Surendra Nath Bastia vs Union Of India
2023 Latest Caselaw 1840 Ori

       IN THE HIGH COURT OF ORISSA AT CUTTACK

                        FAO No.249 of 2017

(From the judgment dated 19th May, 2017 passed by the Railway
Claims Tribunal, Bhubaneswar Bench in Case No. OA/110/2010)


Surendra Nath Bastia            ......                      Appellants

                                      Versus

Union of India            .......                           Respondents


Advocate(s) appeared in this case:-

For Appellant              :     Ms.D.Mohapatra, Advocate

For Respondent             :     Ms.J.Sahoo, CGC
                                 (for Union of India)

              CORAM : JUSTICE B.P. ROUTRAY

                             JUDGMENT

28th February, 2023 B.P.Routray, J.

1. Heard Ms.Mohapatra, learned counsel for the Appellant and Ms.Sahoo, learned CGC for the Respondent-Union of India.

3. The challenge in present appeal is the impugned award dated 19th May, 2017 of Railway Claims Tribunal, Bhubaneswar Bench passed in OA/110/2010.

4. The claim application was initially filed by the father of the deceased under Section 125 of the Railways Act. The original Claimant died during pendency of the claim application and he was substituted by his son namely, Surendranath Bastia.

Said Surendranath Bastia is the elder of the deceased namely, Goutam Bastia. The prayer for substitution upon death of the original Claimant was allowed by the Tribunal in its order dated 12th October, 2015.

5. Subsequently while deciding the claim application on merit after the parties were permitted to adduce their respective evidences, the Tribunal in the impugned award dated 19th May, 2017 has refused to grant any compensation saying that the substituted Applicant, who is the elder brother of the deceased, cannot be treated as a dependant of the deceased in terms of Section 123(b) of the Railways Act. As such, the Tribunal has dismissed the claim application.

6. On the back drop of such facts, the question comes for determination is whether the legal representative of a dependant is survived with the right to sue and has the right to receive compensation.

7. Rule 26 of the Railway Claims Tribunal (Procedure Rules), 1989 authorizes the legal representative of a dependant Claimant to be substituted upon death of the Claimant. The said rule reads as follows:-

Substitution of legal representatives- (1) In the case of death of a party during the pendency of the proceedings before Tribunal, the legal representatives of the deceased party may apply within ninety days of the date of such death for being brought on record.

(2) Where no application is received from the legal representatives within the period specified in Sub-rule (1), the proceedings shall abate:

Provided that for good and sufficient reasons shown, the Tribunal may allow substitution of the legal representatives of the deceased.

8. Aforestated Rule 26 of the Railway Claims Tribunal (Procedure Rules), 1989 is clear to the extent that the right to sue survives to the LR of deceased Claimants. The next question thus is that whether the LR of the original dependant-Claimant is entitled to receive compensation upon his death.

9. Under the Railways Act a dependant as defined under Section 123(b) is entitled to receive the compensation and the amount becomes due the moment the accident occurred either resulting death or injury. In the instant case, undoubtedly the original Claimant who was the father of the deceased was alive on the date of accident and at the time when the deceased died. He also filed the claim application and during pendency of the claim application he died. The right of substitution has been conferred upon the LR of the original dependant to stake the claim under Section 125 of the Railways Act. Therefore, Rule 26 of the Railway Claims Tribunal (Procedure Rules), 1989 indicates that upon death of the dependant his LRs are entitled for continuing the claim application. This gives the inference that the LR of a dependant has not only the right to continue the claim application but to receive the compensation also. There cannot be any justification for ending the claim upon death of the dependant. When Rule 26 of the Railway Claims Tribunal (Procedure Rules), 1989 indicates that the claim of the dependant can be continued by his legal representative upon his death, then the right to receive compensation by the LR of the dependant also continues and the claim will not die. Therefore, it is concluded that the amount of compensation, if any, to be directed under Section 124(a) of the Railways Act, which can be claimed by a

dependant, can also be claimed by the L.R. of the dependant in the event of death of the dependant.

10. It is seen from the impugned order that though the Tribunal has framed five issues but it did not answer the other issues after holding that the present Appellant, who is the substituted Claimant, is not a dependant of a deceased. The findings of the Tribunal as concluded under Issue No.1 is set aside and it is held that the present Claimant (present Appellant) is entitled to continue with the claim application and is also entitled to receive the compensation, if any, to be decided by the Tribunal. Since the Tribunal has not given any finding on Issue Nos. 2 to 5, it is found appropriate to remand back the matter for decision on those issues.

11. In the result, the appeal is allowed and the impugned award is set aside. Issue No.1 as framed by the Tribunal is answered in favour of the Claimant as discussed above. The matter is remitted back to the Tribunal for decision on Issues No. 2 to 5. Since the alleged accident is of the year 2015, the Tribunal is directed to dispose of the claim application as expeditiously as possible. The parties present before this Court are directed to appear before learned Tribunal along with a certified copy of this order on 20th March, 2023.

( B.P. Routray) Judge

S.Das