It is well-nigh settled that a Court or a Tribunal to
which a case was remanded by a Superior Court cannot
traverse beyond the limits laid down in the order of remand.
In other words, the scope of such a case depends on the
terms of the order of remand. This position is fairly settled
by the Hon'ble Apex Court in the decision in Jamshed
Hormusji Wadia v. Board of Trustees, Port of Mumbai
reported in AIR 2004 SC 1815 and reinstated in many a
cases. When that be the position, a seemingly disregard to
decide the matter afresh in terms of an order of remand
that too, after making a virtual criticism of the said order,
by a Tribunal, should be a cause of concern from the point of
view of judicial discipline and judicial propriety.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR.JUSTICE C.T.RAVIKUMAR
&
MR. JUSTICE BABU MATHEW P.JOSEPH
20TH DAY OF JANUARY 2016
MFA.No. 204 of 2010
PRASAD A.V.,
Vs
UNION OF INDIA,
It is well-nigh settled that a Court or a Tribunal to
which a case was remanded by a Superior Court cannot
traverse beyond the limits laid down in the order of remand.
In other words, the scope of such a case depends on the
terms of the order of remand. This position is fairly settled
by the Hon'ble Apex Court in the decision in Jamshed
Hormusji Wadia v. Board of Trustees, Port of Mumbai
reported in AIR 2004 SC 1815 and reinstated in many a
cases. When that be the position, a seemingly disregard to
decide the matter afresh in terms of an order of remand
that too, after making a virtual criticism of the said order,
by a Tribunal, should be a cause of concern from the point of
view of judicial discipline and judicial propriety. The raison
d'etre for such remarks would be unravelled by a succinct
narration of the factual background of this case, as
hereunder:-
Train No.6602, Mangalore - Chennai Mail involved in an
accident at Kadalundi on 22.6.2001 and the appellant who
was a passenger in it sustained injuries. He sustained
fracture of right clavicle, fracture of both bones of left
forearm, left anterior cruciate ligament (left ACL) tear and left
ulnar nerve palsy and such other injuries noted in the Wound
Certificate issued from the Medical College Hospital,
Kozhikode. He filed O.A.No.50 of 2002 under Section 16 of
the Railway Claims Tribunal Act 1987, for compensation in
respect of injuries sustained in the said accident. As per
judgment dated 12-04-2005, the Railway Claims Tribunal
awarded an amount of Rs.1,60,000/- (Rupees one lakh and
sixty thousand Only) with interest at the rate of 6% per
annum from the date of registration of the case, i.e, 30-01-
2002 till payment. Dissatisfied with the quantum of
compensation and contending that it is inadequate, the
applicant had earlier approached this Court by filing
M.F.A.No.132 of 2005. A Division Bench of this Court
considered the said appeal and remitted the case to the
Tribunal for fresh consideration in accordance with law. The
Tribunal was also directed to afford sufficient opportunity to
the appellant-applicant, to adduce further evidence, if he so
chooses. Evidently, along with the appeal, certain additional
documents were also produced by the appellant/applicant,
before this Court. While disposing the said appeal as per
judgment dated 10-02-2010, this Court also directed the
Registry to forward those additional documents to the
Tribunal in a sealed cover along with a copy of the judgment.
The impugned judgment in this appeal has been passed by
the Tribunal, pursuant to fresh consideration in purported
compliance with the directions in the judgment of this Court
in M.F.A.No.132 of 2005. A bare perusal of the impugned
judgment would reveal that the Tribunal while considering
the Original Application pursuant to the remand, made
certain comments with respect to the directions and
observations made by this Court in the judgment in
M.F.A.No.132 of 2005 as is obvious from paragraph 6 of the
impugned judgment.
2. Evidently, the Tribunal has made such comments
which are absolutely unwarranted and uncalled for, in the
matter of disposal of the said Original Application. After
making such unwarranted and unnecessary comments, the
Tribunal held that the matter has to be dealt with as per law,
i.e., the Railway Accidents and Untoward Incidents
(Compensation) Rules, 1990 as amended in 1997 (hereinafter
referred to as 'the Rules'). As noticed hereinbefore, this
Court also directed the Tribunal only to consider the matter
afresh in accordance with law. This fact was duly taken note
of by the Tribunal as can be seen from paragraph 2 of the
impugned judgment. Still in Paragraph 3 of the impugned
judgment, the Tribunal held:-
"Considering the High Court order to dispose the
appeal within six months and with no sign of the
applicant being interested in adducing evidence or in
pursuing his case, the Tribunal has no option but to
dispose the case based on all additional documents
taken on record. The applicant has filed a large
number of medical bills, which have taken on
record".
