FAO No.301 of 1985 -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH FAO No.301 of 1985 Date of decision : 26.3.2010 Dr.Chaman Lal and another ..Appellants. Vs. Union of India and others ..Respondents. CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present : Ms.Aparna Jain, Advocate for the appellants. Mr.Amit Kumar, Advocate for respondents No.1 and 2. RAKESH KUMAR JAIN, J. This appeal is directed against order of the Ad hoc Claims Commissioner, Northern Railway, Rohtak dated 5.12.1984 whereby an application for compensation filed under Section 82A of Indian Railways Act, 1890 (for short `the Act') by the appellant on account of death of Reshma Devi was dismissed. In the accident dated 10.2.1984 between 38 Dn.Punjab Mail and 2 DR (Delhi-Rohtak Passenger Shuttle) at Bahadurgarh Station of the Northern Railway, Reshma Devi, her newly married daughter-in-law and another son died. A sum of Rs.2000/- as ex gratia grant was given to meet urgent expenditure for the last rites. An application for compensation on account of the death of Reshma Devi was filed by as many as eight persons each claiming Rs.5 lacs as compensation and an interim relief of Rs.50,000/- to each of them. The Union of India, did not dispute the FAO No.301 of 1985 -2- accident, death of Reshma Devi, payment of ex gratia amount of Rs.2000/- but it was denied that she was contributing to the family fund or the claimants were in any way dependent either wholly or partly on the income of the deceased. It was also denied that she was a bonafide passenger. In view of variation of stand of the parties, following issues were settled for trial: (i)Whether Smt.Reshma Devi deceased was a passenger on 38 Dn.Punjab Mail from Sangaria to Delhi which was involved in accident at Bahadurgarh Railway Station on 10.2.1984 as alleged? OPA. (ii)If issue No.1 is proved whether the applicants were dependents of deceased Smt.Reshma Devi and are entitled to compensation and if so, in which share for apportionment? OPA. (iii)If issue No.2 is proved, to what compensation, if any, the claimants are entitled to in the event of the application being allowed? OPA. (iv)Whether the claim application is not duly verified as required by the law and its effect? OPR. (v)What is the effect of non-impleading of relationship of claimants No.7 and 8 as mentioned in para 12 of the written statement? OPR. (vi)Relief. Learned Commissioner decided issue No.1 in favour of the claimants holding that Reshma Devi was travelling against a valid ticket and was a bonafide passenger. In issue No.3, compensation of Rs.1 lac was assessed on account of the death of Reshma Devi subject to the claimant's establishing that they or either of them was dependent on the income of the deceased either partially or wholly. Issues No.4 and 5 were decided against Railway. Issue No.2 was decided against the claimants holding that none of FAO No.301 of 1985 -3- them was dependent upon deceased Reshma Devi. As a matter of fact, the basic issue in this case is issue No.2 wherein the Court while deciding the question as to whether the applicants were the dependents of deceased Reshma Devi held that no one has proved to be the dependent upon her and for that purpose, learned Commissioner had relied upon definition of the “Dependent”. It is held that Section 82 (c) of the Act provides that an application for compensation under Section 82A (d) arising out of the accident where death has resulted from the accident, may be made to the Claims Commissioner by any of the dependent of the deceased. “Explanation” to Sub Section (3) of Section 82 C adopts the definition of “dependent” as given in Clause (d) of Sub Section (1) of Section 2 of the Workmen's Compensation Act, 1923 (for short `the Act of 1923') for the purpose of “dependent” in Section 82 C. Section 2(1)(d) of the Act of 1923 defines “dependent” which is reproduced as under: “(d) “dependent” means any of the following relatives of the deceased workman, namely:- (i)a widow, a minor (legitimate or adopted) son, an unmarried (legitimate or adopted) daughter, or a widowed mother, and (ii)If wholly dependent on the earnings of the workman at the time of his death a son or a daughter who has attained the age of 18 years and who is infirm, (iii)If wholly or in part dependent on the earnings of the workman at the time of his death; (a) a widower (b) a parent other than a widowed mother, (c) a minor illegitimate son, an unmarried illegitimate (daughter or a daughter) (legitimate or illegitimate or adopted) if married and a minor or if widowed and a minor. (d) a minor