(2012) 270 KLR 714 

IN THE HIGH COURT OF KERALA AT ERNAKULAM 

PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN 

MONDAY, THE 6TH DAY OF AUGUST 2012/15TH SRAVANA 1934 

MFA.No. 54 of 2009 ( ) 

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OA.38/2005 of RAILWAY CLAIMS TRIBUNAL, ERNAKULAM BENCH 

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APPELLANT/RESPONDENT: 

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UNION OF INDIA, REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI. BY ADV. SRI.JAMES KURIAN, SC, RAILWAYS 

RESPONDENTS/APPLICANTS 1 AND 2: 

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1. PARAMESWARANPILLAI (DIED) 2. SARASWATHI AMMA, W/O. PARAMESWARAN PILLAI, NANDHU BHAVAN MANAKKARA SASTHAMCOTTA, KOLLAM DISTRICT. 

R2 BY ADVS.SRI.S.SAJITH SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN SRI.RAJAN VELLOTH SRI.A.S.SABU SRI.RAFEEK. V.K. SRI.PRATHAP PILLAI 

THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 06-08-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK 

"CR" 

THOTTATHIL B.RADHAKRISHNAN & K.VINOD CHANDRAN, JJ. 

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M.F.A.No.54 of 2009 

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Dated this the 6th day of August, 2012 

Head Note:-

Railways Act, 1989 - Section 124A - Untoward Incident" - Bona Fide Passenger - ticket was not produced by the claimants, or recovered from his body - the fact that a passenger had purchased a ticket and is a "bona fide" passenger is always to be presumed unless it is shown to be otherwise. Such presumption would always swing in favour of the injured. If, unfortunately, the injured dies, such presumption shall aid those entitled to compensation in that regard.  

Railways Act, 1989 - Section 124A - Untoward Incident" - Bona Fide Passenger - ticket was not produced by the claimants, or recovered from his body - Award of interest - Deposit within 45 days - Interest awarded is not to be made merely as a default clause but is to be granted as part of the legitimate entitlement of the claimants. Payment of interest is basically compensation for being denied the use of the money during the period for which the same could have been made available to the claimants.

J U D G M E N T 

Thottathil B.Radhakrishnan, J. 

1. Railway administration appeals against the judgment of the Railway Claims Tribunal granting compensation to the parents of Radhakrishna Pillai (for short, 'Pillai'), who died as a result of an incident on 11.11.2004. The Tribunal found that while travelling from Calicut to Kannur in Train No.619, he fell when that running train jerked violently, resulting in the door of the compartment swinging and smashing him down and that it was an "untoward incident" as defined in the Railways Act, 1989, (for short, the "Railways Act"), for which compensation is payable under Section 124A of that Act. The Tribunal repelled Railways' plea that he was not a 'bona fide' passenger. 

2. The ground of the Railways in this appeal is confined to the plea that Pillai cannot be held to be a 'bona fide' passenger as his passenger ticket was not produced by the claimants, or recovered from his body. 

3. Pillai was injured on 11.11.2004. He was removed to the hospital, from where he died on 17.11.2014. His mother deposed as P.W.1 that her son had purchased a ticket from Calicut Railway Station. That was not recovered from his body. There is nothing on record to show that the mother was accompanying her son. Obviously, PW1's statement that her son had purchased ticket from Calicut Railway Station is a presumptive one, going by the common course of human conduct. Deceased Pillai was having some business. His mother's testimony was that he was travelling in connection with his business. In the common course of human conduct, his mother would never have had any reason to presume or believe that he would have travelled without a valid ticket. Going by the facts, we do not see any premise to presume that he would have travelled without a valid ticket. As rightly noted by the Tribunal, the Railways have security personnel who would and could arrest unauthorized travellers. There are also Ticket Examiners. In the common course of human conduct, we cannot but presume that Pillai was a passenger travelling under a valid ticket. There is nothing on record to the contrary. Following the incident, Pillai was hospitalised from 11.11.2004, till he died on 17.11.2004. These and the attendant circumstances persuade us to hold that it would be wholly unreasonable, in the realm of appreciation of evidence, to find that the deceased was travelling without a valid journey ticket. 

4. The Tribunal is authorised to decide on claims of compensation under Section 124A of the Railways Act. That is a piece of social welfare legislation intended to provide benefit by way of succor, to the victims of; and dependents of passengers who happened to be killed as a result of; "untoward incident". That provision is made "notwithstanding anything contained in any other law".

5. The power of the Tribunal to enquire and determine claims against a railway administration for compensation for death or injury to passengers occurring as a result of railway accidents, was included in the Railway Claims Tribunal Act, 1987, for short, "Tribunal Act", with effect from 1.8.1994, the date of introduction of Section 124A and the definition of "untoward incident" in Section 123(c) in the Railways Act. 

6. The Tribunal, going by Section 18 of the Tribunal Act, shall not be bound by the procedure laid down in the Code of Civil Procedure, but shall be guided by the principles of natural justice and, subject to the other provisions of that Act and of any rules, it has the power to regulate its own procedure. Sub-section 2 of Section 18 provides, inter alia, that every application shall be decided on perusal of documents, written representations and affidavits and after hearing such oral arguments as may be advanced. Section 28 of the Tribunal Act provides that the provisions of that Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than that Act. 

7. The Railway Claims Tribunal (Procedure) Rules, 1989 made and issued by the Central Government under Section 30 of the Tribunal Act provide, inter alia, in Rule 22, that the Tribunal shall make a brief memorandum of the substance of the evidence of every witness as the examination of the witness proceeds. Rule 30 among those Rules, provides, inter alia, that the Tribunal shall decide every application on perusal of documents, affidavits and other evidence, if any, and after hearing such oral arguments as may be advanced. That is in specific consonance with the provisions in Section 18(2) of the Tribunal Act, which has already been noted. When Section 18(1) of the Tribunal Act enjoins that the Claims Tribunal shall be guided by the principles of natural justice and shall have powers to regulate its own procedure, such prescription; with the statutory eligibility to claims under Section 124A of the Railway Act, read with the overriding effect provided by Section 28 of the Tribunal Act, clearly excludes the requirement to conform to the provisions of the Evidence Act, stricto senso and with technical precision, though the guiding beacons embedded in that Act would guide the decision making process of the Tribunal. The nature of construction of statutes, assimilation and appreciation of evidence and other attendant factors in connection with the adjudicating process should always be carried and shall be in consonance with the objects sought to be achieved by legislations that are being applied. When a social welfare legislation is aimed to provide succor and to the benefit of those involved in injuries or death, the Tribunal is duty bound to maintain the scales of justice to be so balanced that its fulcrum does not get obliterated by such approach as would not be conducive to the victims who, essentially, crave for an order for compensation from the Tribunal.

8. Contextually, it is worthwhile to refer to the decision of the Supreme Court in Thazhathe Purayil Sarabi v. Union of India [2009 (4) KLT 370 (SC)]; the decision of this Court in Joji C. John v. Union of India [2002 (1) KLT 678] and that of the High Court of Andhra Pradesh in Union of India v. Baburao Koddekar (AIR 2003 Andhra Pradesh 23) categorically laying down, among other things, that the fact that a passenger had purchased a ticket and is a "bona fide" passenger is always to be presumed unless it is shown to be otherwise. Such presumption would always swing in favour of the injured. If, unfortunately, the injured dies, such presumption shall aid those entitled to compensation in that regard. 

9. With the aforesaid, we do not find any ground to interfere with the impugned judgment. 

10. Before parting, it needs to be stated that we find a disturbing feature in the matter of award of interest. The Tribunal delivered its verdict four years after the incident, though the application was filed in 2005, following the accident on 11.11.2004. Yet, the Tribunal gave 45 days' time for the Railways to satisfy the award and passed an order granting interest at 9% on the compensation amount, only if the Railways did not make the deposit within that period of 45 days. This means that if the Railways had deposited the amounts within 45 days, the dependants of the victim of an untoward incident would have lost the interest at 9% on the amount of Rs.4 lakhs for a period around four years. This is never envisaged in the statutory scheme. The Apex Court laid down in Sarabi (supra) that, under the provisions of Section 3 of the Interest Act, 1978 and under Section 34 of the CPC, interest can be directed to be paid from the date of the claim petition. In that case, it was held that the Tribunal and the High Court were wrong in not granting any interest whatsoever to the claimants, except by way of a default clause, which is contrary to the  established principles relating to payment of interest on money claims. The law laid thereby is clear and categoric that interest awarded is not to be made merely as a default clause but is to be granted as part of the legitimate entitlement of the claimants. In Subhadra Andhrajanam v. Union of India [2011(2) KLT SN 15 (Case No.20)] rendered following Sarabi (supra), it was noted that the conclusion in Sarabi is essentially on the well accepted principle that payment of interest is basically compensation for being denied the use of the money during the period for which the same could have been made available to the claimants. The Railway Claims Tribunal would, and ought to, be well advised, to ensure that whatever is due to the victims and dependents is permitted to flow to them under its orders. That is the purpose for which the Tribunal exists. 

11. In the case in hand, fortunately for the claimants, the Railways did not deposit the compensation amount within the period of 45 days stipulated in the impugned judgment. Therefore, the provision for interest in terms of that judgment would operate. Railway establishment concerned is hereby directed to deposit the compensation amount with accrued interest in terms of the impugned judgment before the Tribunal within a period of two months from now. 

In the result, this appeal is dismissed. In view of the award of interest contained in the impugned judgment, no separate order for costs is imposed against the railway administration in this appeal. 

Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. 

Sd/- K.VINOD CHANDRAN, Judge. 

mns/Sha -true copy- PS to Judge 

(2012) 268 KLR 675

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN 

WEDNESDAY, THE 22ND DAY OF AUGUST 2012/31ST SRAVANA 1934 

MFA.No. 120 of 2012 () 

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OA.(LLU)/ERS/2011/0038 of RAILWAY CLAIMS TRIBUNAL, ERNAKULAM 

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APPELLANT/RESPONDENT:-: 

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UNION OF INDIA, REPRESENTED BY THE GENERAL MANAGER SOUTHERN RAILWAY, PARK TOWN P.O., CHENNAI - 3. 

BY ADV. SRI.JOHN MATHEW,SC, RAILWAYS 

RESPONDENT/APPLICANT:-: 

----------------------- 

DEENA.T., AGED 27 YEARS W/O.LATE AJITH KUMAR, P.K.P.MANDIRAM, CHERUKUNNAM VARKALA P.O., TRIVANDRUM DIST., PIN - 696 141. 

THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ON 22-08-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK 

"CR" 

Thottathil B.Radhakrishnan & K.Vinod Chandran, JJ. 

= = = = = = = = = = = = = = = = = = = = = = = 

M.F.A.No.120 of 2012 

= = = = = = = = = = = = = = = = = = = = = = = 

Dated this the 22nd day of August, 2012 

Head Note:-

Railways Act, 1989 - Sections 123(c)(2) & 124A - Untoward Incident - Since the person had purchased a valid ticket for travelling by a train carrying passengers and has become a victim of an untoward incident, compensation is payable under Section 124A of the Act without reference to the date of purchase of the ticket.

JUDGMENT 

Thottathil B.Radhakrishnan,J : 

1. The plea of the Railways in this appeal against the award of the Railway Claims Tribunal is that the deceased was not a bona fide passenger inasmuch as the ticket he possessed was one issued on 7.7.2010 from Varkala Railway Station, though he was travelling in the train that left from Varkala to Chennai on 8.7.2010. 

2. At the outset, we may record that earnest efforts are taken by the learned standing counsel for Railways by making reference to the Indian Railway Commercial Manual which, among other things, in Clause 239 provides that the tickets are available only for the day and train for which they are issued except when otherwise permitted; clause 209.1 of that Manual provides, inter alia, that tickets issued to passengers are available only from the date and for the period specified by the Railway Administration by which they are issued. Note (3) under Clause 209.2 provides that in all cases of advance booking the date of commencement of journey will be endorsed on each ticket, at the time of issue, in ink, as: 

"Journey to commence on.........." 

To buttress the arguments, the learned standing counsel for Railways has obtained two tickets from the local Railway Station in Ernakulam to demonstrate to us that when he purchased a ticket on 12.8.2012 for a journey to be performed on 15.8.2012 the date of issue of the ticket was shown as 12.8.2012 with the endorsement "JCO ON : 15/8/2012". The argument advanced is that the Railway tickets contain the endorsement "JCO On" regarding the date on which the journey could commence.

3. He also made reference to the latest Commercial Circular Nos.17 of 2009 and 37 of 2011 issued by the Railway Board which show that unreserved tickets issued through Unreserved Ticket System can be issued only on the same day if the journey involved is less than 200 kms and those involving journey of 200 kms and above, such tickets would be issued upto three days in advance excluding the day of journey. 