(underline supplied)
3.At the very outset, we may say that it is
ununderstandable as to how and why the Tribunal formed
such an opinion that it had no option but to dispose of the
case based only on the additional documents taken on record
when the Tribunal itself correctly understood the direction in
the judgment in M.F.A.No.132 of 2005 as a direction for fresh
consideration of the application, in accordance with law.
Needless to say that in such circumstances, the Tribunal was
bound to consider the oral and documentary evidences
tendered, at the first instance, based on which it passed the
judgment which was interfered with by this Court in
M.F.A.No.132 of 2005 besides the additional documents which
were forwarded for its consideration, after affording an
opportunity to the parties and in accordance with law. But at
the same time, the appendix of the impugned judgment
would make it appear that neither the applicant nor the
respondent produced any documentary as also oral evidence
before the Tribunal. In this context, it is also relevant to note
that as per judgment dated 12-04-2005, which was
challenged by filing M.F.A.No.132 of 2005, the Tribunal had
earlier granted a compensation of Rs.1,60,000/- and the said
amount was also ordered to carry interest at the rate of 6%
from the date of its filing till realisation. But as per the
impugned judgment, the Tribunal found that actually the
appellant is entitled to only for a total compensation of
Rs.1,12,000/-. Thereafter, the Tribunal made observations
and comments in regard to the judgment of this court in
M.F.A.No.132 of 2005 in and vide paragraph 6 of the
impugned judgment and then ordered that its earlier order
dated 12.4.2005 whereby Rs.1,60,000/- was granted as
compensation, would stand. In other words, virtually, the
Tribunal restored its earlier order/judgment dated 12.4.2005
that was set aside by this court in the appeal.
4.Now, in this appeal, the appellant challenges the
judgment dated 01-10-2010 in O.A.No.50 of 2002 passed by
the Tribunal. The main contention of the appellant is that the
Tribunal has passed the order in total disregard to the
judgment passed by this Court in M.F.A.No.132 of 2005 and
also the relevant provisions under the Railway Accidents and
Untoward Incidents (Compensation) Rules as amended in
1997 (for short 'the Rules'). The learned counsel for the
appellant contended that the Tribunal merely referred to Rule
3(3) of the Rules to hold that for all non-scheduled injuries,
the appellant is entitled only to a maximum compensation of
Rs.80,000/-, without making any discussion as to the nature
of the injuries and their impact and why he is not entitled to
Rs.4,00,000/- as compensation. It is also contended by the
learned counsel for the appellant that the impugned
judgment itself would reveal that the appellant had produced
a number of medical bills evidently pertaining to the
prolonged treatment at various hospitals in connection with
the injuries sustained by him in the accident. But, a bare
perusal of the impugned judgment would reveal that they
were not at all taken into consideration, it is submitted. Per
contra, the learned counsel appearing for the respondent
submitted that the Tribunal considered the entitlement of the
appellant to compensation for the injuries sustained by him
and a careful perusal of the impugned judgment would reveal
that the maximum amount of compensation which could be
granted for such injuries was in fact, granted to the appellant.
It is contended that in such circumstances, the judgment and
order of the Tribunal call for no interference.
5.We have already referred to the manner in which the
Tribunal considered the entitlement of the appellant to
compensation pursuant to the remand of the case by this
Court as per judgment in M.F.A.No.132 of 2005 dated
12.10.2010. Paragraph 2 of the impugned judgment itself
would reveal that M.F.A.No.132 of 2005 was filed by the
appellant alleging inadequacy of the compensation granted
as per judgment dated 12.4.2005. The said paragraph would
show that the Tribunal took note of the fact that this Court
virtually observed that the Tribunal had not quantified
compensation considering the fractures of ulnar nerve palsy,
his prolonged treatment at various hospitals, his loss of
income etc. and further that the Tribunal was also directed
thereunder to consider the factum of prolonged treatment,
medical records and the additional documents which were
produced by the appellant. The impugned judgment itself
would reveal that those documents produced by the
appellant before this Court were forwarded to the Tribunal
along with a copy of the judgment in the M.F.A.No.132 of
2005, for fresh consideration in accordance with law. As per
the judgment, the appellant was directed to be given an
opportunity to adduce further evidence, if he chooses.
Annexure-A1 produced in this appeal would reveal that after
the remand of the case, the Tribunal directed the appellant to
produce the copy of the appeal within seven days from
23.4.2010. What exactly was the purpose of such a direction
is not discernible from the impugned judgment. The
impugned judgment would also reveal that the appellant had
produced several medical bills and they were also taken on
record. But, there is absolute absence of any discussion
based on the same despite the direction in the judgment in
M.F.A.No.132 of 2005. It appears that the Tribunal refrained
from considering the medical bills produced holding that
there is no provision for taking into account such medical bills
and in that matter prolonged treatment and loss of earning
capacity. We will consider its merits, a little later.
