# Suneel Kumar v. Union of India

- **Citation:** (2019) 4 ILRA 968
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-17
- **Case number:** FAFO No. 320 of 2016
- **Bench:** Ved Prakash Vaish
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suneel-kumar-v-union-of-india-44971
- **Pages:** 8

## Headnote

Civil Law - Railway Claim - Railways Act,
1989
-
Railway
Claims
Tribunal
(Procedure) Rules, 1989 - Rule 26 -
Substitution of legal representatives -
Death of claimant - Claim application
does not abate - Law did not expect the
claim of dependent/claimant to come to
an
end
with
the
death
of
such
dependent/claimant - If the legal heirs
under Rule 26 can get impleaded and
substituted to continue the claim, there
can be no justification for the theory that
the
claim
ends
or
dies
with
the
dependent/claimant

Smt. Saroj Yadav preferred claim application
through her husband (appellant) for grant of
compensation on the ground of injuries
received by her whiles she was trying to get
down from the train - During pendency of the
said application, applicant (Smt. Saroj Yadav)
died & her husband (appellant) moved an
application for substitution of her legal
representative
-
Tribunal
held
original
applicant died on account of natural death
hence right to sue for compensation on
account of personal injury came to an end
with the death of the original applicant and
the claim stands abated HC Held - Appellant -
Husband is entitled to be substituted as legal
heir of the deceased claimant. (Para 27)

First Appeal from Order allowed. (E-5)

List of cases cited: -

## Text

968 INDIAN LAW REPORTS ALLAHABAD SERIES
discretion
vested
in
the
Returning
Officer."

70. The Supreme Court nowhere
held that time till the end of next working
day or 24 hours time should be granted to
meet the objection. It only held that the
Returning Offficer could have given any
time to do so "within 24 hours". I thus
find no force in the submission that the
procedure adopted by the Returning
Officer was in manner faulty or contrary
to the statutory scheme.

71. As a result of above discussion,
it is clear that the petitioner is neither an
elector nor a candidate at the election
which he seeks to challenge and would
therefore have no locus to file election
petition. It is accordingly dismissed, but
without any order as to costs.
----------
(2019)12 ILR A968

APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.12.2019

BEFORE
THE HON'BLE VED PRAKASH VAISH, J.

FAFO No. 320 of 2016

Suneel Kumar ...Appellant
Versus
Union of India ...Respondent

Counsel for the Appellant:
Sri Manish Kumar Srivastava

Counsel for the Respondent:
Sri Prashant Kumar Srivastava

Civil Law - Railway Claim - Railways Act,
1989
-
Railway
Claims
Tribunal
(Procedure) Rules, 1989 - Rule 26 -
Substitution of legal representatives -
Death of claimant - Claim application
does not abate - Law did not expect the
claim of dependent/claimant to come to
an
end
with
the
death
of
such
dependent/claimant - If the legal heirs
under Rule 26 can get impleaded and
substituted to continue the claim, there
can be no justification for the theory that
the
claim
ends
or
dies
with
the
dependent/claimant

Smt. Saroj Yadav preferred claim application
through her husband (appellant) for grant of
compensation on the ground of injuries
received by her whiles she was trying to get
down from the train - During pendency of the
said application, applicant (Smt. Saroj Yadav)
died & her husband (appellant) moved an
application for substitution of her legal
representative
-
Tribunal
held
original
applicant died on account of natural death
hence right to sue for compensation on
account of personal injury came to an end
with the death of the original applicant and
the claim stands abated HC Held - Appellant -
Husband is entitled to be substituted as legal
heir of the deceased claimant. (Para 27)

First Appeal from Order allowed. (E-5)

List of cases cited: -

1. 'Shri Rameshwar Manjhi (Deceased) Thru his Son
Shri Lakhiram Manjhi Vs Management of Sangramgarh
Colliery and others', (1994) 1 SCC 292

2. M. Veerappa Vs Evelyn Sequeira and others
(1988) 1 SCC 556

(Delivered by Hon'ble Ved Prakash Vaish,J.)

1. Heard Sri Manish Kumar
Srivastava, learned counsel for the
appellant
and
Sri
Prashant
Kumar
Srivastava, learned counsel for the
respondent.

2. This is an appeal under Section 23
of the Railways Claims Tribunal Act,
1987 (hereinafter referred to as ''the Act,
1987") against the order dated 19th
4 All. Suneel Kumar Vs. Union of India
969
January, 2016 passed by the Railways
Claims Tribunal (hereinafter referred to as
"the
Tribunal"),
Lucknow
Bench,
Lucknow
in
Claim
Application
No.OA/II/U/889/09,
whereby
the
application for substitution of legal
representatives was dismissed.

3. The relevant facts necessary for
determination of the present appeal are
that Smt. Saroj Yadav preferred an
application under Section 16 of the Act,
1987 through her husband Sri Suneel
Kumar (who is the appellant) for grant of
compensation. The case of the claimant
was that she along with her daughter Km.
Shreya, three years old, was trying to get
down from the train, they fell down from
the train at Jaipuriya railway crossing near
Kanpur Railway Station, both of them
sustained injuries; due to said injuries, her
daughter-Km.
Shreya
expired;
the
applicant, Smt. Saroj Yadav sustained
injuries, she had undergone treatment in
the hospital at Kanpur. Smt. Saroj Yadav
filed
an
application
for
grant
of
compensation on the ground of injuries
received by her in the alleged untoward
incident bearing Original Application No.
OA/II/U/889/09.

4. During pendency of the said
application, the applicant (Smt. Saroj
Yadav) died on 30.12.2012; the appellant,
Suneel Kumar moved an application for
substitution of her legal representative.

