1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY. CIVIL APPELLATE JURISDICTION REVIEW PETITION NO.13 OF 2010 IN FIRST APPEAL NO.132 OF 1999 Smt.Vimal Ratan Torne & Ors. .. Petitioners V/s Union of India .. Respondent Mr.C.S.Joshi, Advocate for the Petitioners. Mr.A.N.Samant, Advocate for the Respondent. CORAM: R.G.KETKAR, J. DATE : 22nd February, 2011. P.C.: 1. Heard Mr.Joshi, learned counsel for the petitioners and Mr.Samant, learned counsel for the Respondent. Leave to amend so as to restrict challenge in the Review Petition to the order dated 10.6.2010 passed in the First Appeal No.132 of 1999. Amendment to be carried out forthwith. Rule. Mr.Samant waives service on behalf of the Respondent. By consent of the parties, rule is made returnable forthwith and heard finally 2. By this review petition, the petitioner has prayed for review of the order dated 10.6.2010 passed by this Court in First Appeal No.132 of 1999. By that order the First Appeal No.132 of 1999 preferred by the Respondent-Union of India was dismissed and the judgment and award dated 28.7.1998 passed by the Railway Claims Tribunal in Claim Petition No.O.A.9700022 filed by the petitioners-claimants was confirmed. The Tribunal had allowed the claim 2 petition filed by the petitioners and directed the Respondent herein to pay Rs.2 lakhs to the petitioners within two months from the date of the order failing which the petitioners will be entitled to recover the said amount with interest @ 12% p.a.from the date of the order. 3. Mr.Joshi submitted that on 10.6.2010 the Civil Application No.4052 of 2002 filed by the opponent herein was listed for hearing. By that application, the opponent prayed for recalling of the order dated 7.2.2002 passed in Civil Application No.989 of 1999 and for restoration of the said civil application to the file of this Court. By order dated 10.6.2010 that civil application was allowed in terms of prayer clause (a) and the order dated 7.2.2002 was recalled. 4. Another civil application bearing No.3053 of 2006 filed by the petitioners herein was also listed on 10.6.2010. By that application, the petitioner No.2 had prayed for dismissal of the first appeal and in the alternative prayed for fixing the first appeal for final hearing. That civil application was allowed in terms of prayer clause (b), and on the same day i.e.10.6.2010 the First Appeal No.132 of 1999 preferred by the opponent-Union of India was finally heard and dismissed. 5. In support of this petition, Mr.Joshi submitted that he was absent due to his personal problems and after hearing only the opponent herein, the Court 3 dismissed the first appeal preferred by the opponent. He submitted that the accident in question took place on 22.9.1996. On 1.11.1997 the amendment was made to the Railways Accident (Compensation) Rules, 1990 and by the said amendment, the maximum compensation of Rs.2 lakhs payable under Rule 3(2) earlier, was increased to Rs.4 lakhs. He further submitted that the Tribunal decided the claim on 28.7.1998 and at the time of deciding the claim petition, the amendment was already made. He therefore submitted that the relevant date of determination of compensation amount is the date of determination by the Tribunal and not the date of incident. In support of this submission, he relied upon the judgment of the Apex Court in the case of Rathi Menon V/s Union of India, (2001) 3 SCC 714. 6. Mr.Joshi further submitted that the Tribunal directed the opponent herein to pay Rs.2 lakhs to the petitioners within two months from the date of order, failing which the petitioners will be entitled to recover the said amount with interest @ 12% p.a. from the date of the order i.e.28.7.1998. He submitted that the Tribunal committed error in awarding interest in this manner. According to him, the Tribunal should have awarded interest @ 6% p.a. from the date of claim petition till the date of award and thereafter @ 9% p.a. till the date of actual payment. In support of this proposition, he relied upon the judgment of the Apex Court in the case of Tahazhathe Purayil Sarabi & Ors.V/s.Union of 4 India - JT (2009) 8 SC 515. He also relied upon Order 41 Rule 33 of the Code of Civil Procedure, 1908 to contend that he could have supported the award by raising the aforesaid contentions without filing cross-objections. He submitted that unfortunately because of his absence on 10.6.2010, he could not advance the above contentions. 7. On the other hand, Mr.Samant submitted that the appeal preferred by the opponent was dismissed by this Court on 10.6.2010 and if at all any one is aggrieved by the order of this Court, it is the opponent and not the present petitioners. He further submitted that at any rate, no ground is made out for reviewing the order dated 10.6.2010 passed in the first appeal No.132 of 1999. 8. I have considered rival submissions made by the learned counsel appearing for the parties. It is not in dispute that the Civil Application No.4052 of 2002 taken out by the opponent for recalling the order dated 7.2.2002 passed in Civil Application No.989 of 1999 and for restoration of that civil application to file, was on board. It is also not in dispute that the Civil Application No.4053 of 2006 filed by the petitioners for dismissal of the first appeal and in the alternative praying for fixed date of hearing of the first appeal was also on board for hearing on 10.6.2010. It is also not in dispute that the learned counsel for the petitioners was not present at the time of hearing of these applications. These civil applications were allowed on 10.6.2010 and the first 5 appeal No.132 of 1999 was heard forthwith for final hearing. Mr.Joshi submitted that he could not point out amendment to Rule 3(2) of the Railways Accident (Compensation) Rules, 1990 that was made on 1.11.1997 as also its effect, and the judgment of the Apex Court in the case of Rathi Menon (supra), as he was not present on that day. He therefore submitted that the petitioners may be permitted to agitate these contentions by allowing the Review Petition, this is particularly when the petitioners are the claimants before the Tribunal. 9. Considering the facts and circumstances of the case, and having due regard to the fact that the petitioners Advocate was not present on 10.6.2010, in my opinion, an opportunity is required to be given to the petitioners to advance their arguments on the question of effect of amendment of the Rules as also on the question of interest that is to be awarded on the sum awarded. In my opinion, the petitioners have shown sufficient cause for recalling the order dated 10.6.2010 passed in First Appeal No.132 of 1999. Mr. Joshi has amended the prayers in the Review Petition so as to restrict challenge to the judgment and order dated 10.6.2010 passed in First Appeal No.132 of 1999. I make it clear that I am not expressing any opinion on the submissions as regards the effect of the amendment and the rate of interest to be awarded, advanced by either of the parties. 10.Mr.Samant, on instructions states that the petitioners have already withdrawn a 6 sum of Rs.2 lakhs. Mr.Joshi on the other hand disputes the said statement and states that the petitioners have not withdrawn any amount. I am not going into that controversy. 11.In view of this, the order dated 10.6.2010 passed in the First Appeal No.132 of 1999 stands recalled and the first appeal No.132 of 1999 is restored to the file of this Court. First Appeal No.132 of 1999 not to be treated as part heard, and office is directed to place the first appeal for final hearing before the appropriate Court. Rule is made absolute in the aforesaid terms with no order as to costs. (R.G.KETKAR, J.)