Turtan Samad vs Union Of India Through The General ...
2021 Latest Caselaw 446 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
            (Civil Miscellaneous Appellate Jurisdiction)
                   M.A. No. 297 of 2015
                          ........

Turtan Samad                           ....        ..... Appellant
                              Versus
Union of India through the General Manager,
Eastern Railway, Kolkata               ....        ..... Respondent
                                 .......

CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO (Through : Video Conferencing) ............

For the Appellant : Mr. D.K. Malityar, Advocate. For the Respondent : Mr. Vijay Kumar Sinha, Advocate.

........

12/01.02.2021.

Heard, learned counsel for the appellant, Mr. D.K. Malityar and learned counsel for the respondent - Railway, Mr. Vijay Kumar Sinha.

Learned counsel for the appellant has submitted that the appellant namely, Turtan Samad has preferred instant appeal against the judgment dated 06.05.2015 passed by learned Member (Technical), Railway Claims Tribunal, Ranchi Bench in Case No. TAU/RNC/1999/0015, whereby the claim application of the appellant has been dismissed.

Learned counsel for the appellant has submitted that it is unfortunate case in which the Railway Claims Tribunal has decided both the contesting issues regarding bonafide passenger as defined under Section 2 (29) of the Railways Act and untoward incident as defined under Section 123(c)(2) of the Railways Act in favour of the claimant, Fulmani Samad, mother of the deceased Nelson Samad and brother Turtan Samad, but did not allow the fruits of the compensation in favour of the claimants, as because during the pendency of the appeal, the mother of the deceased died and the Railway Claims Tribunal has considered brother not to be a dependent on the deceased, though deceased was elder unmarried brother. The compensation would have been awarded considering the dependency on the date of incident dated 26.05.1999 and when the claim application was filed on 18.11.1999, but because of pendency, the mother of the deceased died and fruits of award has not been given in favour of claimants.

Learned counsel for the appellant has submitted that this Court in M.A. No. 243/2013 has considered such situation on 08.12.2020 and allowed the compensation in favour of such person, who has been substituted in place of father / mother of deceased.

Learned counsel for the respondent - Railway, Mr. Vijay Kumar Sinha has placed Section 123(b) of the Railways Act, which defines 'dependent' is quoted hereunder:

123 (b) 'dependent' means any of the following relatives of a deceased passenger, namely:-

(i) The wife, husband, son and daughter, and in case the deceased passenger is unmarried or is a minor, his parent.

(ii) The parent, minor brother or unmarried sister widowed sister, widowed daughter-in-law and a minor child of a pre-deceased son, if dependent wholly or partly on the deceased passenger.

(iii) A minor child of a pre-deceased daughter, if wholly dependent on the deceased passenger.

(iv) The paternal grandparent wholly dependent on the deceased passenger.

Learned counsel for the respondent - Railway has submitted that learned Tribunal has rightly not given any benefits in favour of the present claimant Mr. Turtan Samad as brother is not dependent.

Learned counsel for the respondent - Railway has also filed counter affidavit. Para-12, 13 & 14 of the counter affidavit are re- produced hereunder:-

12. That with regard to the Issue Nos. 2 & 3, the Learned Court below hold that the appellant is not entitled to compensation as fixed, the resolve of the Issue Nos. 1, 4 and 5, therefore, the issues were decided against the appellant.

13. That it is humbly stated and submitted that Section 123(b) define the ward dependent, the extract of Section 123(b) is read as under 'dependent' means any of the following relatives of a deceased passenger, namely,

(i) The wife, husband, son and daughter, and in case the deceased passenger is unmarried or is a minor, his parent.

(ii) The parent, minor brother or unmarried sister widowed sister, widowed daughter-in-law and a minor child of a pre- deceased son, if dependent wholly or partly on the deceased passenger.

(iii) A minor child of a pre-deceased daughter, if wholly dependent on the deceased passenger.

(iv) The paternal grandparent wholly dependent on the deceased passenger.

As per Clause (I) or (II) or Clause (III) or (IV) of Section 123(b) claimant could not be considered as dependent of deceased passenger, in instant case neither appellant nor his married sister can be considered as dependent of the deceased.

14. That Section 123(b) of the Railway Act not supported the case of the appellant in any manner, he was 24 years old at the time of accident, since he was major and 38 years of age at the time of delivery of judgment i.e. on 06.05.2015, moreover Learned Court below had testified on 21.04.2015 to the Mariyam Kandulna that she was married, therefore, both not come under the definition of dependents. Admittedly, mother of the deceased Fulmani Samad was the dependent of the deceased Nelson Samad, but during the pendency of the claim application, she died and after her death, there is no dependent remaining, thus, the Learned Tribunal rightly hold that the appellants is not entitled for any compensation.

