IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE NINETH DAY OF JUNE TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL No. 1321 of 2008 AND CROSS OBJECTIONS (SR) NO. 4093 OF 2010 Between : Union of India rep.by its General Manager. …APPELLANT/RESPONDENT A N D Kethavath Bhikna Naik and another …RESPONDENTS/APPLICANTS THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL MISCELLANEOUS APPEAL No. 1321 of 2008 AND CROSS OBJECTIONS (SR) NO. 4093 OF 2010 COMMON JUDGMENT: This Civil Miscellaneous Appeal, under Section 23 of the Railway Claims Tribunal Act, 1987, ( for short “the Act”) is preferred aggrieved by the order dated 18.08.2008 in O.A.A No.121 of 2003 on the file of the Railway Claims Tribunal, Secunderabad Bench at Secunderabad, whereunder and whereby the Tribunal awarded compensation of Rs.4,00,000/- to the claimants, consequent upon the death of deceased Balu Naik. 2. Aggrieved by the same order, the claimants filed the cross objections for not granting interest on the compensation amount from the date of the application till the date of award. 3. The appellant in the C.M.A. is the respondent, and the respondents in the C.M.A. are the claimants, before the Claims Tribunal. For better appreciation of facts, the parties are hereinafter referred to, as arrayed before the Claims Tribunal. 4. The brief facts are that, claimants filed the O.A.A. stating that on 29.05.2003, one Balu Naik ( hereinafter referred to as “the deceased”) travelled in the passenger Train No.351 with general ticket from Piduguralla to Guntur. While deceased was boarding the passenger train, he accidentally slipped and fell down from the train at Piduguralla Railway Station and sustained severe injuries and died on the spot. Then the police registered the case and conducted inquest on the dead body of the deceased and postmortem was also conducted. 5. The Railways filed counter stating that the deceased was negligent as he was boarding the running train and it was not the case of an untoward incident and therefore, the respondent is not liable to pay any compensation and it was prayed to dismiss the claim application. 6. Basing on the above pleadings, the following issues have been framed for trial. 1. Whether the Applicants are dependents of the deceased? 2. Whether the deceased was a bona fide passenger of train No.351 travelling from Piduguralla to Guntur on 29.05.2003? 3. Whether the deceased died as a result of an untoward incident of accidental fall from the said train? 4. To what relief ? 7. During the enquiry, on behalf of the claimants, AWs-1 and 2 were examined and Exs. A1 to A6 were marked. On behalf of the respondent, R.W. 1 was examined and Ex.R1 was marked. 8. The Claims Tribunal, placed reliance on the evidence of A.W.1 and Ex.A3 – Inquest report and came to the conclusion that the deceased died in an untoward incident and therefore, the Railways are liable to pay the compensation, and accordingly, awarded a sum of Rs.4,00,000/- towards compensation. Challenging the same, the present Civil Miscellaneous Appeal is filed by the Railways. 9. While granting compensation, the Claims Tribunal did not grant interest on the compensation amount from the date of petition till the date of award. Aggrieved by the same, the present Cross Objections are filed by the claimants, for interest from the date of petition till the date of award. 10. Now the points for consideration are:- Whether the order of the Claims Tribunal is correct, proper and legal? and Whether the claimants are entitled for interest from the date of petition till the date of award? 11. The learned Counsel appearing for the Appellant / Railways vehemently contended that there was no untoward incident happened; that the death of the deceased was due to his negligence only, as he tried to board the running train and that it is not an untoward incident within the meaning of Section 124-A of the Act; and that the claimants are not entitled to any interest, in view of the fact that the Railways Act does not provide for grant of interest from the date of the petition till the date of award and therefore, he prays to allow the appeal and dismiss the cross objections. 12. On the other hand, the learned counsel appearing for respondents/claimants contended that the evidence on record would clearly go to show that the deceased tried to board the train while it was slowly moving and accidentally fell down from the train and therefore, it is an untoward incident that had happened and the Claims Tribunal after consideration of evidence on record, rightly held that the Railways are liable to pay the compensation; that the Claims Tribunal committed error in not granting interest from the date of petition till the date of award; and that for disallowing the interest, no reasons were assigned by the claims Tribunal; that in view of Section 34 C.P.C. and Section 3 of the Interest Act, 1978, the claimants are entitled to the interest from the date of petition till the date of award and hence, they prays to dismiss the Civil Miscellaneous Appeal and allow the cross objections. 13. The death of the deceased Balu Naik is not in dispute. The police registered a case under Ex.A-2 and conducted inquest on the dead body of the deceased in the presence of mediators under Ex.A3-inquest report. The inquest mediators opined that the deceased died as a result of injuries sustained by him. Doctor conducted autopsy on the dead body of the deceased and opined that the deceased died as a result of injuries sustained by him in an accident. The Evidence of AW-1 would clearly go to show that while the deceased was travelling in the passenger train with original ticket i.e., Ex.A-1 the untoward incident took place and therefore, the Railways are liable to pay the compensation. 14. The evidence on record would clearly go to show that the deceased while boarding the train fell down, sustained injuries and died on the spot. The reason given by the claimants is that there was a heavy rush at the door and as there was no space at the entrance and as a result of jerk to the compartment the deceased slipped and fell down and sustained multiple injuries and died on the spot. 15. The Claims Tribunal placed reliance on a decision in UNION OF INDIA V. PRABHAKARAN VIJAYA KUMAR AND OTHERS,[1] wherein it was held thus: “ We are of the opinion that it will not legally make any difference whether the deceased was actually inside the train when she fell down or whether she was only trying to get into an ‘accidental falling of a passenger from a train carrying passengers’. Hence, it is an untoward incident as defined in Section 123 ( c) of the Railways Act”. In view of the authoritative pronouncement that if a passenger while alighting or boarding a moving train falls down in that process it should be treated as an untoward incident. 