ORDER
A.K. Shrivastava, J.
1. Feeling aggrieved by the order dated 26th June, 1992 passed by Railways Claims Tribunal, Bhopal, Bench Bhopal (hereinafter referred to as “Tribunal”) in Case No. 686/90, the appellant has preferred this appeal under Section 23 of the Railway Claims Tribunal Act, 1987.
2. Sans unnecessary details the facts lie in a narrow compass that the appellant was travelling in 658 Up Passenger Train which was derailed between Naunera and Rithora Kalan Station at Bhind-Gwalior (narrow gauge) run by Central Railway on 18-5-1988 and eventually the appellant sustained injuries on account of said accident.
3. The appellant, filed claim petition on 21-3-90 under Section 82C of the Indian Railways Act for compensation before the Tribunal as she did sustain umpteen injuries. In her claim petition, she claimed compensation to the tune of Rs. 1,00,000/- (Rupees one lakh only) along with interest from the date of filing of the application.
4. The factum of accident and the injuries sustained to the appellant was not denied by the respondents either before the Tribunal or before this Court. The Tribunal framed as many as five issues, thereafter appellant examined herself. However, the respondents did not choose to examine any witnesses in their defence.
5. The learned Tribunal after scanning the entire material placed before it came to hold that:–
(I) appellant was a bonafide passenger as he was holding monthly season ticket No. 011271 (Exh. P-1);
(II) appellant sustained a scheduled injury, i.e., the amputation of right arm above elbow. Besides non scheduled injuries namely fracture of left leg and lacerated wound on left cheek;
(III) exact location of amputation has not been indicated in the medical case history (Exh. P-5);
(IV) the wound extended from near the elbow to the lower portion of the arm and it was just above the right elbow; and
(V) the amputation was on upper right arm and to that extent the appellant sustained permanent disability.
On the basis of abovesaid findings, the Tribunal by taking the assistance of the Railway Accidents (Compensation) Rules, 1989 (in short “the Rules”) passed an award to the tune of Rs. 82,000/- in terms of Part III of the schedule of the said Rules. Hence, this appeal.
6. In this appeal, Shri N.D. Singhal, learned Counsel appearing for the appellant has contended that the approach of the Tribunal was erroneous and contrary to the law and it had wrongly applied the Rules of 1989. According to him, indeed the Railway Accident and Untoward Incidents (Compensation) Rules, 1990 should have been applied as the order was pronounced by the Tribunal after coming into force of these rules. To bolster his submission, he has placed heavy reliance on the decision of the Apex Court passed in the case of N. Parameswaran Pillai and Anr. v. Union of India and Anr., 2002 ACJ 841, and contended that the approach of the Tribunal by applying the Rules of 1989 was incorrect application of law. It has also been contended by him that the law applicable on the date of passing of the order ought to have been applied by the Tribunal. According to him, the Railways Act, 1989 was in force when the order was passed by the Tribunal and the Indian Railways Act, 1890 was repealed by Section 200 of the said Act. It has also been contended by him that the Part III of the schedule of the Rules of 1990 and a sum of Rs, 3,20,000/- should have been awarded and accordingly the impugned award passed by learned Tribunal be modified and enhanced.
7. Combatting the aforesaid submissions of learned Counsel for appellant, it has been contended by Shri H.D. Gupta, learned Counsel for respondents that the approach of the Tribunal was in consonance with the law applicable on the date on which the accident took place and the amount of compensation which has been awarded is just and proper and there is no necessity either on the facts or in the law to interfere in this appeal and, therefore, this appeal deserves to be dismissed.
8. Having heard the learned Counsel for the parties, we are of the view that this appeal deserves to be dismissed.
9. The moot question to be decided for the assessment of the compensation is whether the Rules of 1989 are applicable or the Rules of 1990 are applicable. Similarly, whether the provisions of Railways Act, 1989 shall be applicable or not. According to Mr. Singhal, the Railways Act, 1989 as well as the provisions of Rules of 1990 are applicable because the date on which the award was passed these statutes were in force. The argument of learned Counsel at the first blush appears to be quite attractive, however, on deeper scrutiny found to be devoid of any substance.