After hearing the learned counsel for the parties and looking into the facts and circumstances, though admittedly the deceased Nelson Samad, an unmarried boy along with two relatives after purchasing a journey-cum-reservation ticket No. 13527929 from Jalandhar City to Tori boarded train on 24.05.1999 and was getting down in the morning of 26.05.1999 at Tori Railway Station, but accidentally fell down at Tori Station and was seriously injured and subsequently, died. His mother Fulmani Samad has claimed compensation to the tune of Rs. 4,00,000/-, but the same was not paid, rather the matter was lingered for a long and in the meantime, the mother died.

From perusal of the impugned award, it appears that the Railway Claims Tribunal has considered the deceased to be a bonafide passenger at para-10 of the impugned judgment, while deciding the Issue No. 2, but even after considering it to be incident, as defined under Section 123(c)(2) of the Railways Act, debars the appellant Mr. Turtan Samad from getting fruits of the award in view of Section 123(b)(ii) of the Railways Act, 1989.

Learned counsel for the appellant has submitted that it is not a case where only brother has claimed compensation, but the claim application has been jointly preferred by the mother for an incident dated 26.05.1999 by filing claim application before the learned Tribunal on 18.11.1999. Unfortunately, the claim application was not decided within 90 days rather it lingered for long and decided on 06.05.2015 after more than 15 years and by that time the old mother died. Railway cannot be allowed to take advantage of a situation in a beneficial legislation to delay the process. Had it been a case that Railway had paid the same on the date of filing of claim application on 18.11.1999 or within 90 days, mother would have received compensation which would have been utilized for the benefits of the family in absence of the deceased Nelson Samad, but delaying the process by Railway, the fruits of beneficial legislation cannot be taken away.

Learned counsel for the appellant has thus submitted that once both the contesting issues have been decided in favour of the claimant on merits, the claimant cannot be refused from compensation on the ground that the brother is not coming under the purview of Section 123(b) (ii) of the Railways Act, 1989 as dependent.

Perused the impugned award as well as the materials brought on record. From perusal of the same, it appears that mother of the deceased has died on 20.12.2014 as the claim application remained pending for 15 years since the date of filing i.e. 18.11.1999.

Under the aforesaid circumstance, this Court is of the opinion that it was incumbent upon the learned Tribunal to decide the issue within 90 days in such beneficial legislation, but the delay has been caused by the Railway Claims Tribunal in deciding the issues, by that time old and helpless mother died, as such, debarring the applicant from fruits of the benefit is not justified in view of the technical plea taken under Section 123(b) (ii) of the Act.

Accordingly, the instant miscellaneous appeal is allowed and the impugned judgment dated 06.05.2015 passed by learned Member

(Technical), Railway Claims Tribunal, Ranchi Bench, Ranchi in Case No. OA (IIU)/RNC/1999/0015 is set aside.

The appellant is entitled compensation to the tune of Rs. 4,00,000/- along with interest @ 7.5% per annum from the date of filing of claim application i.e. 18.11.1999 till the actual date of indemnifying of the award or Rs. 8,00,000, whichever is higher, in view of the amendment in the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990 in the year 2016 w.e.f. 01.01.2017 vide the Railway Accidents and Untoward Incidents (Compensation) Amendment Rules, 2016, whereby the compensation of Rs. 4,00,000/- has been enhanced to Rs. 8,00,000/-, which has already been dealt with by the Apex Court in the case of Union of India Vs. Radha Yadav reported in 2019 (3) SCC 410, wherein the Hon'ble Apex Court has held in paragraph-11 as under:-

"11. ...................... For instance, in case of a death in an accident which occurred before amendment, the basic figure would be Rs 4,00,000. If, after applying reasonable rate of interest, the final figure were to be less than Rs 8,00,000, which was brought in by way of amendment, the claimant would be entitled to Rs 8,00,000. If, however, the amount of original compensation with rate of interest were to exceed the sum of Rs 8,00,000 the compensation would be in terms of figure in excess of Rs 8,00,000. The idea is to afford the benefit of the amendment, to the extent possible. Thus, according to us, the matter is crystal clear. The issue does not need any further clarification or elaboration."

The Railway is directed to pay compensation to the tune of Rs. 4,00,000/- along with interest @ 7.5% per annum from the date of filing of the claim application i.e. 18.11.1999 till the actual date of indemnifying the award or Rs. 8,00,000/-, whichever is higher to the appellant /claimant.

Let the L.C.R. be sent down.

(Kailash Prasad Deo, J.) Sunil/-