brother or an unmarried sister or a widowed sister if a minor, (e) a widowed daughter-in-law. FAO No.301 of 1985 -4- (f) a minor child of a pre-deceased son. (g) a minor child of a pre-deceased daughter where no parent of the child is alive, or (h) a parental grand-parent if no parent of the workman is alive. It was recorded by the learned Commissioner that out of the eight claimants (i)Chand Sidana (ii) Sushil Kumar Sidana (iii) Sandeep Kumar Sidana and (iv) Narender Kumar Sidana are the sons of the deceased and the claim on their behalf was not pressed because all the four sons are major and major son is not defined as a dependent in any of the three categories. Claimant No.6 Darshna is married daughter who also does not fall in any of the three categories and the learned counsel appearing on behalf of the claimants has conceded in this regard. Claimants No.7 and 8 are daughter-in-law and grand daughter of the deceased from a pre deceased son. It was held that in the said accident, husband of Urmila had also expired and as per Section 109 of the Indian Evidence Act, 1872 when two or more persons have perished in a common disaster, such death shall be presumed to have occurred in order of seniority, consequently, the younger was the survivor. In this background, it was held that as per legal fiction, Ravi Kant (deceased) husband of Urmila was alive when Reshma Devi died, therefore, it cannot be said that Urmila was widow daughter-in-law or Baby Richa was minor daughter of pre deceased son Ravi Kant as he died after Reshma. Insofar as Dr.Chiman Lal Sidana, husband of the deceased is concerned, a case was set up that deceased was expert in embroidery and was providing coaching to the girl students in art and craft and was thus, handsomely contributing to the finances of the family. It was also pleaded that sudden death of Reshma has plunged the entire family into unfathomable gloom, shock and agony rendering the husband lonely. In FAO No.301 of 1985 -5- support of his case, the appellant had also led evidence by examining Dr.S.P.Sharma as AW3 and Suraj Bhan Bansal as AW4 but that was not found to be suffice and the learned Commissioner held that the appellant/ husband has failed to satisfy the legal requirement that he was partly or wholly dependent on the earning of the deceased. It was also held that “No compensation is admissible either for unfathomable gloom, shock or agony or even loosing his life companion.” Learned counsel for the appellants has argued that the damages/compensation may not be limited or restricted to the “pecuniary loss” and “pecuniary benefit” but it should also include for mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, marital care, parental care, filial care, attention, advice, counsel, training, guidance, or education. It is also submitted that the Railways Act, 1890 has been repealed by The Railways Act, 1989 (for short `Act of 1989') in which “dependent” has been defined under Section 123(b) which reads as under : (b) “dependent” means any of the following relatives of a deceased passenger, namely:- (i)the wife, husband, son and daughter, and in case the deceased passenger is unmarried or is a minor, his parent; (ii)the parent, minor brother or unmarried sister, widowed sister, widowed daughter-in-law and a minor child of a pre-deceased son, if dependent wholly or partly on the deceased passenger; (iii)a minor child of a pre-deceased daughter, if wholly dependent on the deceased passenger; (iv)the paternal grand parent wholly dependent on the deceased passenger.” FAO No.301 of 1985 -6- Counsel for the appellants has further argued that the appeal is continuation of the original proceedings and at the time of decision of the appeal, law has been changed as there is an amendment in the Railway Act pursuant to which the dependants who are relatives of the deceased passenger alone are entitled without even proving financial dependence. It is, thus, submitted that after the enactment of Act of 1989, the Court should take into consideration change in the law while deciding this appeal as in the amended Act “dependant is described by his relation with the deceased passenger and not on the basis of his/her contribution to the income. Learned counsel for the appellant has relied upon decision of the Supreme Court in the case of Gummalapura Taggina Matada Kotturuswami Vs. Setra Veeravva ad others AIR 1959 SC 577 and Dilip Vs. Mohd.Azizul Haq and another AIR 2000 SC 1976. On the other hand, counsel appearing for respondents No.1 and 2 has argued that the accident took place in the year 1984 and