mumbai as party-

Respondent No.2. Mr. Shimpi, learned Counsel waives service on

behalf of newly added Respondent No.2.

2. This Court passed the following order on 26th October 2023:-

1. Heard Mr. Husain, learned counsel appearing for the Petitioner.

2. The Petitioner is, inter alia, seeking the following reliefs :-

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"A) That, this Hon'ble Court exercising powers under Article 226 and or Article 227 of the Constitution of India, be pleased to issue writ of mandamus or any other appropriate writ thereby directing the registry of Ld. Railway Claim Tribunal, Mumbai to number misc. application (enclosed at EXHIBIT-D) and place the matter before the concerned court.

B) That, this Hon'ble Court be further pleased to direct the Railway Claims Tribunal Mumbai to decide the misc. application (enclosed at EXHIBIT-D) within 4 weeks from the day of getting numbered.

OR IN THE ALTERNATIVE:-

A1) That, this Hon'ble Court exercising powers under Article 226 and or Article 227 of the Constitution of India, be pleased to issue writ of mandamus or any other appropriate writ thereby directing the registry of Ld. Railway Claim Tribunal to disburse the accrued interest accumulated on the principal amount deposited by the respondent in OA(IIu)/MCC/0777/2003. C) And for such further orders as the justice and convenience may deemed on-time to time, be passed in favour of the Appellant and against the Respondent;"

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3. This Court, on 21st September 2023, passed the following order :-

"1. Issue notice to the Respondent, returnable on 11th October 2023 at 2.30 p.m.

2. In addition to the Court notice, the Petitioner to serve the Respondent by private notice and shall file affidavit of service before the returnable date.

3. Notice to indicate that, on the returnable date, subject to the convenience of the Court, the Writ Petition will be heard finally at the stage of admission.

4. It is made clear that, if the Union of India is not represented inspite of service, then the petition will be heard in its absence."

4. Inspite of service to the Respondent-Union of India, none appeared for the Respondent-Union of India and, therefore, this Court has passed the order dated 11th October 2023:-

"1. This Court by the order dated 21st September 2023 issued notice to the Respondent-Union of India and made the same returnable on 11th October 2023 at 2:30 p.m..

2. In the said order, it is clarified that subject to the convenience of the Court, the Writ Petition will be heard finally at the stage of admission

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and it is further made clear that, if the Respondent-Union of India is not represented inspite of service, then the Petition will be heard in its absence.

3. Inspite of service, none appears for the Respondent- Union of India. For giving one more and last opportunity, stand over to 19th October 2023. To be shown in the 'Supplementary Board' [fairly high on board].

4. It is made clear that, on the next date, if the Respondent-Union of India is not represented, then the Petition will be heard in its absence. It is also clarified that, subject to the convenience of the Court, the Writ Petition will be heard finally at the stage of admission."

5. On 11th October 2023, no one appeared for the Respondent- Union of India and, therefore, the matter was adjourned to today for passing orders.

6. It is the claim of the Petitioner that the Petitioner sustained injuries in an accident caused by a heavy rush in a local train at Sandhurst Road Railway Station on 4th October 2003. The Petitioner suffered the following injuries :-

a. Amputation of Right leg (above knee) b. Amputation of Right hand (below elbow) c. Amputation of left Hand finger(IIIrd, IVth,

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Vth) d. Dislocation of left hip.

7. The Petitioner filed a Claim Application in 2003 before the learned Railway Claims Tribunal, Mumbai (for short "the Tribunal") bearing Claim Application No.OA(IIu)/MCC/0777/2003 under Section 16 (1) r/ w Section 13 (1-A) of the Railway Claims Tribunal Act, 1987 on 12th December 2003. The said Claim Application was decided in favour of the Petitioner by the Tribunal by the Judgment and Order dated 12 th October 2006. The Tribunal, inter alia, passed the following operative order :-

"In view of our findings above, the application is decreed for Rs.4.0 lakhs to the applicant with interest @ 6% per annum from the date of this order till paid."