4. Reverting to the facts of the case in hand, the Tribunal noted that the distance between the Railway Stations Varkala and Chennai is above 800 kms. It noticed that Ext.R1, DRM's report, discloses the admitted situation that the deceased was holding a II class journey ticket, the number and date of purchase of which are disclosed thereon and are recorded in the DRM's report. Perusing the lower court records, we see that the inquest report and other materials indicate that some currency and the ticket were available in the pocket of the pants worn by the deceased. The Tribunal did not accept the Railways' plea that the said ticket was an invalid ticket. For this, the Tribunal held that on the own admission of the Railways and on the basis of the evidence tendered by the applicant, the deceased has to be held as holding a journey ticket to travel in Train No.2624, Trivandrum- Chennai Express on 8.7.2010 and there is nothing on record to accept the assertion made by the Railway that the journey ticket purchased on 7.7.2010 was invalid for making any journey on 8.7.2010, especially when the destination is more than 800 kms. The Tribunal accordingly held that the Railways failed to prove that the deceased was travelling with an invalid ticket. 

5. Having examined the entire lower court records, in the light of the submissions of the learned standing counsel for the Railways, we do not find any infirmity in the appreciation of evidence by the learned Tribunal. The Railways had admitted in Ext.R1 DRM's report that the deceased fell down from a running train and died as a result of that. The cause of death is clearly stated in Ext.A5 postmortem certificate as referable to the head injury. Ext.A6 final report submitted by the police also reveals that the deceased, while travelling in Trivandrum-Chennai Express from Varkala, was thrown out of the compartment near Sasthamkotta Railway Station, as a result of which he sustained injuries on his head and died instantaneously. The investigating officer has opined in Ext.A6 that it is an accidental death. It was in this situation that the Tribunal, in our view, quite rightly held that the deceased met with an untoward incident within the meaning of Section 123(c)(2) of the Railways Act, 1989. It is not in dispute that the incident is an untoward incident. As already noted, the pointed plea is that deceased was not a bona fide passenger inasmuch as the ticket he possessed was one for travel on 7.7.2010 and not on 8.7.2010 when he is seen to have performed the journey. The finding of the Tribunal that the deceased was a bona fide passenger is accordingly impeached in this appeal. 

6.Section 124A provides for compensation on account of untoward incident. That provision operates notwithstanding anything contained in any other law. The specific grounds on which compensation becomes not payable under that section are enumerated in clauses (a), (b), (c), (d) and (e) of the proviso. The Explanation to Section 124A defines the term "passenger" for the purpose of that section. It is as follows: 

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

(i) a railway servant on duty; and 

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

(emphasis supplied) 

7.The afore-quoted explanation is used as a tool to define the term "passenger" for the purpose of Section 124A. The mechanism used is to provide an inclusive definition. The word "passenger" is defined to include those enumerated in entries (i) and (ii) under that explanation. The enlarged scope of the term "passenger" has been made by the legislature with the clear intention of excluding the benefit of Section 124A being denied to any person who becomes a victim of an untoward incident. More importantly, the second limb of the Explanation provides that "passenger" includes a person who has purchased a valid ticket for travelling by a train carrying passengers, on any date and becomes a victim of an untoward incident. Even a person holding a valid platform ticket would fall within the definition of "passenger" for the purpose of Section 124A. The provision "on any date" in that part of the Explanation is provided with the clear intention to exclude any nexus being sought between the date of the ticket and the date of journey, to grant compensation for untoward incident. We may envisage that in exceptional cases, if the Railways were to show that a ticket which was valid has turned invalid with passage of a particular time in terms of the relevant laws, that may give some room for consideration as to whether the passenger was a ticketless traveller. In the case in hand, even going by the contentions of the Railways, the deceased purchased the ticket on 7.7.2010 and performed the journey on 8.7.2010. Having regard to the finding rendered above on the applicability of the Explanation to Section 124A, we are of the view that, at any rate, the proximity between the purchase of ticket and the performance of the journey excludes any ground on which the deceased could be excluded from the definition of "passenger" for the purpose of Section 124A. We do not propose to answer the question whether a ticketless passenger would be entitled to the benefit of Section 124A since such issue does not arise in this case. Similarly, the concept of "bona fide passenger" is something which is not reflected in Section 124A. The argument in that regard is also essentially built on the view that bonafides is an ingredient to be looked into. In the case in hand, the plea that the deceased was not a bona fide passenger is raised only in the context of the afore-noted contention that the ticket he possessed was the one purchased on the day previous to the journey and would, therefore, be one intended to be used for the journey on the previous day. 

8. Having regard to the afore-noted clear statutory provision as contained in the Explanation to Section 124A, we hold that since the person had purchased a valid ticket for travelling by a train carrying passengers and has become a victim of an untoward incident, compensation is payable under Section 124A of the Act without reference to the date of purchase of the ticket. For the aforesaid reasons, this appeal fails. The same is accordingly dismissed in limine. 

Sd/- Thottathil B.Radhakrishnan, Judge 

Sd/- K.Vinod Chandran, Judge 

Sha/210812 -true copy- P.S.to Judge. 

(2012) 266 KLR 140

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN 

WEDNESDAY, THE 8TH DAY OF AUGUST 2012/17TH SRAVANA 1934 

MFA.No. 62 of 2005 ( ) 

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OA.253/1996 of RAILWAY CLAIMS TRIBUNAL, ERNAKULAM 

......... 

APPELLANT(S)/APPLICANT:: 

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CHANDRASEKHARAN, S/O. NARAYANAN, VALIYAVEETTIL, VARANAM P.O., PUTHENANGADI ALLEPPEY DISTRICT. 

BY ADVS.SRI.SIBY MATHEW SRI.A.A.MOHAMMED NAZIR 

RESPONDENT(S)/RESPONDENT:: 

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UNION OF INDIA, REPRESENTED BY GENERAL MANAGER, SOUTHERN RAILWAY CHENNAI. 

BY ADV. SRI.MURALEEDHARA KAIMAL, ADDL.CGSC BY ADV. SRI.C.S.DIAS,SC, RAILWAYS 

THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 02/07/2012, THE COURT ON 08/08/2012 DELIVERED THE FOLLOWING: tss 

THOTTATHIL B.RADHAKRISHNAN & K.VINOD CHANDRAN, JJ. 

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M.F.A.No.62 of 2005 

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Dated this the 8th day of August, 2012 

Head Note:-

Railways Act, 1989 - Railway Accidents and Untoward Incidents (Compensation) Rules, 1990 - Items 5 and 9 in Part III - Railway Claims Tribunal Act, 1987 - Section 16 - Even if there is any deficit or lacuna in the contents of the application for compensation for death or injury on account of an untoward incident, the tribunal shall not treat it as fatal, to deprive the claimant of compensation due in terms of the Railways Act and the Compensation Rules, for death or injury resulting out of an untoward incident as defined in that Act. 

Railways Act, 1989 - Section 124A - Payment of compensation on account of untoward incident - An application for compensation for an untoward incident, that too, for an injury which is listed in the Schedule to the Compensation Rules, ought not to be rejected or decided by granting any amount of compensation other than that which is prescribed in the Schedule to the Compensation Rules, provided that, there is pleading and proof, or, admission as to such sufferance.  

Held:- That is an affirmative legislative action in consonance with the constitutional context that India is a socialist state and it secures to all its citizens; among other things, social and economic justice. It runs in rhyme with the constitutional mandates, to promote and protect economic justice; to secure that the operation of the legal system promotes justice, including by ensuring that opportunities for securing justice are not denied to any citizen by reason of any disability, including economic. The protective cover of eligibility to equality before law and equal protection of the laws, as a fundamental right, would also apply, in the context. - See for support, Articles 38, 39A and 14, apart from the Preamble to the Constitution of India. In this view of the matter, the ultimate aim of the relevant provisions of the Railways Act, Tribunal Act and the Compensation Rules, is to provide succor and support to the unfortunate ones who become the victims of untoward incidents in connection with the railways, either dying or getting injured. He has the right to compensation in terms of the Schedule to the Compensation Rules as it stood as on the date of the accident. That eligibility is statutory. He cannot be taken to have foregone any part of it. He is, therefore, entitled to the entire compensation due in terms of the Schedule to the Compensation Rules, notwithstanding that his application stated a lesser amount as the claim. Tribunal is within jurisdiction, power and duty to grant complete compensation due in terms of the Railways Act, Tribunal Act and the Schedule to the Compensation Rules in all cases of sufferance of death and in cases of injuries covered by that Schedule. This statutory duty of the Tribunal is the constitutional responsibility of that authority, emanating out of the corresponding constitutional rights and statutory rights of the victims. Tribunal cannot rest on the shortcomings and infirmities in the applications of the injured or those who claim on behalf of the dead, if the claim is on the basis of an untoward incident as defined in the Railways Act. Even if the application is made for an amount lesser than that prescribed in the Schedule to the Compensation Rules, it is the bounden duty of the Tribunal to grant the compensation due in terms of that schedule. That is the constitutional eligibility of the injured and the dependents of the dead; the victims, a class which can be easily identified as challenged sector of the society. 

Railways Act, 1989 - Railway Accidents and Untoward Incidents (Compensation) Rules, 1990 - Items 5 and 9 in Part III - Railway Claims Tribunal Act, 1987 - Section 16 - Whether the application for compensation ought to have been amended for the incidents having occurred before the 1997 amendment to the Compensation Rules?  

Held:- It stands settled by the decision of the Division Bench of this Court in Union of India v. M. Thankaraj [AIR 2000 Ker 91], that quantum of compensation payable under the Railways Act is to be determined on the basis of the date of occurrence of the cause of action; that is to say, if the claim for compensation is on the basis of injuries suffered as a result of the untoward incident, the date of sufferance of the injuries is the relevant factor. The appellant having been injured before the 1997 amendment to the Compensation Rules, compensation as per the amended rate is not available. 

J U D G M E N T 

Thottathil B.Radhakrishnan,J. 

C.R. 

1. The appellant was injured on 16.9.1995, in an untoward incident as defined in the Railways Act, 1989. Though the Tribunal noted that as per the entries at items 5 and 9 in Part III of the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990, for short, the "Compensation Rules"; he was entitled to a total compensation of Rupees One Lakh, for loss of a thumb and two fingers, it awarded only Rs.58,000/- with 6% interest per annum from 10.10.1996, the date of registration of the case, till payment, on the premise that the applicant had claimed only such amount in his application for compensation filed under section 16 of the Railway Claims Tribunal Act, 1987, for short, the "Tribunal Act". He challenges the quantum.

2. Supporting the appeal, it is argued that the Tribunal ought not to have restricted the compensation amount from what is provided as per the Compensation Rules, merely on the premise that the applicant had not applied for amendment of his application for compensation. It is also argued that an amount of Rupees Two Lakhs ought to have been awarded as compensation, having regard to the amendment that came into force with effect from 1.11.1997, to the Rules. 

3. Per contra, it is argued on behalf of the Railways that the incident having occurred before the 1997 amendment to the Compensation Rules, compensation as per the amended rate is not available at all, and that the impugned award restricting the amount to the extent of the claim made, is the result of the applicant's failure to amend the application. 

4. It stands settled by the decision of the Division Bench of this Court in Union of India v. M. Thankaraj [AIR 2000 Ker 91], that quantum of compensation payable under the Railways Act is to be determined on the basis of the date of occurrence of the cause of action; that is to say, if the claim for compensation is on the basis of injuries suffered as a result of the untoward incident, the date of sufferance of the injuries is the relevant factor. The appellant having been injured before the 1997 amendment to the Compensation Rules, compensation as per the amended rate is not available. 

5. Now, in terms of the Compensation Rules that stood as on the date of accident, it is the undisputed position that the applicant was entitled to Rupees One Lakh as compensation. Did the Tribunal err in having restricted it to Rs.58,000/-, merely on the premise that the applicant had claimed only such amount? 

