IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 23RD JULY 2009 / 1ST SRAVANA 1931 MFA.No. 114 of 2009() ------------------------------ AGAINST THE ORDER DATED 27/02/2009 IN IA 34/08 IN OA.56/2008 of RAILWAY CLAIMS TRIBUNAL, ERNAKULAM BENCH) .................... APPELLANT(S): APPLICANTS: ------------------------------------------ 1. SALEENA, W/O. LATE SALEEM, THUNDUPURAYIDAM, KOMALLOOR.P.O,CHUNAKKARA, CHERUMOODU, MAVELIKKARA TALUK, ALAPPUZHA DISTRICT. 2. AFSAL, AGED 13, S/O. LATE SALEEM, THUNDUPURAYIDAM, KOMALLOOR.P.O,CHUNAKKARA, CHERUMOODU, MAVELIKKARA TALUK, ALAPPUZHA DISTRICT. (S/O THE DECEASED REPRESENTED BY THE MOTHER, IST APPLICANT) 3. AJMAL, AGED 10, THUNDUPURAYIDAM, KOMALLOOR.P.O,CHUNAKKARA, CHERUMOODU, MAVELIKKARA TALUK, ALAPPUZHA DISTRICT, (S/O. THE DECEASED, REPRESENTED BY THE MOTHER IST APPLICANT) 4. ASHIK, AGED 10, THUNDUPURAYIDAM, KOMALLOOR.P.O,CHUNAKKARA, CHERUMOODU, MAVELIKKARA TALUK, ALAPPUZHA DISTRICT (S/O. THE DECEASED, REPRESENTED BY THE MOTHER IST APPLICANT) 5. HAMEED RAVUTHAR, AGED 62, THUNDUPURAYIDAM, KOMALLOOR.P.O,CHUNAKKARA, CHERUMOODU, MAVELIKKARA TALUK, ALAPPUZHA DISTRICT, (FATHER OF THE DECEASED) 6. THANKAMMA, AGED 55, W/O. HAMEED RAVUTHAR THUNDUPURAYIDAM, KOMALLOOR.P.O,CHUNAKKARA, CHERUMOODU, MAVELIKKARA TALUK, ALAPPUZHA DISTRICT, BY ADV. SRI.P.K.VARGHESE SRI.E.C.BINEESH RESPONDENT(S): RESPONDENT: ----------------------------------------------- UNION OF INDIA, OWNING TO SOUTHERN RAILWAY, REPRESENTED BY ITS GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI -3. BY STANDING COUNSEL SRI.N.B.SUNIL NATH. THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 23/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ------------------------------------------------------ M.F.A.No.114 of 2009 ---------------------------------------------- Dated, this the 23rd day of July, 2009 J U D G M E N T K.M.Joseph, J. This appeal filed under Section 23 of the Railway Claims Tribunal Act, 1987 is directed against the order of the Railway Claims Tribunal, Ernakulam Bench rejecting an application filed under S.17 (2) of the Railway Claims Tribunal Act, 1987 read with Rule 44 of the Railway Claims Tribunal Procedure Rules, 1989. The application filed by the appellants was to condone the delay of 1757 days in filing he Original Application which was for compensation of Rs.4 lakhs for the death of Salim aged 33 years in an allegedly untoward incident. The Ist appellant is the widow of the deceased, 2nd, 3rd and 4th appellants are his minor children and appellants 5 and 6 are his parents. The alleged untoward incident, according to the appellants, took place on 11.2.2003. The reasons stated for condonation of delay was that the appellants/applicants were not aware of the existence of the MFA 114/2009 -2- Tribunal and that they got wrong legal opinion from a native lawyer. The Tribunal has stated that the appellants have not stated the name of the lawyer, the date and time of consultation and the the outcome of legal advice. It has also found that the Railway Claims Tribunal came into existence in the year 1989 and therefore the unawareness of the existence of the Forum is not a valid reason. The Tribunal ultimately found that the appellants have failed to satisfactorily convince the Tribunal in explaining each days delay occurred. 2. We heard the learned counsel for the appellants and learned counsel for the Railways. 3. Learned counsel for the appellants points out that the deceased was a worker and respondents 2 to 4 were minors and respondents 5 and 6 were aged parents of the deceased. The Ist appellant is the widow of the deceased. It may not be correct to impute the appellants with the knowledge of existence of the Tribunal. It may also not correct to hold that each days delay has to be explained. This is a case where there is a death. We would think that substantial justice would require that in the facts of this case MFA 114/2009 -3- having regard to the age of appellants 2 to 6 also that the deceased was only a worker, the delay should be condoned. Accordingly, we allow the appeal. The application for condonation of delay will stand allowed and the Tribunal will take up the petition claiming compensation and decide the same in accordance with law and on merits. The parties will appear before the Tribunal on 25.8.2009. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS