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CASE NO.: Appeal (civil) 1778-79  of  2001

PETITIONER: RATHI MENON

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT:       13/03/2001

BENCH: K.T. Thomas & R.P. Sethi.

JUDGMENT:

THOMAS, J.

Leave granted. L...I...T.......T.......T.......T.......T.......T.......T..J

   Misfortunes do not come single is an old adage but even the  author  of  that  adage would not  have  imagined  that multiplicity of misfortunes would visit the same person in a series  on  the same night, that too within the  same  hour. One may ask aghast, can the destiny be so cruel to a damsel.

   Rathi Menon, a Commerce graduate of 22 years, was thrown off  from a running train during the night of a jinxed train journey  as  the consequence of a sudden jerk of the  train. In  the  impact her spinal cord was ruptured and in a  trice she turned a paraplegic.  After she fell down, the wheels of the  train  ran  over  her right arm severing  it  from  the shoulder  point forever.  The train, not knowing what it did to  one of its lawful and innocent passengers, continued its running  leaving the paraplegic on the track itself on  that dreadful night.

   It  was physiologically impossible for the young lady to move  her  leg from the position where she fell.  Her  right leg  happened to remain on the rail-track, and unless a Good Samaritan  had passed by that track during the night she had to  remain  there unmoved.  As none like that came the  poor female  human  being  remained  on the  track  bleeding  and unattended by anyone.

   Alas,  within half an hour another train came along  the same  track which, without knowing that a badly mauled human being  was  lying  ahead, ran over her right leg  causing  a sudden  amputation of that leg also.  Thus, within the  span of less than an hour, she became a one-handed and one-legged paraplegic.   All those disasters happened during the  night of  3.9.1996.  While she remained on the track unattended by any  one she happened to be spotted by an engine driver  who was shunting a railway engine.  He got her removed from that scene  to  the  district  hospital, and then  to  a  Medical College  Hospital where she had to undergo a long period  of

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hospitalisation.  However, she remained immovable forever.

   Though she was unable to move by herself she was able to make  two  petitions before the Railway Claims  Tribunal  on 27.6.1997,  in respect of the aforesaid two accidents.   The Claims  Tribunal  awarded  a total amount of  six  lakhs  of rupees  with the regret that it could not award more due  to the  ceiling  imposed by the statutory rules.   However  the Claims Tribunal directed interest to accrue on the amount at the rate of 15% per annum from the date of default.

   The Railways Department, mindless as it was, dragged the helpless  lady to the High Court of Kerala before which  the Administration  filed an appeal challenging the award passed by  the  Claims Tribunal only on the ground that the  amount awarded   was   excessive   according    to   law   of   the Administrations interpretation.

   The  misfortune spree which was haunting the unfortunate lady bubbled up once again when a Division Bench of the High Court   had   chosen  to   slash  down   substantially   the compensation  amount awarded to her, on the premise that the amount  granted  by the Claims Tribunal could not have  been awarded as the disaster had not visited her after 1.11.1997. The  Division  Bench  expressed the helplessness of  law  in helping  the hapless female in her misery of the superlative dimension.

   Though  her  body  was disabled due  to  the  paraplegia afflicted  consequent to the rupture of the spinal cord, and though she became limbless in a major measure, she collected morale  to approach the apex Court to ask whether the  limbs of  law  could be so stretched as to give the limbless  girl solace  at least in the form of pecuniary compensation.  We, therefore,  heard Mr.  K.  Sukumaran, learned senior counsel for  the  appellant and Mrs.  Rekha Pandey, learned  counsel for the Railway Administration.

   There is no dispute on the factual position of which the following  are  some  more details.  Rathi  menon  lost  her father  earlier, and her mother became a widow.  She  passed her  degree in commerce and secured a job in Bangalore.   In her  early  twenties  she  was in search  of  better  career prospects  and it earned some response.  She was called  for an  interview at Trichur.  It was that trip which turned out the  most  cursed  one  in her life.  On  her  way  back  to Bangalore  on 3.9.1996 she boarded the Island Express (bound for  Bangalore) at 8.00 p.m.  from Palakkad Railway Station. After  the  train  started  moving  and  when  it  collected momentum  her ill-luck prompted her to have a face wash  for which  she moved to the wash basin situated next to the door of  the  train.   While washing her face  the  train  jerked violently at a turning and in that impact she was thrown out of  the train.  What happened thereafter has been summarized earlier and cannot be repeated over again.

