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FA/342/2009 10/ 10 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 342 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE K.M.THAKER
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
PREMADEVI
AVINASHSINGH & 3 - Appellant(s)
Versus
UNION
OF INDIA THROUGH GENERAL MANAGER - Defendant(s)
=========================================================
Appearance
:
MR
PJ MEHTA for
Appellant(s) : 1 - 4.
MR BIPIN I MEHTA for Defendant(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 04/03/2010
ORAL
JUDGMENT
The
appellant has brought under challenge, an order dated 05.05.2005
passed by the learned Railway Claims Tribunal (Ahmedabad Bench),
Ahmedabad in CA No. OA 0300161 and Miscellaneous Civil Application
No. MX300033. The learned Tribunal has rejected both the
applications being CA No. OA 0300161 and Miscellaneous Civil
Application No. MX300033 on the short and sole ground that the
applicant had preferred two different/ separate claim-petition
applications in respect of the same accident and same victims and in
the following application i.e. the second application the applicants
had made a declaration to the effect that We the applicants above
named solemnly declare that: (a) the particulars given above are
true and correct to the best of our knowledge and (b) we have not
claimed or obtained any compensation in relation to the death which
is the subject matter of this application .
In
other words, on the ground that the second claim in respect of the
same accident was made by the same person/ appellant (as the
beneficiary of the victim) in respect of one and the same accident,
the learned Tribunal observed that we are of the firm view that
the applicant(s) have not approached the Tribunal with clean hands
and more so, by making false statements and declaration, they have
made themselves liable for penal action under Section 148 of the
Railways Act, 1989 , and with such observations, rejected both the
claims applications.
Aggrieved
by the said order the appellant has preferred this application
before this Court.
Learned
advocate Mr.P.J.Mehta has appeared for the appellants and learned
advocate Mr.B.I.Mehta has appeared for the opponent Union of
India. Heard learned counsels of the contesting parties.
Learned
advocate Mr.P.J.Mehta on behalf of appellants submitted that, the
learned Tribunal is not right in its observation and conclusion that
the applicant had preferred second application for the same claim
and in respect of the same accident and the same victim. He tried to
submit that the cause of action of the applicant in both
applications was different. He also referred to the Railway Claims
Tribunal Procedure Rules and submitted that it was the obligation of
the Registry to examine and verify the claims and the applications.
Learned Tribunal was not justified in dismissing the claims only on
the ground that two applications were filed for the claims and
benefits in respect of same accident. He denied the allegation that
two claim applications for the same cause of action had been
preferred.
He
also tried to blame the registry of the Tribunal and submitted that
when the registry had checked both applications and then circulated
the applications for hearing, the applications could not have been
dismissed on that ground and if at all there was any fault the
registry should have defected it and should not have circulated the
applications. He prayed that the order is unsustainable.
Learned
advocate Mr.B.I.Mehta for the Union of India has contested and
opposed the appeal and submitted that the learned Tribunal is
justified in dismissing the claim applications. He submitted that
the intention of the appellant was to deceive the opponent and to
receive double benefit for the same cause. Mr.B.I.Mehta has also
submitted that the applications were unsustainable in law also for
the reason that the provisions under the Railways Act, 1989 and
under the Railway Claims Tribunal Procedure Rules require the
applicant to make the declaration that the facts stated in the
application are true, complete and correct and in the event,
declaration is found to be incorrect, as a consequence, the
application can be dismissed. Therefore, the order of the learned
Tribunal is well justified.
Mr.B.I.Mehta,
learned advocate for the Union of India has submitted that the
applicant has made these applications with malafide intentions to
extract more money. Mr.B.I.Mehta has also submitted that the order
does not warrant any interference.
While
the appellant’s attempt to throw the blame on the Registry that it
did not examine the application when filed and since no objection
was raised at the initial stage, later-on it cannot be rejected, is
misconceived and not worthy of consideration and deserves to be
rejected and is accordingly rejected.
However
on perusal of the order it does appear that the appellant herein
(viz. Premadevi Avinashsingh) had preferred an application which
came to be registered as CA No.OA 0300161. The same appellant
applicant also preferred Miscellaneous Civil Application No.
MX300033.
It
appears that during the proceedings when the aforesaid two
applications came to the notice of the learned Tribunal, inquiries
were made with the Registry. The learned Tribunal has recorded that
the Registry expressed that it was impracticable for the Registry to
ascertain such aspects at the time of registering any application.