6. Section 18 of the Tribunal Act provides, inter-alia, that the tribunal shall not be bound by the procedure laid down in the Code of Civil Procedure, but shall be guided by the principles of natural justice and, subject to the other provisions of the Tribunal Act and any rules, it shall have the power to regulate its own procedure. It further provides that ordinarily, every application shall be decided on a perusal of documents, written representations and affidavits and after hearing such oral arguments as may be advanced. The Tribunal Act came into force in 1987 when the Indian Railways Act, 1890 was in force. The 1890 Act was repealed as per section 200 of the Railways Act, 1989. It was only with effect from 1.8.1994 that the term 'untoward incident' was included in section 123 of the Railways Act and corresponding eligibility for compensation was prescribed in terms of section 124 A of that Act. In re its preamble, as it initially stood, Tribunal Act is enacted to provide for establishment of Tribunal for inquiring into and determining claims against the railway administration for, among other things, compensation for death or injury to passengers occurring as a result of railway accidents. The term 'untoward incident' was inserted into the preamble of the Tribunal Act with effect from 1.8.1994. However, the Railway Claims Tribunal Procedure Rules, 1989, for short, the Tribunal Rules, which was in force while the aforesaid amendments came, remained without any consequential amendment. They are statutory. They remain unchanged. Pithily put, the Railway Claims Tribunal (Procedure) Rules, 1989, for short, the "Tribunal Rules", do not, in terms, apply to claims for compensation on account of "untoward incidents". That being so, the forms prescribed under the Tribunal Rules, do not ipso facto, or stricto senso, apply to applications for compensation on account of untoward incidents; at any rate, to refuse relief on ground that the application for compensation is not in proper form. We say this particularly because, we see that the Tribunal Rules provides for three prescribed forms of applications; though, none among them relate to application for compensation for loss caused as a result of an untoward incident, even though section 1A read with section 16 of the Tribunal Act enables the tribunal to decide on such an application. We may note that the Compensation Rules came in 1990, after the issuance of the Tribunal Rules in 1989. Prescriptions as to the compensation payable in respect of death and injuries were made in the Schedule to the Compensation Rules. Applying specificity as a doctrine and tool for interpretative priorities, it has to be held that the Compensation Rules would pithily govern, in preference to the Tribunal Rules. We say this only to affirm that even if there is any deficit or lacuna in the contents of the application for compensation for death or injury on account of an untoward incident, the tribunal shall not treat it as fatal, to deprive the claimant of compensation due in terms of the Railways Act and the Compensation Rules, for death or injury resulting out of an untoward incident as defined in that Act. 

7. Now, the provision in section 124 A of the Railways Act enjoining payment of compensation on account of untoward incident, is made casting liability on the railway administration to pay such compensation, notwithstanding anything contained in any other law. That is an affirmative legislative action in consonance with the constitutional context that India is a socialist state and it secures to all its citizens; among other things, social and economic justice. It runs in rhyme with the constitutional mandates, to promote and protect economic justice; to secure that the operation of the legal system promotes justice, including by ensuring that opportunities for securing justice are not denied to any citizen by reason of any disability, including economic. The protective cover of eligibility to equality before law and equal protection of the laws, as a fundamental right, would also apply, in the context. - See for support, Articles 38, 39A and 14, apart from the Preamble to the Constitution of India. In this view of the matter, the ultimate aim of the relevant provisions of the Railways Act, Tribunal Act and the Compensation Rules, is to provide succor and support to the unfortunate ones who become the victims of untoward incidents in connection with the railways, either dying or getting injured. Having in mind these holistic constitutional and legislative contours, it cannot but be held that an application for compensation for an untoward incident, that too, for an injury which is listed in the Schedule to the Compensation Rules, ought not to be rejected or decided by granting any amount of compensation other than that which is prescribed in the Schedule to the Compensation Rules, provided that, there is pleading and proof, or, admission as to such sufferance. 

8. In the aforesaid view of the matter, it is not necessary for us to dwell further as to whether the appellant's application for compensation ought to have been amended. He has the right to compensation in terms of the Schedule to the Compensation Rules as it stood as on the date of the accident. That eligibility is statutory. He cannot be taken to have foregone any part of it. He is, therefore, entitled to the entire compensation due in terms of the Schedule to the Compensation Rules, notwithstanding that his application stated a lesser amount as the claim. Tribunal is within jurisdiction, power and duty to grant complete compensation due in terms of the Railways Act, Tribunal Act and the Schedule to the Compensation Rules in all cases of sufferance of death and in cases of injuries covered by that Schedule. This statutory duty of the Tribunal is the constitutional responsibility of that authority, emanating out of the corresponding constitutional rights and statutory rights of the victims. Tribunal cannot rest on the shortcomings and infirmities in the applications of the injured or those who claim on behalf of the dead, if the claim is on the basis of an untoward incident as defined in the Railways Act. Even if the application is made for an amount lesser than that prescribed in the Schedule to the Compensation Rules, it is the bounden duty of the Tribunal to grant the compensation due in terms of that schedule. That is the constitutional eligibility of the injured and the dependents of the dead; the victims, a class which can be easily identified as challenged sector of the society. 

9. In the result, this appeal is allowed ordering that the compensation that the respondent railway establishment shall pay the appellant is Rupees One Lakh with 6% interest per annum thereon, from the date of the application before the tribunal, namely, 10.10.1996. Any amount already deposited or paid would be given due credit to, as against the aforesaid. The appellant is also awarded an amount of Rs.3000/- as costs of this appeal. If the payment in terms of this appellate award is not made within a period of 45 days from today, the rate of interest payable would stand enhanced to 12% per annum. The respondent is directed to remit such amount, failing which the appellant shall be entitled to recover it. 

Sd/- THOTTATHIL B.RADHAKRISHNAN Judge. 

Sd/- K.VINOD CHANDRAN Judge. 

kkb. 

(2012) 262 KLR 258

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN 

MONDAY, THE 18TH DAY OF JUNE 2012/28ND JYAISHTA 1934 

MFA.No. 41 of 2011 ( ) 

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O.A(.(II U)ERS/2009/0176 of RAILWAY CLAIMS TRIBUNAL, ERNAKULAM BENCH 

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APPELLANT(S)/APPLICANTS: 

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1. ACHUTHAN NAIR, AGED 73, S/O.NARAYANAN KADASERIKKIZHAKKATHIL, MUTHUKULAM NORTH, CHOOLATHERUVU P.O., ALAPPUZHA (DT). 

2. RADHAMMA, AGED 55, W/O.ACHUTHAN NAIR,-DO- 

3. ANJANA, AGED 23, D/O.ACHUTHAN NAIR, -DO- 

*ADDL.A4 AND A5 IMPLEADED 

*A4: AJITH KUMAR,AGED 38,S/O.ACHUTHAN NAIR, KADASERIKKIZHAKKATHIL, MUTHUKULAM NORTH, CHOOLATHERUVU.P.O., ALAPPUZHA DISTRICT. 

*A5: AJEESH KUMAR,AGED 36, S/O.ACHUTHAN NAIR, -DO- 

*ADDL.A4 AND A5 IS IMPLEADED AS PER ORDER DATED 18/06/2012 IN I.A.NO.1292/2012 

BY ADV. SRI.SUNNY ZACHARIA 

RESPONDENT(S)/RESPONDENT: 

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1. UNION OF INDIA, REPRESENTED BY GENERAL MANAGER, EAST COAST RAILWAY, BHUVANESWAR, ORISSA - 751 001. 

2. UNION OF INDIA, REPRESENTED BY GENERAL MANAGER, SOUTHERN RAILWAY, DR.AMBEDKAR NAGAR P.O., CHENNAI - 600 003. 

R1 BY ADV. SRI.M.C.CHERIAN,SR.SC.,RAILWAYS R2 BY ADV. SRI.C.S.DIAS,SC, RAILWAYS 

THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 18-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts 

"CR" 

Thottathil B.Radhakrishnan & K.Vinod Chandran, JJ. 

------------------------------------ 

M.F.A.No.41 of 2011-E 

------------------------------------ 

Dated this the 18th day of June, 2012 

Head Note:-

Railways Act, 1989 - Sections 123(c)(1)(iii), 124A, 125 - Railway Accidents and Untoward Incidents (Compensation) Rules, 1990 - Rule 3 r/w Part I of the Schedule - Violent attack by mob - Passenger who protected unauthorised entry of local passengers into reserved seats cannot be visualise as a criminal act and entitled to compensation under untoward incidents rules.

J U D G M E N T 

Thottathil B.Radhakrishnan,J: 

1.This appeal by the claimants is against an order dismissing an application for compensation filed under Section 125 of the Railways Act, 1989, for short, 'Act'. 

2.Heard the learned counsel for the appellants and the respective learned standing counsel for the East Coast Railway and the Southern Railway. 

3.The application was for compensation for loss occasioned by death on account of untoward incident. Deceased Aneesh Kumar, the son of appellants 1 and 2 and the brother of the 3rd appellant, was a passenger in Coach No.12, a reserved compartment, of Howrah-Chennai "Coromandal Express" on 1.12.2008. Local passengers who had not reserved seats intruded into that compartment, leading to an altercation between them and those who had reserved seats and were occupying them. In the course of that, Aneesh Kumar, a member of the Gourkha Regiment, on being provoked, pulled out his Bhujali (Khurpi). Some local passengers who, going by law, were ineligible to travel in that compartment, sustained injuries, statedly, from Aneesh Kumar's Bhujali. The mob turned on Aneesh Kumar. The unreserved local passengers informed about this to other local people over mobile phones. More than 500 local people congregated and attacked the train after stopping it by pulling the chain, near North Cabin of Khurda Road Railway Station. The mob disconnected the hose-pipe of the train; pelted stones and entered the bogies. The official report itself is that Aneesh Kumar tried to escape, but the mob caught up with him and had beaten him to a senseless condition. Later, he succumbed. A case was registered in relation to that incident and certain persons were arrested. The report of the Railway Police, including the First Information Report registered on the basis of the statement of the police constable who escorted the running train contains the candid admission of the Railway Police and the Railways that there was shortage of police personnel and that the available policemen could not control the mob or protect Aneesh Kumar. 

4.The Tribunal dismissed the application holding that the incident is not an 'untoward incident' as defined in Section 123(c) of the Act and that even if it were one so, Aneesh Kumar suffered injuries and died only due to his own criminal act and, therefore, the railway administration is not liable to pay any compensation in view of clause (c) of the proviso to Section 124A of the Act. 

5.The learned counsel for the appellants argued that on the admitted and proved facts, the impugned findings are unsustainable in law and are perverse. Criticizing the manner of appreciation of the testimony of the 1st claimant, it is argued that the Tribunal erred in assuming that the father of the deceased ought to have spoken specifically about the incident. Attacking the approach adopted in the interpretation of Sections 123 and 124A as erroneous in law, it is argued that compensation is due. 

6.Per contra, it was argued on behalf of the Railways that the sequence of events as disclosed by the materials on record shows that the deceased Aneesh Kumar was the one who ignited the chain of events and, hence, he has to be treated as the one who had caused the incident and that, what all he did, amounted to criminal acts and, therefore, even if the incident is an untoward incident, no compensation is payable by the railway administration, since the deceased suffered on account of his own criminal acts.

7.The Tribunal had before it, Exhibits A1 to A10 and the testimony of Achuthan Nair, the father of the deceased. Exhibit A3 is the First Information Report, of which Exhibit A4 is the First Information Statement. Exhibit A7 is the intimation of the incident. Death Certificate and Postmortem Certificate are marked as Exhibits A6 and A5. The other materials include the heirship certificate, letter sent to the Commanding Officer, etc. There is no contra evidence, either documentary or oral. 

8.The Railways admitted the specific details of the incident in their written reply before the Tribunal. The incident as reported in Exhibits A4 and A7 is not in dispute and the contents of those documents, as noted by the Tribunal, substantially support the sequence of events as narrated by the claimants. Those documents, as found by the Tribunal, show that the train, proceeding from Howrah to Chennai, was stopped by pulling the chain, immediately after it left Bhuwaneshwar. The police then found people making noise outside the last compartment of that train. lodged the FIR. The information given by Police Head Constable Seshdev Paikaray in the FIR lodged by him is that while he and his three colleagues, whose identity is also stated in Exhibit A4, were on scouting duty inside the train in the sector - Khurda to Bhadrak - to Baharampur and back from Baharampur to Khurda under common certificate and were returning after scouting from Bhadrak to Baharampur; the train was suddenly stopped at Sarkanta Railway Station at 21.45 hours (9.45 p.m.) by pulling the alarm chain after its departure from Bhuwaneshwar. The chain was pulled from the bogie in which those police personnel were available. An injured person with Bhujali (sharp edged weapon) was rushing towards some people and they were trying to escape. While escaping, four passengers got injured. The constables took that injured person from S-12 compartment to S-3 bogie; towards the engine, in order to save him from counter attack. That injured person was Aneesh Kumar. The incident was informed to the controlling station through telephone. Journey continued. Thereafter, the alarm chain was again pulled and the train stopped while it reached Khurda yard at 22.40 hours. As soon as the train stopped, some people cordoned the train and rushed towards S-3 bogie in which the constables and Aneesh Kumar were there. Seeing that the people were approaching that bogie, the constables shut its doors and windows. At the same time, GRP RPF, RFP ASC OIC, GRP OIC and a local police officer along with staff, reached the spot. Going by the records in this case, the constables' version is that, by seeing the other police officials, they became a bit confident; but the aggressive crowd were pelting stones onto the bogie; and armed with sticks and iron rods, they were trying to enter the compartment by breaking the doors and windows. OIC RPF, GRP OIC along with staff, entered the compartment and simultaneously, the aggressive mob also forced themselves into the bogie. The mob started beating Aneesh Kumar and the police constables. The constables, with the help of RPF and GRP staff, managed to take Aneesh Kumar along with another seriously injured person by ambulance to the Railway Hospital. They were admitted to that hospital. The constables, through Exhibit A4, reported that those persons were then in serious condition and that the constables were also admitted to that hospital for treatment. 