   As  the  above  facts are not disputed  by  the  Railway Administration appellant was relieved of the burden to prove those  facts averred in her claim petition.  Thus, the  only question  which  remained for the Claims Tribunal to  decide was  regarding  the amount of compensation payable  to  her. Now  the  only question remaining is whether the High  Court was  so  helpless that learned Judges could not confirm  the amount awarded to her by the Claims Tribunal.

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   Appellants  claim  for  the compensation was  based  on Section 124A of the Railways Act 1989 (for short the Act). The  said  Section  itself  was introduced  as  per  Railway (Amendment)  Act  28  of  1994.  The  Section  provided  for awarding  compensation to victims of any untoward incident which  occurs  in the course of working of a  railway.   The expression  untoward  incident was alien to  Railways  Act before Parliament inserted such an expression in the statute as  per  the  Amendment  Act 28 of 1994.  Prior  to  it  the Railways could have granted compensation only to the victims of  accident. As the definition of accident in the Act did not  embrace  instances  of other types of  disasters  which frequently happened during train journeys, the Parliament in its  wisdom, decided to insert a new category of  disasters, both man- made and otherwise, to be the causes of action for claiming compensation.

   It  was in compliance of the aforesaid intention of  the Parliament  that  the  category   untoward  incident   was included by defining its contours in section 123 of the Act. The Sections consists of two segments.  In the first segment acts  such as terrorists acts, riotous attacks, robbery  and decoity  which visit the passengers in the train as well  as those  who wait within the precincts of Railway Station  are included.  In the second segment, which is the relevant part for  the  purpose of this case, is included the  accidental falling of any passenger from a train carrying passengers.

   Now  we have to see Section 124A which is the  provision imposing  liability  on  the Railway Administration  to  pay compensation  to  the  victims of untoward  incidents.   Its proviso  excludes from its purview persons who committed  or attempted to commit suicide, persons who inflicted injury by self,  and those who committed criminal acts or acts done in a  state  of  intoxication or insanity and  also  the  cases affected  by  any  natural  cause  of  disease  etc.   After excluding  such persons and cases, Section 124A can be  read thus:

   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.

   The  liability  of the Railway Administration in such  a case  would  be to pay compensation, but the extent of  such compensation   is  as  may  be  prescribed   which   means prescribed  by the rules made under the Act.  Section 129 of the Act empowered the Central Government to make such rules.

   The  Railway Accident Compensation Rules 1990 (for short the  Rules) were made by the Central Government in  exercise of  the  powers conferred on it by Section 129 of  the  Act. Rule  3(1)  says that the amount of compensation payable  in respect  of  death or injuries shall be as specified in  the Schedule.   The  Rules as well as the Schedule were  amended with  effect from 1.11.1997.  After the amendment Rule  3(2) reads thus:

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The amount of compensation payable for an 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 work, shall be Rupees four lakhs.

   Item  No.2  of  Part  III of  the  Schedule  relates  to amputation  below shoulder with stump less than 8 from  tip of  acromion for which an amount of Rs.3.20 lakhs is  shown as the compensation.

   Item  20  in  Part  III  of  the  Schedule  relates   to amputation below knee with stump exceeding three and a half inch  but not exceeding five inches, for which an amount of Rupees two lakhs is shown as compensation.

   Before  the said amendment of the Rules and the Schedule which  came into effect on 1.11.1997 the above amounts  were respectively  two  lakhs (instead of rupees four lakhs)  and 1.40  lakhs (instead of 3.20 lakhs) and one lakh (instead of two  lakhs).   Such  amounts  were revised  by  the  Central Government  in  1990.   The revision of the rates  was  made after  8  years and thus the new rates were incorporated  by amending the Schedule.

   Learned  judges of the Division Bench of the High  Court of Kerala, for reaching the conclusion that appellant is not entitled  to the amount indicated in the Rules as they stand now  on account of the fact that the accident happened prior to  1.11.1997,  considered among other things the effect  of Section  126 of the Act.  That Section enables an  applicant to  claim  interim relief.  Sub-section (2) of that  section empowers the Claims Tribunal to pay to the applicant who has sustained  the  injury such sum as it considers  reasonable for  affording  such relief, so however, that the  sum  paid shall  not exceed the amount of compensation payable at such rates  as may be prescribed." The Division Bench  thereafter concluded thus:

The wording of sub-section (2) of Section 126 would show that the liability is saddled as soon as the accident happens, not when the quantum is determined.  The wording of section 124 and 124A also would clearly show that the liability of the Railway Administration to pay compensation arises as soon as the accident or untoward incident, as the case may be, happens. But the quantum of compensation is to be as prescribed. Prescription is under the Rules.  Therefore, it is clear that the liability to pay compensation is to the extent prescribed under the Rules in force at the time of the accident or the untoward incident, as the case may be.

