Kerala High Court
Vijaya Thulasi vs Southern Railway on 20 June, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE G.GIRISH
THURSDAY, THE 20TH DAY OF JUNE 2024 / 30TH JYAISHTA, 1946
MFA (RCT) NO. 25 OF 2010
AGAINST THE ORDER IN REVIEW APPLICATION NO.2/2009 IN THE
DECREE DATED 18.08.2009 IN OA (IIU) NO.27 OF 2008 OF RAILWAY
CLAIMS TRIBUNAL, ERNAKULAM
APPELLANT/APPLICANT:
VIJAYA THULASI
W/O. KOLLAM THULASI, SOWPARNIKA,, ETTUVEEDU LINE, KAVIL
JUNCTION,, VALIYASALA, THIRUVANANTHAPURAM.
BY ADVS.
SRI.T.ABY JACOB
SMT.K.G.SAROJINI
RESPONDENT/RESPONDENT:
SOUTHERN RAILWAY
GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI-3.
BY ADV SRI.K.SHRI HARI RAO, SC, RAILWAYS
THIS MFA (RCT) HAVING COME UP FOR ADMISSION ON
13.06.2024, THE COURT ON 20.06.2024 DELIVERED THE FOLLOWING:
2
M.F.A (RCT) No.25/2010
G.GIRISH, J.
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M.F.A (RCT) No.25 of 2010
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Dated this the 20th day of June, 2024
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JUDGMENT
Aggrieved by the inadequacy of the compensation
awarded by the Railway Claims Tribunal in O.A (IIu)
No.27/2008 of the Railway Claims Tribunal, Ernakulam Bench,
the appellant is before this Court with this appeal filed under
Section 23 of the Railway Claims Tribunal Act, 1987.
2. The appellant, a retired Office Superintendent of
Southern Railway, approached the Tribunal claiming
compensation of Rs.4,00,000/- for the injuries sustained by
her due to a fall from Guwahati-Trivandrum Express on
05.05.2007 at about 01:00 hrs near Kollam Railway Station
when she was attempted to be robbed by a thief. As a result
of the above untoward incident, the appellant sustained two
fractures, one upon her spinal cord and the other upon her
right shoulder. The above injuries are categorized in medical
terms as 'Fracture Humerus Right' and 'Fracture Transverse
Process L5 Left side'. As per the judgment dated 18.03.2009,
the Railway Claims Tribunal, Ernakulam Bench awarded a
compensation of Rs.80,000/- only to the appellant stating the
reason that the injuries sustained by her did not come under
the schedule to Rule 3 of Railway Accidents and Untoward
Incidents (Compensation) Amendment Rules, 1990.
However, pursuant to a review petition filed by the appellant,
the Tribunal modified the above judgment and awarded a
compensation of Rs.1,52,000/- accepting the contention of
the appellant that the injuries sustained by her came under
Sl.No.26 and Sl.No.34 of the Schedule to Rule 3 of Railway
Accidents and Untoward Incidents (Compensation)
Amendment Rules, 1990. In the present appeal, the appellant
would contend that she is entitled for enhanced compensation
amounting to Rs.4,00,000/- for the injuries sustained in the
aforesaid untoward incident.
3. Heard the learned counsel for the appellant and the
learned Standing Counsel representing the respondent.
4. The untoward incident in which the appellant
sustained injuries on 05.05.2007 while travelling in Guwahati-
Trivandrum Express, is not disputed. So also, there is no
serious challenge against the injuries 'Fracture Humerus
Right' and 'Fracture Transverse Process L5 Left side' sustained
by her as a result of the aforesaid incident. The injury
'Fracture Transverse Process L5 Left side' comes under
Sl.No.26 of the Schedule to Rule 3 of the Railway Accidents
and Untoward Incidents (Compensation) Amendment Rules,
1990 which deals with fracture of spine without paraplegia.
