IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated 30.09.2011 Coram THE HONOURABLE MR.JUSTICE R.SUBBIAH Civil Miscellaneous Appeal No.1420 of 2009 N.Indira ..Appellant/Applicant ..vs.. Union of India, owning Southern Railway, rep.by General Manager, Chennai-600 003. ..Respondent/Respondent Civil Miscellaneous Appeal filed under section 23 of the Railway Claims Tribunal Act 54 of 1987, against the order dated 03.03.2009 passed by the Railway Claims Tribunal, Chennai Bench, in O.A.No.6 of 2008. For Appellant : Mr.T.Rajamohan For Respondent : Mr.T.S.Rajamohan JUDGMENT Aggrieved over the order of dismissal passed by the Railway Claims Tribunal, Chennai Bench, in O.A.No.6 of 2008 claiming compensation for the death of one Sivakumar in a train accident, his wife Indira has filed the present appeal. 2. The only question that arises for consideration in this appeal is that whether the claimant, wife of the deceased Sivakumar is entitled to get compensation, after her remarriage. Since the accident and the death of the husband of the appellant were not denied by the respondent Railways, there is no need for this Court to go into that aspects. 3. Learned counsel for the appellant/claimant submitted that the Tribunal has dismissed the claim petition holding that the claimant is not a dependant of the deceased in view of her remarriage pending the claim petition and, as such, she is not entitled for compensation. The learned counsel further submitted that the accident took place on 21.05.2000. Since the mother-in-law of the appellant was not willing to file a claim petition along with the appellant, the wife of the deceased alone has filed the claim https://hcservices.ecourts.gov.in/hcservices/ petition as against the Railways seeking compensation for the death of her husband, who had died in an untoward incident on 21.05.2000 while he was travelling in the general compartment of Mumbai-Chennai Express coming from Mumbai. 4. Learned counsel for the appellant further submitted that the claim petition was filed by the appellant on 05.04.2003 along with an application to condone the delay in filing the claim petition. Though the delay was condoned by the Tribunal and the claim petition was numbered, ultimately, the claim petition was dismissed on a finding that the appellant got re-married one Karthikeyan on 01.11.2007. In this regard, the learned counsel for the appellant further submitted that once the delay is condoned, the status of the appellant is reverted back to the date of filing of the claim petition with regard to the entitlement of getting compensation from the respondent Railways. Moreover, the cause of action for making a claim has arisen on the date of the accident. Under such circumstances, the re- marriage pending proceedings, cannot be a bar for the appellant to get compensation. In support of the contentions, the learned counsel has relied on the decisions reported in PRAMILA AND OTHERS .vs. SARVAR KHAN AND OTHERS (2003 ACJ 542) and MAHARASHTRA STATE ROAD TRANSPORT CORPORATION .vs. DARABKHAN AND OTHERS (2006 ACJ 1410). 5. Per contra, the learned counsel for the respondent submitted that under section 123 of the Railways Act, the wife is only a dependant. Since the appellant got remarried during the pendency of the claim petition, she had lost the status of the wife of the deceased. Therefore, she cannot be construed to be the wife of the deceased on the date of passing the order by the Tribunal and as such, no infirmity could be found in the impugned order. 6. Heard the learned counsel for the parties and perused the materials available on record. 7. On a perusal of the records, I find that there is no dispute that the appellant's husband died on 21.05.2000 in an untoward incident inside the general compartment of train No.6011 while he was travelling in Mumbai-Chennai Express. Hence, the appellant, wife of the deceased made a claim on 05.04.2003 with a petition to condone the delay. The claim petition was registered on 28.01.2008; but before that, the appellant has entered into second marriage with one Karthikeyan on 01.11.2007. Now it is the submission of the appellant that the cause of action claiming compensation arose on the date of accident. Therefore, the status of the wife has to be construed on the date of filing claim petition and not on the date of passing the order. 8. Per contra, it is the submission of the learned counsel for the respondent that the Railways came to know about the re-marriage only on the date on which the evidence of P.W.1 was recorded. When https://hcservices.ecourts.gov.in/hcservices/ the Tribunal came to know that the appellant got re-married during the pendency of claim petition, it correctly dismissed the claim petition. Further, the learned counsel for the respondent submitted that the judgment relied on by the appellant cannot be made applicable to the facts of the case on hand because in the case cited supra, the widow married after awarding compensation. 