   It  was on the above premise that the Division Bench  of the   High  Court  slashed   down  the  compensation  amount considerably  from what the Claims Tribunal awarded.  In our perception  the  provision  for payment  of  interim  relief indicated  in  Section  126 of the Act has  no  utility  for deciding   as  to  what  should  be  the  total  amount   of compensation  payable to the injured or other claimant.  The

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right  of  the injured to claim compensation as well as  the liability  of the Railway Administration are both reposed in Section 124A of the Act.  The right is to maintain an action and  recover  the  damages.   The   liability  is  to   pay compensation to such extent as may be prescribed.

   The  collocation of the words as may be prescribed  in Section  124A of the Act is to be understood as to mean  as may  be prescribed from time to time.  The relevance of the date  of  untoward  incident  is that  the  right  to  claim compensation  from  the  Railway   Administration  would  be acquired  by the injured on that date.  The statute did  not fix the amount of compensation, but left it to be determined by  the  Central  Government from time to time by  means  of rules.   This delegation to the Central Government indicates that  it was difficult for the Parliament to fix the  amount because  compensation amount is a varying phenomenon and the Government  would  be  in  a far  advantageous  position  to ascertain what would be the just and reasonable compensation in respect of a myriad different kinds of injuries by taking into account very many factors.  What the legislature wanted was   that  the  victim  of   the  accident  must  be   paid compensation  and the amount must represent a reality  which means the amount should be fair and reasonable compensation. Government have the better wherewithals to ascertain and fix such  amount.  It is for the said reason that the Parliament left  it  to  the  Government to  discharge  that  function. Sections  124  and 124A of the Act speak the  same  language that  the  Railway  Administration shall be liable  to  pay compensation.  As pointed above, it is the liability of the Railway  Administration to pay compensation to such  extent as  may be prescribed.  Hence the time of ordering  payment is  more important to determine as to what is the extent  of the  compensation  which  is prescribed by the rules  to  be disbursed to the claimant.

   In  this  context a reference to Section 129 of the  Act appears  useful.  The Central Government is empowered by the said  provision to make rules by notification to carry  out the  purposes  of this chapter.  It is evident that one  of the  purposes of this chapter is that the injured victims in railway   accidents   and  untoward   incidents   must   get compensation.  Though the word compensation is not defined in the Act or in the Rules it is the giving of an equivalent or   substitute  of  equivalent   value.   In  Blacks   Law Dictionary,  compensation is shown as equivalent in money for  a  loss  sustained;  or giving back  an  equivalent  in either money which is but the measure of value, or in actual value  otherwise conferred;  or recompense in value for some loss,  injury  or  service especially when it  is  given  by statute.   It means when you pay the compensation in  terms of  money  it must represent, on the date of  ordering  such payment, the equivalent value.

   In  this context we may look at Section 128(1) also.  It says  that  the  right of any person to  claim  compensation before  the  Claims Tribunal as indicated in Section 124  or 124A  shall  not  affect  the right of any  such  person  to recover  compensation  payable under any other law  for  the time  being  in  force.  But there is an interdict  that  no person shall be entitled to claim compensation for more than once  in respect of the same accident.  This means that  the party  has two alternatives, one is to avail himself of  his

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civil  remedy  to claim compensation based on common law  or any  other  statutory provision, and the other is  to  apply before  the Claims Tribunal under Section 124 or 124A of the Act.  As he cannot avail himself of both the remedies he has to  choose  one between the two.  The provisions in  Chapter XIII of the Act are intended to provide a speedier remedy to the  victims of accident and untoward incidents.  If he were to  choose  the latter that does not mean that he should  be prepared  to get a lesser amount.  He is given the assurance by  the legislature that Central Government is saddled  with the  task  of prescribing fair and just compensation in  the rules from time to time.  The provisions are not intended to give a gain to the Railway Administration but they are meant to afford just and reasonable compensation to the victims in a  speedier measure.  If a person files a suit the amount of compensation  will depend upon what the court considers just and  reasonable on the date of determination.  Hence when he goes  before  the Claims Tribunal claiming compensation  the determination of the amount should be as on the date of such determination.