6.Paragraph 2 of the impugned judgment itself would
reveal that the Tribunal was very much astute to the fact that
M.F.A.No.132 of 2005 was filed by the appellant-applicant
attributing inadequacy of compensation and in the judgment
passed thereon, this Court observed that the approach of the
Tribunal was unsustainable. Still, while considering the
matter afresh, the tribunal held that the appellant is actually
entitled only to Rs.1,12,000/-. Thereafter, the Tribunal went
on to observe:-
"The Honourable High Court of Kerala had opined
that the "approach made by the Tribunal, in our
view, is unsustainable to say the least". However,
the Honourable High Court has not indicated in its
order why the approach of the Tribunal was
unsustainable, even though it would appear that the
High Court felt it was obvious. The Tribunal is,
however, unable to decipher how its approach was
unsustainable and without any clarification from the
Honourable High Court of Kerala, it can only deal
with the case as per law, which in this case is, "The
Railway Accidents and Untoward Incident
(Compensation) Rules, 1990 as amended in 1997."
7.After making such comments Tribunal observed that it
had already awarded a compensation of Rs.1,60,000/- as per
its earlier judgment dated 12.4.2005 and there was no need
to reduce the compensation and finally held that the said
order of the Tribunal dated 12.4.2005 would stand. In other
words, the Tribunal virtually, restored its order dated
12.4.2005 granting an amount of Rs.1,60,000/-. The
impugned judgment itself would reveal that as per judgment
in M.F.A.No.132 of 2005, this Court set aside the said
judgment dated 12.4.2005 passed by the Tribunal for a
compensation of Rs.1,60,000/-. But, then as per the
impugned judgment the Tribunal held:-
"The order of this Tribunal dated 12.4.2005
therefore stands."
8.When this Court exercising the appellate jurisdiction
set side the said judgment of the Tribunal passed earlier on
12.4.2005 how could the Tribunal hold that the very same
order would stand. The manner in which the Tribunal made
comments on the judgment of this Court as is obvious from
the aforeextracted paragraph 6 and the ultimate order
holding that its earlier order set aside by this Court would
stand, could not be appreciated as the approach and attitude,
cause concern from the point of view of judicial discipline and
judicial propriety.
9.The observations and comments of the Tribunal
against the judgment of this Court in M.F.A.No.132 of 2005
as also the tenor of the ultimate order as noted hereinbefore
virtually deserve to be deprecated in a strong language.
However, we are refraining from making any such
comments, though we are tempted to employ strong terms,
bearing in mind a decision of the Hon'ble Apex Court in Braj
Kishore v. Union of India reported in 1997 (1) KLT Case
No.80 (page 60). The Apex Court in the said decision held
thus:-
"No greater damage can be caused to the
administration of justice and to the
confidence of people in judicial institutions
when judges of higher courts publicly
express lack of faith in the subordinate
judges. It has been said, time and again,
that respect for judiciary is not in hands by
using intemperate language and by casting
aspersions against lower judiciary. It is well
to remember that a judicial officer against
whom aspersions are made in the
judgment could not appear before the
higher court to defend his order. Judges of
higher courts must, therefore, exercise
greater judicial restraint and adopt greater
care when they are tempted to employ
strong terms against lower judiciary.
10.We may hasten to add that we shall not be
understood to have held that merely because of the matter
was remanded by this Court, the Tribunal should have
granted enhanced compensation. This Court in the judgment
in M.F.A.No.132 of 2005, though observed that the approach
of the Tribunal was unsustainable, directed the Tribunal only
to consider the aspects highlighted therein, in accordance
with law. We are only holding that in such circumstances
instead of making such comments and observations, an
appropriate consideration with reference to the legal and
factual position should have been made by the Tribunal on
such aspects, as well. The impugned judgment by a single
member of the Tribunal also carries the insinuation that the
earlier judgment in the said Original Application, dated
12.4.2005 passed by a Division Bench of the Tribunal is also
not in conformity with the relevant provisions of the Rules.
