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2002 DIGILAW 577 (BOM)

Shobha Suresh Wankhede & others v. Union of India

2002-06-27

D.Y.CHANDRACHUD

body2002
JUDGMENT - Dr. CHANDRACHUD D.Y., J.:---The first appellant is the widow of an employee of the Central Railways, Suresh Wankhede. Appellants 2 to 5 are her four sons. Appellants 6 and 7 are the parents of the deceased. Widowed at the age of 41, the first appellant is 48 years of age today. The parents of the deceased are 71 and 68 years of age respectively. 2. The husband of the first appellant was working as a ticket train examiner. On 20th June, 1995 while he was on duty on the Gitanjali Express, he fell out of a running train between the Malkhed and Chandur Railway Stations, and died. The fact that the death occurred while the employee was on duty, is not a disputed position as it cannot be. The record and proceedings of the case which has been called for and has been perused by me, inter alia, contains a letter of condolences addressed to the first appellant by the Divisional Railway Manager, which expressly adverts to the circumstance that the death of the employee occurred while he was on duty. On 21st June, 1995, the widow was paid an ex gratia amount of Rs. 5,000/-. 3. On 1st February, 1996, the Central Railway Authorities deposited an amount of Rs. 69,008/- with the Commissioner for Workmen's Compensation in pursuance of the provisions of the Workmen's Compensation Act, 1923. In paragraph 6 of the reply filed before the Nagpur Bench of the Railway Claims Tribunal, the respondents have categorically averred that "compensation of Rs. 69,008/- was arranged by Senior D.A.O. Nagpur, Video Cheque No. D-310332 dated 1st February, 1996 and sent to Honourable Judge, Labour Court (Commissioner for W.C.A.) Lalit Centre, Amravati". Now, it would be necessary to note that the deposit which was made by the Central Railway was in compliance of the statutory obligation which is cast on the employer under the Workmen's Compensation Act, 1923 ("the Act"). The relevant provisions of the Act would be considered subsequently, but it would be necessary to emphasise at the present stage that at that stage there was no claim lodged by the appellants in response to which the deposit was made. The deposit was made suo motu by the railway authorities in compliance with their obligation under the statute. The relevant provisions of the Act would be considered subsequently, but it would be necessary to emphasise at the present stage that at that stage there was no claim lodged by the appellants in response to which the deposit was made. The deposit was made suo motu by the railway authorities in compliance with their obligation under the statute. On 16th February, 1996, a notice was addressed by the Central Railway authorities to the widow of the deceased in regard to the deposit of the amount. On 10th September, 1996, the appellants filed an application under the provisions of the Indian Railways Act, 1989 for compensation for the death of the deceased employee. According to the respondent, in the meantime, on 8th November, 1996, an order was passed by the Labour Court at Amravati awarding an amount of Rs. 69,008/- to the legal heirs of the deceased employee. 4. The respondent thereupon raised a preliminary objection to the maintainability of the application before the Railway Claims Tribunal ("the Tribunal") on the ground that the application for compensation under the Railways Act, 1989 was not maintainable by virtue of the provisions of section 128(1) of the Act on the ground that the applicants had claimed compensation under the Workmen's Compensation Act, 1923 and the Labour Court had passed an order on 8th November, 1996 awarding a sum of Rs. 69,008/- to the legal heirs of the deceased. The objection was upheld by the Tribunal by an order dated 31st January, 1997. The Tribunal relied upon the provisions of section 128(1) of the Railways Act, 1989 and held that in the present case it was "an admitted fact that the present applicant has already approached the authority under the Workmen's Compensation Act, and has already received compensation of Rs. 69,000/- and odd". (Emphasis supplied). The Tribunal was also of the view that in the claim application which was filed before it, the appellants had not disclosed the fact that they had moved the Commissioner for workmen's compensation under the provisions of the 1923 Act. In these circumstances, the application came to be rejected. 5. A review petition was thereafter filed by the appellants before the Tribunal, and it would be necessary to note that under section 18(3)(f) of the Railway Claims Tribunal Act, 1987, the power of review has been specifically conferred upon the Railway Claims Tribunal. In these circumstances, the application came to be rejected. 