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2018 DIGILAW 1994 (ALL)

UNION OF INDIA v. PRATEEK MISHRA (MINOR)

2018-09-14

SARAL SRIVASTAVA

body2018
JUDGMENT Hon’ble Saral Srivastava, J.—Heard learned counsel for the parties. 2. The present appeal arises out of the judgment and order dated 1.9.2009 passed by the Railway Claims Tribunal, Gorakhpur Bench Gorakhpur in Application No. OA/II/153/04/ALD, whereby the Railway Claims Tribunal has awarded Rs. 4,00,000/- as compensation for the death of one Nihar Ranjan Mishra. 3. The claim petition was instituted by one Prateek Mishra, aged about 7 years through Smt. Rachna Mishra for the death of Nihar Ranjan Mishra. The claimants prayed for compensation of Rs. 4,00,000/- for the death of Nihar Ranjan Mishra, Rs. 6,200/- for loss of luggage, and also prayed for interest @ 12% per annum on the awarded amount. 4. It was pleaded in the claim petition that deceased had started his journey by train on 2.11.1991 from Allahabad City to Varanasi in 2nd Class. The deceased was having valid ticket for journey and he was murdered in the train by some criminal elements by making violent attack near Atraura Halt between Handia Khas and Jangiganj stations in the night of 2/3-11-91 and was thrown out from the train. The belongings of deceased including cash and the journey ticket were robbed off by the criminals. In this background, the aforesaid compensation was claimed by the claimant-respondent. 5. The claim petition was contested by the appellant by filing written statement contending therein that the alleged accident had occurred on 2.11.1991, whereas, the amendment in Section 123(c)(1)(ii) was added in the year 1994, by which the word “untoward incident” has been defined, therefore, as the date of the accident was prior to the amendment in Section 123 of the Railways Act, the Railway was not liable to pay any such compensation. Thus, the Tribunal has no jurisdiction to entertain the claim petition. It was further pleaded that in the Railway Claims Tribunal Act, Section 13(1A) was added, by which jurisdiction of the Claims Tribunal was extended in respect of the cases falling within the definition of “untoward incident” which was added by an amendment in Section 123(c)(1)(ii) with effect from 1.8.1994. It was pleaded that since the amendment in the Railway Claims Tribunal was brought with effect from 1.8.1994, the Tribunal has no jurisdiction to decide the matter. 6. The Tribunal on the basis of the pleadings between the parties framed as many as five issues. 7. It was pleaded that since the amendment in the Railway Claims Tribunal was brought with effect from 1.8.1994, the Tribunal has no jurisdiction to decide the matter. 6. The Tribunal on the basis of the pleadings between the parties framed as many as five issues. 7. The appellant in the instant appeal has assailed the finding of the Tribunal on the issue No. 4 regarding the jurisdiction of the Railway Claims Tribunal to entertain the claim petition. 8. Learned counsel for the appellant has submitted that admittedly in the present case, the accident had occurred on 2.11.1991, whereas the amendment in Section 123(c)(1)(ii) was added in the Act with effect from 1.8.1994. The submission is that the amendment brought in Section 123 of the Railway Act is prospective and, since there was no provision in the Railways Act defining the “untoward incident” on the date of the accident, the Railway is not liable to pay any compensation. He further submits that Section 13 of the Railway Claims Tribunal Act was amended in the year 1994, whereby sub-section 1 (A) was added in Section 13 of the Railway Claims Tribunal, Act 1989 by which Tribunal was conferred with jurisdiction to decide cases falling within the definition of “untoward incident”. 9. Thus, the submission is that since on the date of accident, the Tribunal did not have any jurisdiction to decide the case falling within the category of “untoward incident” as defined in Section 123 (c) of the Railway Act, the claim petition was not maintainable before the Railway Claims Tribunal. 10. Per contra, learned counsel for the respondent submitted that the controversy in the instant case is settled by the judgment of this Court in the case of Union of India (UOI) and another v. Smt. Gayatri Srivastava and others, (sic) : AWC 2168 All, wherein this Court has held that the accident occurred prior to the date of amendment in Section 123 of the Railway Act is also covered in the definition of untoward incident as defined in Section 123 (c) of the Railways Act. He further submits that since this Court has already held in the case of Union of India (Supra), that the accident occurred prior to the date of amendment in Section 123 of the Railways Act which fell into the category of untoward incident are covered by the definition of untoward incident and, therefore, the Railway Claims Tribunal had jurisdiction to entertain the claim petition and decide the same. 11. Learned counsel for the respondent has placed reliance upon paragraph 8 of the judgment of Union of India (Supra), which is extracted herein below: “8. Sri Lal Ji Sinha has next contended that the accidental falling of any passenger from a train carrying passenger which is included in the definition of ‘untoward incident’ as given in Section 123(c) of the Railways Act came to the statute book on 28.4.1994, which is subsequent to the accident which took place on 7.2.1994 and, therefore, the claimants are not entitled to any compensation. It is true that the expression ‘untoward incident’ was not on the statute book when the accident took place. However, there is nothing in the language of Section 124A of the Railways Act to suggest that the liability of the Railways to pay compensation to the dependants of the passenger is restricted one and they are liable to pay compensation only if the accident occurs after the enforcement of the amending Act on 28.4.1994. The normal period prescribed under Section 17 of the Railways Claims Tribunal Act for filing a claim petition is one year and, therefore, the claimants in the present case could file the claim petition, even without making out any case for condonation of delay by 7.2.1995. The amending Act came in between on 28.4.1994. The language used in Section 124A of the Act is couched in a very wide and general terms and is not restricted to take within its embrace only such accidents wherein a passenger has been Injured or killed subsequent to that date.” 12. He submits that against the judment of this Court in Union of India (Supra), the Union of India has preferred Special Leave to Appeal (Civil) No. 17745/2002 which was dismissed by the Apex Court. The order of the Apex Court reads as under: “Heard learned counsel for the petitioners. No merits. The special leave petition is dismissed.” 13. I have heard the submission of the parties and perused the record. The order of the Apex Court reads as under: “Heard learned counsel for the petitioners. No merits. The special leave petition is dismissed.” 13. I have heard the submission of the parties and perused the record. 14. It is manifest from the record that the alleged accident had taken place in the night of 2/3-11-91. The deceased Nihar Ranjan Mishra was murdered and his body was thrown by robbers from the train. It is also established on the record that he was travelling with a valid ticket which was proved by his brother-in-law Sri Rakesh Bajpayee who was a Booking Clerk on the railway station at Allahabad City, and had deposed before the Tribunal that he had given a ticket to the deceased and seen him off at Allahabad City station on the fateful day of the accident. Thus, the deceased was travelling with a valid ticket 15. So far as, the contention of the counsel for the appellant that the accident had taken place prior to the date of amendment in Section 123(c) of the Railways Act and Section 13 of the Railway Claims Tribunal Act, inasmuch as, Section 123 (c) was inserted by an amendment with effect from 1.8.1994, therefore, the Railway is not liable to pay any compensation is not sustainable. In view of the decision of this Court in the Union of India (Supra) affirmed by the Apex Court, wherein this Court has held that the accident prior to the date of amendment under Section 123(c) are also covered as the language used in Section 124(A) of the Act is couched in a very wide and general terms and is not restricted to take within its embrace only such accidents wherein a passenger has been Injured or killed subsequent to that date. The submission of counsel for the railways, as raised in the instant appeal has been rejected by this Court in the case of Union of India (Supra), hence, the submission of the counsel for the appellant has no substance and deserves to be rejected. 16. Thus, for the reasons given above, the appeal lacks merit and is dismissed. There shall be no order as to costs.