Union Of India vs Sreekanth

This appeal is filed assailing the judgment dated 03.01.2017 in O.A.(IIu)/ERS/2016/0016 of the Railway Claims Tribunal, Ernakulam Bench. Appellant is aggrieved by the granting of compensation to the respondent by the Tribunal.

The following are concise facts:

The respondent stated that on November 8, 2010, he arrived at Kozhikode Railway Station to proceed to Mahe with some friends. He was required to board Train No. 611 to Kannur from platform No. 4. He and his friends traversed platform No. 3 to access the foot over bridge located at the end of the platform, in order to reach platform No. 4. The platform's surface was wet. He inadvertently slipped and fell onto the track adjacent to platform No. 3. His head struck the hard floor, resulting in a head injury. Before he could rise from the track, a goods train passed over his legs. He was taken to the Medical College Hospital, Kozhikode and his both legs were amputated. He claimed a total compensation of Rs.25,00,000/- along with interest. The Railway disputed claim of the respondent. Before the Tribunal, the Railway filed a reply statement. It was stated by the Railway that as per the statement of the Loco Pilot of the goods train, the respondent suddenly trespassed from platform No.3 near SMR/O/CLT and fell down on the track. Though the Loco Pilot tried to applied the brakes, the train could not be halted and it ran over the respondent. The Railway also relied on DRMs report, which mentioned about the statement of one Prasad Richard in addition to the statement of the Loco Pilot. According to the Railway, the respondent got injured as he trespassed to the track from platform No.3 to go to platform No.4 without using the foot over bridge. The Railway pointed out that trespass is an offense punishable under Section 147 of the Railways Act, and therefore no compensation was liable to be paid to the respondent.

The Tribunal framed three issues by order dated 26.09.2016. The issues framed are extracted hereunder: -

On 03.01.2017, the Tribunal passed the impugned judgment. Perusal of the impugned judgment as also the order sheet shows that the parties had not adduced any evidence. Before me, both sides submitted that they had produced some documents before the Tribunal and were prepared to adduce oral evidence also. However, the Tribunal proceeded to pass the judgment only on the basis of pleadings of both sides. The learned Senior Panel Counsel for the Railway submitted that the Railway had a specific case that two persons had clearly mentioned in their statements recorded during the enquiry by Railway that the respondent had trespassed to the track without using the overbridge to reach platform No.4 from platform No.3. It is pointed out by the learned Senior Panel Counsel for the Railway that, if the respondent had committed trespass as spoken to by two employees including the Loco Pilot of the goods train, he is not entitled for any compensation as trespass to the railway track is an offense and therefore the same would fall under the exemption under Section 124A of the Railways Act. He submitted that the said pertinent aspect pointed out by the Railway was overlooked by the Tribunal while passing the order. Though an issue was framed by the Tribunal pertaining to the applicability of Section 123(c)(2) of the Railway Act, legal contention raised by the appellant Railway that the respondent was a trespasser was not appropriately examined by the Tribunal. No issue was framed as to the applicability of the exclusion under S.124A.

The learned Senior Panel Counsel Shri. S.Biju appearing for the appellant relied on a judgment of the Orissa High Court in Union of India v. N.Trinath Reddy [1999 SCC OnLine Ori 79]. The learned Counsel submitted that the Orissa High Court emphasized on the requirement of following the procedure as provided under the Railway Claims Tribunal Procedure Rules, 1989, while considering applications for compensation. In the judgment cited by the learned Senior Panel Counsel the Orissa High Court found fault with the Tribunal in not framing issues by a separate order before permitting the parties to adduce evidence. It was noted that the issues were framed only while passing the judgment. The Orissa High Court stressed that the Tribunal being a judicial forum shall scrupulously follow the procedure laid down in the Railway Claims Tribunal Procedure Rules, 1989. The learned Senior Panel Counsel also relied on the judgment of a Division Bench of this Court in Babu v. Union of India [2017 (3) KLT 741]. In the said case, the Division Bench of this Court set aside the judgment of a Tribunal and remanded the matter to the Tribunal as the Tribunal failed to apply the proper law in force. The learned Senior Panel Counsel argued that the impugned judgment is liable to be set aside for the reason that the same was passed without following the due procedure and without permitting the parties to adduce evidence.