5. A review petition was thereafter filed by the appellants before the Tribunal, and it would be necessary to note that under section 18(3)(f) of the Railway Claims Tribunal Act, 1987, the power of review has been specifically conferred upon the Railway Claims Tribunal. In the review application, a reference was made to the statement contained in the order of the Tribunal to the effect that it was an admitted fact that the applicants had approached the authority under the Workmen's Compensation Act, 1923 and had received a compensation of Rs. 66,000/-. The appellants stated in the application for review that the facts of the case were that the railway authorities had on their own, in order to comply with the statutory provisions of the Act, deposited the amount with the Commissioner for Workmen's Compensation at Amravati, who directed the appellant to appear before the authority. The appellants stated that they had not lodged the claim before the Commissioner on their own volition. The appellants specifically stated that they had not received any compensation at all. An affidavit duly sworn by the first appellant was filed before the Tribunal. The first appellant stated on solemn affirmation therein that though her husband had died on 20th June, 1995 while he was travelling on duty as Ticket Train Examiner, she had not been paid "a single paisa so far by the Commissioner for Workmen's Compensation". The first appellant stated that after the death of her husband, the employer, the Divisional Central Railway Manager, Central Railway, had advised her to attend the Court of the Commissioner for Workmen's Compensation at Amravati and had informed her that some amount on account of workman's compensation had been deposited with the aforesaid authority. In accordance with the advise of the employer and the notice of the authority under the Workmen's Compensation Act, 1923, the first appellant stated that she attended the proceedings before the authority from time to time. 6. The application for review was dismissed by the Tribunal by the impugned order dated 21st July, 1997. The Tribunal found no reason to review the earlier order and noted that the appellants had filed an application before the Commissioner for Workmen's Compensation, Amravati and the Court had passed an order granting compensation. In the circumstances, the application for review came to be rejected. The Tribunal found no reason to review the earlier order and noted that the appellants had filed an application before the Commissioner for Workmen's Compensation, Amravati and the Court had passed an order granting compensation. In the circumstances, the application for review came to be rejected. A bare perusal of the order of the Tribunal would make it abundantly clear that the Tribunal has not considered the submission of the appellants as regards the circumstances in which the deposit of the amount under the 1923 Act came to be effected. The Tribunal has similarly not considered the express statement made on affidavit that absolutely no amount had been withdrawn until then from out of the amount which had been awarded by the Commissioner for workmen's compensation. 7. In considering the issues which arise in this first appeal, it would be necessary at the outset to refer to the provisions of section 124-A of the Railways Act, 1989. Section 124-A provides as follows: "124-A---Compensation on account of untoward incident When in the course of working a railway an untoward incident occurs, then whether or not there has been any wrongful act, neglect or default on the part of the railway administration such as would entitle a passenger who has been injured or the dependant of a passenger who has been killed to maintain an action and recover damages in respect thereof, the railway administration shall, notwithstanding anything contained in any other law, be liable to pay compensation to such extent as may be prescribed and to that extent only for loss occasioned by the death of, or injury to, a passenger as a result of such untoward incident." 8. The provisions of section 124-A were inserted by Amending Act 28 of 1994. As a result of the amendment, the railway administration is under an obligation to pay compensation in the event of an untoward incident, where either death or injury is caused to a passenger as a result of such incident. The liability to pay compensation arises notwithstanding anything contained in any other law. The statute provides for the liability whether or not there has been any wrongful act, neglect or default on the part of the railway administration such as would have entitled a passenger who has been injured or the dependent of the passenger who had been killed to maintain an action and recover damages. The statute provides for the liability whether or not there has been any wrongful act, neglect or default on the part of the railway administration such as would have entitled a passenger who has been injured or the dependent of the passenger who had been killed to maintain an action and recover damages. The liability is, therefore, not one which arises out of the negligence or default on the part of the railway administration. The proviso, excepts certain specified cases from the liability to pay compensation, but those cases are not material to the present issue. Under the explanation to section 124-A, the expression "passenger" includes a railway servant on duty. The expression "untoward incident" is defined by section 