8. The Respondent-Union of India challenged the said order of the Tribunal dated 12th October 2006, by filing the First Appeal No.566 of 2007. The said First Appeal has been admitted. A learned Single Judge by the order dated 21st March 2007 passed in the Civil Application No.1092 of 2007 issued notice and granted stay to the said order subject to the depositing of entire amount awarded by the Tribunal. It further appears that there was a delay in depositing the said

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amount within a period of six weeks from 21st March 2007 and, therefore, the said amount of Rs.4,12,230/- has been deposited before the Tribunal. The said First Appeal was subsequently dismissed by a learned Single Judge by the Judgment and Order dated 26th April 2022. Thereafter, the Petitioner approached the registry of the Railway Claims Tribunal and sought disbursal of the awarded amount as deposited by the Respondent-Union of India, along with accrued interest. The registry of the Railway Claims Tribunal disbursed only an amount of Rs.4,12,230/-. Learned counsel appearing for the Petitioner states that the said amount is only the principal amount, as the aforesaid amount of Rs.4,12,230/- includes Rs.12,230/- which is the interest paid by the Union of India in view of the delay in depositing the said amount as per order dated 21st March 2007 passed by this Court and the same is not the interest as per order dated 12th October 2006 passed by the learned Tribunal. Thereafter, the Petitioner filed Miscellaneous Application on 13th July 2023 in O.A. No.777 of 2023 before the Tribunal, seeking disbursal of the said interest. However, till date, the said Miscellaneous Application has remained unnumbered by the registry of the Railway Claims Tribunal.

9. Thus, the factual position on record makes it clear

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that the Tribunal by the Judgment and Order dated 12th October 2006 directed the payment of compensation of Rs.4,00,000/- to the Petitioner with interest at the rate of 6 % per annum from the date of the said order. A learned Single Judge by order dated 21st March 2007 passed in the Civil Application No.1092 of 2007 issued notice and granted stay to the said order subject to the depositing and, accordingly Rs.4,12,230/- is deposited before the Tribunal. Thereafter, the said First Appeal has been dismissed along with the Civil Application on 26th April 2022. Thus, it is clear that the Petitioner is entitled to the interest on said Rs.4,00,000/- from the date of the order of the Tribunal till payment.

10. In view of above, it is clear that the Tribunal and/ or Union of India are under an obligation to pay to the Petitioner the said amount of Rs.4,00,000/- with interest at the rate of 6% per annum from the date of passing of the order by the learned Tribunal i.e. since 12th October 2006 till the date of payment. Learned counsel appearing for the Petitioner states that the said interest amount is about Rs.4,08,000/-.

11. In spite of service and in spite of giving opportunities, none appear for the Respondent-Union of India, as set out herein above. In any case, the order of learned Tribunal is very clear and the factual

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position on record clearly shows that the Petitioner is entitled to receive an amount of Rs.4,08,000/-.

12. Accordingly, the registry of the Railway Claims Tribunal and/or the Union of India is directed to pay to the Petitioner an amount of Rs.4,08,000/- forthwith and, in any case, on or before 8th November 2023.

13. The Writ Petition is disposed of in the above terms with cost of Rs.10,000/-.

14. Place the Writ Petition for reporting compliance of this order on 9th November 2023 [fairly 'high on board'].

(Emphasis supplied)

3. On 30th November 2023, this Court passed the following

order:-

1. This Court by order dated 26.10.2023 directed the Union of India to pay to the Petitioner an amount of Rs.

4,08,000/- forthwith and, in any case, on or before 8 th November 2023.

2. However, no compliance report is filed.

3. Stand over to 08.12.2023 for reporting compliance of the order.

4. On 18th December 2023 this Court passed the following order:-

1. Heard Ms. Oswal, learned counsel appearing for the

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Petitioner.

2. By Order dated 26.10.2023, this Court had directed that the Petitioner be paid an amount of Rs. 4,08,000/-

and same be done inter alia by the Registry of the Railway Claims Tribunal, Mumbai/Union of India. The said payment was directed to be made on or before 08.11.2023. Till date, the said order is not complied with.

