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Suneel Kumar vs Union Of India Thru General … on 17 December, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

AFR

Reserved On:- 18.11.2019

Pronounced On:- 17.12.2019

Court No. – 18

Case :- FIRST APPEAL FROM ORDER No. – 320 of 2016

Appellant :- Suneel Kumar

Respondent :- Union Of India Thru General Manager North Central Railway

Counsel for Appellant :- Manish Kumar Srivastava

Counsel for Respondent :- Prashant Kumar Srivastava

Hon’ble Ved Prakash Vaish, J.

1. Heard Sri Manish Kumar Srivastava, learned counsel for the appellant and Sri Prashant Kumar Srivastava, learned counsel for the respondent.

2. This is an appeal under Section 23 of the Railways Claims Tribunal Act, 1987 (hereinafter referred to as ”the Act, 1987″) against the order dated 19th January, 2016 passed by the Railways Claims Tribunal (hereinafter referred to as “the Tribunal”), Lucknow Bench, Lucknow in Claim Application No.OA/II/U/889/09, whereby the application for substitution of legal representatives was dismissed.

3. The relevant facts necessary for determination of the present appeal are that Smt. Saroj Yadav preferred an application under Section 16 of the Act, 1987 through her husband Sri Suneel Kumar (who is the appellant) for grant of compensation. The case of the claimant was that she along with her daughter Km. Shreya, three years old, was trying to get down from the train, they fell down from the train at Jaipuriya railway crossing near Kanpur Railway Station, both of them sustained injuries; due to said injuries, her daughter-Km. Shreya expired; the applicant, Smt. Saroj Yadav sustained injuries, she had undergone treatment in the hospital at Kanpur. Smt. Saroj Yadav filed an application for grant of compensation on the ground of injuries received by her in the alleged untoward incident bearing Original Application No. OA/II/U/889/09.

4. During pendency of the said application, the applicant (Smt. Saroj Yadav) died on 30.12.2012; the appellant, Suneel Kumar moved an application for substitution of her legal representative.

5. The respondent resisted the application by filing objections on the grounds, inter alia, that since Smt. Saroj Yadav preferred the application for compensation on the ground of her personal injury, the right to sue was personal and came to an end with the death of the claimant. It was also stated that the death certificate of Smt. Saroj Yadav shows the date of death as 30.12.2012, but no documentary evidence was filed by the applicant to establish that the death of the deceased occurred due to injuries sustained by her in the alleged incident dated 26.07.2009.

6. The Tribunal framed the following two questions for disposal of the application for substitution of legal representative:

(i) Whether Smt. Saroj Yadav died due to injuries sustained by her in the alleged untoward incident or her death was a natural death?

(ii) In case the death of the claimant was natural, then whether right to sue survives after her death and consequently, the applicant for substitution deserves to be allowed?

7. After considering the submissions made by learned counsel for the parties, vide order dated 19.01.2016, the Tribunal came to the conclusion that the original applicant died on account of natural death. Hence, in view of the maxim ‘actio personalis moritur cum persona’ right to sue for compensation on account of personal injury came to an end with the death of the original applicant, Smt. Saroj Yadav and since right to sue come to an end, the claim stands abated. Thus, the request for substitution of the applicant in place of the deceased applicant was rejected and the claim was abated.

8. Aggrieved by the said order dated 19.01.2016, the appellant has preferred the present appeal.

9. Learned counsel for the appellant urged that the maxim ‘actio personalis moritur cum persona’ depends upon the facts and circumstances of each case. According to him, only such claims or reliefs as can be availed by the deceased claimants personally, would abate and not those, which can be quantified in terms of damages.

10. Learned counsel for the appellant also submitted that the present case relates to a contract between the deceased and the applicant, Smt. Saroj Yadav and Railways as she was a bona fide passenger of the train who got injured in an untoward incident when she accidentally fell down from the train along with her daughter at Jaipuriya railway crossing near Kanpur Railway Station, and therefore, right to sue survives and the proceedings does not abate. According to learned counsel for the appellant, the Tribunal did not appreciate the law laid down in ‘Shri Rameshwar Manjhi (Deceased) Through His Son Shri Lakhiram Manjhi vs. Management of Sangramgarh Colliery and others’, (1994) 1 SCC 292.

