1 fa132-99 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURSIDICTION FIRST APPEAL NO. 132 OF 1999 ALONGWITH CROSS OBJECTION ST. NO.16990 OF 2011 The Union of India .. Appellant V/s. Vandana Prakash Torne & Ors. .. Respondents ..... Mr. A. N. Samant for the applicant. Mr. C. S. Joshi for respondent No.2. ..... CORAM : A.S.OKA, J. DATE : AUGUST 3, 2011. ORAL JUDGMENT : The appellant Union of India has taken an exception to the Judgment and order dated 28th July, 1998 passed by the learned Member of the Railway Claims Tribunal. The respondents made an application for compensation by invoking Section 124 A of the Railways Act, 1989 (hereinafter referred to as “the said Act”). The case made out by the respondent is that the deceased Prakash Ratan Torne while travelling by a local train on 22nd September, 1996 accidentally fell down from the train. He sustained injuries and he ultimately succumbed to the injuries. The first respondent is the widow of the deceased. The second respondent is the mother of the deceased and the third and fifth respondents are minor sons of the 2 fa132-99 deceased. The claim was contested by the appellant. The claim was allowed and the compensation of Rs.2,00,000/- was granted in accordance with the provisions of the Railways Accidents and Untoward Incident (Compensation) Rules, 1990 (hereinafter referred to as “the said Rules”). The Tribunal directed that if the amount was not deposited within two months from the date of the order, the respondents will be entitled to interest at the rate of 12 % per annum. 2. The Cross Objection has been filed by the respondents. In the Cross Objection, compensation is claimed of Rs.4,00,000/- on the basis of the amendment to the said Rules of 1990 effected with effect from 1st November, 1997. The contention in the Cross Objection is that interest at the rate of 12% per annum ought to have been granted from the date of filing of the claim application. 3. The contentions raised in the Appeal are that the deceased was not a bonafide passenger. It is contended that this is not a case of accidental fall and in fact the deceased fell down while entering the train. Another contention of the appellant is that the Tribunal could not have granted interest at a rate exceeding 6% per annum. The submission of the learned counsel appearing for the respondents in support of 3 fa132-99 the Cross Objection is based on the decision of the Apex Court in the case of Rathi Menon V/s. Union of India [JT 2001 (3) SC 475]. The submission of the learned counsel is that the Apex Court has held that the amendment carried out to the said Rules in the year 1997 will apply even to the pending claims and, therefore, the respondents are entitled for compensation of Rs.4,00,000/-. The learned counsel relied upon a decision of the Apex Court in the Case of Tahazhathe Purayil Sarabi & Ors. V/s. Union of India & Anr. [JT 2009 (8) SC 515]. He submitted that the Tribunal has power to grant interest by exercising the power under Section 34 of the Code of Civil Procedure, 1908 (hereinafter referred to as “the said Code”). His submission is that interest ought to have been granted at the rate of 12% per annum from the date of filing of the claim application till the date of decision. He also relied upon a decision of the Apex Court in the case of Devidayal Kansal & Ors. V/s. Rajroop & Anr. (2000 ACJ 338). He also relied upon a decision of the Madras High Court in the case of United India Insurance Company Limited V/s. Mariasamy & Others [2011 ACJ 115]. He submitted that without their being any Cross Objection, the Appellate Court can always exercise power under Rule 33 of Order XLI of the said Code and grant enhancement of compensation. He, therefore, submitted that 4 fa132-99 the respondents are entitled to interest at the rate of 12% per annum from the date of filing of the claim application till the date of payment of compensation of a sum of Rs.4,00,000/-. 4. I have considered the submissions. The first question for consideration will be whether the deceased was a bonafide passenger. In paragraph No.4 of the Judgment, the learned Member of the Tribunal has recorded a finding that identity card held by the deceased and monthly season ticket valid from 7th September, 1996 to 6th October, 1996 held by the deceased was produced on record. The accident is of 22nd September, 1996. Therefore, the Tribunal has rightly held that the deceased was a bonafide passenger. 5. The second question is whether the case was of untoward incident within the meaning of Sub Clause 2 of Clause (c) of Section 123 of the said Act of 1989. Reliance was placed by the appellant on the report of the Deputy SM Dadar dated 22nd September, 1997 which records that a 30 years old person while boarding in the local train on platform No.1 fell down inside the track. Even as far as this aspect is concerned, the law has laid down by the Apex Court in the case of Union of India V/s. Prabhakaran Vijaya Kumar & Ors [Appeal (Civil) No.6898 of 2002 dated 5th May, 2008]. The Apex Court held 5 fa132-99 that when a passenger falls down while attempt to get into the train, it also amounts to accidental fall of a passenger and is an “untoward incident”. The Apex Court held that to attract Section 123(C), it is always not necessary that the deceased should have entered inside the train. Therefore, it is not possible to find fault with the view taken by the Tribunal on both the aspects. 