   The  asinine consequence of accepting the interpretation placed  by  the  Division  Bench of the High  Court  can  be demonstrated through an illustration.  If a person sustained injury  as  described  in  Rules 3(2) of the  Rules,  in  an accident  in  a  train  on 31.10.1997,  and  another  person sustains  the  same kind of injury in another accident in  a train  the next day i.e.  1.11.1997, when both persons  made separate  applications  before the same Claims Tribunal  for compensation,  the Tribunal can award Rs.2 lakhs only in the first  case  and  Rs.  4 lakhs in the second case.   What  a woeful   discrimination,   if  not    a   glaringly   unfair differentiation.  See the interval between the two accidents of  identical  features.  It was only a few hours,  but  the difference  in  the compensation amount is enormously  high. Any court should avert an interpretation which would lead to such  a  manifestly  absurd fall out, unless  the  court  is compelled otherwise by any mandatory provision.

   Why  the Central Government decided to make such a  vast variation in the amount of compensation while exercising the powers  conferred  by Section 129 of the Act.  It cannot  be conceived   that   the   Government   wanted   to   make   a discrimination  between  those  victims   who  suffered  the accident  prior  to  1.11.1997 and those  who  suffered  the identical  injury  in  a similar accident on or  after  that date.  The raison detre for making such variation is easily discernible.   The  Central Government wanted to update  the compensation  amount.  Rupee value is not an unchanging unit in  the monitory system.  Students of economic history  know that  currency value remained static before the Second World War.  But the post World War II witnessed the new phenomenon of  vast  fluctuations in money value of currency  notes  in circulation  in  each  nation.  When the  U.S.   Dollar  has registered  a  steep upward rise, currencies in  many  other countries  made  downward slip.  What was the value  of  one Hundred  rupees  twenty years ago is vastly  different  from what  it  is today.  This substantial change has caused  its impact on the cost of living also.

   The  Central Government while changing the figure in the compensation  amount after an interval of a decade was  only influenced  by  the desire to update the money value of  the compensation.   In  other  words, what you were to  pay  ten years  ago  to one person cannot be the same if it  is  paid

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today  in the same figure of currency notes.  It is for  the purpose  of  meeting  the reality  that  Central  Government changed the figures.

   The unjust consequence resulting from the interpretation which  the  Division  Bench placed can  be  demonstrated  in another  plane also.  If a person who sustained injury in  a railway  accident  or in an untoward incident  was  disabled from  making  an  application immediately and he  makes  the application a few years hence, is he to get the compensation in  terms of the money value which prevailed on the date  of the  accident?  Suppose a Tribunal wrongly dismissed a claim after a few years of filing the application and the claimant approaches  the  High Court in appeal.  As it happens  quite often  now,  some High Courts could take up such  an  appeal only  after  the  lapse of many years and if the  appeal  is decided  in favour of the claimant after so many years, what a  pity if the amount awarded is only in terms of the figure indicated on the date of the accident.

   From  all these, we are of the definite opinion that the Claims  Tribunal must consider what the rules prescribed  at the   time   of  making  the   order  for  payment  of   the compensation.

   Learned  Judges of the Division Bench in the High  Court referred  to  the decisions of this Court in  Pratap  Narain Singh Deo vs.  Srinivas Sabata and anr.  {1976 (1) SCC 289}, P.A.   Narayanan vs.  Union of India and ors.  {1998 (3) SCC 67} and Maghar Singh vs.  Jashwant Singh {1998 (9) SCC 134}, in  order  to gain support for the conclusion arrived at  in the  impugned  judgment.   Among them  P.A.   Narayanan  vs. Union  of  India  arose  from  a  writ  petition  filed  for compensation in respect of the death of claimants wife in a railway accident which happened on 3.1.1981.  The High Court dismissed  the  writ  petition   against  the  claimant  and approached  this  Court by special leave.  A plea  was  made that  compensation  could be granted in accordance with  the rates prescribed by the rules under Railways Act, 1989.  The counsel  for  the Railway Administration disputed  the  said contention  on the ground that the said Act cannot have  any retrospective  operation.   A two-Judge Bench of this  Court (Dr.   A.S.   Anand,  as  His  Lordship  then  was,  and  S. Rajendra Babu, J) acceded to the said plea and granted a sum of  Rs.2 lakhs as compensation, which is the sum  prescribed in  the  Rules then in force, despite the fact that the  Act itself  came  into force only in 1990.  The  said  decision, instead  of supporting the view taken by the Division  Bench of  the  High Court, is more in support of the  approach  we have made above.