11.We will appreciate the challenge against the
impugned judgment in another angle as well. A bare perusal
of the impugned judgment would reveal that after granting
an amount of Rs.32,000/- for the 'scheduled injuries' under
item No.34 of Part II, the Tribunal considered the question of
compensation payable for the 'non-scheduled injuries'. In
that context, it is to be noted that besides fracture of radius
and ulna of one limb, the appellant had also sustained
fracture to clavicle and ulnar nerve palsy. The medical
records already produced and the bills revealing continuation
of treatment for the injuries sustained years after the
accident, were not at all considered by the Tribunal despite
the direction of this Court. The appellant had evidently taken
up the contention that he had prolonged treatment and even
in this appeal it is specifically stated that he had to undergo
four surgeries in connection with the injuries sustained in the
accident. The medical records including the medical bills
pertaining to such prolonged treatment were produced even
going by the impugned judgment. As noticed hereinbefore,
the tribunal declined to consider them holding the view that
there is no provision for taking into account such medical bills
and the prolonged treatment as also the loss of earning
capacity. With respect to the observation of the Tribunal that
there is no provision for taking into account the loss of
earning capacity one can only say that it is only an
observation without taking into account the provisions under
Rule 3(2) of the Rules which reads thus:-
"3. Amount of Compensation.-
(1) xx xx xx
(2) The amount of compensation payable
for injury not specified in Part II or Part III of the
Schedule but which, in the opinion of the
Claims Tribunal is such as to deprive a person
of all capacity to do any work, shall be rupees
four lakhs."
12.It is evident from Rule 3(2) of the Rules that the
maximum amount of Rs.4,00,000/- can be granted in a case
where the Tribunal arrives at an opinion that owing to the
non-scheduled injuries a person was deprived of all capacity
to do any work. Therefore, it is incorrect to say that there is
no provision for taking into account loss of earning capacity.
In this context, it is to be noted that besides sustaining a
fracture on the clavicle the appellant had ulnar nerve palsy
as well. If the appellant had to undergo four surgeries and
still could not recover from the impact of the injuries, it is a
matter befitting a consideration for deciding whether or not
the injuries sustained would deprive him of all capacity to do
any work and if so, whether he is entitled to enhanced
compensation. However, these aspects were not at all
considered by the Tribunal. The impugned judgment also
would reveal that the appellant had produced medical bills
before the Tribunal in addition to the documents produced
before the passing of the earlier judgment dated 12.4.2005,
by the Tribunal. However, in the appendix what is stated is
that the appellant/applicant had not produced any oral or
documentary evidence. In the context of tortious liability of
the railway administration it is relevant to refer to Section
124 of the Railways Act, 1989 which reads thus:-
"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 the personal
injury and loss, 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."
(underline supplied)
13.A close scrutiny of Section 124 would reveal that if in
an accident, a train passenger was injured or has suffered a
loss, he could maintain an action for recovery of damages, for
the personal injury. True that the Tribunal is bound by the
Rules and it can consider the quantum of compensation only
in accordance with the provisions of the Railways Act and 'the
Rules'. The long and short of the discussion is that the
impugned judgment in O.A.No.50 of 2002 dated 1.10.2010 is
liable to be set aside partially to enable the Tribunal to
consider all aspects, as mentioned in this judgment and also
in the judgment in M.F.A.No.132 of 2005. Accordingly, it is
set aside to the extent it declined to consider the documents
produced prior to the passing of the judgment dated
12.4.2005 and subsequent to the remand of the case as per
judgment of this Court in M.F.A.No.132 of 2005 for the
aforementioned purposes. We are making it clear that we
have not interfered with the judgment to the extent it granted
Rs.1,60,000/- as compensation and further that as a
consequence of the finding thereon to the effect that the
earlier judgment dated 12.4.2005 would stand, the rate of
interest granted thereunder would also stand impliedly
granted under the impugned judgment in respect of the said
amount. The case is remitted to the Tribunal for fresh
consideration in accordance with law on the aforementioned
aspects, taking into account the observations of this Court in
this judgment as also the judgment in M.F.A.No.132 of 2005
dated 10.2.2010 and all the relevant provisions under the
Railways Act, 1989 as also the Rules. Needless to say that, if
the additional documents which were forwarded by this Court
along with the judgment in M.F.A.No.132 of 2005, were not
taken on record or not legally brought on record, the Tribunal
shall afford sufficient opportunity to the appellant to bring all
such documents legally on record. Taking into account the
fact that the Original Application is of the year 2002, the
Tribunal shall make an endeavour to dispose of O.A.No.50 of
2002 as expeditiously as possible, at any rate, within a period
of six months from the date of receipt of a copy of this
judgment. We also made it clear that we have not held that
the appellant is entitled to enhanced compensation by virtue
of being deprived of all capacity to do any work or on any
other grounds and essentially, those are matters to be
decided in accordance with law. This appeal is allowed as
above.
Registry is directed to forward a copy of this judgment
to the Tribunal immediately. On its receipt, the Tribunal shall
cause issuance of notices to the parties for their appearance
and shall proceed with the case in such a manner to finally
dispose of the matter within the time stipulated
hereinbefore.