at that time, definition of “dependant” provided in Section 2(1)(d) of the Act of 1923 was applicable which provides that until and unless it is proved that claimant was dependant wholly or partly on the earning of the deceased, no compensation could be granted. It is further submitted that provisions of the Amended Act, namely, Act of 1989 would not be applicable and insofar as the non pecuniary damages are concerned, those also cannot be awarded. After hearing the learned counsel for the parties, two important issues arise in this case, which needs to be addressed: (i)Whether the present case could be decided in terms of the provisions of Act of 1989 on the premise that appeal is the continuation of the original proceedings? FAO No.301 of 1985 -7- (ii)Whether economic and financial dependency is the only parameter to determine loss of dependency? Insofar as the first question is concerned, it is pertinent to mention that definition of “dependent” was not a part of the Act which came into force w.e.f. 1.5.1890. However, when the Act of 1923 was enacted which came into force w.e.f. 1.7.1924 having the definition of “dependent” provided under Section 2(1)(d) of the Act of 1923, the same was borrowed and provided in the explanation to Section 82(c) of the Act. In the Act of 1923, only the economic dependence of the survivors of the deceased was a deciding factor as that legislation was meant for industrial or railway workers. Whereas in comparison to the Workmen's Compensation Act, 1923 the provisions of the railways legislation relates to the compensation payable to the victims of the accident who could be a minor, old and ailing persons or even a house-wife. Thus, it has to be construed and interpreted broadly in favour of general public. Even otherwise, as per the decision rendered by the Supreme Court in the case of Gummalapura Taggina Matada Kotturuswami (supra), it has been held that the Appellate Court is entitled to take into consideration any change in law. In the case of Dilip (supra), the Supreme Court has further held that the appeal is only a continuation of the hearing of the suit. It was further held that if at the time of filing of a suit for eviction, Clause 13-A was not in force, but at the time of appeal such a Clause is introduced, the tenant in appeal becomes entitled to its protection. In the said case, although a decree for eviction had been passed in the suit which was under challenge in an appeal, it was held that as appeal is a re-hearing of the suit, the tenant had the benefit of the amendment of law. FAO No.301 of 1985 -8- No judgment to the contrary has been cited by the learned counsel for the respondents. Thus, I hold that amended provisions of the Act of 1989 would apply to this case and in that situation, husband of the deceased would be entitled to the amount of compensation which has been assessed by the learned Tribunal while deciding issue No.3. Insofar as second question is concerned, the learned Tribunal has held that no compensation is admissible either for unfathomable gloom, shock or agony caused to him for losing his life companion. In this connection, it is pertinent to mention here that in case of death of the wife, the whole matrimonial home turns turtle because the wife who can perform all the matrimonial obligations which is not limited to her husband but also towards her children, relatives and friends of the husband etc., and performing marriage or other religious ceremonies in the family. The contribution made by the wife to the husband or to the house cannot be quantified in terms of money but it can safely be held that the husband is always dependent upon his wife and her contribution cannot be adjudged in terms of any financial contribution. Keeping in view the present scenario when the husband looses his wife, he suffers loss of companionship and moral support. Thus, the view taken by the learned Tribunal that no compensation is admissible either for unfathomable gloom or shock or agony to him or even losing his life companion by the appellant, is not a correct appreciation of the social relationship. However, since I have already held that the appellant is entitled to compensation being a dependent of deceased Reshma for which a sum of Rs.1 lac has already been awarded by the Tribunal while deciding issue No.3, therefore, the finding recorded FAO No.301 of 1985 -9- on issue No.2 is hereby reversed. The appeal is allowed and the appellant is held entitled to the amount of compensation as determined with costs of this appeal. (RAKESH KUMAR JAIN) 26.3.2010 JUDGE Meenu