16. However, learned counsel for the appellant/Railways relied upon a decision reported in UNION OF INDIA, SOUTH CENTRAL RAILWAYS, SECUNDERABAD V. KURUKUNDU BALAKRISHNAIAH, DHONE, KURNOOL DISTRICT AND OTHERS[2] of full Bench of this Court, wherein it was held thus: “What is provided in section 124-A is compensation to a passenger for having suffered an injury or death in an untoward incident even where the untoward incident is not the consequence of any wrongful act, neglect or default on the part of the railway administration. There appears nothing in the phraseology of section 124- A, which implicates the liability of the Railways to compensate a passenger who has suffered injury or death, as the case may be, on account of his own imprudent act or a departure from the standard of care required of the passenger while travelling on a train. If the legislation has clearly pronounced qua the proviso to section 124-A of the act that the railway administration is immunised from the liability to pay compensation for death or injury suffered on account of suicide or attempt to suicide by the passenger, on account of his criminal act or while in a state of intoxication or insanity or self- inflicted injury or on account of natural causes or disease, there is no justification to infer that the legislature intended to mulct the railway administration with a liability to pay compensation to the passenger who had carelessly or negligently invited disaster to himself”. There is no dispute about the law laid down by this Court. The ratio laid down by the Hon’ble Supreme Court in PRABHAKARAN VIJAYA KUMAR’S, case ( 1 supra), even if the passenger while boarding the moving train falls from the train and sustains injuries and dies, it should be treated as an untoward incident within the meaning of Section 124-A of the Act. Therefore, it can be held that the deceased was a bona fide passenger died in an untoward incident. The findings of the claims Tribunal are based on the proper appreciation of evidence on record. The finding on that aspect is not shown to be perverse or contrary to law. Therefore, there are no grounds to interfere with the grant of compensation of Rs.4,00,000/-. 17. In so far as the cross objections filed for non-granting of interest from the date of the petition till the date of award, are concerned, there is no provision under the Railways Act, 1987 to grant interest on the compensation amount from the date of the petition till the date of award. The Hon’ble Supreme Court in a decision reported in TAHAZHATHE PURAYIL SARABI AND OTHERS VS. UNION OF INDIA AND ANOTHER[3], held thus “ Accordingly, we are unable to sustain the order of Railway Claims Tribunal directing payment of interest on default of payment of the principal sum within a period of 45 days. As we have indicated hereinbefore, when there is no specific provision for the grant of interest of amount due, the court and even Tribunal have been held to be entitled to award interest in their discretion under the provisions of Section 3 of the Interest Act and section 34 of the Civil Procedure Code”. From the above decision it is clear that the Tribunal has got power to grant interest from the date of petition till the date of award which is a discretionary power. There cannot be any dispute that the discretion has to be exercised by the Tribunal judiciously. 18. The learned counsel appearing for the cross objectors/claimants in cross objections contended that no reasons are assigned by the Claims Tribunal for not grant of interest from the date of petition till the date of realization, and that in view of Section 3 of the Interest Act, 1978 and Section 34 C.P.C., the claimants are entitled for the interest from the date of petition till the date of award. Section 3 of the Interest Act, 1978 reads thus: “In any proceedings for the recovery of any debt or damages or in any proceedings in which a claim for interest in respect of any debt or damages already paid is made, the court may, if it things fit, allow interest to the person entitled to the debt or damages or to the person making such claim, as the case may be, at a rate not exceeding the current rate of interest, for the whole or part of the following period, that is to say (a) if the proceedings relate to a debt payable by virtue of a written instrument at a certain time, then, from the date when the debt is payable to the date of institution of the proceedings; (b) if the proceedings do not relate to any such debt, then, from the date mentioned in this regard in a written notice given by the person entitled or the person making the claim to the person liable that interest will be claimed, to the date of institution of the proceedings”. Similarly, Section 34 of the C.P.C. reads thus: “Where and insofar as a decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such rate not exceeding six per cent, per annum, as the Court deems reasonable on such principal sum, from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit………..” A combined reading of above provisions in juxta position, as they have got be, reveals that when money decree is passed, a person who filed the suit is entitled for interest reasonably from the date of petition till the date of award. 19. No reasons are assigned in the impugned order for not granting interest from the date of petition till the date of award. Therefore, the Tribunal has not exercised its discretion judiciously. It is not the case of Railways that the claimants are at fault in not disposing of the case. When the claimants are not shown to be at fault for not disposing of the case, they are entitled for interest from the date of application till the date of award. Hence, in view of Section 3 of Interest Act and Section 34 C.P.C., the claimants are granted interest @ 6% per annum from the date of the petition till the date of award. 20. At this stage, it is brought to the notice of this Court that, on the decision of Apex Court with regard to grant of interest, the appellant / Railways is going to move a review petition before the Hon’ble Supreme Court of India, for clarification with regard to payment of interest from the date of petition till the date of award. In view of the same, it is made clear that the claimants are not entitled to withdraw interest granted by this Court from the date of petition till the date of award. However, they are entitled to withdraw the amounts as per the decree of the Claims Tribunal. The interest awarded by this Court from the date of petition till the date of award shall be kept in a fixed deposit in any Nationalized Bank, pending clarification from the Hon’ble Supreme Court. 21. The Civil Miscellaneous Appeal is accordingly dismissed. The Cross Objections are accordingly allowed to the extent indicated above. There shall be no order as to costs. _______________ K.C. BHANU, J JUNE 08, 2010 YVL [1] 2008 (2) TAC 777 ( = (2008) 9 SCC 527) [2] 2004(1) ALT 100 (F.B) [3] 2009 ACJ 2444