C.T. RAVIKUMAR
JUDGE
BABU MATHEW P. JOSEPH
JUDGE
Print Page
which a case was remanded by a Superior Court cannot
traverse beyond the limits laid down in the order of remand.
In other words, the scope of such a case depends on the
terms of the order of remand. This position is fairly settled
by the Hon'ble Apex Court in the decision in Jamshed
Hormusji Wadia v. Board of Trustees, Port of Mumbai
reported in AIR 2004 SC 1815 and reinstated in many a
cases. When that be the position, a seemingly disregard to
decide the matter afresh in terms of an order of remand
that too, after making a virtual criticism of the said order,
by a Tribunal, should be a cause of concern from the point of
view of judicial discipline and judicial propriety.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR.JUSTICE C.T.RAVIKUMAR
&
MR. JUSTICE BABU MATHEW P.JOSEPH
20TH DAY OF JANUARY 2016
MFA.No. 204 of 2010
PRASAD A.V.,
Vs
UNION OF INDIA,
It is well-nigh settled that a Court or a Tribunal to
which a case was remanded by a Superior Court cannot
traverse beyond the limits laid down in the order of remand.
In other words, the scope of such a case depends on the
terms of the order of remand. This position is fairly settled
by the Hon'ble Apex Court in the decision in Jamshed
Hormusji Wadia v. Board of Trustees, Port of Mumbai
reported in AIR 2004 SC 1815 and reinstated in many a
cases. When that be the position, a seemingly disregard to
decide the matter afresh in terms of an order of remand
that too, after making a virtual criticism of the said order,
by a Tribunal, should be a cause of concern from the point of
view of judicial discipline and judicial propriety. The raison
d'etre for such remarks would be unravelled by a succinct
narration of the factual background of this case, as
hereunder:-
Train No.6602, Mangalore - Chennai Mail involved in an
accident at Kadalundi on 22.6.2001 and the appellant who
was a passenger in it sustained injuries. He sustained
fracture of right clavicle, fracture of both bones of left
forearm, left anterior cruciate ligament (left ACL) tear and left
ulnar nerve palsy and such other injuries noted in the Wound
Certificate issued from the Medical College Hospital,
Kozhikode. He filed O.A.No.50 of 2002 under Section 16 of
the Railway Claims Tribunal Act 1987, for compensation in
respect of injuries sustained in the said accident. As per
judgment dated 12-04-2005, the Railway Claims Tribunal
awarded an amount of Rs.1,60,000/- (Rupees one lakh and
sixty thousand Only) with interest at the rate of 6% per
annum from the date of registration of the case, i.e, 30-01-
2002 till payment. Dissatisfied with the quantum of
compensation and contending that it is inadequate, the
applicant had earlier approached this Court by filing
M.F.A.No.132 of 2005. A Division Bench of this Court
considered the said appeal and remitted the case to the
Tribunal for fresh consideration in accordance with law. The
Tribunal was also directed to afford sufficient opportunity to
the appellant-applicant, to adduce further evidence, if he so
chooses. Evidently, along with the appeal, certain additional
documents were also produced by the appellant/applicant,
before this Court. While disposing the said appeal as per
judgment dated 10-02-2010, this Court also directed the
Registry to forward those additional documents to the
Tribunal in a sealed cover along with a copy of the judgment.
The impugned judgment in this appeal has been passed by
the Tribunal, pursuant to fresh consideration in purported
compliance with the directions in the judgment of this Court
in M.F.A.No.132 of 2005. A bare perusal of the impugned
judgment would reveal that the Tribunal while considering
the Original Application pursuant to the remand, made
certain comments with respect to the directions and
observations made by this Court in the judgment in
M.F.A.No.132 of 2005 as is obvious from paragraph 6 of the
impugned judgment.
2. Evidently, the Tribunal has made such comments
which are absolutely unwarranted and uncalled for, in the
matter of disposal of the said Original Application. After
making such unwarranted and unnecessary comments, the
Tribunal held that the matter has to be dealt with as per law,
i.e., the Railway Accidents and Untoward Incidents
(Compensation) Rules, 1990 as amended in 1997 (hereinafter
referred to as 'the Rules'). As noticed hereinbefore, this
Court also directed the Tribunal only to consider the matter
afresh in accordance with law. This fact was duly taken note
of by the Tribunal as can be seen from paragraph 2 of the
impugned judgment. Still in Paragraph 3 of the impugned
judgment, the Tribunal held:-
"Considering the High Court order to dispose the
appeal within six months and with no sign of the
applicant being interested in adducing evidence or in
pursuing his case, the Tribunal has no option but to
dispose the case based on all additional documents
taken on record. The applicant has filed a large
number of medical bills, which have taken on
record".