123(c)(2) to mean the accidental falling of any passenger from a train carrying passengers. Section 125 provides that an application for compensation may be made to the Claims Tribunal in the case of the death of the passenger by any dependent of the deceased or by his guardian where the dependent is a minor. Section 128 of the Act is entitled "Saving as to certain rights". Section 128 provides as follows: "(1) The right of any person to claim compensation under section 124 or section 124-A shall not affect the right of any such person to recover compensation payable under the Workmen's Compensation Act, 1923 (8 of 1923), or any other law for the time being in force; but no person shall be entitled to claim compensation more than once in respect of the same accident. (2) Nothing in sub-section (1) shall affect the right of any person to claim compensation payable under any contract or scheme providing for payment of compensation for death or personal injury or for damage to property or any sum payable under any policy of insurance." In the present case, the Railway Claims Tribunal has dismissed the application for compensation by upholding the preliminary objection of the railway administration that the claim which was made by the appellants was liable to be rejected by virtue of sub-section (1) of section 128. The outcome of the present first appeal would, therefore, turn on the interpretation to be placed on the provisions of the aforesaid section. Sub-section (1) of section 128 can, for the purposes of interpretation, be divided into two parts. The outcome of the present first appeal would, therefore, turn on the interpretation to be placed on the provisions of the aforesaid section. Sub-section (1) of section 128 can, for the purposes of interpretation, be divided into two parts. By the first part what has been provided is that the right of any person to claim compensation under section 124 or 124-A shall not affect his right to recover the compensation payable under the Workmen's Compensation Act or under any other law for the time being in force. The first part of section 128(1) uses two separate words in contra distinaties namely "claim" and recovery". The right to claim compensation under section 124 or 124-A, it has been specifically provided, does not affect the right to recover compensation payable under the Workmen's Compensation Act or under any other law. Thereafter, in the subsequent part of sub-section (1), the statute provides that no person shall be entitled to claim compensation more than once in respect of the same accident. The question which will need consideration is as regards the construction that is to be placed on the expression "claim" in the latter part of sub-section (1). Obviously the construction to be placed on the meaning of the expression in the latter part should be such as would not render the first part of the section nugatory. The first part expressly provides that the right to claim compensation under sections 124 and 124-A shall not affect the right to recover compensation under the Workmen's Compensation Act, 1923. Therefore, the meaning to be ascribed to the latter part of sub-section (1) must be harmonious with the first part. Statutory provisions have to be construed harmoniously. Added to that is the sound rule of construction applicable in cases such as the present, which is that legislative provisions actuated by social welfare must receive a broad and liberal construction. The Court must further and not eviscerate the legislative intent. 9. The Railways Act, 1890 had broadly similar provisions and section 82-H corresponded to section 128 of the present Act. The Court must further and not eviscerate the legislative intent. 9. The Railways Act, 1890 had broadly similar provisions and section 82-H corresponded to section 128 of the present Act. A judgment of the Division Bench of the Mysore High Court in (Smt. Zaibunnisa v. The Divisional Superintendent Southern Railway, Hubli)1, A.I.R. 1965 Mysore 306, refers to the legislative history of section 82-H. The Division Bench there noted that prior to the amendment of section 82-H by Central Act VII of 1962, (which amendment came into force on March 30, 1962) the restriction to the effect that no person shall be entitled to claim compensation more than once in respect of the same accident, was not a part of the legislative provision. That restriction came to be enacted by Amending Act VII of 1962. The case which came up before the Mysore High Court involved a situation where a Brakesman in the Southern Railway had died as a result of a railway accident. The railway authorities had deposited a sum of Rs. 3,500/- in the Court of the Commissioner for workmen's compensation for payment to the dependents of the deceased employee. The widow of the deceased submitted a claim to the Commissioner for workmen's compensation as well as a claim under the provisions of the Indian Railways Act, 1890. The competent authority directed the railway administration to pay compensation of Rs. 8000/- to the widow of the deceased under the Indian Railways Act, 1890 upon which she had elected to claim compensation