11. On the other hand, learned counsel for the respondent submitted that the Tribunal has rightly dismissed the application for substitution and abated the claim application after applying the judgment in Rameshwar Manjhi’s case (supra).

12. I have given my thoughtful considerations to the submissions made by learned counsel for both the parties. I have also carefully gone through the material available on record.

13. Before adverting the facts of the present case, it is necessary to consider the relevant provisions of the Railways Act, 1989.

14. Chapter XIII of the Railways Act, 1989 deals with the liability of Railway Administration for death and injury to passengers due to accident. Section 125 of the Railways Act, 1989 provides for filing an application for compensation. The same reads as under:-

“125. Application for compensation.–(1) An application for compensation under section 124 [or section 124A] may be made to the Claims Tribunal–

(a) by the person who has sustained the injury or suffered any loss, or

(b) by any agent duly authorised by such person in this behalf, or

(c) where such person is a minor, by his guardian, or

(d) where death has resulted from the accident, [or the untoward incident] by any dependant of the deceased or where such a dependant is a minor, by his guardian.

(2) Every application by a dependant for compensation under this section shall be for the benefit of every other dependant.”

15. Section 124 of the Railways Act, 1989 provides the accident of liability and compensation on account of untoward incident. The same reads as under:-

“124. Extent of liability.–When in the course of working a railway, an accident occurs, being either a collision between trains of which one is a train carrying passengers or the derailment of or other accident to a train or any part of a train carrying passengers, then whether or not there has been any wrongful act, neglect or default on the part of the railway administration such as would entitle a passenger who has been injured or has suffered a loss to maintain an action and recover damages in respect thereof, the railway administration shall, notwithstanding anything contained in any other law, be liable to pay compensation to such extent as may be prescribed and to that extent only for loss occasioned by the death of a passenger dying as a result of such accident, and for personal injury and loss, destruction, damage or deterioration of goods owned by the passenger and accompanying him in his compartment or on the train, sustained as a result of such accident.

124A. Compensation on account of untoward incident.–When in the course of working a railway an untoward incident occurs, then whether or not there has been any wrongful act, neglect or default on the part of the railway administration such as would entitle a passenger who has been injured or the dependant of a passenger who has been killed to maintain an action and recover damages in respect thereof, the railway administration shall, notwithstanding anything contained in any other law, be liable to pay compensation to such extent as may be prescribed and to that extent only for loss occasioned by the death of, or injury to, a passenger as a result of such untoward incident:

Provided that no compensation shall be payable under this section by the railway administration if the passenger dies or suffers injury due to–

(a) suicide or attempted suicide by him;

(b) self-inflicted injury;

(c) his own criminal act;

(d) any act committed by him in a state of intoxication or insanity;

(e) any natural cause or disease or medical or surgical treatment unless such treatment becomes necessary due to injury caused by the said untoward incident.”

16. Section 123 of the Railways Act, 1989 defines the expression ‘independent’ as under:-

“123. Definitions.–In this Chapter, unless the context otherwise requires,–

(a) “accident” means an accident of the nature described in section 124;

(b) “dependant” 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 dependant wholly or partly on the deceased passenger;

(iii) a minor child of a pre-deceased daughter, if wholly dependant on the deceased passenger;

(iv) the paternal grandparent wholly dependant on the deceased passenger.

(c) “untoward incident” means–

(1) (i) the commission of a terrorist act within the meaning of sub-section (1) of section 3 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 1987); or

(ii) the making of a violent attack or the commission of robbery or dacoity; or

(iii) the indulging in rioting, shoot-out or arson,

by any person in or on any train carrying passengers, or in a waiting hall, cloak room or reservation or booking office or on any platform or in any other place within the precincts of a railway station; or

(2) the accidental falling of any passenger from a train carrying passengers.”

