IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.287 of 2009 VIJAY KANT YADAV, SON OF LATE GURUCHARAN YADAV, RESIDENT OF VILLAGE – RANI DIYARA, P.O. – RANI DIYARA, P.S. – PIRPAINTI, DISTRICT – BHAGALPUR (BIHAR) ……. APPLICANT / APPELLANT. Versus THE UNION OF INDIA, THROUGH THE GENERAL MANAGER, EASTERN RAILWAY, 3 – KOELAGHAT STREET, KOLKATA …….. RESPONDENT / RESPONDENT. ----------- For the Appellant :- Mr. K.M. Murari, Advocate. For the Respondent :- Mr. Anil Singh, Advocate. 03/ 15.11.2010 Heard learned counsel for both the parties. 2. This miscellaneous appeal is directed against the order dated 23.03.2009 passed by the Railway Claims Tribunal, Patna Bench by which he has granted claim to the tune of Rs. 2,40,000/- (Two lakhs and forty thousand) with a further direction that this amount be paid within two months and if it is not paid within two months then the claimant is entitled for any interest @ 9% per annum from the filing of the claim petition till its realization. 3. The case of the claimant is that one Guru Charan Yadav boarded the train no. 4 Dn. J. S. Mirzachowki station fell down accidentally and met with the injury causing fracture of upper thigh bone of both legs and auto amputation of the left hand below elbow and Guru Charan Yadav met with the 2 untoward incidence while traveling as bona fide passenger. However, the railway contested the claim and before the Tribunal three issues were framed which are as follows :- (i) Whether the deceased was a bona fide passenger? (ii) Whether the case is covered under Section 123(C), read with Section 124A of the Railways Act, 1989 as an untoward incident? (iii) Whether the claimant is entitled for relief? 4. However, during the pendency of the claim Guru Charan Yadav died natural death and hence his son was substituted in place of Guru Charan Yadav. However, the Tribunal held that Guru Charan Yadav was a bona fide passenger and received injury due to untoward incidence while traveling as bona fide passenger and further held that he is entitled to compensation to the tune of Rs.2,40,000/-. In view of the injury regarding the auto amputation of the left hand below elbow as per Schedule Part (iii) (4) of the Railway Claims Tribunal Act, 1987 and it was ordered that if the amount is not paid within two months then shall be entitled to an interest @ 9% per annum from the date of filing of the claim petition till its realization. 5. Learned counsel for the appellant, however, contended 3 that the Tribunal took into consideration the fact and the case of the claimant that the injury received by the original claimant is with regard to the amputation of the arm and fracture of the femur i.e. the thigh bone but the claim has been granted only for the amputation of the left hand to the tune of Rs.2,40,000/- as per Section 3 of the Railway Accident and Untoward Incidence Compensation Rules, 1990 but no compensation has been granted with regard to the fracture of the two thigh bones i.e. the two femurs and hence submit that he is entitled for compensation with regard to the injury of the thigh bones which are the major bones and however, contended that he is entitled from the date of the filing of the petition but the Tribunal has ordered that if the amount is not paid within two months / sixty days then from the date of the order then only the applicant will be entitled to interest @ 9% per annum from the date of the filing of the claim petition till its realization and hence contended that the order is not proper as he is required to get compensation from the date of the filing of the petition itself. However, submits that the payment has been made to the claimant after two months. 6. Learned counsel for the Railway, however, contended that the Tribunal has not taken into consideration this fact nor 4 has given any finding on the point whether the claimant is entitled to claim for the fracture of the femur and hence for getting a finding of the Tribunal the case may be remanded. However, with regard to the payment of the money it has been stated that the order has been passed on 23.03.2009 but the cheque has been tendered and given to the claimant on 20.07.2009 i.e. after an expiry of two months from the date of the order. 7. Hence, on the respective submission of the parties the question for consideration is whether the case can be remanded and whether the claimant is entitled for compensation with regard to the fracture of femur of both the legs and further whether he is entitled for the interest. 