(underline supplied)
3.At the very outset, we may say that it is
ununderstandable as to how and why the Tribunal formed
such an opinion that it had no option but to dispose of the
case based only on the additional documents taken on record
when the Tribunal itself correctly understood the direction in
the judgment in M.F.A.No.132 of 2005 as a direction for fresh
consideration of the application, in accordance with law.
Needless to say that in such circumstances, the Tribunal was
bound to consider the oral and documentary evidences
tendered, at the first instance, based on which it passed the
judgment which was interfered with by this Court in
M.F.A.No.132 of 2005 besides the additional documents which
were forwarded for its consideration, after affording an
opportunity to the parties and in accordance with law. But at
the same time, the appendix of the impugned judgment
would make it appear that neither the applicant nor the
respondent produced any documentary as also oral evidence
before the Tribunal. In this context, it is also relevant to note
that as per judgment dated 12-04-2005, which was
challenged by filing M.F.A.No.132 of 2005, the Tribunal had
earlier granted a compensation of Rs.1,60,000/- and the said
amount was also ordered to carry interest at the rate of 6%
from the date of its filing till realisation. But as per the
impugned judgment, the Tribunal found that actually the
appellant is entitled to only for a total compensation of
Rs.1,12,000/-. Thereafter, the Tribunal made observations
and comments in regard to the judgment of this court in
M.F.A.No.132 of 2005 in and vide paragraph 6 of the
impugned judgment and then ordered that its earlier order
dated 12.4.2005 whereby Rs.1,60,000/- was granted as
compensation, would stand. In other words, virtually, the
Tribunal restored its earlier order/judgment dated 12.4.2005
that was set aside by this court in the appeal.
4.Now, in this appeal, the appellant challenges the
judgment dated 01-10-2010 in O.A.No.50 of 2002 passed by
the Tribunal. The main contention of the appellant is that the
Tribunal has passed the order in total disregard to the
judgment passed by this Court in M.F.A.No.132 of 2005 and
also the relevant provisions under the Railway Accidents and
Untoward Incidents (Compensation) Rules as amended in
1997 (for short 'the Rules'). The learned counsel for the
appellant contended that the Tribunal merely referred to Rule
3(3) of the Rules to hold that for all non-scheduled injuries,
the appellant is entitled only to a maximum compensation of
Rs.80,000/-, without making any discussion as to the nature
of the injuries and their impact and why he is not entitled to
Rs.4,00,000/- as compensation. It is also contended by the
learned counsel for the appellant that the impugned
judgment itself would reveal that the appellant had produced
a number of medical bills evidently pertaining to the
prolonged treatment at various hospitals in connection with
the injuries sustained by him in the accident. But, a bare
perusal of the impugned judgment would reveal that they
were not at all taken into consideration, it is submitted. Per
contra, the learned counsel appearing for the respondent
submitted that the Tribunal considered the entitlement of the
appellant to compensation for the injuries sustained by him
and a careful perusal of the impugned judgment would reveal
that the maximum amount of compensation which could be
granted for such injuries was in fact, granted to the appellant.
It is contended that in such circumstances, the judgment and
order of the Tribunal call for no interference.
5.We have already referred to the manner in which the
Tribunal considered the entitlement of the appellant to
compensation pursuant to the remand of the case by this
Court as per judgment in M.F.A.No.132 of 2005 dated
12.10.2010. Paragraph 2 of the impugned judgment itself
would reveal that M.F.A.No.132 of 2005 was filed by the
appellant alleging inadequacy of the compensation granted
as per judgment dated 12.4.2005. The said paragraph would
show that the Tribunal took note of the fact that this Court
virtually observed that the Tribunal had not quantified
compensation considering the fractures of ulnar nerve palsy,
his prolonged treatment at various hospitals, his loss of
income etc. and further that the Tribunal was also directed
thereunder to consider the factum of prolonged treatment,
medical records and the additional documents which were
produced by the appellant. The impugned judgment itself
would reveal that those documents produced by the
appellant before this Court were forwarded to the Tribunal
along with a copy of the judgment in the M.F.A.No.132 of
2005, for fresh consideration in accordance with law. As per
the judgment, the appellant was directed to be given an
opportunity to adduce further evidence, if he chooses.
Annexure-A1 produced in this appeal would reveal that after
the remand of the case, the Tribunal directed the appellant to
produce the copy of the appeal within seven days from
23.4.2010. What exactly was the purpose of such a direction
is not discernible from the impugned judgment. The
impugned judgment would also reveal that the appellant had
produced several medical bills and they were also taken on
record. But, there is absolute absence of any discussion
based on the same despite the direction in the judgment in
M.F.A.No.132 of 2005. It appears that the Tribunal refrained
from considering the medical bills produced holding that
there is no provision for taking into account such medical bills
and in that matter prolonged treatment and loss of earning
capacity. We will consider its merits, a little later.