This
Court called upon Mr.B.I.Mehta, learned advocate to supply the
copies of both the applications filed by present applicant. Learned
advocate for the opponent, Mr.B.I.Mehta has supplied the record of
the Railway Administration containing copies of both the
application.
On
perusal of the record, it prima facie appears that 2 applications
were preferred in respect of the accident which had occurred on
24.07.2000 wherein shuttle train No.140 UP Vapi-Virar was involved,
however, on closer scrutiny of the record, it appears that one of
the applications was made seeking condonation of delay whereas the
second application was the parent application claiming the
compensation claim amount.
Though,
from the available record it is difficult to finally ascertain as to
whether both the applications were parent, main and substantive
applications pertaining to substantive prayer for claim of
compensation, or not. It however prima facie appears that one of the
two applications was preferred with the prayer seeking limited
relief i.e. relief of condonation of delay.
From
the
order of the learned Tribunal it emerges that one of the
applications was registered as original application and the second
application was registered as Misc. Civil Application. Ordinarily an
application claiming the compensation/ claim amount could not
have been registered as a Misc. Civil Application. Differently put a
Misc. Civil
Application would not be filed for presenting the claim for
compensation.
In
view of the fact that one of the two applications was registered/
presented as Misc. Civil Application and other one as Original
Application it appears that the impression gathered by the learned
Tribunal and reflected in the impugned order is not justified.
Besides
this even if what is observed by the learned Tribunal is accepted to
be factually accurate, then also the ground on which both the
applications are dismissed, is not justified.
Learned Tribunal has rejected both the applications on the ground
that the applicant made incorrect statement and declaration. If at
all such observation of the learned Tribunal is to be accepted, then
also only one of the two applications can be treated as infected by
the vice of the incorrect statement and declaration. The declaration
made by the appellant in the first application obviously would be
correct though at the time of second application (allegedly for the
same cause of action) such declaration may turn out to be incorrect
when made in the memo of second application inasmuch as at the time
of filing of the first application obviously
the second application was not preferred or pending. Hence, the
declaration in the first applicant cannot be treated as incorrect
statement since prior to the said first application any other claim
application was not filed.
In
present case even if both the applications are substantive
application then also only one of the two applications, particularly
the second application, would be hit by the vice of suppression or
incorrect declaration and the order would be justified in respect of
the second application but not for the first application.
Further
more, in view of the fact that the applicants are legal
representatives of a deceased/ victim of an accident, it would not
be justified if the applicants are totally non-suited and are
completely deprived of the claim amount by dismissing both the
applications.
The
learned Tribunal could have considered the option of returning one
of the the applications and pass the appropriate order on merits in
respect of the other application i.e. the first one. In light of the
aforesaid discussion, the impugned order deserves to be set aside on
the limited ground as discussed above.
Instead
of making any final conclusion and direction in respect of both the
application, it appears that the interest of the contesting parties
and justice would be served, if matter is remanded to the learned
Tribunal.
The
learned Tribunal would do well to conduct and undertake detailed
examination of the complete record of both the applications,
particularly the issue whether both the applications contain
substantive claim i.e. claim for compensation or one of the
applications is made only for the relief of condonation of delay and
if on proper examination the learned Tribunal finds that one of the
applications is only for the prayer of condonation of delay then the
learned Tribunal shall pass appropriate order in accordance with law
and thereafter the substantive claim application may be taken for
consideration provided the learned Tribunal finds it proper to, and
it actually does, condone delay.
If
the learned Tribunal finds, after proper verification of the
applications, that both the applications had been filed as
substantive application with substantive prayer for claim amount in
respect of the same accident and for the same person/ victim, then
the learned Tribunal may pass appropriate order keeping in mind the
discussion hereinabove.
As
an upshot of the discussion, the impugned order is, for the
aforesaid reasons, set aside and on the limited ground the two
applications are remanded to the learned Tribunal with the
directions as above. The learned Tribunal shall consider and decide
the applications independently and on their own merits but after
offering opportunity of hearing to both the sides. It would be open
to both the sides to raise all contentions available in law
including the objection on ground of limitation and/ or
maintainability of the applications.
Appeal
is accordingly partly allowed.
Proceedings
are remitted to the learned Railway Claims Tribunal (Ahmedabad Bench)
Ahmedabad for appropriate orders.
(K.M.THAKER,
J.)
&mitesh&
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