Saturday, 21 May 2016

Whether tribunal can reject claim petition of ground that claimant was not understanding content of affidavit of examination in chief?

In   the   present   case   the   appellant   had   no   knowledge   of
English   but   her   affidavit   had   been   prepared   in   English.     In   such

situation   it   was   necessary   for   the   Tribunal   to   have   taken   into
consideration said aspect and it could have directed the appellant to
prove her case on the basis of an affidavit prepared either in Hindi or
in vernacular.   The Tribunal could have insisted for filing an affidavit
in   a   language   understood   by   the   claimant.     Merely   because   the
claimant's counsel  had prepared the affidavit in English, a language not
understood by the appellant, same would  be no reason to dismiss the
claim by holding that claimant had not proved her case.  
It is to be noted that the provisions of Chapter XIII of the Act
of 1989 are beneficial provisions aimed at awarding compensation on
account of untoward incidents to ensure that compensation is granted
in  a  deserving  case.   It  is always open  for  the  Claims Tribunal  in
exercise of the powers conferred under Section 18(1) of the   Act of
1987 to regulate its own procedure and insist for filing an affidavit in a
language understood by the claimant especially when it is the mandate
of   Section   18(1)   that  the   Claims   Tribunal    has   to   be   guided   by
principles of natural justice.   In that view of the matter the Claims
Tribunal was not justified in non­ suiting the appellant on the ground
that her affidavit was filed in English and that she was not aware of its
contents.  The impugned order therefore cannot be sustained on that
count.  The point as framed is answered accordingly.  
IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR
BENCH NAGPUR.
APPEAL   AGAINST   ORDER  NO.    49    OF     2004
Shilabai wd/o Raghunath Hemne,

VERSUS
Union of India 
CORAM:   A. S. CHANDURKAR  J.
                           
       Dated    :   SEPTEMBER  14, 2015.
Citation;2016(3) MHLJ345

This appeal filed under Section 23 of the Railway Claims
Tribunal Act, 1987 (for short the Act of 1987) takes exception to the
judgment dated 09.01.2004 passed by the Railway Claims Tribunal,

Nagpur rejecting the claim application principally on the ground that
the claimant had filed her affidavit in English and in her deposition she
had stated that she could not understand English.  
2. The facts relevant for adjudication of this appeal are that in
an   accident   that   took   place   on   04.10.2002,   the   appellant   lost   her
husband aged about 56 yrs.  She therefore filed proceedings for grant of
compensation under Section 124A of the Railways Act, 1989 (for short,
the Act of 1989).  She filed various documents in support of the claim.
Thereafter on 11.12.2003 she filed her affidavit in lieu of evidence.
This affidavit was in English.   The appellant was cross­examined on
behalf of respondent.   In her cross­examination she stated that the
affidavit was signed by her but she did not know the contents of the
same as it was written in English.  The learned Member of the Claims
Tribunal considered the  proceedings on merits  and held that as the
claimant was not aware about the contents of her affidavit, she had
failed to prove her case.  On that count the claim for compensation was
dismissed.
3] Shri     S.   R.     Charpe,   learned   counsel   for   the   appellant
submitted that the Tribunal was not justified in dismissing the claim
application merely on the ground that the appellant was not aware
about   the   contents   of   her   affidavit   that   was   prepared   in   English.
Relying upon the provisions of Section 18 of the Act of 1987 it was

submitted that the Tribunal was not bound by the procedure laid down
by the Code of Civil Procedure but was guided by the principles of
natural justice.  It was then submitted that all relevant documents had
been filed on record by the appellant for seeking compensation and the
Tribunal ought to have considered the same.  The Tribunal not having
done so, the claim of the appellant was defeated for technical reasons.
It was therefore submitted that the appellant was entitled to receive
monetary compensation under the Act of 1989.  
3] On the other hand Shri N.P. Lambat, learned counsel for the
respondent supported the impugned judgment.  It was submitted that
as the claimant was not aware about the contents of the affidavit sworn
by her, her case had not been proved.   In absence of the case being
proved  the   Tribunal   was  justified  in  dismissing   the   claim.   It  was,
therefore, submitted that there was no reason to interfere in the appeal.
4] The following point arises for consideration: 
Whether the Claims Tribunal was justified in dismissing the
claim for compensation?
5] With the assistance of learned counsel for the parties, I have
gone through the records of the case as well as the impugned order.
The claim petition filed by the appellant is in English which is duly
signed   by   the   appellant   in   vernacular.     Along   with   the   claim
application, various documents were filed on record.   The appellant