9.The incident is well established with the aforesaid Aneesh Kumar, evidently, a law-abiding citizen, with due ticket, was occupying his reserved seat in S-12 bogie. The testimony of A.W.1, the father of the deceased, is that his son was travelling from his place of work in the Gourkha Regiment, to his home in Alleppey District in Kerala State. Aneesh Kumar's transit from his station of duty to his home, was on home leave. He is a member of the uniformed armed force. He was authorised to carry the weapon which was in his possession. The entry of the local passengers into S12 bogie, without reservation of seats is unauthorised entry. The totality of the facts suggests that they wanted to force themselves to be seated dislodging Aneesh Kumar and other passengers with reserved seats. Obviously, this led to exchange of words, altercation and scuffle. We can never visualise a criminal act at the hands of Aneesh Kumar in that context. Recall here; the police version is that they saw an injured person standing with a Bhujali and that the said injured person was Aneesh Kumar. It was the mob that had violated the law and attacked the passengers in S-12 bogie. They were the aggressors. The police constables had to cordon Aneesh Kumar off, out of S-12 bogie, to move him to S-3 bogie, to be kept safe and secured. This much of the series of transactions and events of the case can be treated as one set of facts disclosing a particular incident. Next, at a different station, i.e., near the North Cabin of Khurda Road Railway Station, the train was again stopped and attacked by the mob. In spite of the O/C GRP and O/C RPF and their men being available, the mob could not be controlled. The materials indicate that the mob first proceeded to set ablaze the bogie or the train as a whole. The police officials entered S-3 bogie, essentially to protect Aneesh Kumar. But, the mob also forced themselves in and carried out their unruly, illegal and pre-planned act of attacking the train including passengers; in particular Aneesh Kumar. As already noted, the official report is that though Aneesh Kumar tried to escape, the mob caught up with him and had beaten him down to a senseless condition. That transaction led to the death of Aneesh Kumar. There is no attribute, whatsoever, of Aneesh Kumar having committed any criminal act or of having even been able to act in self defence. Therefore, this second set of facts relating to the incident that occurred in S-3 bogie, when the train was forcefully halted near the North Cabin of Khurda Road Railway Station, is a complete chain of events by itself, which can never be considered as one where Aneesh Kumar could be treated as the aggressor. The unruly mob, acting against the interest of the Railways and the passengers, had violently attacked and indulged in the dastardly activities resulting in the death of Aneesh Kumar. Violent attack by any person in or on any train carrying passengers is an untoward incident in terms of clause (1)(iii) of Section 123(c) of the Act. 

10.Having found that Aneesh Kumar succumbed to the injuries suffered by him as a result of an untoward incident as defined in the Act, what now needs to be examined is as to whether the Railways would stand exonerated from paying compensation on any ground referable to the proviso to Section 124A of the Act. That section provides, inter alia, that when an untoward incident occurs in the course of working a railway, 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 in terms of the prescriptions made under the Act. Clause (c) of the proviso thereto is that no compensation shall be payable if the passenger dies or suffers injury due to his own criminal act. That proviso, essentially in the nature of an exemption from liability to compensate, would apply only when the death or sufferance of injury is the result of the criminal act of the person who dies or suffers the injury. The facts of the case clearly show that the transaction in which the mob caught hold of Aneesh Kumar and injured him seriously, leading ultimately to his death, could have been triggered or motivated by the information, given by the local passengers who had unauthorisedly intruded into S-12 bogie, about Aneesh Kumar allegedly using his official weapon to meet the offensive situation held out to him by the local passengers. The two transactions are entirely different, as already noted. The events in S-12 bogie could have generated the motive and intention for the congregation and assembly of local people near the North Cabin of Khurda Road Railway Station, where the train was stopped with the intention to attack it. That intention fructified in the attack. Such assembly is one liable to be treated as an unlawful assembly. That set of incidents relating to S-3 bogie can never be characterised as involving any act whatsoever, of Aneesh Kumar, who was given protective cover of the Railway Protection Force. Even if the transactions in S-12 bogie are also to be taken into consideration, we visualise the situation where one Jawan had tried to put his foot down on the face of unlawful, irrational, unlawful assembly and unruly mob behaviour in violation of the laws, including the provisions of the Railways Act and the Indian Penal Code. On that premise, we would visualise the attribute made to Aneesh Kumar, of having used the weapon in his lawful possession, as only an exercise of his right of self defence in the course of the transactions that happened in S-12 bogie. Either way, we find no ground to hold that Aneesh Kumar suffered injuries due to his own criminal act and later succumbed. 

11.The death of Aneesh Kumar is the end result of the injuries suffered by him. His death resulted from the untoward incident noted above, which was its proximate cause. Railways are, therefore, liable to pay compensation for death. His dependants/legal representatives are entitled to compensation in terms of the Act and the Rules framed thereunder. The amount payable as compensation for death is Rs.4,00,000/- (Rupees four lakhs only) in terms of Rule 3 of the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990 read with Part I of the Schedule to those Rules. On the facts and circumstances, we are of the view that the claimants are entitled to interest on such amount at 12% per annum from the date of registration of the application. 

12.In the result, the impugned order is vacated and an award is passed directing the railway administration concerned to pay the appellants (claimants) an amount of Rs.4,00,000/- (Rupees four lakhs only) with 12% interest from 4.8.2009, the date of registration of the application. The three appellants are also awarded costs fixed at Rs.5,000/- (Rupees five thousand only) each, here and in the Tribunal. 

Having given our anxious consideration to the situation of the family of Aneesh Kumar, aged 26 years at the time of his death, and the fact that he was a serving Jawan, who unfortunately died at the hands of unruly mob which attacked the railways, we feel that the railway establishment concerned should anxiously consider giving some further support to the bereaved family. We see from the application that Aneesh Kumar's father was 72 years old and his mother 55 years old when they filed the application along with their daughter, 23 years of age. She is shown as unmarried in the Original Application. On our query it is said, she still remains unmarried. We are sure that they would have always looked upon Aneesh Kumar and other siblings to support this sister. At least as a matter of benevolence, the railway administration could consider giving a facility of employment to Anjana, Aneesh Kumar's sister. If such a decision is taken in favour of the family within a period of three months from now, the order for costs imposed as per this judgment will stand recalled and the rate of interest payable on the compensation amount would stand slashed to 6%. At any rate, the entire amount due in terms of this judgment and the decision relating to employment shall be made available to the claimants through the Tribunal without fail on or before the Gandhi Jayanti, 2012. If the 3rd appellant desires appointment as aforesaid, she shall make an application to the competent authority within a period of three weeks from now. 

Sd/- Thottathil B.Radhakrishnan, Judge 

Sd/- K.Vinod Chandran, Judge 

vku/sha/190612 -true copy- P.S.to Judge. 

(2012) 262 KLR 515

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN 

THURSDAY, THE 5TH DAY OF JULY 2012/14TH ASHADHA 1934 

MFA.No. 56 of 2007 (A) 

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WCC.462/2002 OF COMMISSIONER FOR WORKMEN'S COMPENSATION (DEPUTY LABOUR COMMISSIONER) COURT, THRISSUR 

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APPELLANT / 2ND OPPOSITE PARTY : 

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THE NEW INDIA ASSURANCE COMPANY LIMITED, DIVISIONAL OFFICE, 721000, MUSSA SAIT COMPLEX, II FLOOR, COMMERCIAL ROAD, OOTTY REPRESENTED BY ITS MANAGER. 

BY ADVS. SRI. K.K.M. SHERIF SRI.P.A.MOHAMMED ASHROF SRI.A.A.ZIYAD RAHMAN 

RESPONDENTS / APPLICANTS 1 TO 3 AND THE 1ST OPPOSITE PARTY : 

------------------------------------------------------------------------------------------------------- 

1. P.JAYALAKSHMI LATHA, W/O.LATE LAKSHMANAN, RESIDING AT D NO.10/254 F3, PERIYABIKKATY CORNER PARIYAMBIKKATTY VILLAGE, ARAVAMKADAVU P.O, NILGIRI DISTRICT, TAMIL NADU. 

2. SANGEETHA (MINOR), REPRESENTED BY GUARDIAN P.JAYALAKSHMI LATHA, W/O.LATE LAKSHMANAN, RESIDING AT D NO.10/254 F3, PERIYABIKKATTY CORNER, PARIYAMBIKKATTY VILLAGE, ARAVAMKADAVU P.O, NILGIRI DISTRICT, TAMIL NADU. 

3. CHIKKAYYA, S/O.ERAYYA, RESIDING AT D.NO.10/254 F3, PERIYABIKKATTY CORNER PARIYAMBIKKATTY VILLAGE, ARAVAMKADAVU P.O, NILGIRI DISTRICT,TAMIL NADU. 

4. YESHODA, RESIDING AT D.NO. 10/254 F3, PERIYABIKKATTY CORNER, PARIYAMBIKKATTY VILLAGE ARAVAMKADAVU P.O., NILGIRI DISTRICT, TAMIL NADU. 

5. T.BALACHANDRAN, S/O.THIRUMALACHETTIAR, RESIDING AT D NO.138, RAMANUJA NILAYAM, HOSPITALROAD, OOTTY. 

BY THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 05-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn 

"CR" 

Thottathil B Radhakrishnan & K. Vinod Chandran, JJ 

---------------------------------------------------- 

M.F.A.No.56 of 2007 

---------------------------------------------------- 

Dated this the 5th day of July, 2012 

Head Note:-

Workmen's Compensation Act, 1923 - Section 3 - Whether the incident in question amounts to an accident arising out of and in the course of employment? 

Held:- The deceased employee had taken a load of sugar from Mysore and had unloaded it at Tirur and was again engaged in loading sand to be transported to Ooty, that too, from near a river ghat. The accident occurred while the lorry was being loaded and the driver had alighted from the vehicle to facilitate the loading. There is direct connection with the employment and accident. It can only be concluded that the accident arose in the course of the employment. The accident arose out of an occupational hazard. The driver could not have abandoned the vehicle even for his bare necessities. The accident of drowning in the river, according to us, on the facts and circumstances of the case was one arising in the course of the employment and also out of it. Hence, the question of law raised by the insurer regarding the act of drowning being treated as an accident arising out of and in the course of employment has to be held in the affirmative and against the insurer; on the facts and circumstances of the nature of the employment of a driver. 

Motor Vehicles Act, 1988 - Workmen's Compensation Act, 1923 - Section 3 - Is the insurer liable to indemnify the insured on a claim under the WC Act, by virtue of a policy issued under the provisions of the Motor Vehicles Act, 1988, especially so on an accident which did not arise directly out of the use of the motor vehicle? 

Held:- The policy though under the Motor Vehicles Act its terms do not exclude workmen's compensation for the driver of the vehicle. The accident which arose out of and in the course of employment of the deceased as a driver of the vehicle is one which arose out of the use of the motor vehicle. Our finding on the first question applies equally in answering this question too. The use of the vehicle cannot be divorced from the incidental acts of its driver. Hence, this issue also has to be answered against the insurer and in favour of the applicants. 

Workmen's Compensation Act, 1923 - Section 3 - Fixation of monthly income at Rs.3,600 - No substantial question of law arises from such determination made on facts. 

Held:- The next question is with regard to the monthly income of the deceased being fixed at Rs.3,600/-. The appellants claimed the monthly wages to be Rs.6,000/- and on facts, the Commissioner fixed it at Rs.3,600/-. We are of the view that no substantial question of law arises from such determination made on facts. 

Workmen's Compensation Act, 1923 - Section 3 - Legality of granting interest from the date of accident - Interest on the compensation granted by the Commissioner would run from the date of accident. 

Held:- Remaining question is with respect to the grant of interest from the date of adjudication. The said issue is covered by the precedent rendered by the Division Bench of this Court in Oriental Insurance Company v. Padmini N.V (MFA No.59 of 2011), following the Supreme Court decision in Pratap Narain Singh Deo v. Srinivas Sabata(1976(1) SCC 289) rendered by a Bench of four Judges; and also in view of the subsequent Division Bench decisions of this Court to hold that the interest on the compensation granted by the Commissioner would run from the date of accident. The said question also is hence answered against the insurer. 