under the provisions of that Act. Thereupon, the railway administration sought a refund of the amount of Rs. 3,500/-, which had been deposited before the Commissioner of Workmen's Compensation. The application for withdrawal was opposed by the widow of the deceased. The Commissioner for Workmen's Compensation allowed the application for refund as prayed by the railway administration and that decision was challenged in appeal before the Mysore High Court. Dismissing the appeal, the Division Bench held that the plain meaning of the words of section 82-H of the Railways Act was that in respect of an accident a person can claim compensation only once whether that claim is made under section 82-H of the Railways Act or any other law. Dismissing the appeal, the Division Bench held that the plain meaning of the words of section 82-H of the Railways Act was that in respect of an accident a person can claim compensation only once whether that claim is made under section 82-H of the Railways Act or any other law. The Court held that in respect of a loss occasioned by a railway accident, there should be only one claim and under only one of the laws which create a right to such compensation, (para 13, page 309). 10. In construing the provisions of section 128, it would be necessary for the Court to have regard to the statutory scheme embodied in the Workmen's Compensation Act, 1923. That is because sub-section (1) of section 128 of the Railways Act, 1989 expressly protects the right to recover the compensation that is payable under the Workmen's Compensation Act, 1923. Under section 3 of the Act of 1923, it has been provided that in the event of a personal injury being caused to a workman by an accident sustained during the course of his employment, the employer shall be liable to pay compensation in accordance with the provisions of the Act. Section 4(1) lays down the amount of compensation that is payable inter alia in cases of death, permanent total disablement and permanent partial disablement resulting from an injury caused as a result of an accident. Section 4(4) which has been introduced by an amendment of 1995 specifically provides that, if the injury to the workman results in his death, the employer shall, in addition to the compensation payable under sub-section (1), deposit with the Commissioner a sum of Rs. 1,000/- for payment to the eldest surviving dependent of the workman towards meeting the expenditure of the funeral. There is thus a positive obligation which is cast upon the employer to deposit with the Commissioner, the compensation required to be paid under sub-section (1) together with funeral expenses. Section 4-A of the Act provides that an employer who is in default of that obligation, shall pay interest and penalty as stipulated in the section. There is thus a positive obligation which is cast upon the employer to deposit with the Commissioner, the compensation required to be paid under sub-section (1) together with funeral expenses. Section 4-A of the Act provides that an employer who is in default of that obligation, shall pay interest and penalty as stipulated in the section. Section 8 of the Act provides that no payment of compensation in respect of a workman, whose injury has resulted in death, and no payment of a lump sum as compensation to a woman or a person under a legal disability, shall be made "otherwise than by deposit with the Commissioner" and no such payment made directly by an employer shall be deemed to be a payment of compensation. Therefore, in the case of death or in a case where a workman falls in a specified category, there is a positive statutory obligation cast upon the employer to deposit the compensation that is payable with the Commissioner for Workmen's Compensation. 11. These provisions of the Workmen's Compensation Act, 1923 have a significant bearing on the interpretation to be placed by the Court on the provisions of section 128 of the Railways Act, 1989. An employer, in view of the provisions of the 1923 Act, is under a positive obligation to deposit with the Commissioner for Workmen's Compensation, the compensation that is due and payable and the statute provides that in a case of death or in the case of a woman or a person suffering from a legal disability, a direct payment of the compensation shall not be regarded by the statute as a payment of compensation. The reason for the provision is obvious. The legislature has considered it appropriate that in certain specified cases, a statutory authority must be required to supervise and ensure the due payment of compensation by the employer to the dependents of the deceased employee, or, where the employee is a woman or is a person suffering from a legal disability. No employer can, therefore, be permitted to settle the compensation by a direct payment to the dependents of the deceased since the competent statutory authority is vested with the duty and function of ensuring that the compensation that is due and payable, has in fact, been paid. No employer can, therefore, be permitted to settle the compensation by a direct payment to the dependents of the deceased since the competent statutory authority is vested with the duty and function of ensuring that the compensation that is due and payable, has in fact, been paid. The right to claim compensation under section 124 of the Railways Act, 1989 is not affected by the recovery of compensation under the Workmen's Compensation Act, 1923. What section 128 however, provides is that no person is entitled to claim compensation more than once in respect of the same incident. 