thereafter filed an affidavit dated 11.12.2003 which was prepared in
English.  In her cross­examination, she admitted that though she had
signed the affidavit, she was not aware of its contents as the same were
in English.  On that basis the Claims Tribunal held that the appellant
had failed to prove her case and therefore dismissed the same.          
6] Section 18(1) of the Act of 1987 reads thus:
“18(1): The Claims Tribunal shall not be bound by
the   procedure   laid   down   by   the   Code   of   civil
Procedure, 1908 (5 of 1908) but shall be guided by
the principles of natural justice and, subject to the
other provisions of this Act and of any rules, the
Claims Tribunal shall have powers to regulate its
own procedure including the fixing of places and
times of its enquiry.” 
Aforesaid   provisions   indicate   that   the   Tribunal   is   guided   by   the
principles   of   natural   justice   while   adjudicating   the   claim   for
compensation.     It   also   has   necessary   powers   to   regulate   its   own
procedure.  Under Section 19 of the Act of 1987 a claimant can take the
assistance of  a legal practitioner of his/her choice.  The provisions of
Rule  4(1) of  the  Railway  Claims Tribunal  (Procedure) Rules, 1989
require   pleadings   before   the   Claims   Tribunal,   at   the   option   of   the
respective parties to be either in English or in Hindi.    
7] 

In the present case the appellant had no knowledge of

English but her affidavit had been prepared in English. In such




situation it was necessary for the Tribunal to have taken into

consideration said aspect and it could have directed the appellant to

prove her case on the basis of an affidavit prepared either in Hindi or

in vernacular. The Tribunal could have insisted for filing an affidavit

in a language understood by the claimant. Merely because the

claimant's counsel had prepared the affidavit in English, a language not

understood by the appellant, same would be no reason to dismiss the

claim by holding that claimant had not proved her case.

It is to be noted that the provisions of Chapter XIII of the Act

of 1989 are beneficial provisions aimed at awarding compensation on

account of untoward incidents to ensure that compensation is granted

in a deserving case. It is always open for the Claims Tribunal in

exercise of the powers conferred under Section 18(1) of the Act of

1987 to regulate its own procedure and insist for filing an affidavit in a

language understood by the claimant especially when it is the mandate

of Section 18(1) that the Claims Tribunal has to be guided by

principles of natural justice. In that view of the matter the Claims

Tribunal was not justified in non­ suiting the appellant on the ground

that her affidavit was filed in English and that she was not aware of its

contents. The impugned order therefore cannot be sustained on that

count. The point as framed is answered accordingly.
8] In view of aforesaid discussion the following order is passed:

(a) The judgment dated 09.01.2004 in Claim Application No.
125/OA­II/RCT/NGP/2003 is set aside.  The proceedings are remanded
to   the   Claims   Tribunal   for   fresh   adjudication   after   considering   the
observations made herein above.  It would be open for the appellant to
file a affidavit in vernacular language in support of her claim.   The
Claim Application shall be decided on its own merits and in accordance
with law.  
(b) The record and proceedings be sent to the Claims Tribunal
forthwith.     Parties   shall   appear   before   the   Claims   Tribunal   on
26.10.2015.   As the claim for compensation is of the year 2003 the
proceedings shall be decided expeditiously and by the end of March
2016.  
(c) The Claims Tribunal shall take into consideration the aspect
of dismissal of the present appeal on 18.10.2006 and its restoration on
17.04.2014 while awarding interest on the amount of compensation, if
the same is granted.  The respective submissions on said aspect are kept
open.  The appeal is partly allowed in aforesaid terms.  No costs.    
   
JUDGE

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