J U D G M E N T 

K. Vinod Chandran, J 

The insurer is in appeal raising substantial questions of law regarding; (1) whether the incident in question amounts to an accident arising out of and in the course of employment, as stipulated in Section 3 of the Workmen's Compensation Act, 1923? (2) is the insurer liable to indemnify the insured on a claim under the WC Act, by virtue of a policy issued under the provisions of the Motor Vehicles Act, 1988, especially so on an accident which did not arise directly out of the use of the motor vehicle? (3) fixation of monthly income at Rs.3,600/-, and (4) the legality of granting interest from the date of accident. The accident in the case led to the death of the driver of a goods vehicle by drowning. 

2. The wife, daughter and parents of the deceased workman applied for compensation. The deceased was the driver of a lorry owned by the insured. The lorry having a national permit was carrying sugar from Mysore to Tirur. Thereafter, it came to Oorganttiri in Malappuram District for transporting a load of sand to Ooty. The lorry was parked near a ghat on the banks of Pavanna river to load the sand. While loading, the driver, allegedly, went to the river for a bath and accidentally slipped into the river, resulting in his death by drowning. The Ariyakode police had registered a crime for unnatural death as Crime No.22 of 2002 in connection with that incident and the cleaner of the lorry narrated the incident in so many words as is evident from the FIR in that case. The applicants claimed that the deceased drew monthly income of Rs.6000/- and sought lump sum payment of Rs.4,22,000/- as compensation under the WC Act. 

3. The owner of the vehicle remained ex-parte. The insurer challenged the employee-employer relationship and pleaded that the death by drowning while bathing cannot at all be attributed to be one during the course of employment or out of the employment. 

4. The wife of the deceased was examined before the Commissioner and a copy of the F.I.R in the Crime was produced, with the statement of the cleaner who accompanied the driver. Exts.A2 to A5 are the copies of inquest report; postmortem certificate; driving licence; and, legal heirs certificate. 

5. The counsel for the appellant/insurer argued that in a near similar situation, the Division Bench had, in Oriental Insurance Company v. Thankappan (2005(3)KLT 480), held that the accident fell within the notional extension of employment, however that; the Full Bench on a reference has expressly found against the said view in Oriental Insurance Co.Ltd., v. K.V Joseph and another(2007(2)KHC 698). Relying on that, the learned counsel for the appellant-insurer argued for the position that the drowning of the driver cannot be treated as one in the course of employment or arising out of employment. 

6. In the Full Bench decision (supra), the facts relevant were that the driver of the vehicle, while getting down to unload the goods, sustained a dog bite and in the clamour to escape, fell down and sustained injuries. The Full Bench, though did not agree with the Division Bench with respect to the drowning of a conductor, on the facts of the case dealt with by the Full Bench, held that the claimant therein having been engaged in the vehicle, had stepped out of the vehicle during the course of his employment and the subsequent accident was one directly arising out of the employment. The Full Bench considered the tests with respect to "notional extension", "casual connection" and "reasonably incidental" and held that the claim in that case was established on facts of that case. It was also made explicit that ultimately, everything turns on the facts and circumstances of each case. We specifically notice that in Thankappan's case, the Division Bench though dealing with a case of drowning of an employee was concerned with an accident that occurred while the employee took bath in preparation of the commencement of the duties and responsibilities in connection with the employment. The facts in that case would indicate that the vehicle was parked overnight at a destination, intending to commence its journey the next morning and the employee who had slept at that destination, proceeded in the morning to bathe in preparation of discharging his duties and responsibilities in connection with his employment, and the accident then occurred. We are clear in our mind that the facts in Thankappan's case (supra) are clearly distinguishable from the facts in the present appeal. 

7. The Hon'ble Supreme Court of India considered similar provisions in the Employees State Insurance Act, 1948 in ESI Corporation v. Francis De Costa(1996(2)KLT 799). In that case, the employee while proceeding to his work place, a factory, was involved in a motor accident resulting in injury to him. The Hon'ble Supreme Court, rejecting the claim for compensation held that the accident, to come within the cover of eligibility to compensation, should take place within or during the period of employment and should arise out of the employment. Regina v. National Insurance Commissioner,(1977) 1 WLR 109 was noticed; wherein the words "in the course of his employment" were considered to have been extended only when the workman was in the premises of the work- place but also when injured while on a visit to a canteen or some other place for a break. The test of what was "reasonably incidental" was held to be applicable even when a workman is sent on an errand outside the factory premises, but only if it is in the usual course of his employment. South Maitland Railway Properties Ltd. v.James (67CLR 496) was also noticed. It was held therein that an accident occurring in the course of the employment on a hot day, while the workman went for a cool drink to enable him to continue his work, was one occurring in the course of his employment. 

8. The Supreme Court of India in General Manager, B.E.S.T Undertaking, Bombay v. Mrs.Agnes(1964(3) SCR 930) found the death of a driver in an accident, while returning home in a bus of the employer, to be a direct result of employment, since the right to travel home in a bus of the employer, was conferred on the employee to function punctually and efficiently. In Bhagubai v. Central Railway, Bombay,(1954)II LLJ 403, the Hon'ble Supreme Court was concerned with an instance of murder of a railway employee, living in railway quarters, while he was proceeding for his night shift at midnight. That accident was categorized as an occupational hazard of an employee who had to join duty at midnight traversing from the railway quarters to the railway station through the railway compound. SAIL v. Madhusudan Das (2008(15)SCC 560) also dealt with the issue but in the aspect of compassionate appointment. The decision in Mackinnon Mackenzie and Co.P Ltd., v. Ibrahim Mahammed(1969(2) SCC 607) was quoted with approval and paragraphs 5 and 6 were extracted in paragraph 20:- 

"5. To come within the Act the injury by accident must arise both out of and in the course of employment. The words 'in the course of the employment' mean 'in the course of the work which the workman is employed to do and which incidental to it'. The words 'arising out of employment' are understood to mean that 'during the course of the employment, injury has resulted from some risk incidental to the duties of the service, which, unless engaged in the duty owing to the master, it is reasonable to believe the workman would not otherwise have suffered'. In other words there must be a causal relationship between the accident and the employment. The expression 'arising out of employment' is again not confined to the mere nature of the employment. The expression applies to employment as such- to its nature, its conditions, its obligations and its incidents. If by reason of any of those factors the workman is brought within the zone of special danger the injury would be one which arises 'out of employment'. To put it differently if the accident had occurred on account of a risk which is an incident of the employment, the claim for compensation must succeed, unless of course the workman has exposed himself to an added peril by his own imprudent act. 

6. In the case of death caused by accident the burden of proof rests upon the workman to prove that the accident arose out of employment as well as in the course of employment. But this does not mean that a workman who comes to court for relief must necessarily prove it by direct evidence. Although the onus of proving that the injury by accident arose both out of and in the course of employment rests upon the applicant these essentials may be inferred when the facts proved justify the inference. On the one hand the Commissioner must not surmise, conjecture or guess; on the other hand, he may draw an inference from the proved facts so long as it is a legitimate inference. It is of course impossible to lay down any rule as to the degree of proof which is sufficient to justify an inference being drawn, but the evidence must be such as would induce a reasonable man to draw it" 

In Shakuntala Chandrakant Shreshti v. Prabhakar Maruti Garvali,(2007) 11 SCC 66, decision of Lord Wright in Dover Navigation Co.Ltd. v. Isbella Craig(1940 AC 190) referred to in ESI Corporation case(supra) was extracted:- 

" Nothing could be simpler than the words "arising out of and in the course of the employment". It is clear that there are two conditions to be fulfilled. What arises "in the course" of the employment is to be distinguished from what arises "out of the employment". The former words relate to time conditioned by reference to the man's service, the latter to causality. Not every accident which occurs to a man during the time when he is on his employment-that is, directly or indirectly engaged on what he is employed to do - gives a claim to compensation, unless it also arises out of the employment. Hence the section imports a distinction which it does not define. The language is simple and unqualified." and it was held in paragraph 22:- 

"22. There are a large number of English and American decisions, some of which have been taken note of in ESI Corporation in regard to essential ingredients for such finding and the tests attracting the provisions of Section 3 of the Act. The principles are:- 

1. There must be a causal connection between the injury and the accident and the accident and the work done in the course of employment. 

2. The onus is upon the applicant to show that it was the work and the resulting strain which contributed to or aggravated the injury. 

3. If the evidence brought on record establishes a greater probability which satisfies a reasonable man that the work contributed to the causing of the personal injury, it would be enough for the workman to succeed, but the same would depend upon the fact of each case." 

9. In the instant appeal, from the evidence on record, it is clear that the vehicle proceeded from Mysore with a load of sugar on the previous evening and after delivering that load, a load of sand was taken for transportation to another destination. There can be absolutely no dispute that the accident which occurred while sand was being loaded into the vehicle was within and during the period of employment. By the nature of the employment of a driver of a goods carriage, neither the work-place nor the working hours are definite or limited. From the moment the vehicle is taken out from the garage, till it is garaged, the driver is on duty and the vehicle is in his care. It is common knowledge that employment of a driver in a goods carriage is not for a specified period or with defined working hours and would extend from the time the vehicle is taken out from its garage and its return to the garage. The work-place is the public road and wherever the vehicle is parked in the course of carriage. What can definitely be inferred while considering the employment of a driver is that neither time nor place is finite. A driver travelling long distance, if parking the vehicle for a nap and an accident occurs while he was asleep; is it not one 'arising in the course of his employment' and 'out of his employment'? The time element is satisfied in so far as the vehicle, in the care of the driver, had not completed the journey. The act being related to the employment is also clear in so far as a shut-eye is necessary for him to efficiently carry out his duties and also ensure the safety of the vehicle in his care. 

10. The next question is as to whether the accident was one arising out of the employment of the deceased. It is trite that what is required is a "reasonably incidental" connection to the employment. The Supreme Court in Francis De Costa's Case(supra) held that the words "out of" indicate that the injury must be caused by the accident which had its origin in the employment. All and every accident that occurs when the employee goes to the place of the employment or for the purpose of employment, has been held to be not one arising out of the employment unless there is a recognizable casual connection between the accident and the employment. But the occupational hazards of a driver also extend to his not being able to attend to his needs; abandoning the vehicle. The principles expounded in General Manager, B.E.S.T & Bhagubai(supra) apply on all fours to the facts of this case. The act of bathing in the river was only due to the long working hours and would definitely enable better performance. The occupational hazard in not being able to leave the vehicle in his care, for long, even for his bare necessities is starkly obvious. The need to have a wash to refresh himself; while constantly on the road, adds to his efficiency and ensures the safety of the vehicle. 

11. As has been held in Mackinnon Mackenzie and Co.P Ltd.(supra), though the onus to prove that the injury arose out of and in the course of employment rests upon the claimant, a reasonable inference from proved facts is permissible and legitimate. The Commissioner's order is not at all, in the instant case; vitiated by surmises, conjectures or guess work. The principles stated in paragraph 22 of Shakuntala Chandrakant Shreshti(supra) squarely applies. The accident i.e., of drowning; occurred while the goods vehicle was being loaded and when the driver had attempted to take a bath, in the meanwhile. The long arduous journey undertaken is also evident. We do not at all feel persuaded to differ from the view taken by the Commissioner, since it is a very reasonable conclusion on the facts and circumstances. No other reasonable conclusion appeals to us. In any event, it is not for us to substitute, with another reasonable hypothesis, the findings of the Commissioner while acting within the contours of our jurisdiction. 

12. The deceased employee had taken a load of sugar from Mysore and had unloaded it at Tirur and was again engaged in loading sand to be transported to Ooty, that too, from near a river ghat. The accident occurred while the lorry was being loaded and the driver had alighted from the vehicle to facilitate the loading. There is direct connection with the employment and accident. It can only be concluded that the accident arose in the course of the employment. The accident arose out of an occupational hazard. The driver could not have abandoned the vehicle even for his bare necessities. The accident of drowning in the river, according to us, on the facts and circumstances of the case was one arising in the course of the employment and also out of it. Hence, the question of law raised by the insurer regarding the act of drowning being treated as an accident arising out of and in the course of employment has to be held in the affirmative and against the insurer; on the facts and circumstances of the nature of the employment of a driver. 

13. The policy though under the Motor Vehicles Act its terms do not exclude workmen's compensation for the driver of the vehicle. The accident which arose out of and in the course of employment of the deceased as a driver of the vehicle is one which arose out of the use of the motor vehicle. Our finding on the first question applies equally in answering this question too. The use of the vehicle cannot be divorced from the incidental acts of its driver. Hence, this issue also has to be answered against the insurer and in favour of the applicants. 