8. However, from the claim of the claimant it is apparent that the claimant has claimed that both the fracture of the femur of both the thigh bone as well as amputation of the left arm. However, the Tribunal has considered the evidence and the document which shows regarding the amputation of the arm and also mentions the compound fracture of left and right femur which is Ext. A 3 discharge ticket. However, the Tribunal took into consideration in the impugned order as paragraph 5 that “Medical Certificates produced in original Exts. A-2 to A-5 by 5 the applicant are also corroborative of the same establishing beyond any reasonable doubt that Guru Charan Yadav had sustained injuries resulting in auto-amputation of his left forearm and compound fractures on both his legs” and hence though the Tribunal took into consideration the fact that Guru Charan Yadav sustained injury resulting auto amputation of his left fore- arm and compound fracture of both his legs and the documents shows that fracture are the fracture of the femur. However, granted compensation only for the amputation of the arm to the tune of Rs.2,40,000/- as per Schedule part III (iv) of the Railway Accident and Untoward Incidence Compensation Rules 1990. However, for the compound fracture of the leg i.e. fracture of the major bone femur mentioned in part iii (33) of the Schedule of the Railway Accident and Untoward Incidence Compensation Rules that for fracture of femur of one of the limbs the compensation is Rs.40,000/-. 9. However, having regard to the fact that the two limbs both femur of left and right thigh having been fractured, the claimant is entitled for Rs.80,000/- for the fracture of the two femur of both the thigh and hence is entitled for Rs.80,000/- as the total amount does not exceed Rs. 4,00000/- and is covered under Rule 4 of the Railway Accident and Untoward Incidence 6 Compensation Rules 1990 and hence the claim of the claimant is modified from the claim admissible to the tune of Rs.2,40,000/- to Rs.3,20,000/- amount. 10. The next question raised that the Tribunal has granted an interest @ 9% but it has been ordered that if the amount is not paid within two months from the date of this order then the applicant will be entitled @ 9% per annum from the date of filing of the claim petition till its realization. 11. However, the learned counsel for the appellant has relied upon a decision reported in AIR 2009 Supreme Court 3098 (Thazhathe Purayil Sarabi & Ors. V. Union of India & Anr.) challenging the impugned order on the ground that the interest ought to have been allowed from the date of the application. However, in decision reported in AIR 2009 Supreme Court 3098 (Thazhathe Purayil Sarabi & Ors. V. Union of India & Anr.) the Tribunal had granted 45 days time to respondents to comply with the order for payment of compensation and failing which it was directed that the appellant could be entitled 6.5% interest per annum on the award amount from the date of this order and this finding of the Tribunal was challenged and the Supreme Court held that the interest can be awarded either from the date of claim or from the date of the 7 principal sum adjudged to be payable and direction for payment of interest on default of payment of principal sum within the period of 45 days not being proper. However, here under the facts and circumstances, the order has been made that if the amount is not paid within 60 days then the interest shall be payable from the date of the filing of the claim application. 12. However, the facts and circumstances of this present case the amount having not been paid within 60 days or two months from the date of the order and now which is the admitted fact as the order was passed on 23.03.2009 and the cheque was paid to the claimant on 20.07.2009 admittedly beyond two months and hence the effect of the order itself is that the claim is entitled to be paid from the date of the filing of the petition which is well in teeth of decision reported in AIR 2009 Supreme Court 3098 (Thazhathe Purayil Sarabi & Ors. V. Union of India & Anr.) and hence, in effect, the interest has been granted from the date of the petition and hence, I do not feel inclined to interfere with that part of the order about the interest and hence the appeal is allowed to the effect that the claim is enhanced by Rs.80,000/- regarding fracture of upper thigh bone of both legs and auto amputation of the left hand below elbow. 13. Learned counsel for the respondent raised a point 8 that the case be remanded to be decided on this point. However, the provision of Order XLI Rule 23 provides the situation and circumstance under which a remand is made and is provided that if the case is only decided on preliminary issue, Order XLI Rule 23 provides that a remand can be made but in case of a case decided otherwise than on preliminary point and if the decree is reversed in appeal and a re-trial is considered necessary then only a remand can be made under Order XLI Rule 23A. However, the finding recorded by the Tribunal was not as such to be reversed. However, Order XLI Rule 24 provides that where the evidence on record are sufficient, appellate court may determine the case finally even on framing issue if there are evidence on record and hence the duty has been cast upon the appellate court to decide the appeal on merits both on fact and law and even if issue has not been decided then the appellate court has been given ample power to decide the matter if not decided by the trial court or the Tribunal and hence it is not proper to remand the case merely because the Tribunal has left over the issue when there are sufficient evidence to decide the issue by the appellate court and hence the appeal is allowed. Kundan (Gopal Prasad, J.)