17. The expression ‘dependant’ is to be understood as defined under Section 123(b) of the Railways Act 1989 “unless the context otherwise requires” as can be seen from Section 123 which starts with the words “In this chapter unless the context otherwise requires”. An application under Section 125 (1)(a) can be made by the person who has sustained the injury or suffered any loss. Section 124 deals with injury suffered or loss of property. There is no reason to assume that the legal heirs/representatives of a deceased passengers will not be entitled to claim compensation. If Section 125 (1)(a) is considered in any narrow sense, that would mean that even if a deceased has suffered loss of property, his legal heirs cannot stake a claim under Section 125(1)(a). That would certainly be an unjust and absurd construction. Negligence of the Railways is implicit in Section 124 though proof is dispensed. If two trains collide or one gets derailed or other similar accident take place, negligence is transparently there on the part of the railways and the dispensation of the obligation to proof negligence does not alter the nature of liability. In such a case to say that only the owner of the goods and not his legal heirs/legal representatives will be entitled to claim compensation, would be patently unjust. Hence, the expression “person who has suffered a loss appearing” in clause (a) of Section 125 (1) will certainly have to include the legal heirs/legal representatives of such deceased person who have suffered loss.

18. At this juncture, it is relevant to consider the provisions of Section 306 of the Indian Succession Act, 1925 and Order XXII Rules 1 and 3 of the Code of Civil Procedure (hereinafter referred to as “C.P.C.”). Section 306 of the Indian Succession Act, 1925 provides for continuation of the proceedings by or against an individual even after the death, subject to certain conditions. Order XXII Rules 1 and 3 of C.P.C. provides for the consequences of the death of a party to proceedings and the steps to be taken, in that context. Section 306 of the Indian Succession Act, 1925 reads as under:-

“306. Demands and rights of action of or against deceased survive to and against executor or administrator.–All demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his decease, survive to and against his executors or administrators; except causes of action for defamation, assault, as defined in the Indian Penal Code, 1860 (45 of 1860) or other personal injuries not causing the death of the party; and except also cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory.”

19. Order XXII Rules 1 and 3 of C.P.C. read as under:-

“1. No abatement by party’s death if right to sue survives.–The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives.

3. Procedure in case of death of one of several plaintiff or of sole plaintiff.–(1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to the sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.

(2) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff.”

20. It is settled law that Section 306 of the Indian Succession Act, 1925 is substantive in nature and Order XXII of C.P.C. is procedural. The object of application for substitution of legal heirs/legal representative is to continue the proceedings.

21. It is pertinent to mention here that in Chapter XIII of the Railways Act, 1989, there is no specific provision as to what will happen when the dependant of a victim of an accident expires during pendency of the claim application. There is no provision of abatement or extinction of the claim of a dependant on his/her death. The rights of a dependent cannot vanish into thin air or disappear merely because death of the dependent takes place, during pendency of the claim application. There is no provision in Chapter XIII of the Railways Act, 1989 that a dependent where the context so requires cannot include the legal heirs of a deceased dependent. The general provisions of law relating to inheritance and succession are not touched by the provisions of Chapter XIII of the Railways Act, 1989.

22. Under the general law, a legal heir claiming under a dependent is entitled to continue the claim as a legal representative. Similarly, a claim which the dependent can be continued by the legal heir/legal representative of a deceased i.e., one claiming under the deceased dependent.

23. The Hon’ble Supreme Court in the case of ‘M. Veerappa vs. Evelyn Sequeira and others’, (1988) 1 SCC 556 after considering the provisions of Order XXII Rules 1 and 3 of the C.P.C. and Section 306 of the Indian Succession Act, 1925 and various judgments held as follows:-

“If the entire suit claim was founded on torts, the suit would undoubtedly abate. If the action was founded partly on torts and partly on contract, then, such part of the claim as related to torts would stand abated and the other part would survive. If the suit claim was founded entirely on contract, then, the suit had to proceed to trial in its entirety and be adjudicated upon.”