14. The next question is with regard to the monthly income of the deceased being fixed at Rs.3,600/-. The appellants claimed the monthly wages to be Rs.6,000/- and on facts, the Commissioner fixed it at Rs.3,600/-. We are of the view that no substantial question of law arises from such determination made on facts.

15. Remaining question is with respect to the grant of interest from the date of adjudication. The said issue is covered by the precedent rendered by the Division Bench of this Court in Oriental Insurance Company v. Padmini N.V (MFA No.59 of 2011), following the Supreme Court decision in Pratap Narain Singh Deo v. Srinivas Sabata(1976(1) SCC 289) rendered by a Bench of four Judges; and also in view of the subsequent Division Bench decisions of this Court to hold that the interest on the compensation granted by the Commissioner would run from the date of accident. The said question also is hence answered against the insurer. 

In the result, the above appeal is dismissed leaving the parties to suffer their respective costs. 

Sd/- Thottathil B Radhakrishnan (Judge) 

Sd/- K. Vinod Chandran (Judge) 

jma - true copy - 

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Thottathil B. Radhakrishnan & C.T. Ravikumar, JJ.

M.F.A. No. 173 of 2004

Dated this the 25th day of May, 2012

Head Note:-

Kerala (Scheduled Castes and Scheduled Tribes) Regulation of Issue of Community Certificates Act, 1996 – Section 4 - Civil Procedure Code, 1908 - Section 9 - Validity or cancellation community certificate - Adjudication of  correctness or otherwise of the Government decision in relation to the grant or cancellation of the community certificate, was beyond the province of the civil court.

For Appellant:-

• E. Easwaran 

For Respondents:- 

• Special Government Pleader (Laly Vincent)

J U D G M E N T

Thottathil B. Radhakrishnan, J.

1.The decision under the provisions of the Kerala (Scheduled Castes and scheduled Tribes) Regulation of Issue of Community Certificates Act, 1996, that the appellant is not a member of a Scheduled Caste (Thandan community) is under challenge. Action to terminate her service in public employment is also recommended as per the impugned order.

2. Apart from eloquently challenging the findings on facts, it was argued on behalf of the appellant that the binding nature of the decision contained in O.S. No. 92 of 1991 of the Court of the Munsiff, Alathur, rendered with the State of Kerala and others on the array as defendants, has been unreasonably ignored while passing the impugned order. It is also pointed out that the effect of the judgment in O.P. No. 5603 of 1991 has also been overreached in issuing the impugned decision.

3. Per contra, the learned Special Government Pleader argued that the findings rendered by the civil court are without jurisdiction since that suit was not maintainable on the face of the law laid by the Apex court that such suits are impliedly barred in terms of the special provisions that govern the resolution of disputes relating to inclusion or exclusion of the benefits due under the Presidential Orders. Copious reference was also made to the materials on record to contend that the findings in the impugned order are based on materials and do not warrant interference.

4. At the outset, it needs to be stated that W.A. No. 1983 of 1997 carried by State of Kerala against the judgment in O.P. No. 5603 of 1991, was decided by the Division Bench clarifying that the Bench was not interdicting any fresh action on the basis of the Act, if the appellant's family had got any illegal benefits; and that, if her family has any grievance, it is for them to approach the statutory authorities. So much so, the decisions rendered in that original petition and writ appeal do not contain any finding which will affect the right of parties in this appeal.

5. The suit by the appellant, her father and others was instituted on the teeth of the finding by the Government that the members of the family of Madhavan, the father of the appellant herein, do not belong to Thandan community, a scheduled caste. That suit was decided on 22nd December 1999, long after the Act came into force.

6. In State of T.N. Vs. A. Gurusamy, (1997) 3 SCC 542, the Apex Court dealt with the case of a person who was initially reckoned as belonging to a scheduled caste, "Thotti", and later, was given a certificate as belonging to a scheduled tribe "Kattunaicken". When he applied for a permanent certificate in that regard, an inquiry was held, leading to the finding that the said person was not a member of a scheduled tribe but was a member of a scheduled caste. Consequently, the certificate issued to him to the effect that he belongs to a scheduled tribe "Kattunaicken" was cancelled. The civil courts, at the trial and first appellate stages, came to his rescue and granted a declaration that he belongs to the scheduled tribe "Kattunaicken", thereby denouncing the Government decision to the contrary. The High court refused to interfere with that decision on the ground that it is a declaration granted on the basis of concurrent decisions on facts. The Apex Court overturned that and held that such a suit is not maintainable. The conclusive nature of the Presidential declarations under Articles 341 and 342 of the Constitution, subject only to an amendment by Parliament, was dilated upon. Accordingly, it was held that subject to any amendment by Parliament, the lists of Scheduled Castes and Scheduled Tribes in terms of the Presidential declarations would govern the field. Consequentially, it was held that by necessary implication, the jurisdiction of the civil court to take cognizance of and give a declaration stands prohibited. It was specifically stated that by operation of Section 9 of CPC, a suit of civil nature, cognizance of which is expressly or by implication excluded, cannot be tried by any civil court. The ratio of that precedent includes that a suit for declaration of status, as against the contrary finding by the Government, in relation to issuance of community certificates, for the enjoyment of caste/tribe/community benefits, does not lie and is impliedly barred. This aspect has been pointedly noted, with reference to the aforesaid precedent, by a learned single Judge of this Court in Kutty Nanu Vs. State of Kerala, 2002 (1) KLT 367. The decisions of the Apex court in Kumari Madhuri Patil Vs. Addl. Commr., Tribal Development, (1994) 6 SCC 241 and Palghat Jilla Thandan Samudhaya Samrakshana Samithi & Anr. Vs. State of Kerala, 1994 (1) KLT 118 (SC), also lead to the same view.

7. As already noted, O.S. No. 92 of 1991 of the Court of the Munsiff, Alathur, was filed by the appellant, her father and others when they were faced with the finding of the Government that they do not belong to the scheduled tribe "Thandan" and are therefore liable to be proceeded against. The issue in that case was regarding the validity of the community certificate or cancellation of such certificate on a finding by the Government that the persons involved in that litigation do not belong to that particular community, whether a scheduled caste or scheduled tribe. Adjudication of such issue, to wit, the correctness or otherwise of the Government decision in relation to the grant or cancellation of the community certificate, was beyond the province of the civil court, in view of the Act and the provisions which were in place following the directions of the Apex Court in Kumari Madhuri Patil (supra); which directions applied till the commencement of the Act. Hence, the decision rendered in that suit is without jurisdiction and does not operate as res judicata. It, in no manner, prevents the Government or its officers from exercising authority under the Act. Therefore, that decree of the civil court does not apply and cannot be relied on to torpedo the impugned decision.

8. Now, on to the materials that were available before the scrutiny committee, it needs to be stated at the outset that the impugned order discloses that the committee had scrupulously examined all relevant materials. The documents with the committee clearly showed that the appellant's father and mother were born in the Thiya community. Documents 3 to 25 appended to the report evidenced such status of the appellant's father and documents 26 to 40 showed such status of her mother. Different documents relating to the appellant's siblings were also considered by the committee. All those documents categorically show that appellant's siblings were also described as the Thiyas in their school records. Clinching material was also on record to the effect that the appellant was admitted to Std. VII by giving her caste status as Hindu/Thiya. That entry was also carried over to her SSLC book. The scrutiny committee concluded that thereafter, caste details regarding the appellant were, essentially, manipulated, leading to her obtaining a false certificate and thereby enriching herself with undue benefit, by passing herself off as a member of a scheduled tribe. The appellant did not dispute before the committee, the genealogical pro forma evincing that her spouse and his relatives belong to Ezhava community which is treated as "other backward community". On the basis of the clear evidence against the appellant, as available in defiance of the scrutiny committee, we find absolutely no reason to upset the findings in the impugned decision of that committee.

9. For the aforesaid reasons, this appeal fails.

In the result, this appeal is dismissed with costs.

(2012) 257 KLR 043

IN THE HIGH COURT OF KERALA AT ERNAKULAM 

PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN 

TUESDAY, THE 12TH DAY OF JUNE 2012/22ND JYAISHTA 1934 

MFA.No. 242 of 2009 ( ) 

----------------------- 

(WCC.25/2006 of WORKMAN'S COMPENSATION COURT,ERNAKULAM) 

APPELLANT/(OPPOSITE PARTIES): 

------------------------------------------------- 

1. KERALA HEAD LOAD WORKERS, WELFARE FUND BOARD, REP.BY THE CHIEF EXECUTIVE OFFICER, S.R.M.ROAD KOCHI-18, NEAR NORTH RAILWAY STATION. 

2. THE CHAIRMAN KERALA HEAD LOAD WORKERS,WELFARE FUND BOARD PARAVOOR LOCAL COMMITTEE. 

BY ADV. SRI.KOSHY GEORGE 

RESPONDENTS/APPLICANT: 

----------------------------------------- 

1. P.V.PRAKASAN, S/O.VELAYUDHAN, PADATH HOUSE, MARAVANTHURUTHU, VADAKKEKARA(DECEASED) 

2. SMT.RADHA K.N. W/O.LATE P.V.PRAKASAN, PADATH HOUSE, MARAVANTHURUTHU, VADAKKEKARA. 

3. SRI.P.P.MANOJ S/O.LATE P.V.PRAKASAN, PADATH HOUSE, MARAVANTHURUTHU, VADAKKEKARA 

BY ADVS. SRI.BABU KARUKAPADATH SRI.JAGAN GEORGE SRI.P.G.PRAMOD 

THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 12-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 

BP 

THOTTATHIL B.RADHAKRISHNAN & K.VINOD CHANDRAN, JJ. 

----------------------------------- 

M.F.A.No.242 of 2009 

------------------------------------ 

Dated this the 12th day of June, 2012 

Head Note:-

Kerala Headload Workers (Regulation of Employment and Welfare) Scheme, 1983 - Section 29 A - Not paid 2% additional levy - Liability of the Board to pay compensation.  

Held:- The liability under the Workmen's Compensation Act is one that cannot be impinged by the provisions of the Kerala Headload Workers (Regulation of Employment and Welfare) Scheme, 1983. The provision for collection of additional levy in terms of clause 29 A of that Scheme obliges the Board to collect additional levy and also to make payment out of Accident Relief Funds. The consequence of failure to make contributions to the Accident Relief Fund, as envisaged in sub-clause 4 of clause 29 A of the Scheme is only to the effect that the immediate employer would not get insulated from any liability under the Workmen's Compensation Act on the premise that the Board would release the amount. That insulation, available to the immediate employer, is not a defense that the Board can rely on to claim any exemption or privilege from paying amounts due from the Accident Relief Fund. Non-payment of the additional levy of 2% in terms of clause 29 A (1) gives the right to the Board to interfere with the levy and effect recovery of amounts due. It does not depend upon the volition of persons like Sajan who utilise the service of headload workers enlisted under the Scheme. We, therefore, do not find any merit in the appeal in that regard. 

J U D G M E N T 

Thottathil B.Radhakrishnan,J. 

C.R. 

1.The Kerala Headload Workers Welfare Fund Board challenges an award of the Workmen's Compensation Commissioner made in favour of a headload worker. 

2. The incident is not in dispute. A shop owner Sri.K.G.Sajan utilised the services of headload workers allotted by the appellants. One worker, Prakasan, was injured in the course of that work. That led to the impugned award. 

3. The liability of the Board to pay compensation is disputed only on the plea that Sajan had not paid 2% additional levy in terms of Section 29 A of the Kerala Headload Workers (Regulation of Employment and Welfare) Scheme, 1983 and that therefore, the Board cannot be mulcted with the liability.

4.For one thing, the liability under the Workmen's Compensation Act is one that cannot be impinged by the provisions of the Kerala Headload Workers (Regulation of Employment and Welfare) Scheme, 1983. The provision for collection of additional levy in terms of clause 29 A of that Scheme obliges the Board to collect additional levy and also to make payment out of Accident Relief Funds. The consequence of failure to make contributions to the Accident Relief Fund, as envisaged in sub-clause 4 of clause 29 A of the Scheme is only to the effect that the immediate employer would not get insulated from any liability under the Workmen's Compensation Act on the premise that the Board would release the amount. That insulation, available to the immediate employer, is not a defense that the Board can rely on to claim any exemption or privilege from paying amounts due from the Accident Relief Fund. Non-payment of the additional levy of 2% in terms of clause 29 A (1) gives the right to the Board to interfere with the levy and effect recovery of amounts due. It does not depend upon the volition of persons like Sajan who utilise the service of headload workers enlisted under the Scheme. We, therefore, do not find any merit in the appeal in that regard. 