6. The claim application was filed on 22nd September, 1997. Prior to that date, as per the said Rules, the compensation payable on account of death due to an untoward incident was a sum of Rs.2,00,000/-. With effect from 1st November, 1997, an amendment was made to the Schedule to the said Rules whereby this amount of Rs.2,00,000/- was enhanced to Rs.4,00,000/-. The question which arises is whether the respondents were entitled to benefit of the said amendment which came into force during the pendency of the claim application. In the case of Rathi Menon (Supra), the Apex Court held that even if the incident has occurred before the said amendment, the claimants would be entitled to benefit of higher amount provided by the amendment in a case where the claim application was pending on the date on which the amendment was brought on the Rule Book. The Apex Court held that any interpretation contrary to the said interpretation 6 fa132-99 would be manifestly absurd and will have discriminatory results. Therefore, entitlement of the respondents to total compensation of Rs.4,00,000/- cannot be disputed. 7. The real issue is regarding the grant of interest. In the case of Tahazhath Purayil Sarabi & Ors (Supra), the Apex Court dealt with the power of the Railway Claims Tribunal to grant interest in a claim under Section 124-A of the said Act. The Apex Court held that the Railway Claims Tribunal can always invoke the principals governing Section 34 of the said Act and Section 3 of the interest Code to award interest. Therefore, Apex Court modified the order of the High Court and awarded interest at the rate of Rs.6% per annum from the date of application till the date of Award and at the rate of 9% per annum from the date of Award till the date of actual payment. Considering the principals governing the payment of interest under Section 34 of the said Code, the interest granted by the claims Tribunal at the rate of 12% per annum from the date of application is excessive and the same could not have exceeded 6% per annum. 8. As far as the original amount of Rs.2,00,000/- is concerned, there is no doubt that the respondents were entitled to interest on the amount of Rs.2,00,000/- at the rate 7 fa132-99 of 6% per annum from the date of the filing of the claim application till the date on which order was passed by the Railway Claims Tribunal. Going by the decision of the Apex Court referred above, from the date of the impugned order, interest could have been made payable at the rate of 9% per annum. Now, the only question is whether interest can be ordered to be paid on the enhanced amount of Rs.2,00,000/-. It must be noted here that the impugned order was passed on 28th July, 1998. On that day, the Amended Rules were already in force. The submission of the learned counsel appearing for the respondents is that the respondents are lay persons and therefore they were not aware of the amended Rules. His submission is that about the retrospective effect of the Amended Rules, the law was laid down by the Apex Court for the first time in the case of Rathi Menon (Supra) on 13th March, 2001. 9. Going by the said submission, it is obvious that, the respondents could have filed Appeal even in the year 2001. The present Appeal was dismissed by this Court on 10th June, 2011. On review petition filed by the respondents, by order dated 22nd February, 2011, the Judgment in the Appeal was recalled and the Appeal was restored. The Cross Objection claiming enhanced amount along with the delay condonation application has been filed on 28th June, 2011. 8 fa132-99 10. As held by the Apex Court, the Tribunal can always invoke principals incorporated in Section 34 of the said Code. The power to grant interest under Section 34 is discretionary. Therefore, considering the facts of the case, on enhanced amount of Rs.2,00,000/-, the respondents are not entitled to interest from the date of filing of the claim application till the date of decision of the Appeal. 9. Hence, I pass the following order: :: O R D E R :: i. The impugned Judgment and order is modified. ii. The respondents-claimants are entitled to total compensation of Rs.4,00,000/-. iii. Out of the said amount, a sum of Rs.2,00,000/- shall carry interest at the rate of 6% per annum from 22nd September, 1997 till 28th July, 1998. Further interest will be payable on the sum of Rs.2, 00,000/- at the rate of 9% per annum from 28th July, 1998 till the date of deposit of the said amount by the appellant. 9 fa132-99 iv. On the remaining amount of Rs.2,00,000/-, the respondents will not be entitled to interest from the date of filing of the claim application. v. The respondents shall be entitled to interest at the rate of 9% per annum on the said amount of Rs.2,00,000/- from the date of this Judgment and order if the said additional amount of Rs. 2,00,000/- is not deposited by the appellant with the Tribunal within a period of two months from today. vi. The Appeal is partly allowed to the above extent. The Cross Objection is also partly allowed as aforesaid. vii. There is no order as to costs. viii. The appellant to act upon an authenticated copy of the operative part of the Judgment. (A.S.OKA, J.)