So also, the injury 'Fracture Humerus Right' comes under
Sl.No.34 of the Schedule to Rule 3 of the Railway Accidents
and Untoward Incidents (Compensation) Amendment Rules,
1990 which deals with fracture of major bone - humerus,
radius and ulna of one limb. Prior to 01.01.2017, the injury
mentioned as Sl.No.26 and Sl.No.34 of the Schedule to Rule
3 of the Railway Accidents and Untoward Incidents
(Compensation) Amendment Rules, 1990 were to be
compensated with Rs.1,20,000/- and Rs.32,000/-
respectively. It is by following the above guidelines that the
Tribunal awarded an amount of Rs.1,52,000/- as
compensation to the appellant as per the judgment dated
18.08.2009 reviewing the earlier judgment dated
18.03.2009.
5. As per the amended schedule to the said Rule
which is now in force as substituted by G.S.R 1165 (E), dated
22.12.2016 with effect from 01.01.2017, the injury under
Sl.No.26 deserves compensation of Rs.2,40,000/-, and the
injury under Sl.No.34 deserves a compensation of
Rs.64,000/-. Thus, as per the existing Rules, the appellant is
entitled for a total compensation of Rs.3,04,000/- for the
injury sustained by her in the untoward incident involved in
this case.
6. Now the question to be looked into is whether the
appellant is entitled to claim retrospective effect to the
compensation provided under the amended Schedule to Rule
3 of the Railway Accidents and Untoward Incidents
(Compensation) Amendment Rules, 1990. On that score, the
Apex Court has made it clear in Union of India v. Rina Devi
[(2019) 3 SCC 572] and Union of India v. Radha Yadav
[(2019) 3 SCC 410] that if the liability had arisen before the
amendment was brought in, the basic figure of compensation
would be as per the Schedule as was in existence before the
amendment and on such basic figure, reasonable rate of
interest would be calculated. It is further held by the Apex
Court thereunder that if there is any difference between the
amount so calculated and the amount prescribed in the
Schedule as on the date of the award, the higher of two
figures would be the measure of compensation.
7. Going by the dictum laid down by the Apex Court in
the aforesaid decisions, it is necessary to calculate the
amount due to the appellant as total compensation when
interest @ 6% per annum is charged from 05.05.2007
onwards on the amount of Rs.1,52,000/- awarded by the
Tribunal. The aforesaid amount, when worked out, will come
to Rs.3,08,314.30/-. As the said amount exceeds the amount
of Rs.3,04,000/- provided to the injuries under Sl.Nos.26 and
34 as per the amended Schedule to Rule 3 of the Railway
Accidents and Untoward Incidents (Compensation)
Amendment Rules, 1990, the appellant is entitled to get the
higher figure, that is Rs.3,08,314.30, as per the law laid down
by the Apex Court in Union of India v. Radha Yadav and
Union of India v. Rina Devi cited supra. Needless to say
that the appellant would also be entitled for future interest @
6% per annum charged on the said amount from this day
onwards till actual payment is made by the respondent.
8. In the result, the appeal stands allowed as follows:
(i) The judgment dated 18.08.2009 of the
Railway Claims Tribunal, Ernakulam Bench in
O.A (IIu) No.27/2008 stands set aside in so far
as it relates to the quantum of compensation
awarded to the appellant.
(ii) The respondent is directed to pay the
appellant an amount of Rs. Rs.3,08,314.30/-
(Rupees three lakhs eight thousand three
hundred and fourteen and paise thirty only)
along with interest @ 6% per annum from this
day onwards within a period of two months
from this date, as compensation for the injuries
sustained in the untoward incident involved in
this case.
(iii) In the event of failure to make payment of
compensation, as directed above, within two
months, the appellant will be entitled to charge
future interest @ 12% per annum upon the
principal compensation amount of
Rs.3,08,314.30/- from the date of expiry of the
aforesaid period of two months.
(sd/-)
G.GIRISH, JUDGE
jsr