5.As regards the date from which the order for interest could be made under the Workmen's Compensation Act, following the judgment in MFA.59/11 dated 22.8.2011, it is ordered that liability to pay interest will be from the date of accident. Hence, it is answered against the appellant. 

In the result, this appeal is dismissed without prejudice to the Board's right to recover outstandings, if any, from the aforesaid Sajan, in terms of clause 29 A of the Scheme, in accordance with law. No costs. 

Sd/- THOTTATHIL B.RADHAKRISHNAN Judge. 

Sd/- K.VINOD CHANDRAN Judge. 

kkb.14/6. 

(2012) 243 KLR 614

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR 

TUESDAY, THE 28TH DAY OF FEBRUARY 2012/9TH PHALGUNA 1933 

MFA.No. 46 of 2009 ( ) 

--------------------------- 

WCC.301/2003 of COMMISSIONER FOR WORKMENS COMPENSATION, KOZHIKODE 

........... 

APPELLANT(S)/2ND OPPOSITE PARTY: 

---------------------------------------------- 

THE NATIONAL INSURANCE CO.LTD., CALICUT, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE M.G.ROAD, ERNAKULAM, KOCHI - 35. 

BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) 

RESPONDENT(S)/APPLICANT/IST OPPOSITE PARTY: 

-------------------------------------------------------------- 

1. T.T.MAMMU, S/O.UMMER, THALANOR THODUGA HOUSE, THAANGALA ROAD, P.O.PARAPPIL CALICUT - 673 001. 

2. THE MANAGING PARTNER, M/S.DAVOOD & COMPANY, DAVOOD CHAMBERS WEST HILL P.O., CHUNGAM, CALICUT 

R1 BY ADVS. SMT.KOCHUMOL KODUVATH SRI. JACOB ABRAHAM 

THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 28-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs 

THOTTATHIL B. RADHAKRISHNAN & C.T.RAVIKUMAR, JJ. 

---------------------------------------- 

M.F.A.No.46 of 2009 

---------------------------------------- 

Dated this the 28th day of February, 2012 

Head Note:-

Workmen's Compensation Act, 1923 - Section 2(1) (n) read with Schedule II, Entry (xxxvii) - A person employed in the handling or transport of goods which have been loaded in any mechanically propelled vehicle is a workman for the purpose of the Act.   

Workmen's Compensation Act, 1923 - Section 4 - Disability - Calculation - Various Factors. 

Held:- Temporary partial disability, temporary total disability, permanent partial disability and permanent total disability are different concepts and variants relating to the measure of physical disability, having regard to various relevant yardsticks. Professional disability or occupational disability is a measure of the loss of earning power that has to be determined with reference to the peculiar facts and circumstances of each case as emanating out, on the basis of the evidence and on the totality of the facts and circumstances, going by the common course of human conduct. This varies from case to case. There cannot be any principle of law as to percentage, which could be applied in such matters. What would be cent percent occupational disability in one case could be a flee-bite or 5% to 10% occupational disability in a different fact situation, depending on various factors in relation to the person injured. The age of the person when he suffered the injury, his ability for other avocations, the period for which he could be expected to have continued with his avocation, had he not been injured, his educational status, etc. are among the relevant factors. Therefore, there cannot be any universally acceptable doctrine to provide a measure of occupational disability or professional disability. Varied relevant factors for determining the occupational disability could be easily conceived and deciphered in the common course of employment. That would depend, as already noted, upon the individual who is injured, that person's age, the avocation which was being done by that person at the time of suffering the injury, the ability of that person to carry on with the same avocation or to change over to any other avocation etc. All these will have to be decided, taking a pragmatic view of the totality of the facts and materials on record, as also, reasonable inferences and inescapable conclusions deducible on the wholesome, just and reasonable evaluation of all relevant aspects. 

J U D G M E N T 

"C.R." 

Thottathil B.Radhakrishnan, J. 

This appeal under the Workmen's Compensation Act, 1923 is by the insurer. Valid insurance cover for a lorry belonging to the second respondent is admitted. The first respondent claimed that he met with an accident which falls under the provisions of the Workmen's Compensation Act, 1923 (hereinafter, the `Act'). His allegation was that while he was unloading goods from the second respondent's lorry, a wooden plank of that lorry gave way injuring him, ultimately leading to paralysis. The testimony of the second respondent's representative clinchingly established the master and servant relationship between the respondents. The material evidence on record showed that the first respondent suffered the injuries, underwent treatment and that the competent Medical Board certified that he has 50% physical disability and that he suffers 100% occupational disability, having regard to the fact that he is a headload worker. The Commissioner passed an award taking the disability of 100%.

2. Before us, the insurer raises two points. Firstly, it is argued that there is no relationship between the respondents, which could be termed as one of a master and servant, to enable the first respondent being treated as a workman for the purpose of the Act. The next argument is that the Medical Board acted illegally in fixing the professional disability at 100% and the Commissioner ought to have accepted the disability as only 50%. 

3. As regards the first among the arguments, section 2(1) (n) read with Schedule II, entry (xxxvii) provides that a person employed in the handling or transport of goods which have been loaded in any mechanically propelled vehicle is a workman for the purpose of the Act. Obviously, the injured was handling the goods which were loaded in the vehicle of the second respondent. There is no dispute that it was a mechanically propelled one. The argument of the learned counsel for the first respondent, in this regard, is only to be accepted. Under such circumstances, we do not find any way to reverse the finding of the Commissioner rendered on this issue. 

4. Now, on the issue as to whether 100% could have been treated as the percentage of disability, it needs to be noted, on facts, that the injured was around 48 years of age when he suffered the incident. Temporary partial disability, temporary total disability, permanent partial disability and permanent total disability are different concepts and variants relating to the measure of physical disability, having regard to various relevant yardsticks. Professional disability or occupational disability is a measure of the loss of earning power that has to be determined with reference to the peculiar facts and circumstances of each case as emanating out, on the basis of the evidence and on the totality of the facts and circumstances, going by the common course of human conduct. This varies from case to case. There cannot be any principle of law as to percentage, which could be applied in such matters. What would be cent percent occupational disability in one case could be a flee-bite or 5% to 10% occupational disability in a different fact situation, depending on various factors in relation to the person injured. The age of the person when he suffered the injury, his ability for other avocations, the period for which he could be expected to have continued with his avocation, had he not been injured, his educational status, etc. are among the relevant factors. Therefore, there cannot be any universally acceptable doctrine to provide a measure of occupational disability or professional disability. Varied relevant factors for determining the occupational disability could be easily conceived and deciphered in the common course of employment. That would depend, as already noted, upon the individual who is injured, that person's age, the avocation which was being done by that person at the time of suffering the injury, the ability of that person to carry on with the same avocation or to change over to any other avocation etc. All these will have to be decided, taking a pragmatic view of the totality of the facts and materials on record, as also, reasonable inferences and inescapable conclusions deducible on the wholesome, just and reasonable evaluation of all relevant aspects. 

5. The learned counsel for the insurer referred to Pankajakshan v. Joseph (2003 (2) KLT 462) rendered by the Full Bench of this Court. The ratio decidendi, of that precedent, as deducible on a reading of that erudite judgment, in its entirety, is to the extent of what we have stated above. In fact, that decision itself is a pointer to the fact that every case ultimately rests on its own facts. While weighing, appreciating and accepting and acting upon the disability certificate and the percentage of disability as determined by the authorised medical practitioner or the Medical Board, the adjudicating authority i.e., the Commissioner and the court ought to make an over all assessment of the broad probabilities in the backdrop of realities of human life of a person who, unfortunately, becomes the victim of an accident which falls within the realm of the Act. The ameliorative and social welfare object of the Act cannot bleak into oblivion during the process of adjudication. The bleak bargaining power of a workman has also to be remembered while adjudicating a claim under a legislation in the nature of the Act. 

6. Applying the aforesaid to the facts of the case in hand, as already noted, we are dealing with the claim of a person who was a headload worker. He was around 48 years of age when he met with the accident. The certificate of permanent disability issued by the Medical Board shows that he is paralysed and incapacitated to be a headload worker. He suffered severe injury to C5 and C6 among his vertebrae. The doctors have assessed his professional disability at 100%. They did so noticing that he is a headload worker. Obviously, this means that with the 50% physical disability which was assessed, he will not be able to carry out the work of headload worker. Forty eight years of fruitful life having been spent as a headload worker, in the Indian context, the ground realities do not persuade this Court to think that he should be told that he ought to eke a livelihood by changing over to other avocations where a paralytic could make a few chips. At any rate, we do not see the scope for any such enquiry in the absence of any contra evidence by the appealing insurer. Beyond that, this appeal does not generate any substantial question of law for consideration in terms of the first proviso to section 30 of the Act, bereft of which, this appeal has, necessarily, to fail since no substantial question of law is involved in this appeal on this count. 

7. For the aforesaid reasons, we do not find any sustainable substantial question of law, calling for interference with the impugned order. In the result, this M.F.A. fails and the same is dismissed with costs. 

Sd/- THOTTATHIL B. RADHAKRISHNAN Judge 

Sd/- C.T.RAVIKUMAR Judge 

TKS/28.2.2012 

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Thottathil B. Radhakrishnan & C. T. Ravikumar, JJ.

M.F.A. No. 37 of 2009

Dated this the 16^th Day of February, 2012

Head Note:-

Workmens Compensation Act, 1923 – Section 8 - No payment of compensation, otherwise than by deposit with the Commissioner, in respect of a workman whose injury has resulted in death, is to be recognized. 

Workmens Compensation Act, 1923 – Section 8 - Law does not recognize any settlement between an employer and the dependents of a workman, of a case where compensation is payable under Sec.8 of the Act. 

Workmens Compensation Act, 1923 – Sections 8 & 28 - The right of a minor to compensation under the Act is a legitimate statutory entitlement. There cannot be any ground on which a parent or guardian could deprive a child of the benefit by any concession that they offer. No such concession by the parents or guardian can be recognized in law. 

Workmens Compensation Act, 1923 –Section 28 - Civil Procedure Code, 1908 – Order 41 Rule 33 - When an appeal lies to an established Court, without prescribing the procedure for dealing with such appeal, that Court would apply such rules, principles and practices as would apply in dealing with appeals relating to the subject-matter of the litigation.

For Appellant:- 

• K. Mohanakannan
• A.R. Pravitha

For Respondents:- 

• Binoy Vasudevan

J U D G M E N T

Thottathil B. Radhakrishnan, J.

1. The substantial question of law; the only issue; for decision in this employer's appeal under the Workmen's Compensation Act, 1923 is as to whether the Commissioner erred in law in applying Sec.8 of the Act, thereby refusing to act on an agreement under which the dependents of the deceased workman accepted amounts from the employer in settlement of the claim for compensation.

2. The workman died on 07-08-2005 leaving behind mother, widow and two minor sons. The claim was filed before the Commissioner in 2006 by the mother, the widow and a minor son. The other minor son was impleaded later. Preliminary enquiry was held on 25-08-2006 and 27-10-2006. Thereupon the claim was admitted and numbered as W.C.C. No. 72 of 2006. On 04-01-2008, a petition was filed stating that the parties have arrived at a settlement and an order may be passed in terms of that. It was stated therein that an amount of Rs.1,50,000/- was received by the widow of the workman; of which, Rs.50,000/- each have been deposited respectively in the name of the mother and the widow, and another Rs.50,000/- as a joint fixed deposit in the name of the minor sons of the deceased workman. The workman's widow, who was the second applicant, deposed before the Commissioner in terms of the aforesaid settlement. The Commissioner noted that the said payment made by the employer to the applicants cannot be treated as payment of compensation in view of the provisions of the Act, which inhibits direct payment of compensation to dependents of a deceased workman. Accordingly, the compensation was determined ignoring the payment of that sum.

3. It is argued on behalf of the appellant that the Commissioner erred in law in relying on Sec.8 of the Act, thereby refusing to act on Ext. A2 agreement between the parties and that Ext. A2 agreement is a bona fide transaction, which has also been spoken to by the second applicant. It is pithily pointed out that the fact of the matter remains that the payment of the entire amounts given by the employer to the dependents of the deceased workman is unimpeachable as those amounts were deposited in a bank. The Commissioner ought to have adopted a pragmatic approach to find that the appellant employer had paid compensation to the satisfaction of the claimants and therefore Ext. A2 agreement is valid and eligible to be acted upon, it is argued.

4. The learned counsel for the respondents, who were the claimants before the Commissioner, points out that though the impugned order has been issued by the Commissioner as enjoined by law, as a matter of fact, Ext. A2 agreement was entered into and acted upon bona fide and amounts have been deposited in the names of dependents, as deposed by the workman's widow before the Commissioner.