12. In the present case, the railway administration had in fulfilment of its statutory obligation under the 1923 Act, deposited the compensation due and payable to the dependents of the deceased employee. A notice was thereupon issued to the appellants by the Central Railway Authorities and perhaps, by the Commissioner for Workmen's Compensation as well. The Tribunal has referred to the fact that the appellant had filed an application for compensation and the learned Counsel submitted on behalf of the respondent, that on 26th April, 1996, the appellants moved the Commissioner for Workmen's Compensation for the release of the compensation deposited under the Act by a formal application to that effect. Before the Railway Claims Tribunal, the appellants however, stated specifically that no part of the compensation which had been awarded by the Labour Court, at Amravati, had been received by them. That was not denied by the railway administration. Even in the first appeal, it has been categorically averred in paragraph 5 of the memo of appeal that no part of the compensation had been withdrawn by the appellants till the date of the lodgement of the appeal. This has not been denied in the reply which has ben filed on behalf of the respondents before this Court. Whether the compensation under the Workmen's Compensation Act, 1923 has been withdrawn should however, make no difference to the construction of section 128. The intendment of the statute is not that the dependents of a deceased workman must starve or be driven to destitution before they can claim compensation under the Railways Act, 1989. The Court must avoid a construction which will have that effect. The provisions contained in section 128(1) must be interpreted in a manner which would subserve the object underlying the introduction of the said provision. The Court must avoid a construction which will have that effect. The provisions contained in section 128(1) must be interpreted in a manner which would subserve the object underlying the introduction of the said provision. The provisions of section 128(1) cannot be interpreted so as to defeat the statutory provisions which have been made in section 124-A or to frustrate the ends of substantial justice to the employees of the railways or their dependents, where death has occurred. 12-A. The Division Bench of the Mysore High Court in its decision in Zaibunnisa's case (supra) has adverted to the Statement of Objects and Reasons appended to the Amending Act of 1962, by which, the previous Act came to be amended by introducing a restrictive condition in section 82-H to the effect that no person shall be entitled to claim compensation more than once in respect of the same accident. The Division Bench noted that in the earlier state of the law, it was possible for a person to recover compensation not only under section 82-A of the Indian Railways Act, 1890 but also under any other law, such as the Workmen's Compensation Act, 1923 in respect of a claim made in respect of the same accident. Parliament, therefore, considered it necessary to remedy the evil or mischief by amending section 82-H so as to make it clear that in respect of one and the same accident, a person could claim compensation only under one and not under any other law. 13. The provisions of the Workmen's Compensation Act, 1923 cast a mandatory duty and obligation upon the employer to deposit with the Commissioner the compensation that has become due and payable upon the death of an employee in the course of an accident arising out of and in the course of employment. The employer has to do so and in default, he is liable to interest and penalty. Obviously this is with a view to ensuring the payment of compensation on an expeditious basis to the employee, or in the event of death to the dependents of the deceased workman. The Act, therefore, makes a specific provision for the due and expeditious payment of compensation to the dependents of a deceased employee in the event of the death of an employee. The Act, therefore, makes a specific provision for the due and expeditious payment of compensation to the dependents of a deceased employee in the event of the death of an employee. The death of an employee, is a matter not merely of emotional distress to the immediate family, but is a source of economic hardship and destitution occasioned by the fact that the life of the bread winner of the family is snatched away by death. The recovery of compensation under the Act of 1923 is, therefore, expressly regarded by section 128 as not constituting a bar to the lodgment of a claim under the Railways Act, 1989. The language used in the subsequent part of sub-section (1) of section 128 has to be given