IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 4TH MARCH 2011 / 13TH PHALGUNA 1932 MFA.No. 190 of 2010(E) --------------------- OA.41/2008 of RAILWAY CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT : APPLICANT ----------------------- T.UMMER S/O.MUHAMMED MUSALIYAR, 32 YEARS, THAZHATHETHIL HOUSE, POST VALLAPUZHA, PALAKKAD DISTRICT. BY ADV. SMT.T.D.RAJALAKSHMI SRI.R.SREEHARI RESPONDENTS : RESPONDENTS -------------------------- 1. UNION OF INDIA REPRESENTED BY THE CHAIRMAN, KONKAN RAILWAY CORPORATION LTD., NAVI MUMBAI, MAHARASHTRA. 2. THE GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI. ADV. SRI.M.C.CHERIAN,SR.SC.,RAILWAYS FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 04/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & S.S.SATHEESACHANDRAN, JJ. *********************** M.F.A (RCT) No.190 of 2010 ***************************** Dated this the 4th day of March, 2011 JUDGMENT BASANT, J. This appeal is preferred by the appellant aggrieved by the impugned order, under which his claim for compensation under Section 16 of the Railway Claims Tribunal Act, 1987, was dismissed by the Tribunal . 2. This case has had a chequered career. According to the appellant/claimant, between 3.30 a.m and 4 a.m while he was travelling in a train, he accidentally fell down from the train and suffered injuries. The train at that time was reaching Chitrapur railway station. He allegedly sustained multiple injuries including compound fractures. He, in these circumstances, staked a claim for compensation. 3. That claim was hopelessly belated. There was a delay of 1064 days. The Tribunal initially dismissed the application for condonation of delay. The appellant came up in appeal against M.F.A (RCT) No.190 of 2010 2 that decision and this Court as per judgment in M.F.A No.217 of 2009 allowed the said M.F.A subject to very strict terms. The appellant was directed to pay cost of Rs.5,000/- to the Railways and Rs.2,000/- to the Kerala Mediation Centre. The said amounts were paid. This Court directed that the claim itself be disposed of afresh on merits. This Court prescribed a time limit of six months for disposal of the claim. 4. When the matter went back to the court below, it came up for hearing on 01.03.2010. The impugned order shows that when the matter came up on 10.03.2010, 06.04.2010, 11.05.2010 and 22.06.2010, there was no representation for the appellant/claimant. He and his counsel were not present. It is, in these circumstances, that the Tribunal proceeded to dispose of the claim by the impugned order dated 30.06.2010. The Tribunal had no oral evidence of the claimant or the respondent before it. But the 6 documents which were available in the file were marked by the Tribunal. 5. The appellant has come to this Court aggrieved by the impugned order. The learned counsel for the appellant submits that the totality of circumstances must eloquently convey to the M.F.A (RCT) No.190 of 2010 3 Court that the appellant has a real and reasonable case to advance. According to the learned counsel for the appellant, the prompt wound certificate clearly reveals that the injuries were suffered in a railway accident. The learned counsel further submits that the materials produced before court would further show that the appellant was taken to the hospital by R.P.F personnel. The fact that the appellant had suffered serious injuries cannot possibly be disputed, urges the learned counsel for the appellant. The learned counsel for the appellant further points out that the appellant has complied with very onerous conditions in the hope that his claim shall be disposed of by the Tribunal on merits. According to the learned counsel for the appellant, the appellant could not participate in the proceedings before the court below as he was ignorant about the dates of posting. His counsel did not inform him the dates of posting and the appellant could not hence appear before the court below. 6. The short question that arises for determination in this appeal is whether the appellant is entitled for an indulgent further opportunity to adduce evidence. Totality of circumstances have to be taken into consideration. We do not M.F.A (RCT) No.190 of 2010 4 intend to express any opinion on merits about the acceptability of the claim of the appellant; but the impression appears to be irresistible that the appellant has and wants to advance a case which prima facie sounds reasonable. We make it clear that we do not intend to express any opinion. But the fact that the earliest records reveal that the appellant had suffered injuries in a railway accident and the fact that the certificate purportedly issued by the hospital suggests that the appellant was taken to the hospital by the R.P.F personnel are, in these circumstances, of relevance. Report of the R.P.F, if any, after conducting necessary enquiry under the Railway Passengers (Manner of Investigation of Untowards Incidents) Rules, 2003, has not also been produced before the Tribunal. The objections filed by the Railway has also been perused by us. 7. We need only mention that we do feel, after perusal of all records, that the appellant is entitled for an indulgent further opportunity to adduce evidence and substantiate his case. It is, of course, true that the appellant could have filed application for review under the relevant rules before the Tribunal. But all those procedural inadequacies allegedly committed by him do M.F.A (RCT) No.190 of 2010 5 not persuade us in the peculiar facts and circumstances of this case to deny him an indulgent further opportunity to adduce evidence and substantiate his case. The interest of justice, we are satisfied, eloquently demands such a course. We are, in these circumstances, satisfied that this appeal can be allowed, the impugned order can be set aside and the Tribunal can be directed to dispose of O.A.No.41 of 2008 afresh on merits after giving both parties an opportunity to adduce evidence. 8. In the result: a) This appeal is allowed in part; b) The impugned order is set aside; c) The Tribunal is directed to dispose of O.A.No.41 of 2008 afresh in accordance with law after giving both parties an opportunity to adduce evidence in support of their respective contentions. 9. Lest there be any unintended message conveyed by the tenor of this judgment, we make it clear that we have not intended to express any opinion on merits and the Tribunal shall have to dispose of the claim afresh on merits in accordance with law based on the materials to be placed before the Tribunal. We M.F.A (RCT) No.190 of 2010 6 direct both parties to appear before the Tribunal on 28.03.2011. The Tribunal must make every endeavour to dispose of the claim as expeditiously as possible. (R.BASANT, JUDGE) (S.S.SATHEESACHANDRAN, JUDGE) rtr/