24. In Rameshwar Manjhi’s case (supra), the Hon’ble Supreme Court considered various judgments and approved the views expressed in ‘Gwalior Rayons Mayoor vs. Labour Court’, (1978) 2 LLJ 118 (Ker) and ‘Management of Bank of Baroda, Ahmedabad vs. The Workmen of Bank of Baroda’, (1979) 2 LLJ 57 (Guj). In the said case, the issue was, as to whether the claim of an employee, which was pending before the authorities, under the relevant statutes would abate on his death. The Hon’ble Supreme Court held:-

“13. It is thus obvious that the applicability of the maxim ‘actio personalis moritur cum persona’ depends upon the ‘relief claimed’ and the facts of each case. By and large the industrial disputes under Section 2-A of the Act relate to the termination of services of the concerned workman. In the event of the death of the workman during pendency of the proceedings, the relief of reinstatement, obviously, cannot be granted. But the final determination of the issues involved in the reference may be relevant for regulating the conditions of service of the other workmen in the industry. Primary object of the Act is to bring industrial peace. The Tribunals and Labour Courts under the Act are the instruments for achieving the same objective. It is, therefore, in conformity with the scheme of the Act that the proceedings in such cases should continue at the instance of the legal heirs/representatives of the deceased workman. Even otherwise there may be a claim for back wages or for monetary relief in any other form. The death of the workman during pendency of the proceedings cannot deprive the heirs or the legal representatives of their right to continue the proceedings and claim the benefits as successors to the deceased workman.”

25. It is pertinent to mention here that the Railway Claims Tribunal (Procedure) Rules, 1989 gives a clear indication justifying that the right to claim compensation by a dependent does not get abated or extinguished on the death of the dependent. The Railway Claims Tribunal (Procedure) Rules, 1989 clearly indicates that there can be substitution of a deceased party to the proceedings by his legal representatives. The same reads as under:-

“26. Substitution of legal representatives.–(1) In the case of death of a party during the pendency of the proceedings before Tribunal, the legal representatives of the deceased party may apply within ninety days of the date of such death for being brought on record.

(2) Where no application is received from the legal representaves within the period specified in sub-rule(1), the proceedings shall abate:

Provided that for good and sufficient reasons shown, the Tribunal may allow substitution of the legal representatives of the deceased.”

26. From perusal of Rule 26, it is clear that it applies to all claims made by the applicants under Section 125 including dependents who stake the claim under Section 125(1)(d) of the Railways Act, 1989. That being so, Rule 26 is, therefore, a clinching indication that the law did not expect the claim of dependent/claimant to come to an end when the death of such dependent/claimant. If the legal heirs under Rule 26 can get impleaded and substituted to continue the claim, there can be no justification for the theory that the claim ends or dies with the dependent/claimant.

27. In the instant case, the claim application was filed by Smt. Saroj Yadav (now deceased), during pendency of the said application she died, the appellant moved an application for substitution as her legal representative/legal heir. The Tribunal while considering the application for substitution took into consideration whether Smt. Saroj Yadav (original claimant) died due to injuries sustained by her in the alleged untoward incident or her death was a natural death. In my view, the same was not warranted at that stage. In my considered view, the appellant-Suneel Kumar is entitled to be substituted as legal heir of the deceased claimant.

28. In the result, the appeal is allowed and the impugned order dated 19th January, 2016 passed by the Railways Claims Tribunal, Lucknow Bench, Lucknow is set aside and the application for substitution of legal heir of the deceased applicant, Smt. Saroj Yadav is allowed. The Railway Claims Tribunal is directed to decide the claim application expeditiously, in accordance with law.

29. Lower court record along with a copy of this judgment be sent back to the Tribunal forthwith.

(Ved Prakash Vaish)

Judge

Order Date :- 17th Dec., 2019

cks/-

 

 

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