6.Paragraph 2 of the impugned judgment itself would
reveal that the Tribunal was very much astute to the fact that
M.F.A.No.132 of 2005 was filed by the appellant-applicant
attributing inadequacy of compensation and in the judgment
passed thereon, this Court observed that the approach of the
Tribunal was unsustainable. Still, while considering the
matter afresh, the tribunal held that the appellant is actually
entitled only to Rs.1,12,000/-. Thereafter, the Tribunal went
on to observe:-
"The Honourable High Court of Kerala had opined
that the "approach made by the Tribunal, in our
view, is unsustainable to say the least". However,
the Honourable High Court has not indicated in its
order why the approach of the Tribunal was
unsustainable, even though it would appear that the
High Court felt it was obvious. The Tribunal is,
however, unable to decipher how its approach was
unsustainable and without any clarification from the
Honourable High Court of Kerala, it can only deal
with the case as per law, which in this case is, "The
Railway Accidents and Untoward Incident
(Compensation) Rules, 1990 as amended in 1997."
7.After making such comments Tribunal observed that it
had already awarded a compensation of Rs.1,60,000/- as per
its earlier judgment dated 12.4.2005 and there was no need
to reduce the compensation and finally held that the said
order of the Tribunal dated 12.4.2005 would stand. In other
words, the Tribunal virtually, restored its order dated
12.4.2005 granting an amount of Rs.1,60,000/-. The
impugned judgment itself would reveal that as per judgment
in M.F.A.No.132 of 2005, this Court set aside the said
judgment dated 12.4.2005 passed by the Tribunal for a
compensation of Rs.1,60,000/-. But, then as per the
impugned judgment the Tribunal held:-
"The order of this Tribunal dated 12.4.2005
therefore stands."
8.When this Court exercising the appellate jurisdiction
set side the said judgment of the Tribunal passed earlier on
12.4.2005 how could the Tribunal hold that the very same
order would stand. The manner in which the Tribunal made
comments on the judgment of this Court as is obvious from
the aforeextracted paragraph 6 and the ultimate order
holding that its earlier order set aside by this Court would
stand, could not be appreciated as the approach and attitude,
cause concern from the point of view of judicial discipline and
judicial propriety.
9.The observations and comments of the Tribunal
against the judgment of this Court in M.F.A.No.132 of 2005
as also the tenor of the ultimate order as noted hereinbefore
virtually deserve to be deprecated in a strong language.
However, we are refraining from making any such
comments, though we are tempted to employ strong terms,
bearing in mind a decision of the Hon'ble Apex Court in Braj
Kishore v. Union of India reported in 1997 (1) KLT Case
No.80 (page 60). The Apex Court in the said decision held
thus:-
"No greater damage can be caused to the
administration of justice and to the
confidence of people in judicial institutions
when judges of higher courts publicly
express lack of faith in the subordinate
judges. It has been said, time and again,
that respect for judiciary is not in hands by
using intemperate language and by casting
aspersions against lower judiciary. It is well
to remember that a judicial officer against
whom aspersions are made in the
judgment could not appear before the
higher court to defend his order. Judges of
higher courts must, therefore, exercise
greater judicial restraint and adopt greater
care when they are tempted to employ
strong terms against lower judiciary.
10.We may hasten to add that we shall not be
understood to have held that merely because of the matter
was remanded by this Court, the Tribunal should have
granted enhanced compensation. This Court in the judgment
in M.F.A.No.132 of 2005, though observed that the approach
of the Tribunal was unsustainable, directed the Tribunal only
to consider the aspects highlighted therein, in accordance
with law. We are only holding that in such circumstances
instead of making such comments and observations, an
appropriate consideration with reference to the legal and
factual position should have been made by the Tribunal on
such aspects, as well. The impugned judgment by a single
member of the Tribunal also carries the insinuation that the
earlier judgment in the said Original Application, dated
12.4.2005 passed by a Division Bench of the Tribunal is also
not in conformity with the relevant provisions of the Rules.