The learned Counsel for the respondent Shri. Aby Jacob on the contrary submitted that the Tribunal proceeded to pass the judgment as there was no objection raised by the Railway against deciding the case without permitting the parties to adduce evidence. He submitted that the Railway later turned round and decided to challenge the judgment without any bonafides. The learned Counsel relied on a judgment of this Court in Philomina v. Indian Railways [2007 (2) KLT 927]. In the said case this Court held that a Porter who was on duty in the platform was entitled for the compensation for the injuries suffered. This Court held that the scheme of compensation under Section 124A is so wide that any person who is entitled to be present in the Railway premises i.e. either Railway employees or those who have taken tickets or licenses are all covered by the said clause. The learned Counsel submitted that on the fateful day, the respondent was moving through platform No.3 and the surface being wet, unfortunately fell onto the railway track and his intention was to use the foot overbridge available at the end of platform No.3 to reach platform No.4. He submitted that before the respondent could move away from the track, the goods train entered the track and ran over the respondent. He submitted that the accident was an untoward incident and the respondent was a bonafide passenger and therefore, there is nothing wrong in the conclusions arrived at by the learned Tribunal.

Proceedings of the Railway Claims Tribunal are governed by the provisions of the Railway Claims Tribunal Act, 1987 and the Railway Claims Tribunal (Procedure) Rules, 1989. Chapter 4 of the Act deals with procedure. Section 18 deals with procedure and powers of the Railway Claims Tribunal. Section 18(1) reads as under;

An examination of Section 18(1) reveals that the Tribunal is not bound to adhere to the procedures set forth in the Code of Civil Procedure. Nevertheless, it shall adhere to the requirements of natural justice. In accordance with the other stipulations of the Act and any relevant rules, the Claims Tribunal shall possess the authority to regulate its own procedures, including the determination of locations and schedules for its inquiries. The provision grants the Tribunal the autonomy to regulate its own procedures. Nonetheless, the aforementioned power is obviously contingent upon the stipulation that it shall not be employed in contravention of the terms of the Act and any other rules. Therefore, the Tribunal's autonomy in regulating its own procedure shall not be capriciously invoked to disregard the procedures established by the Act and rules framed thereunder.

Sub Section 2 of Section 18 provides that the Claims Tribunal shall decide every application as expeditiously as possible and ordinarily every application shall be decided on perusal of documents of written representations and affidavits and after hearing such oral arguments as may be advanced. Sub Section 3 provides that for the purpose of discharging the function under the Act, the Tribunal shall have same powers as are vested in the Civil Court under the Code of Civil Procedure for the matters delineated under Sub Section 3.

Section 30 of the Act provides power to the Central Government to makes rules to carry out provisions of the Act. The Railway Claims Tribunal (Procedure) Rules, 1989 [hereafter mentioned as the “Rules”] is framed under Section 30 of the Railway Claims Tribunal Act. Rules 12 to 31 govern the procedure to be followed by the Tribunal after filing of the applications, up to the stage of passing of orders. Procedure for adducing evidence is dealt with under Rules 14 to 17A. Parties can be permitted to give evidence by affidavit. Under Rule 14(2), the Tribunal has discretion to order cross-examination of any of the persons who have filed affidavits. Filing of reply and other documents by the respondents is provided under Rule 15. It is specified in Rule 15(2) that in the reply filed under Sub Rule 1 the respondents shall specifically admit, deny or explain the fact stated by the applicant in this application and state such additional facts as may be found necessary. Rule 15(3) provides that when the respondent admits the facts stated in the application, the Tribunal may pass order in this regard. Applicant has a right to file rejoinder to the written reply filed by the respondent. This is provided under Rule 15A. Rule 15B is significant, it deals with admission and denial of documents. The said provision reads as under:-

The said provision mandates that before the framing of issues the Tribunal may ascertain from the parties or their authorised representatives, whether they admit or deny documents accompanying the application or reply and shall records such admission and denial.

The documents shall be marked as provided under Rule 15C. There is a power to dismiss the applications under Rule 16. The hearing of applications is provided under Rule 17 and Rule 17A deals with the manner in which the oath is to be administrated to witnesses. Framing of issues is provided on Rule 21. If any party to the proceedings files an application for summoning of witnesses, the Tribunal shall issue summons, unless it considers that appearance of the witness is not necessary for the just decision of the case. Recording of evidence is as provided under Rule 22(2). Rule 22-A (d) is relevant in the peculiar facts of the case. It provides that documents not tendered into evidence shall not form part of the record unless duly permitted by the Tribunal. Rule 23 provides power to the Tribunal to issue commission for examination or interrogation or otherwise of any person who is unable to attend the Tribunal for any justifiable reasons.