a realistic meaning by harmonising it with the earlier part of section. That can be done by requiring that before the dependents of the deceased employee can in a case such as the present receive the compensation which is awarded to them in proceedings under the Indian Railways Act, 1989, the compensation which has been recovered under the Workmen's Compensation Act, 1923 must be duly adjusted against the compensation which is awarded under the former Act. The outer limit of compensation is thus circumscribed by the total compensation which has been awarded under any one enactment which the workman or his dependents can receive. This interpretation will ensure due observance of the restriction imposed by the latter part of section 128(1) without rendering the former part nugatory. The expression "claim" has varying connotations, depending upon the context in which it is used. What it means in the subsequent part of section 128 is that the employee, or as the case may be, his dependents in the case of death, can elect, recover and retain compensation only under one enactment in respect of a claim arising out of the same accident. In other words, the fact that the dependents of the deceased employe have applied for compensation under the Workmen's Compensation Act, 1923 will not prohibit the lodgment of a claim under the Railways Act, 1989, or the making of an Award, but before the claim is actually paid over under the 1989 Act, a deduction must be made of the compensation which may have been recovered under the Workmen's Compensation Act, 1923. The dependents of the deceased employee have, therefore, necessarily to elect as to whether they will retain the compensation which has been awarded under the Workmen's Compensation Act, 1923 or, opt for the compensation awarded under the Railways Act, 1989 by suffering a deduction of the amount recovered under the former Act. In the latter case, a deduction has to be made of the compensation paid under the Workmen's Compensation Act, 1923 out of the compensation awarded under the Railways Act, 1989. Where as, in the present case, the compensation which is provided for by the Railways Act, 1989 is of a higher order than the compensation payable under Workmen's Compensation Act, 1923, the dependents of the deceased can elect to opt for the compensation under the Railways Act, 1989. In that event, a deduction would have to be made of the compensation which has been recovered under the Workmen's Compensation Act, 1923. Once that is done, the employee or his dependents in the case of death would have claimed compensation only under one enactment, which is the mandate of section 128(1). The provisions of social welfare legislation such as the Workmen's Compensation Act, 1923 have to be construed so as to advance the object of enhancing and protecting the statutory goal and not so as to frustrate the achievement of the statutory object. 14. In the circumstances, I am of the view that the Tribunal was not justified in rejecting the claim for compensation on the ground that an order for the payment of compensation, which has been deposited by the employer under the Workmen's Compensation Act, 1923, had been passed in favour of the appellants by the Labour Court at Amravati. The learned Counsel appearing for the appellants has fairly stated before the Court that it was only in the year 2001 after this first appeal had been pending for almost three years, that the appellants out of sheer economic necessity, made an application for the withdrawal of the compensation awarded under the Workmen's Compensation Act, 1923 and received the same. In the event that the Railway Claims Tribunal Awards any compensation to the appellants to an extent greater than the compensation of Rs. In the event that the Railway Claims Tribunal Awards any compensation to the appellants to an extent greater than the compensation of Rs. 69,008/-, which has been withdrawn by the appellants, the appellants, it is clarified, would be entitled to receive only that part of the compensation awarded by the Railway Claims Tribunal, which is in excess of the amount of Rs. 69,008/-. 15. The order of the Railway Claims Tribunal dated 21st July, 1997 and 31st July, 1997 are accordingly quashed and set aside. The application filed by the appellants herein before the Railway Claims Tribunal being Appeal No. 17/0A-I/II/III/R.C.T/N.G.P./1996, shall stand restored to the file of the Railway Claims Tribunal, Nagpur. The Tribunal shall pass fresh orders on the application for compensation in the light of this judgment. Having regard to the facts and circumstances of the case, the Tribunal is directed to pass final orders, after hearing the parties, within a period of two months from the date on which a certified copy of this judgment is produced before the Tribunal. The parties shall appeal before the Tribunal for seeking directions, through their Counsel, on 8th July, 2002. The first appeal is accordingly allowed in the aforesaid terms. Record and proceedings of the Court below be sent back forthwith. The respondent shall pay costs to the appellants quantified at Rs. 3,000/-. Appeal allowed. -----