Calcutta High Court (Appellete Side)
Fixed vs Unknown on 14 July, 2021
14.07.2021
tkm/ct 9
sl no. 1. CO 3314 of 2019
(Via Video Conference)
In Re : Lalji Tewari ....Petitioner
Mr. Biswajit Tiwari
Mr. A. Das Sharma
............. For the petitioner
Ms. Soma Roy Chaudhuri
............. For the UOI
Judgment and order dated 5.8.2019 passed by the
Railway Claims Tribunal, Kolkata Bench in claim
application no. OA(IIu)/KOL/2014/0128 is under
challenge inter alia on the ground that the learned
tribunal ought to have evaluated the incoherence in the
depositions and the observations made by the learned
Tribunal in the judgment and order assailed. But the
learned Tribunal has failed to appreciate the factual matrix
of the modification petition preferred by the
applicant/petitioner in connection with the judgment and
order dated 3.10.2018 in the said Claim Application.
It is pointed out that the opposite party had made
fixed deposit of the awarded compensation to the tune of
90% of the awarded amount for a period of 10 years
instead of 5 years in violation of the order of the learned
Tribunal itself which was subsequently rectified by the
State Bank of India.
It is submitted on behalf of the opposite party that it
was not due to fault of the tribunal as the State Bank of
India open and such fixed deposit for a period of 10 years
instead of 5 years in violation of direction of the learned
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Tribunal. It is clear that 90% of the awarded amount is
under fixed deposit with the State Bank of India as per the
direction of the learned Tribunal vide order dated
3.10.2018. The petitioner preferred an application for
modification of the main order dated 3.10.2018 for release
of 75% of fixed deposit amount as the petitioner is in the
urgent need of money and as such by the impugned order
dated 5.8.2019 the learned Tribunal having failed to
appreciate the submission of the petitioner, rejected the
application for modification for disbursement of 75% of the
fixed deposit amount and the ground for rejection by the
learned Tribunal is that the impugned order basically
passed by the Tribunal was to protect the money from
being misappropriated and, therefore, the modification of
the order for release of 75% of fixed deposit amount
claimed by the petitioner was turned down.
It is pointed out by Mr. Biswajit Tiwari, learned
advocate appearing for the petitioner that the learned
Tribunal has not appreciated the fact that the petitioner is
a senior citizen and only claimant of the claim awarded in
his favour because the awarded amount is required by the
petitioner being a senior citizen for his treatment.
The facts leading to this case is that on 29.4.2012
the son of the petitioner namely Biswanath Tewari @
Anjan (since deceased) was returning from Rampurhat
railway station to Bolpur railway station by 234 Dn
Rampurhat Burdwan Passenger. The train was over
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crowded and the son of the petitioner was standing on the
foot board as he had to get down at Bolpur station. When
the train was about to reach Bolpur station due to
overcrowding of the passengers and jostling, the son of the
petitioner fell down in the gap between the train and the
platform and succumbed to his injury. He was taken to
Bolpur hospital and from there to Bolpur S.D hospital
where he was declared dead.
The claim was awarded in favour of the mother of
the deceased son and subsequently the mother of the said
son also died. Thereafter the petitioner being father was
substituted and he was granted the claim for a sum of Rs.
8 lakh as being the sole dependant/parent of the deceased
Biswanath Tewari. The direction was given by the learned
Tribunal for getting 90% of the total awarded amount in a
fixed deposit scheme in a nationalized bank for a period of
5 years. However, 10% awarded amount was released
through ECS in favour of the petitioner. Such order was
passed by the learned Tribunal on 3rd October 2018 and
the said order was sought to be modified before the
Tribunal by the petitioner for release of 75% of the fixed
deposit amount.
It would appear from the order dated 5.8.2019
passed by the learned tribunal while rejecting the
application of the petitioner for release of 75% of the fixed
deposit amount that it was the sheer disobedience of the
Tribunal's order by the respondent railway who had not
taken due diligence while satisfying the decree in
compliance of the Tribunal's order in the matter of fixed
deposit scheme for a period of 5 years whereas the fixed
deposit was made opened in respect of the 90% of the
awarded amount for a period of 10 years through mistake
which got rectified. Such observation made by the learned
tribunal cannot be faulted with. However, the point which
has been taken for consideration is that modification of
the order would amount to touching the main order while
the direction was given for deposit of 90% claim amount
with fixed deposit scheme in order to protect money from
being misappropriated.
Ms. Soma Roy Chaudhuri, learned advocate
appearing for the Union of India submits that since the
main order was sought to be modified by the Tribunal, the
learned Tribunal has rightly rejected the prayer as made
on behalf of the petitioner for release of 75% of fixed
deposit amount because the order impugned could be
challenged in appeal under the provisions of section 23 of
the Railway Claims Tribunal Act 1987 which provides as
follows:
"23. Appeals. (1) Save as provided in sub-section (2)
and notwithstanding anything contained in the Code
of Civil Procedure, 1908 (5 of 1908) or in any other
law, an appeal shall lie form every order, not being
an interlocutory order, of the Claims Tribunal, to the
High Court having jurisdiction over the place where
the Bench is located.
2) No appeal shall lie from an order passed by the
Claims Tribunal with the consent of the parties.
3) Every appeal under this section shall be preferred
within a period of 90 days from the date of the order
appealed against."
Thus it is very clear that the petitioner has leeway
for relief by way of appeal under Section 23 of the Railway
Claims Tribunal Act, 1987. Although the petitioner has not
preferred any appeal under the said Act, nevertheless
revisional power being the discretionary power of the high
Court by jurisdictive authority, this Court finding the
petitioner as the sole heir of his deceased son, modification
of order for release of at least 50% of amount under fixed
deposit for his well being and treatment could be made in
the interest of justice as there can be no apprehension of
misappropriation of the money.
With the above observations the revisional
application being CO 3314 of 2019 is disposed of directing
the learned Tribunal to reconsider the prayer of the
petitioner in the light of the observation.
All parties shall act in terms of copy of this order
downloaded from the official website of this Court.
(Shivakant Prasad, J.)
