Anandan and Another vs Railway Claims Tribunal

K.S. Radhakrishnan, J.—Petitioner''s son was travelling from Kochi to Calicut in the Trivandrum-Mangalore-Malabar Express. As the train passed Kadalundi Station, some bogies of the train jerked and the petitioner''s son was thrown out of the train and unfortunately he was run over, and he succumbed to the injuries. He died on 13.9.1991. Petitioner then filed a petition O.A. No. 137 of 1992 claiming a compensation of Rs. 3,00,000/- from the Railways before the Railway Claims Tribunal. Application was u/s 124 of the Railways Act, 1989. Tribunal, however, vide its order dated 10.12.1992 did not entertain the application stating that the claim petition is not maintainable and the Tribunal lacked jurisdiction since the case set up by the petitioner is not covered by Section 13(1)(a)(ii) of the Railway Claims Tribunal Act, 1987. According to the Tribunal, only if the person has suffered injuries on the basis of an accident as defined u/s 123(a) of the Railways Act, 1989, which should have occurred either due to a collision between trains of which one is a train carrying passengers, or derailment or other accident to a train or any part of the train carrying passengers. According to Tribunal, only in those cases petitioner is entitled to get compensation u/s 124 of the Railways Act read with provisions of the Railways Accident (Compensation) Rules, 1989. Tribunal, therefore, dismissed the application vide its order dated 10.12.92.

Petitioners did not challenge the said order either before this Court or before the civil Court. If the petitioners wanted to file a suit before the civil Court, they should have filed the same on or before 12.9.1994. However, according to the petitioners, before the expiry of the limitation period, jurisdiction of the civil Court in respect of claims u/s 124-A of the Railways Act was taken away by the Railways Amendment Act (Act 28 of 1994) and the jurisdiction was vested with the Railway Claims Tribunal by the amended Sections 13 and 15 of the Act. The amended provisions came into force on 1.8.94. Amending Act introduced a new Section 124A which makes the railway administration liable to pay compensation for injury or death due to an ''untoward incident''. An ''untoward incident'' is defined in Section 123(c) of the Railways Act as amended in 1994.

After coming into force of Section 124-A of the Railways Act, according to the petitioners, they have got a new right to approach the Tribunal and to claim compensation u/s 124-A of the Railways Act. According to petitioners, as per Section 17 of the Railway Claims Tribunals Act, a Railway Claims Tribunal can entertain an application u/s 124-A of the Railways Act within one year of the date of the accident-untoward incident as per Sub-section (2) of Section 17, and it can entertain the applications filed beyond this time on satisfaction that the applicants have sufficient cause for not making the application within such period. Petitioners, therefore, filed an application before the Claims Tribunal u/s 124-A of the Railways Act. Petitioners also filed an application u/s 17 of the Railway Claims Tribunals Act along with an affidavit explaining the delay of one month and 17 days. That application was numbered as LA. No. 2 of 1996 in unnumbered O.A. No. 195 D No. 327 of 1995. I.A. No. 2 of 1996 was rejected by the Tribunal vide Exh. P 4 order dated 18.7.1996. According to Tribunal, the earlier order passed by the Tribunal has become final, since petitioners did not file appeal before this Court or other forums. Since the said order has become final, there is no question of condonation of delay by the Tribunal. Hence, the Tribunal held that on the principle of res judicata, the petitioners have no locus standi to move the Tribunal. Tribunal, however, dismissed the application, without prejudice to the right of the petitioners to claim compensation in the appropriate forum. Since I.A. was dismissed, the original application was also dismissed. Petitioners are aggrieved by the said order.

According to the petitioners, Tribunal was not justified in dismissing the application for condonation of delay and consequently the original application on the ground of res judicata. It is their case that earlier application was dismissed by the Tribunal on the ground of lack of jurisdiction and not on merits. I am of the view that the counsel for the petitioners is correct in his contention that since the earlier application was dismissed for want of jurisdiction, there is no question of application of principle of res judicata. Only if a decision is taken on the basis of merits of the case, then the question of application of principle of res judicata arises. It is the contention of counsel for the petitioners since the Act was amended, question as to whether petitioners are entitled to get compensation for the loss of life of their son, on the basis of definition of ''untoward incident'' in Section 123(c) of the Act, should have been considered by the Tribunal. Therefore, the question to be considered is as to whether the Tribunal is legally justified in not entertaining the application in the nature of Exh. P 2, and consequently the original application. I am of the view that the rejection of the petitioners'' application earlier by Exh. P 1 order is of no consequence in considering the petitioners'' application for condonation of delay, as well as the original application preferred by them. It is pertinent to note that Exh. P 1 order was passed by the Tribunal, holding that the application is itself not maintainable since the Tribunal lacked jurisdiction. In other words, the said order was passed on the basis of law then in force. Therefore, it cannot be contended that the principle of res judicata applies, when the petitioners have approached the Tribunal on the basis of the Amended Act, which confers jurisdiction on the Tribunals to decide the question as to whether petitioner''s son died on the basis of ''untoward incident''. 1 have already held that the Tribunal dismissed the application because of lack of jurisdiction and not on merits. Earlier application was filed u/s 124 of the Railways Act. Petitioners have filed the present application claiming compensation u/s 124-A of the Railways Act, which is extracted below:

124-A. 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 was 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.

Explanation.-For the purposes of this section, ''passenger'' includes-

(i) a railway servant on duty; and

(ii) a person who has purchased a valid ticket for travelling by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident.

By virtue of the above mentioned provision, the jurisdiction of the civil Court has been taken away and the said jurisdiction has been vested in the Railway Claims Tribunal, as amended by Sections 13 and 15 of the Railway Claims Tribunal Act. ''Untoward incident'' is defined in Section 123(c) of the Act, as amended in 1994. As per Section 17 of the Railway Claims Tribunal Act, the Tribunal can entertain an application u/s 124-A of the Railways Act within one year of occurrence of the untoward incident. Tribunal can also entertain the application u/s 124-A beyond the said period, if it satisfies that applicant had sufficient cause for not making the application within such period.

In view of the statutory provisions, I am of the view that Tribunal was not justified in rejecting the petitioners'' application for condonation of delay as well as the original application on the ground that principle of res judicata applies. I have already held the principle of res judicata is not applicable to the instant case, since the earlier application was dismissed on the ground of lack of jurisdiction by the Tribunal.

On the basis of the above mentioned reasoning, I quash Exh. P 4 order of the Railway Claims Tribunal, and direct the Tribunal to reconsider LA. No. 2 of 1996 on merits and pass appropriate orders after giving an opportunity of being heard to the petitioners. It is made clear that the time spent by the petitioner in this Court be also taken into consideration by the Tribunal, while entertaining the application for condonation of delay in filing the original application. If there are sufficient reasons for condoning the delay, Tribunal will take up original application and pass appropriate orders. Final orders will be passed on I.A. No. 2 of 1996 within a period of three months from the date of receipt of a copy of this judgment.

Original petition is allowed to the above extent.