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2017 DIGILAW 311 (CAL)

Ghetu Mondal v. Union of India

2017-03-21

DIPANKAR DATTA, SAHIDULLAH MUNSHI

body2017
JUDGMENT : DIPANKAR DATTA, J. 1. While reserving judgment on March 16, 2017, we had expressed our mind to decide these two appeals by a common judgment and order since the grievance of the respective appellants essentially relate to the rate of interest granted on the sum awarded by the Railway Claims Tribunal, Kolkata. Accordingly, this common judgment and order shall govern both the appeals. 2. In FMA 1228 of 2012, the appellants are the parents of Buddhadeb Mondal, the victim of an 'untoward incident' as defined in Section 123(c)(2) of the Railways Act, 1989 (hereafter the 1989 Act), who died on September 2, 2003 because of an accidental fall from a moving train. They have assailed the judgment and order dated April 23, 2010, passed by the tribunal on Claim Application No. U/270/2004, being an application under Section 124A of the Railways Act, to the extent the tribunal awarded interest @ 6% p.a. on the compensation awarded i.e. Rs.4,00,000/- from the date of filing of the claim application till date of the order, instead of interest @ 12% p.a. that was claimed. 3. In the other appeal i.e. FMA 333 of 2013, the judgment and order dated January 21, 2010 of the tribunal on Claim Application No. U/567/2005, granting interest @ 6% p.a. on the compensation awarded i.e. Rs.4,00,000/- from the date of the filing of the claim application till payment is effected, has been challenged by the appellants, the widow and minor son of the victim of an untoward incident as defined in section 123(c)(2) of the 1989 Act, on the ground that the tribunal should have directed payment of interest @ 12% p.a. from the date of filing of the claim application. 4. It is not in dispute that the appellants in both the appeals have received the compensation awarded by the tribunal. However, the amounts payable on account of interest as directed by the tribunal have not been paid. 5. Mr. Basu, learned senior advocate appearing for the respondent in both the appeals has placed before us a letter dated June 2, 2010 of the appellants in FMA 1228 of 2012 to the effect that they would "fore go the interest amount as ordered if the payment is made within one month from the date of receipt of this letter". Mr. Basu, learned senior advocate appearing for the respondent in both the appeals has placed before us a letter dated June 2, 2010 of the appellants in FMA 1228 of 2012 to the effect that they would "fore go the interest amount as ordered if the payment is made within one month from the date of receipt of this letter". Referring to such letter, it is contended that since the appellants have received Rs.4,00,000/- on account of compensation, no grievance in respect of nonpayment of interest ought to be heard. 6. Mr. Banerjee, learned advocate for the appellants, in both the appeals has submitted that they are entitled to interest @ 12% p.a. from the date of filing of the claim applications. He even proceeded a step further and submitted that in view of an amendment to the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990 (hereafter the 1990 Rules) enforced w.e.f. January 1, 2017, the appellants are entitled to Rs.8,00,000/- each and not Rs.4,00,000/-. Reliance has been placed by him in support of enhanced compensation on the decision of the Supreme Court reported in 2001 AIR SCW 1074 : Rathi Menon v. Union of India as well as an unreported decision rendered by us on March 3, 2017 in FMA 858 of 2012 (Radha Yadav v. Union of India). It is also submitted by him that the letter dated June 2, 2010, was obtained from the appellants in FMA 1228 of 2012 under duress and, therefore, the respondent should not be allowed to take advantage of its own wrongful conduct. 7. We have heard the learned advocates for the parties and considered the materials on record. 8. Two questions arise for decision: (1) Whether the appellants are entitled to enhanced compensation in terms of the amendment of the 1990 Rules? (2) Whether the appellants are entitled to interest @ 12 % p.a.? Should interest @ 12% p.a. be refused, at what rate are they entitled to such interest? 9. It ought to be placed on record that the contention regarding enhanced compensation being based on an amendment of recent origin, is not traceable in the memorandum of appeal; nevertheless, we propose to decide such contention having regard to its importance and the possibility of such contention arising for decision in future cases. 10. 9. It ought to be placed on record that the contention regarding enhanced compensation being based on an amendment of recent origin, is not traceable in the memorandum of appeal; nevertheless, we propose to decide such contention having regard to its importance and the possibility of such contention arising for decision in future cases. 10. With the amendment of rule 4 of the 1990 Rules with effect from January 1, 2017, the amount of compensation payable in case of death of a passenger as a result of untoward incident has been enhanced from Rs.4,00,000/- to Rs.8,00,000/-. 