5. Sub-Sec.1 of Sec.8 of the Act provides, inter alia, that no payment of compensation in cases of death shall be made otherwise than by deposit with the Commissioner, and no such payment made directly by an employer shall be deemed to be a payment of compensation. However, an employer may make to any dependent advances, on account of compensation, of an amount equal to three months' wages of such workman and so much of such amount, as does not exceed the compensation payable to that dependent, shall be deducted by the Commissioner from such compensation and repaid to the employer. Sub-Sec.2 of that section provides that any other sum amounting to not less than ten rupees which is payable as compensation may be deposited with the Commissioner on behalf of the person entitled thereto. Thus, statute inhibits any direct payment to the claimants except to the extent of the aforesaid limit and provides that payment of compensation in excess of that limit shall be only by deposit with the Commissioner. That provision is a protective legislation insulating the dependents of workmen who die as a result of employment injuries. Such dependents form a class by themselves and belong to the challenged, vulnerable and weaker sections of the society. The provisions in Sec.8(1) & (2) are intended to exclude any situation or opportunity which could be abused against the interest of that marginalised category of the society. Sec.8 of the Act, in effect, protects the dependents of a deceased workman against any kind of exploitation or fraud by or on behalf of the employer or any third party, in relation to compensation payable to them under that provision. No payment of compensation, otherwise than by deposit with the Commissioner, in respect of a workman whose injury has resulted in death, is to be recognized, except to the extent provision for such payment is made in Sec.8 itself and eligible to be reckoned while calculating the total amount payable as compensation under Sec.8. No employer can plead to have discharged the liability to pay compensation in such cases, without making, deposit before the Commissioner, even if the employer does not dispute the liability and is prepared to pay off the entire amount due to the dependents of the deceased workman in terms of the Act.

6. The distribution of compensation among the different dependents of a deceased workman is a matter within the authority of the Commissioner in terms of sub-S.4 to 8 of Sec.8 of the Act. Such power includes the authority to decide on various matters provided for in those sub-sections. Issues relating to identifying and classifying the dependents of the deceased workman are exclusively within the domain of the Commissioner. Equally, the power to make provisions on case to case basis, having regard to the situation of the dependents of a deceased workman, is with the Commissioner. The Legislature has envisaged and provided the manner in which the challenged dependents of a deceased workman have to be protected through the statutory provisions and by the authorised statutory authorities. The empowerment of the Commissioner in this regard, as its inexcusable corollary, casts the duty on the Commissioner to ensure that all such cases are appropriately taken care of as envisaged and enjoined by those provisions. Those are not matters to be left to the bargains between the employer, on the one hand, and the dependents of the deceased workman, on the other. It is the avowed duty of the Commissioner to ensure the statutory protection of the dependents of a deceased workman, as provided for in terms of the aforesaid laws, as and when such situations arise in any given case. This provision also categorically rules out the possibility of the employer settling any claim and paying off the dependents of the deceased workman, without depositing the compensation due under the Act before the Commissioner as enjoined.

7. Formidable support for the aforesaid view is available on the legislative materials themselves. Sec.3(1) of the Act provides that if personal injury is caused to a workman by accident arising out of and in the course of his employment his employer shall be liable to pay compensation in accordance with the provisions of Chapter II of the Act. Sec.4 prescribes the different amounts to be paid as compensation in different situations, including where death results from the injury. The Act envisages and provides for payment of compensation in cases of injuries which do not result in death and also for cases of death, where death results from the injury. As already noted, Sec.8 specifically deals with distribution of compensation in respect of a workman whose injury has resulted in death. Sub-section (1) of Sec.28 of the Act provides, among other things, that where the amount of any lump sum payable as compensation has been settled by agreement, or where any compensation has been so settled as being payable to a woman or a person under a legal disability, a memorandum thereof shall be sent by the employer to the Commissioner, who shall, on being satisfied as to its genuineness, record the memorandum in a register in the prescribed manner. Pause here to rewind the legislative history; to note that until they were repealed by Act 7 of 1924, the words "or to a dependent" occurred after the words "to a person under a legal disability" in Sec.28(1). The exclusion of the words "or to a dependent" from the legislative provision that then existed is intrinsic legislative material unequivocally demonstrating the legislative intention and command that there can be no settlement in relation to cases where compensation is payable under, Sec.8 of the Act, in respect of a workman whose injury has resulted in death.

8. For the aforesaid reasons, it has to be stated that law does not recognize any settlement between an employer and the dependents of a workman, of a case where compensation is payable under Sec.8 of the Act. No settlement could be recorded under Sec.28, in relation to a case where compensation is payable under Sec.8 of the Act. Therefore, Ext. A2 is of no value to bind the dependents of the deceased workman. The Commissioner has, therefore, acted in accordance with law in deciding the quantum of compensation payable under Sec.8 of the Act without reference to Ext. A2 settlement between the parties.

9. Now, another aspect arising on the facts of the case and the materials on record needs to be noted. Ext. A2 is shown to have been entered into also on behalf of the two minor sons of the deceased workman. The right of a minor to compensation under the Act is a legitimate statutory entitlement. There cannot be any ground on which a parent or guardian could deprive a child of the benefit by any concession that they offer. No such concession by the parents or guardian can be recognized in law, even in cases which would be available for settlement of Sec.28 of the Act. In such a situation, the Courts and judicial authorities have also a role of parens patriae as regards the minors involved in such litigations. Quintessentially, this farsightedness of the laws is writ large in Sec.28, which embodies protective provisions in favour of persons with legal disabilities. The statutory authorities have to keep their eyes wide open to protect such persons and provide necessary support on account of their eligibility to protection from State, on account of their legal disabilities, of which minority is a species. Having noticed Ext. A2, we deem it appropriate to sound that the aforesaid words of caution are relevant while dealing with agreements or settlements which would fall under Sec.28 to the Act. Neither the mother, nor the paternal grandmother of the two minors in the case in hand, could have entered into any agreement on behalf of the minor children of the deceased workman.

10. We have looked into the entire materials, including the contents of Ext. A2. Under that document, amounts are stated to have been paid on 27-04-2007. The second applicant, who is the widow of the deceased workman, deposed before the Commissioner that she had received an amount of Rs.1,50,000/- from the respondent and out of that, amounts at the rate of Rs.50,000/- have been deposited in her name; in the name of the mother of the workman; and, in the names of his children, jointly, in the State Bank of Travancore. In the light of what we have found above, in terms of the provisions of the Statute, there was no room to entertain any such contention during the course of proceedings before the Commissioner. Nor is there any ground to entertain the plea of the appellant based on such a factual premise, as a substantial question of law in this appeal.

11. However, looking at the contents of Ext. A2 and the fact that the first and second claimants stand by it, we are inclined to accept that the said transaction is a true and bona fide one and that respondents 1 and 2 have received such amounts. Yet, the powers conferred on the Commissioner under the Act would be wholly insufficient for that authority to accept any such plea or to act on such material. But, in an exceptionally exceptional case like the one in hand, on being satisfied about the bona fides of the plea and materials, is this Court sitting in appeal, powerless that it has to leave unresolved, the muddle in which the parties have placed themselves; may be, due to inadequate assistance in conducting the proceedings before the Commissioner? Sec.30 of the Act which provides for appeal to this Court, against the decision of the Commissioner, prescribes certain restrictions, including as to the requirement of substantial question of law, to interfere with the verdict of the Commissioner. It also enjoins certain conditions for the appeal, including by way of deposit. At the same time, it does not provide for, or regulate, the procedure that this Court has to follow or adopt in the matter of dealing with the admission, hearing and decision - making in the appeal. Therefore, the age - tested principle which applies is that when an appeal lies to an established Court, without prescribing the procedure for dealing with such appeal, that Court would apply such rules, principles and practices as would apply in dealing with appeals relating to the subject - matter of the litigation. That is to say, if the content of the appeal and the subject - matter of the proceedings from which it arises are predominantly "civil" in nature, the Appellate Court will guide itself to decide that appeal as it would decide a civil appeal. Similarly, if the subject - matter is predominantly "criminal", rules, principles relating to practice and procedure in criminal appellate jurisdiction would govern. For support, See -- New India Assurance Co. Ltd. Vs. Pathumma, 1986 KLT 553 and the Privy Council judgments referred to therein; Secretary of State for India Vs. Chellikani Rama Rao and Others, AIR 1916 PC 21 and R.M.A.R.A. Adaikappa Chettiar and Another Vs. R. Chandrasekahara Thevar, AIR 1948 PC 12. This principle persuades us to exercise authority in accordance with the provisions contained in Rule33 of Order41 of the Code of Civil Procedure, which is a tool available to an Appellate Court governed by that Code, to be used in extremely deserving situations, to mould the relief in such a way as to render complete justice between the parties. We are satisfied that the power of this Court in that regard needs to be exercised in the case in hand. Ends of justice would be satisfied, on the facts and in the circumstances of this case, if the amount of Rs.1,50,000/- is given due credit to as on 27-04-2007, without, in any manner, reducing otherwise the compensation amount or the interest accruing thereon in terms of the impugned award and in accordance with law. Such credit will be reconciled as on the date of deposit of the compensation due under the impugned award, before the Commissioner. It is so ordered. The appellant is not entitled to any other relief.

In the result, this appeal is ordered confirming the impugned order of the Commissioner and directing that due credit shall be given to an amount of Rs.1,50,000/- as directed above, without in any manner reducing otherwise, the compensation amount or the interest accruing thereon, in terms of the impugned award and in accordance with law. The appellant is not entitled to any other relief. No costs.

JOBY GEORGE, AGED 31 YEARS, S/O.GEORGE, RESIDING AT PLATHOTTATHIL HOUSE, KAILASANADU P.O., MYLADUMPARA KARA, UDUMBANCHOLA VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT. 

BY ADV. SRI.JOICE GEORGE 

THOMAS VARGHESE, S/O.VARGHESE, AGED ABOUT 35 YEARS, RESIDING AT VADAKKEKARA HOUSE, MAVADY P.O. MAVADY KARA, PARATHODE VILLAGE, UDUMBANCHOLA TALUK IDUKKI DISTRICT, PIN-685 554. 

BY ADV. SRI.SAJI MATHEW BY ADV. SRI.ABLE C.KURIAN BY ADV. SRI.DENU JOSEPH BY ADV. SRI.ANTONY XAVIER 

Kerala Panchayat Raj Act, 1994 - Section 34(1)(b)(i) - Indian Penal Code, 1860 - Sections 143, 147 and 323  - Grama Sabha meeting - Moral Turpitude - Whether the sentencing  in a criminal case amounts to disqualification? 

Setting aside the election of the respondent the Court Held:- 

If a person who is lawfully entitled to be present in a Grama Sabha raises questions and asks for disclosure of accounts, he cannot be put under any threat or duress. None protected by the Indian Constitution can be made voiceless by threat or duress. Grass-root level public institutions like Grama Sabhas are the ground fields where the citizens are expected to bring out their grievance and discuss matters in relation to the development of the society. If any such person is threatened or attacked even after the Grama Sabha, in the public road, that is nothing but a challenge to the societal existence of the local self government institution of a grass-root level, i.e., a Grama Sabha. Physical prowess, financial clout, political or other considerations cannot, at any point of time, be accepted as a social norm when it threatens the core rights of the citizens in relation to a grass-root level institution like Grama Sabha. The purpose of Grama Sabha and the need to have governance to the grass-root is, ultimately, intended also for self empowerment. The empowerment of the citizens cannot be had under duress and threat by those who are capable of such actions. In the context of the transaction involved in the criminal cases in hand, the respondent stands convicted of offence where a group of persons questioned the victim and retorted against him for having asked for accounts in the Grama Sabha. That followed the overt acts by which the victim was found to have suffered. We are not on the quality of injuries or the nature of assaults. Those may be matters for concern in the criminal revision. But, here, we are clear in our mind that the conviction of the respondent under Sections 143, 147 and 323 IPC as they now stand and the sentence imposed on him is for a conduct which amounts to an offence involving moral turpitude. This is clearly so in the context of the fact that what is being examined is the quality of the conduct of one who is competing to hold a post of public nature, with public accountability. In the result, the impugned order is set aside and OP(Election).No.37 of 2010 of the Court of the District Judge, Thodupuzha is allowed setting aside the election of the respondent from Ward No.VI of Parathodu Constituency of B56 of Nedumkandom Block Panchayat held on 25.10.2010 and declared on 27.10.2010 on the ground that he was disqualified from being chosen as and for being a member of that panchayat on ground under section 34(1)(b)(i) of the Kerala Panchayat Raj Act.