Hence, provisions of the Railway Claims Tribunal (Procedure) Rules, 1989 contemplate and outline a comprehensive procedure for presenting of evidence by parties. As noted already, Rule 15-B is a significant provision enabling the Tribunal to ascertain from the parties or their authorized representatives whether they admit or deny documents accompanying the application or reply. Without the parties specifically admitting the documents as provided under Rule 15-B, it will not be proper for the Tribunal to proceed to analyse the documents produced along with the pleadings, assuming that the parties have admitted the documents. Unless duly permitted by an order of the Tribunal, documents not tendered into evidence cannot even form part of the records of the case, in view of Rule 22-A (c).

In the instant case, as noted at the outset, the Tribunal proceeded to pass the impugned judgment without permitting the parties to adduce evidence. Though it is true that no applications were filed by the parties for summoning and examining the witnesses as contemplated under Rule 22, the Tribunal proceeded as if both sides had admitted the documents produced by the opposite side and had no further contentions. Perusal of the order sheet shows that the Tribunal did not ascertain from the parties whether they admit the documents accompanying the applications or reply and record any finding pertaining to such admission or denial. Moreover, no order was passed by the Tribunal under Rule 22-A to take the documents on record, without tendering them into evidence. Having not followed the procedure as noted above, the Tribunal committed a grave error by deciding the application, analysing the materials produced with the pleadings.

As rightly contended by the learned Senior Panel Counsel for the Railway, while framing the issues, the Tribunal did not frame any issue pertaining to the contention of the Railway that the respondent was a trespasser and therefore, the Railway was not liable to pay compensation in view of the exclusions under Section 124A of the Railways Act. Since the said substantial contention was specifically raised by the Railway in their written statement, it was incumbent on the Tribunal to frame an issue on the said aspect. Though the learned Senior Panel Counsel further contended that the Tribunal framed the issues only while passing the judgment, perusal of the order sheet reveals that the issues were framed earlier by a separate order.

Framing of issues shall be as provided under Rule 21(1) of the Railway Claims Tribunal Procedure Rules, 1989. The said rule is extracted hereunder:-

In the written statement filed by the Railway, as noted already, there was a specific contention pertaining to the exemption/ exclusion under Section 124A. The said contention was a material proposition as far as the defense of the Railway is concerned. Hence, the failure of the Tribunal to frame an issue pertaining to the said contention is a serious flaw.

Scheme of the Act and Rules contemplates speedy disposal of the claims. Nevertheless, the Tribunal shall not circumvent the due procedure in its eagerness to decide the applications expeditiously. Instantaneous disposal of the claims is permitted under Rule 12(2), if there is no appearance for the respondent or if the claims are admitted by the respondent. Again, Rule 15(3), it is provided that if the respondent admits the facts stated in the application, the Tribunal may make order in this regard. If the Tribunal, after summarily considering the application, is of the opinion that there are no sufficient grounds to proceed with, may dismiss it. However, when the case is not summarily dismissed and is contested by the respondent by filing reply, issues shall be framed as indicated above. Likewise, if the documents produced along with the pleadings are not admitted as envisaged under Rule 15-B, the same shall not be accepted on record otherwise than by following the procedure as per the rules.

In the instant case the Tribunal has failed to follow the due procedure as contemplated under the Rules. I find substantial merit in the submission made on behalf of the appellant that serious prejudice has been caused to the appellant owing to the violation of the procedures contemplated under the Rules by the Tribunal. Having found so, the appropriate course open to this Court is to annul the impugned judgment and to direct the Tribunal to consider the case anew, in accordance with law.

I therefore, set aside the impugned judgment. The O.A is remitted for fresh consideration by the Tribunal. The Tribunal shall frame issues afresh, permit both sides to adduce evidence if any and thereafter pass judgment strictly as provided under the Rules. Since, the accident occurred long ago, in 2010, the Tribunal shall endeavor to pass fresh judgment within a period of six months from the date of issuance of a copy of this judgment. On receipt of the records from this Court, the Tribunal shall fix a date for appearance of the parties and issue notice to both sides.

The appeal is allowed as above. It is clarified that this Court has not considered the merits of the rival contentions pertaining to the claim and it is open to both sides to raise all available contentions before the Tribunal.