3. The Registrar, Railway Claims Tribunal, Mumbai to file report on or before 20.12.2023.

4. The office to communicate this order to all concerned.

5. Stand over to 21.12.2023 at 2.30 p. m..

5. Pursuant to above Order dated 18th December 2023, Mr.

Prakash Parmar, Additional Registrar, Railway Claims Tribunal,

Mumbai submitted report dated 20th December 2023 inter alia stating

that letter dated 28th November 2023 had been sent to Railway

Authorities to deposit said amount of Rs.4,08,000/- in the Railway

Claims Tribunal for disbursement of the same to the Petitioner. It is

significant to note that Union of India/Railway has already deposited

the principal amount of Rs.4,00,000/- in the Railway Claims Tribunal

in the year 2007 and the dispute now is only concerning the payment

of interest thereon. It is significant to note that in the Affidavit dated

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22nd December 2023 filed today by Mr. Prakash Jethalal Parmar,

Additional Registrar, Railway Claims Tribunal, Mumbai, it is stated

that the interest earned on the principal amount of said

compensation amount deposited with the Railway Claims Tribunal is

only Rs.2,76,694/-. In fact, the said amount is also not paid to the

Petitioner.

6. Mr. Suresh Kumar, learned Counsel appearing for the

Respondent No.1-Union of India/Railway states that an amount of

Rs.4,08,000/- as directed to be paid by Order dated 26 th October

2023 has been transferred in the account of the Petitioner by

Electronic Clearing Service (ECS) mode on 22nd December 2023 and

the Petitioner will receive the said amount within short time. In view

of the said statement, Order dated 26 th October 2023 is complied

with.

7. However, Mr. Suresh Kumar, learned Counsel appearing for the

Respondent No.1-Union of India states that there is a larger issue

involved in the matter, as the Union of India/Railway is depositing

the amounts directed by the Railway Claims Tribunal and instead of

investing the same in fixed deposits, the same are kept in Saving

Account/Suitors' Deposit Account. He states that as the result of the

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same, the interest earned on compensation award in the savings

account is very less. He states that the said action of the Additional

Registrar of the Railway Claims Tribunal is contrary to the

Notification dated 3rd June 2020 issued by the Ministry of Railways

(Railway Board). He pointed out clause No.5.4.3 of the said

Notification, which is concerning protection of the award amount.

The same contemplates deposits of such amount in annuity or fixed

deposit.

8. Most fixed deposits schemes offer an interest rate of around

6% to 8% which is often more than twice the interest rate offered on

savings accounts. The aforementioned Notification issued by Railway

Board to deposit compensation award in fixed deposit/annuity

ensures that victims receive the benefit of greater interest rate.

9. The said practice of depositing compensation award in savings

account instead of fixed deposits adopted by the officials of the

Railway Claims Tribunal is adverse to the interest of the victims of

Railway accidents. The factual position in this case clearly shows how

the victims of Railway accidents continue to suffer in view of the

delay in getting the amount of compensation and interest accrued

thereon. Ms. Deepika Oswal, learned Counsel appearing for the

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Petitioner states that this is not a solitary case but almost all victims

of Railway accidents face these difficulties.

10. Although, by order dated 26th October 2023, the Writ Petition

is disposed of and thereafter kept only for reporting compliance of

the said order. Since larger issue is involved, the order disposing of

the Writ Petition is recalled. Ms. Deepika Oswal, learned Counsel

appearing for the Petitioner is appointed as Amicus Curiae to assist

the Court.

11. The Additional Registrar of Railway Claims Tribunal, Mumbai

is directed to supply the information which is required by Ms.

Deepika Oswal, learned Amicus Curiae to assist the Court. Ms.

Deepika Oswal, learned Amicus Curiae is requested to file written

application seeking necessary information from the Additional

Registrar, Railway Claims Tribunal, Mumbai on or before 5 th January

2024. Such information be furnished to learned Amicus Curiae by

19th January 2023. Ms. Deepika Oswal, learned Amicus Curiae to file

report placing on record said information and also to suggest

remedial measures by 1st February 2024.

12. Additional Registrar of Railway Claims Tribunal, Mumbai who

has been added as Respondent No.2 is directed to file further

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Affidavit by 1st February 2024.

13. It is stated in the Affidavit dated 22 nd December 2023 of the

Additional Registrar, Railway Claims Tribunal that the interest earned

in respect of compensation which has been awarded to the Petitioner

is Rs.2,76,694/-. The same amount be immediately transferred to the

account of the Central Railways within a period of seven days from

today.

14. Stand over to 5th February 2024.

[MADHAV J. JAMDAR, J.]

Signed by: Sonali Patil Designation: PA To Honourable Judge Date: 22/12/2023 18:44:38