11. The answer to question no. 1 would depend upon a proper reading of the decision in Rathi Menon (supra). It was held therein that the collection of the words "as may be prescribed" in section 124-A of the 1989 Act is to be understood to mean "as may be prescribed from time to time". 12. During the course of trial by the tribunal in Rathi Menon (supra), the amount of compensation awardable stood increased consequent to an amendment of the 1990 Rules. The Court upon considering the statutory provision proceeded to observe in paragraph 29 as follows: "29. From all these, we are of the definite opinion that the Claims Tribunal must consider what the rules prescribed at the time of making the order for payment of the compensation." 13. In Radha Yadav (supra), the tribunal rejected the prayer for compensation misconstruing the provisions contained in section 124-A of the 1989 Act. Exercising appellate powers, we held that the appellant was entitled to compensation, which was unjustly denied. Considering the law laid down in paragraph 29 of the decision in Rathi Menon (supra), we granted compensation of Rs.8,00,000/- to the appellant as ordained by amended rule 4 of the 1990 Rules. 14. In the present cases, the tribunal granted compensation of Rs.4,00,000/- each to the appellants in terms of the provisions of the 1990 Rules prevalent on the dates its respective judgment and order were pronounced. The appellants received such sums and, thereafter, preferred these appeals, aggrieved by the orders directing payment of interest @ 6%, which are not to their liking. These appeals are continuation of the proceedings before the tribunal only on the point of not awarding appropriate rate of interest and not continuation of proceedings before the tribunal where it has not granted any compensatory relief. 15. These appeals are continuation of the proceedings before the tribunal only on the point of not awarding appropriate rate of interest and not continuation of proceedings before the tribunal where it has not granted any compensatory relief. 15. It is only because of the Court's delay that the appeals have been placed before us for hearing after the amendment with effect from January 1, 2017 has been enforced. The tribunal not having failed to order compensation to be paid to the respective appellants in accordance with the provisions of the 1990 Rules that were prevailing on the dates it pronounced the judgment and order in the two cases before it, we are of the considered view that relying on Rathi Menon (supra) the appellants cannot claim Rs.8,00,000/- each. 16. The first question is, thus, answered against the appellants. 17. Insofar as the second question is concerned, there is no dispute that the appellants are entitled to interest. In both cases, interest @ 6% p.a. from the date of filing of the claim application have been awarded. 18. The claim applications, filed by the appellants, sought for interest @ 12% p.a. Awarding interest must be in exercise of proper judicial discretion. A balance has to be struck so as to ensure that the same does not prove too onerous for the respondent and is not too meagre for the claimants. We are of the considered view, having regard to the decision of the Supreme Court reported in (2015) 3 SCC 590 (Neeta v. Maharashtra State Road Transport Corporation), that interest @ 9% would be sufficient to take care of the agony of the appellants in both the appeals and such interest should be counted from the respective dates of filing of the claim application before the tribunal. 19. Before parting, we need to deal with the letter written by the appellants in FMA 1228 of 2012 agreeing to forego interest. The said letter does not stand in the way of the said appellants being granted relief for two reasons. First, the said letter has not been brought on record by a procedure known to law and, therefore, does not warrant cognizance. The said letter does not stand in the way of the said appellants being granted relief for two reasons. First, the said letter has not been brought on record by a procedure known to law and, therefore, does not warrant cognizance. Secondly, we are also of the view that simply because by writing a letter the appellants agreed to forego interest, which they say was under duress, would not amount to abandonment of their right to file a statutory appeal or to an estoppel disentailing them from claiming relief in a duly constituted appeal. 20. The second question is, thus, answered in favour of the appellants. Relief 21. The appeals stand disposed of with directions upon the respondent to pay interest @ 9% p.a. on Rs.4,00,000/- from the respective dates of filing of the claim applications by the two sets of appellants before the tribunal as early as possible but not later than a month from date of receipt of a copy of this judgment and order. 22. Photocopy of this judgment and order, duly counter-signed by the Assistant Court Officer, shall be retained with the records of FMA 333 of 2013. Urgent photostat certified copy of this judgment and order, if applied, may be furnished to the applicant at an early date. Sahidullah Munshi, J. - I agree. Appeal disposed of.