   In  the other two decisions referred to by the  Division Bench  the claims made under the Workmens Compensation Act, 1923  (W.C.   Act, for short) were the subject  matter.   In Pratap  Narain  Singh  Deo   (supra)  the  claimant  workman sustained  injuries and one of his arms was amputated in the course of his employment on 6.7.1968, the Commissioner under the  Act passed an order on 6.5.1969 directing the  employer to  pay compensation together with penalty and interest  for delayed  payment.   The employer challenged the  said  order before  the High Court contending that penalty and  interest could not be awarded as his liability to pay had arisen only when the Commissioner passed the order and not earlier.  The High  Court  repelled such a contention.  Against  this  the

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employer  approached  this Court by special leave.  A  four- Judge  Bench  of  this  Court   held  thus:   The  employer therefore  became liable to pay the compensation as soon  as the  aforesaid personal injury was caused to the workman  by the accident which admittedly arose out of and in the course of  the employment.  It is therefore futile to contend  that the   compensation  did  not  fall   due  until  after   the Commissioners order dated May 6, 1969 under Section 19. On the  aforesaid  order  this  Court  further  held  that  the Commissioner under the Act was fully justified in making the order  for payment of interest and penalty.  In Maghar Singh vs.   Jashwant  Singh (supra) the claim made under the  W.C. Act  was  dealt  with and the findings or  the  observations therein  have  no bearing on the question involved  in  this appeal.

   The  scheme  of  the provision under the  W.C.   Act  is materially  different  from the scheme indicated in  Chapter XIII  of  the  Railways Act.  In  the  former,  compensation payable  is  fixed  in the Act itself through  the  schedule incorporated thereto.  Section 4 of the W.C.  Act shows that such  compensation is to be linked with the monthly wages of the  workman concerned.  It also provides that the liability to pay compensation on the employer would arise not when the Commissioner  passes the order but on the date of sustaining the  injury  itself.  A provision is made in Section  4A  of W.C.   Act  that where any employer is in default of  paying the compensation due within one month the Commissioner shall direct  the  employer  to  pay  not  only  interest  but  in appropriate  cases a penalty ranging up to 50% of the amount payable.   The said scheme cannot be equated with the scheme in  Chapter  XIII  of the Railways Act,  as  the  principles involved have differences.

   Shri K.  Sukumaran, learned senior counsel relied on the decision  of another Division Bench of the Kerala High Court in  Oriental  Insurance Company Ltd.  vs.  Asokan {1997  (1) Kerala  Law Times 608} in which a decision of this Court  is quoted.   That  decision of this Court is  dated  6.11.1996, rendered  by  a  two-Judge Bench (Kuldip  Singh  and  Saghir Ahmad,  JJ)  of  this Court (C.A.   Nos.16904-09  of  1996). Later  we came across that the said decision is reported  in New  India  Assurance Co.  Ltd.  vs.  V.K.  Neelakandan  and ors.   {1999 (8) SCC 256).  The said decision was also under the W.C.  Act.  This is what the two-Judge Bench said:

We are finally determining the rights of the workmen today.  The Act is a special legislation for the benefit of the labour. Keeping in view the scheme of the Act we are of the view that the only interpretation which can be given to the amendment is that if any benefit is conferred on the workmen and the said benefit is available on the date when the case is finally adjudicated, the said benefit should be extended to the workmen.

   A  three-Judge  Bench  of  this Court  in  Kerala  State Elelctricity  Board  and  anr.  vs.  Valsala  K.   and  anr. {1999  (8)  SCC 254} has referred to the aforesaid  decision and  held  that  it  was  wrongly decided  in  view  of  the four-Judge  Bench  decision of this Court in  Pratap  Narain Singh  Deo  (supra).  Nonetheless, in appropriate cases  the principle of taking advantage of the beneficial legislation,

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subsequently  enacted,  is not dissented from by the  larger Bench.

   In  the result, we allow these appeals and set aside the impugned  judgment of the High Court.  We direct the Railway Administration  to  pay  the amount awarded  by  the  Claims Tribunal to the appellant (if not already paid) within three months  from today together with interest at the rate of 12% per  annum  from 27.6.1997 (the date of the order passed  by the Claims Tribunal).