11.We will appreciate the challenge against the
impugned judgment in another angle as well. A bare perusal
of the impugned judgment would reveal that after granting
an amount of Rs.32,000/- for the 'scheduled injuries' under
item No.34 of Part II, the Tribunal considered the question of
compensation payable for the 'non-scheduled injuries'. In
that context, it is to be noted that besides fracture of radius
and ulna of one limb, the appellant had also sustained
fracture to clavicle and ulnar nerve palsy. The medical
records already produced and the bills revealing continuation
of treatment for the injuries sustained years after the
accident, were not at all considered by the Tribunal despite
the direction of this Court. The appellant had evidently taken
up the contention that he had prolonged treatment and even
in this appeal it is specifically stated that he had to undergo
four surgeries in connection with the injuries sustained in the
accident. The medical records including the medical bills
pertaining to such prolonged treatment were produced even
going by the impugned judgment. As noticed hereinbefore,
the tribunal declined to consider them holding the view that
there is no provision for taking into account such medical bills
and the prolonged treatment as also the loss of earning
capacity. With respect to the observation of the Tribunal that
there is no provision for taking into account the loss of
earning capacity one can only say that it is only an
observation without taking into account the provisions under
Rule 3(2) of the Rules which reads thus:-
"3. Amount of Compensation.-
(1) xx xx xx
(2) The amount of compensation payable
for injury not specified in Part II or Part III of the
Schedule but which, in the opinion of the
Claims Tribunal is such as to deprive a person
of all capacity to do any work, shall be rupees
four lakhs."
12.It is evident from Rule 3(2) of the Rules that the
maximum amount of Rs.4,00,000/- can be granted in a case
where the Tribunal arrives at an opinion that owing to the
non-scheduled injuries a person was deprived of all capacity
to do any work. Therefore, it is incorrect to say that there is
no provision for taking into account loss of earning capacity.
In this context, it is to be noted that besides sustaining a
fracture on the clavicle the appellant had ulnar nerve palsy
as well. If the appellant had to undergo four surgeries and
still could not recover from the impact of the injuries, it is a
matter befitting a consideration for deciding whether or not
the injuries sustained would deprive him of all capacity to do
any work and if so, whether he is entitled to enhanced
compensation. However, these aspects were not at all
considered by the Tribunal. The impugned judgment also
would reveal that the appellant had produced medical bills
before the Tribunal in addition to the documents produced
before the passing of the earlier judgment dated 12.4.2005,
by the Tribunal. However, in the appendix what is stated is
that the appellant/applicant had not produced any oral or
documentary evidence. In the context of tortious liability of
the railway administration it is relevant to refer to Section
124 of the Railways Act, 1989 which reads thus:-
"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 the personal
injury and loss, 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."
(underline supplied)
13.A close scrutiny of Section 124 would reveal that if in
an accident, a train passenger was injured or has suffered a
loss, he could maintain an action for recovery of damages, for
the personal injury. True that the Tribunal is bound by the
Rules and it can consider the quantum of compensation only
in accordance with the provisions of the Railways Act and 'the
Rules'. The long and short of the discussion is that the
impugned judgment in O.A.No.50 of 2002 dated 1.10.2010 is
liable to be set aside partially to enable the Tribunal to
consider all aspects, as mentioned in this judgment and also
in the judgment in M.F.A.No.132 of 2005. Accordingly, it is
set aside to the extent it declined to consider the documents
produced prior to the passing of the judgment dated
12.4.2005 and subsequent to the remand of the case as per
judgment of this Court in M.F.A.No.132 of 2005 for the
aforementioned purposes. We are making it clear that we
have not interfered with the judgment to the extent it granted
Rs.1,60,000/- as compensation and further that as a
consequence of the finding thereon to the effect that the
earlier judgment dated 12.4.2005 would stand, the rate of
interest granted thereunder would also stand impliedly
granted under the impugned judgment in respect of the said
amount. The case is remitted to the Tribunal for fresh
consideration in accordance with law on the aforementioned
aspects, taking into account the observations of this Court in
this judgment as also the judgment in M.F.A.No.132 of 2005
dated 10.2.2010 and all the relevant provisions under the
Railways Act, 1989 as also the Rules. Needless to say that, if
the additional documents which were forwarded by this Court
along with the judgment in M.F.A.No.132 of 2005, were not
taken on record or not legally brought on record, the Tribunal
shall afford sufficient opportunity to the appellant to bring all
such documents legally on record. Taking into account the
fact that the Original Application is of the year 2002, the
Tribunal shall make an endeavour to dispose of O.A.No.50 of
2002 as expeditiously as possible, at any rate, within a period
of six months from the date of receipt of a copy of this
judgment. We also made it clear that we have not held that
the appellant is entitled to enhanced compensation by virtue
of being deprived of all capacity to do any work or on any
other grounds and essentially, those are matters to be
decided in accordance with law. This appeal is allowed as
above.
Registry is directed to forward a copy of this judgment
to the Tribunal immediately. On its receipt, the Tribunal shall
cause issuance of notices to the parties for their appearance
and shall proceed with the case in such a manner to finally
dispose of the matter within the time stipulated
hereinbefore.
C.T. RAVIKUMAR
JUDGE
BABU MATHEW P. JOSEPH
JUDGE
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