10. The Rules of 1989 came into force with effect from 19-9-89 when they were published in the Gazette of India Extra-ordinary Part II, Section 3(i), dated 19-9-89. The claim petition was filed on 21-3-90 when these Rules of 1989 were in force. These rules superseded the Railway Accident (Compensation) Rules, 1950 except in respect of things done before such supersession. As the claim petition was filed on 21-3-90, the action was taken by the claimants when the Rules of 1989 were in force.
11. The Railways Act, 1989 came into force with effect from 1st July, 1990 when it was notified by the Central Government in its official gazette. Admittedly, the accident took place much earlier to it and it was occurred on 18-5-1988. Section 200 of the Railways Act, 1989 speaks about repeal and saving which reads thus :–
(1) The Indian Railways Act, 1890 (9 of 1890) is hereby repealed.
(2) Notwithstanding the repeal of the Indian Railways Act, 1890 (9 of 1890) (hereinafter referred to as the ‘repealed Act’)
(a) anything done or any action taken or purported to have been done or taken (including any rule, notification, inspection, order or notice made or issued, or any appointment or declaration made or any licence, permission, authorisation or exemption granted or any document or instrument executed or any direction given or any proceedings taken or any penalty or fine imposed) under the repealed Act shall, insofar as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act;
(b) any complaint made to the Railway Rates Tribunal under Sub-section (1) of Section 41 of the repealed Act but not disposed of before the commencement of this Act and any complaint that may be made to the said Tribunal against any act or omission of a railway administration under the repealed Act shall be heard and decided by the Tribunal constituted under this Act in accordance with the provisions of Chapter VII of this Act.
(3) The mention of particular matters in Sub-section (2) shall not be held to prejudice or affect the general application of Section 6 of the General Clauses Act, 1897 (10 of 1897), with regard to the effect of repeal.
The aforesaid provision is as clear like a noon day and on going through these provisions we can safely say that the Rules of 1990 shall not be applicable, but the old Rules of 1989 shall be applicable in the present factual scenario as the accident did occur on 18-5-1988, i.e., before the enforcement of the present Railways Act, 1989 and the Rules of 1990. If Sub-section (2) (a) and Sub-section (3) of Section 200 of the Railways Act, 1989 are kept juxtaposition alongwith the Rules of 1989 the only inference which could be drawn is that anything done or any action which was taken under the law of Indian Railways Act or any rule made thereunder shall be governed by the old statute and the abovesaid new statute shall not be applicable. In this context Section 6(e) of General Clauses Act may also be seen which we may think proper to re-write as under:–
6. Effect of repeal.– Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made then, unless a different intention appears, the repeal shall not–
(a) .......... ............... ............... ............... ............... (b) ........... ............... ............... ............... ............... (c) ........... ............... ............... ............... ............... (d) ........... ............... ............... ............... ............... (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.
Even Sub-section (3) of Section 200 of the Railways Act, 1989 speaks about Section 6 of the General Clauses Act. According to which anything done or any action taken under the repealed Act shall be governed by the old statute. Hence the decision of the case of Apex Court in the case of N. Parameshwaran Pillai (supra) is not applicable in the present case for the simple reason that in that case the accident took place on 1-11-1997 when the new statutes were in full force. While, in the present case, as discussed hereinabove, the accident took place on 18-5-1988 and the claim petition was filed on 21-3-90 when the old statutes were in force. Thus, the submission of learned Counsel for the appellant is devoid of any force.
12. The learned Tribunal applied Part III of the Schedule of 1989 Rules, as there was an amputation from 8 inch from tip of acromion less than 4 -1/2 inches below tip of olecranon. We have seen the reasonings assigned by the Tribunal in that behalf and we find them to be in consonance with the provisions of the Rules of 1989 and there is no illegality in the order passed by the Tribunal and by this judgment we hereby give our stamp of approval to those reasonings of the Tribunal.
13. The Tribunal, apart from the above said amputation also found that the appellant sustained injuries which are as follows :–
(a) Lacerated wound 6″ x 1″ x 1″ extending from left cheek.
