Md Kalim v. Union Of India, Through General Manager
2018-08-14
AMITAV K.GUPTA
body2018
DigiLaw.ai
JUDGMENT Amitav K. Gupta, J. - I.A. no. 5564 of 2017 This interlocutory application has been filed under section 5 of the Limitation Act for condoning the delay of 554 days in preferring the present appeal. 2. Learned counsel for the respondents while opposing the application has urged that the appellants have been grossly negligent and no reasonable explanation has been given neither sufficient cause has been made out for condonation of the delay. It is argued that in similar circumstances, the learned Single Bench of Madhya Pradesh High Court, in the case of Smt. Kujmati Vs. The Union of India in (M.A. no.3108 of 2009) vide judgment dated 06.11.2015, while considering the application for condonation of delay of 319 days under section 5 of the Limitation Act, has held that the provisions of Limitation Act are not applicable to an appeal preferred under Sub-section (1) of Section 23 of the Railway Claims Tribunal Act 1987. It has been observed that the High Court has no jurisdiction to entertain such appeal which was filed beyond the period of 90 days as provided under Section 23 (3) of the Act, therefore, the appeal was held to be barred by limitation. It is submitted that the instant application for condonation of delay is squarely covered by the ratio of the said decision and the appeal is barred by limitation in terms of Section 23 of the Railway Claims Tribunal Act 1987. That the application under Section 23 of the Limitation Act for condonation of delay is not maintainable, hence, it is fit to be rejected. 3. Learned counsel for the appellant has submitted that the aforesaid decision of the learned Single Judge of Madhya Pradesh High Court cited and relied upon by the learned counsel for the respondent/railways has been overruled by the Division Bench of Madhya Pradesh, High Court in the case of Kapil and Others vs. Union of India and Others , (2017) 4 TAC 829, wherein it has been held that the Limitation Act is applicable to appeals filed under Section 23 of the Railways Claims Tribunal Act. 4. Heard. On perusal of Section 23 of the Railway Claims Tribunal Act, it is evident that the section provides that appeal is to be preferred within 90 days in terms of Section 23 (3) of the Railway Claims Tribunal Act.
4. Heard. On perusal of Section 23 of the Railway Claims Tribunal Act, it is evident that the section provides that appeal is to be preferred within 90 days in terms of Section 23 (3) of the Railway Claims Tribunal Act. For better appreciation of the arguments, it is relevant to refer to Section 29 (2) of the Limitation Act, 1963 which reads as follows: "Section 29 (1) ... ... ... (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law." 5. It is explicit from plain reading of the provisions of Sub-section (2) that it provides that Sections 4 to 24 of the Limitation Act shall be applicable to any Act which prescribes a special period of limitation, unless the provisions of Limitation Act are expressly excluded by such special law. The Supreme Court in Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker , (1995) 5 SCC 5 , has elaborately deliberated and discussed the question whether the Limitation Act will apply when the Special Act prescribes a period of limitation, which is different from the period of limitation prescribed under the Limitation Act, and when there is no express exclusion of Sections 4 to 24 of the Limitation Act, in the provisions of the special Act. The aforesaid question had arisen in the matter of appeal under Section 18 of Kerala Buildings (Lease and Rent) Control Act 1965. Considering the divergence of view and opinion of the High Court, their Lordships answered the question in affirmative, observing that Section 29(2) of the Limitation Act comes into play in such circumstances and provisions of Section 4 to 24 of the Limitation Act is applicable when the statute does not exclude the applicability of the Limitation Act.
Considering the divergence of view and opinion of the High Court, their Lordships answered the question in affirmative, observing that Section 29(2) of the Limitation Act comes into play in such circumstances and provisions of Section 4 to 24 of the Limitation Act is applicable when the statute does not exclude the applicability of the Limitation Act. In the instant case, it is abundantly clear that Section 23 of the Act, does not exclude the applicability of Section 5 of the Limitation Act, therefore, in terms of Section 29 (2) of the provisions of Limitation Act is applicable and the application under Section 5 of the Limitation Act for condonation of delay in preferring the appeal under Section 23 of the Limitation Act is maintainable. The question of law raised by the learned counsel is no longer res integra and is responded to accordingly. In view of the reasons assigned in the present application, it is held that sufficient cause and reasonable explanation has been made out for the delay. 6. Being satisfied with the reasons, I.A. no. 5564 of 2017 stands allowed. M.A. no. 380 of 2017 7. This appeal has been preferred against the order dated 05.10.2015 passed in Case no. OA/IIU/RNC/2011/0078, by the Railway Claims Tribunal, Ranchi Bench, whereby the compensation of Rs. 4,00,000/- was awarded to be paid to the appellants/claimants with default clause that if the amount was not paid within three months from the date of order, then the respondent/Railways shall be liable to pay interest @ 9% per annum as the awarded compensation from the date of the order. 8. Learned counsel for the appellants has submitted that the Tribunal has committed manifest error in not granting any interest on the awarded compensation. It is argued that in similar circumstances, the Supreme Court in Tahazhathe Purayil Sarabi and Others Vs. Union of India and Another , (2009) ACJ 2444 had held that interest should be paid from the date of accident or the date of application. 9. Per contra, learned counsel for the respondent/Railways has contended that the present appeal for non-payment of the interest on the awarded compensation by the Tribunal from the date of application is not maintainable. It is argued that the respondent/Railway in their application have stated that the deceased was the house wife whereas the Tribunal has recorded the findings that she was the unmarried daughter.
It is argued that the respondent/Railway in their application have stated that the deceased was the house wife whereas the Tribunal has recorded the findings that she was the unmarried daughter. Moreover, the award has been satisfied by the respondent/Railway within the prescribed time, hence, the appellants cannot raise the plea at such a belated stage. 10. Heard. Evidently, the respondent/Railways have not preferred any appeal assailing the findings of the Tribunal, therefore, they are estopped from challenging the findings of the Tribunal on the question whether she was the wife or unmarried daughter given the fact that the Tribunal has recorded a finding that the deceased was a bona-fide passenger and she died due to accidental fall which was an ''untoward incident'' as defined under Section 123 (c) of the Railways Act, 1989. In view of the decision rendered in the case of Tahazhathe Purayil Sarabi and Union of India Vs. Rina Devi,2018 2 JBCJ 478, the appellants are entitled to be paid the interest on the awarded compensation. It is evident that claim for compensation was adjudicated after four years from the filing of the application. The Tribunal has not given any finding that there were any laches or negligence on the part of the appellants in prosecution of the case or the delay in adjudication of the claim was occasioned on account of fault of the claimants. It is settled proposition that the compensation is to be paid on the date of the accident for the simple reason that the intrinsic value of money is diminished over the years due to price escalation, inflation and other factors. Since, there was no negligence or fault on the part of the claimants, therefore, the Tribunal should have granted interest on the awarded compensation from the date of application. 11. In the facts and circumstances of the case, the respondent/Railways are directed to pay the interest @ 9% per annum from 05.11.2011, within three months from the date of receipt/production of copy of this order. 12. With the said modification of the