9. Considering the facts and circumstances of the case, in my considered opinion, once when the delay is condoned, the status of the appellant reverts back to the date of filing the claim petition. The claim petition was filed on 05.04.2003 on which date the second marriage of the appellant did not take place. Therefore, the entitlement of widow in getting the compensation cannot be curtailed or taken away because she got re-married during the pendency of the claim petition. In this regard, an useful reference could be placed in the decisions relied on by the learned counsel for the appellant. In 2006 ACJ 1410 (supra), it has been held as follows: "7. The respondent No.4 was remarried. Therefore, the objection of the appellant appear to be that after remarriage, such person is not entitled for the compensation and, therefore, such application was not maintainable. Learned counsel appearing for the appellant relied on the judgment in Veerappan v. Muthamma, 1995 ACJ 313 (Kerala). Even though that judgment is based on Workmen's Compensation Act, 1923, according to me, the principles can be extended in the compensation case arising out of the Motor Vehicles Act. At the relevant time, admittedly, the respondent No.4 was entitled for compensation being a widow of the deceased. Her entitlement cannot be curtailed or taken away only because she remarried later on. A widow cannot wait for the compensation to come and then decide for another marriage. The realities of life cannot be overlooked. A widow may or may not be in a position to marry again. There is no bar or anything pointed out under any provisions of law that such widow, after marriage, is disentitled for claim of the deceased husband. In view of this, I am of the view that this objection about the maintainability of the respondent No.4's application cannot be accepted. The present application by the wife, respondent No.4, therefore, is also maintainable and within the framework of law". 10. A Division Bench of the Madhya Pradesh High Court in PRAMILA AND OTHERS .vs. SARVAR KHAN AND OTHERS (2003 ACJ 542) has deeply analysed the question as to whether a widow can be denied compensation for the death of her husband on her contracting second marriage and answered to the said question that the widow has absolute right to get compensation, which should not be influenced by the fact of remarriage. The relevant paragraphs read as follows: https://hcservices.ecourts.gov.in/hcservices/ "12. 'Legal representative' ordinarily means a person who in law represents the estate of a deceased person or a person on whom the estate devolves on the death of an individual. Legal representative in a given case need not necessarily be a wife, husband, parents and child. However, it cannot be said that wife is not a legal representative of her deceased husband. She is qualified to represent his estate on his death, therefore, qualified to file application for compensation for the loss of her husband. Succession to the estate opens on the occurrence of death of husband. 'Estate' would include all kinds of properties, movable and immovable, left by the deceased husband. It would include claim for compensation which arises on the death of husband. Her entitlement to the estate/compensation is settled on the taking place of the accident resulting in the death of the husband. She cannot be divested of this right, being absolute and inalienable, even if she remarries. This conclusion flows by operation of Article 15(3) of the Constitution of India and section 14(1) of the Hindu Succession Act 1956. Provisions of Hindu Adoptions and Maintenance Act, 1956, have no application since their application is confirmed to limited field. ...... 14. Proceeding further, husband is entitled to claim compensation in the event of death of wife even if he is earning himself and dependency is calculated on the income of the deceased wife or contribution for the family. After the death of such a wife, the husband marries. Is his right to compensation forfeited? The answer to this question is in the negative. When this is so in case of husband, why different principle be made applicable in case of wife who marries after the death of husband? Compensation awarded by Motor Accidents Claims Tribunal under the Motor Vehicles Act, 1988, is not maintenance. It is a compensation for the loss sustained by the legal representative(s) for the death of their relation. The legal representatives become entitled to compensation on the occurrence of the accident and death of the relation. Widow has absolute right to compensation allowed by the Claims Tribunal which should not be influenced by the fact that the wife has married after the accident". 11. A reading of the above judgments would show that re- marriage of the appellant cannot be a bar to get compensation for the death of her husband. But the Tribunal has erroneously dismissed the claim petition on a finding that since the appellant got re-married, she ceases to be the wife of the deceased during the trial and she cannot be termed as the wife of the deceased as per section 123(b)(i) of the Railways Act, is not correct because the status of the wife has to be seen on the date of filing the claim petition only. It is to be noted that though there was a delay in filing the present claim petition, when the delay was condoned, the position of the appellant https://hcservices.ecourts.gov.in/hcservices/ reverted back to the date of filing the claim petition. Under such circumstances, I am of the opinion that the dismissal order passed by the Tribunal is not correct and hence, the same is liable to be set aside and accordingly, set aside. 12. With regard to the submission made by the learned counsel for the respondent that the appellant is not entitled to get interest, I am of the opinion that since the appellant is entitled to get compensation, under the Statute the interest cannot be denied in the case. Hence, the respondent is directed to deposit the compensation of Rs.4,00,000/- with interest at 9% per annum from the date of claim petition till the date of deposit within a period of six weeks before the Tribunal. On such deposit, the appellant is permitted to withdraw the same. Civil Miscellaneous Appeal is disposed of accordingly, No costs. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar gl To The General Manager, Union of India, Southern Railway, Chennai-600 003. 1 cc to Mr.T.Rajmohan, Advocate, Sr.No.61584 Judgment in C.M.A.No.1420 of 2009 NG {CO} TP/20.10.2011. https://hcservices.ecourts.gov.in/hcservices/