(b) Lacerated wound 6″ x 4″ on right fore-arm, bone exposed.
(c) Swelling on lower leg.
(d) Bleeding from left ear.
The Tribunal while deciding the issue No. 5 came to hold that on account of the said scheduled injury the appellant is entitled to get compensation to the tune of Rs. 72,000/-. That apart, appellant is further entitled of Rs. 12,000/-for other injuries, which according to our considered view is just and proper.
14. It has also be vehemently contended by Shri Singhal, learned Counsel for the appellant that the Tribunal erred in law in not awarding the interest. According to him, the appellant was examined on 21-8-1990 and thereafter, the case was fixed for 12-9-90 to pronounce the order. However, the award was not passed on that date and it was passed only on 26th June, 1992. On going through the record of the Tribunal, the argument is found to be misconceived. On 12-11-1990, the Tribunal while going through the case file found that the evidence on record is deficient in establishing the scheduled injury (amputation of right arm) suffered by the claimant, as there was no evidence which was in consequence of the injury received in the train accident. The Tribunal rightly held that just to safeguard the legal right of claimant so that she may not be deprived of her just compensation which she may be found entitled to in case of amputation and the case was thereafter listed at Circuit Bench at Gwalior on 16-1-91. On 16-1-91, the appellant appeared in person and she was briefly informed by the Tribunal in regard to the deficiency in her evidence and she was directed to put her case fresh through her Counsel and the case was fixed for 2-5-91 at Gwalior Circuit Bench. On 2-5-91 though the appellant appeared in person, but, her Counsel did not remain present and it was stated by the appellant that according to the instructions of her Counsel, she had nothing to add or to adduce any evidence. She also conveyed the message of her Counsel that the case be decided on the evidence available on the record. However, the Tribunal took the lenient view and directed one of the advocate present in the Court to ask Mr. N.D. Singhal, Advocate to appear on the next date and case was fixed for 3-5-91. On this date, neither the appellant nor her Counsel appeared. The Tribunal noted down that the attitude of the Counsel is unfortunate and not in the best interest of the claimant, the Tribunal held that ultimate sufferer would be the claimant only, who is a poor woman and hence another opportunity was allowed and the case was adjourned for 3-9-91 during next Circuit Bench at Gwalior. On that date, the claimant appeared in person but her Counsel did not appear. The Tribunal again in the order-sheet dated 13-9-91 noted the conduct of the Counsel for the appellant and found it to be highly objectionable. In the interest of justice the Tribunal suo motu issued summons to the Superintendent J.A. Group of Hospital, Gwalior for the bed head ticket of the appellant and the entire case history papers.
15. On 16-1-92 Shri N.D. Singhal, Counsel for the appellant appeared before the Tribunal and submitted an order dated 18-12-1991 passed by the Division Bench of this Court in Miscellaneous Petition No. 2141/91 giving direction to decide the case of the appellant. We have also seen the said order dated 18-12-91 passed by the Division Bench of this Court. It is unfortunate on the part of learned Counsel for appellant that by suppressing the above said facts an order was obtained from this Court which was also noticed by the Tribunal in its order sheet dated 16-1-92. On that day (16-1-92) Mahinder Saxena, Record Assistant, J.A. Group of Hospital was present with the relevant record. He was examined and cross-examined and, thereafter, the order was pronounced on 26-6-92.
16. We have narrated the above said facts in order to show that on account of negligence of appellant’s Counsel the order was not passed. The provisions of Railways Rules, 1989 are benevolent and, therefore, to pass an award of just compensation, the Tribunal adjourned the case. In this view of the matter, the reasons assigned by the Tribunal in Para 11 while deciding issue No. 4 are cogent whereby the Tribunal has disentitled the appellant for the interest and we see no reason to interfere in that finding. However, the claimant is free to recover the said amount of interest from her Counsel who has delayed the proceedings. Claimant may recover the loss caused to her on account of the conduct of her Counsel.
17. In the result, the appeal fails and is hereby dismissed. However, looking to the entire facts and circumstances of this case, the parties are directed to bear their own cost,