5. The respondent resisted the
application by filing objections on the
grounds, inter alia, that since Smt. Saroj
Yadav preferred the application for
compensation on the ground of her
personal injury, the right to sue was
personal and came to an end with the
death of the claimant. It was also stated
that the death certificate of Smt. Saroj
Yadav shows the date of death as
30.12.2012, but no documentary evidence
was filed by the applicant to establish that
the death of the deceased occurred due to
injuries sustained by her in the alleged
incident dated 26.07.2009.

6. The Tribunal framed the
following two questions for disposal of
the application for substitution of legal
representative:

(i) Whether Smt. Saroj Yadav died
due to injuries sustained by her in the
alleged untoward incident or her death
was a natural death?

(ii) In case the death of the claimant
was natural, then whether right to sue
survives after her death and consequently,
the applicant for substitution deserves to
be allowed?

7. After considering the submissions
made by learned counsel for the parties,
vide order dated 19.01.2016, the Tribunal
came to the conclusion that the original
applicant died on account of natural
death. Hence, in view of the maxim 'actio
personalis moritur cum persona' right to
sue for compensation on account of
personal injury came to an end with the
death of the original applicant, Smt. Saroj
Yadav and since right to sue come to an
end, the claim stands abated. Thus, the
request for substitution of the applicant in
place of the deceased applicant was
rejected and the claim was abated.

8. Aggrieved by the said order dated
19.01.2016, the appellant has preferred
the present appeal.

9. Learned counsel for the appellant
urged that the maxim 'actio personalis
moritur cum persona' depends upon the
970 INDIAN LAW REPORTS ALLAHABAD SERIES
facts and circumstances of each case.
According to him, only such claims or
reliefs as can be availed by the deceased
claimants personally, would abate and not
those, which can be quantified in terms of
damages.

10. Learned counsel for the
appellant also submitted that the present
case relates to a contract between the
deceased and the applicant, Smt. Saroj
Yadav and Railways as she was a bona
fide passenger of the train who got injured
in an untoward incident when she
accidentally fell down from the train
along with her daughter at Jaipuriya
railway crossing near Kanpur Railway
Station, and therefore, right to sue
survives and the proceedings does not
abate. According to learned counsel for
the appellant, the Tribunal did not
appreciate the law laid down in 'Shri
Rameshwar
Manjhi
(Deceased)
Through His Son Shri Lakhiram
Manjhi
vs.
Management
of
Sangramgarh Colliery and others',
(1994) 1 SCC 292.

11. On the other hand, learned counsel
for the respondent submitted that the Tribunal
has rightly dismissed the application for
substitution and abated the claim application
after applying the judgment in Rameshwar
Manjhi's case (supra).

12. I have given my thoughtful
considerations to the submissions made
by learned counsel for both the parties. I
have also carefully gone through the
material available on record.

13. Before adverting the facts of the
present case, it is necessary to consider
the relevant provisions of the Railways
Act, 1989.

14. Chapter XIII of the Railways
Act, 1989 deals with the liability of
Railway Administration for death and
injury to passengers due to accident.
Section 125 of the Railways Act, 1989
provides for filing an application for
compensation. The same reads as under:-

"125.
Application
for
compensation.--(1) An application for
compensation under section 124 [or
section 124A] may be made to the Claims
Tribunal--

(a) by the person who has
sustained the injury or suffered any loss,
or

(b) by any agent duly authorised
by such person in this behalf, or

(c) where such person is a
minor, by his guardian, or

(d) where death has resulted
from the accident, [or the untoward
incident] by any dependant of the
deceased or where such a dependant is a
minor, by his guardian.

(2) Every application by a
dependant for compensation under this
section shall be for the benefit of every
other dependant."

15. Section 124 of the Railways Act,
1989 provides the accident of liability and
compensation on account of untoward
incident. The same reads as under:-

"124. Extent of liability.--When
in the course of working a railway, an
accident occurs, being either a collision
between trains of which one is a train
carrying passengers or the derailment of
or other accident to a train or any part of
a train carrying passengers, then whether
or not there has been any wrongful act,
neglect or default on the part of the
railway administration such as would
4 All. Suneel Kumar Vs. Union of India
971
entitle a passenger who has been injured
or has suffered a loss to maintain an
action and recover damages in respect
thereof, the railway administration shall,
notwithstanding anything contained in
any other law, be liable to pay
compensation to such extent as may be
prescribed and to that extent only for loss
occasioned by the death of a passenger
dying as a result of such accident, and for
personal injury and loss, destruction,
damage or deterioration of goods owned
by the passenger and accompanying him
in his compartment or on the train,
sustained as a result of such accident.

124A.
Compensation
on
account of untoward incident.--When in
the course of working a railway an
untoward incident occurs, then whether
or not there has been any wrongful act,
neglect or default on the part of the
railway administration such as would
entitle a passenger who has been injured
or the dependant of a passenger who has
been killed to maintain an action and
recover damages in respect thereof, the
railway
administration
shall,
notwithstanding anything contained in
any other law, be liable to pay
compensation to such extent as may be
prescribed and to that extent only for loss
occasioned by the death of, or injury to, a
passenger as a result of such untoward
incident:

Provided that no compensation
shall be payable under this section by the
railway administration if the passenger
dies or suffers injury due to--

(a) suicide or attempted suicide
by him;

(b) self-inflicted injury;

(c) his own criminal act;

(d) any act committed by him in
a state of intoxication or insanity;

(e) any natural cause or disease
or medical or surgical treatment unless
such treatment becomes necessary due to
injury caused by the said untoward
incident."

16. Section 123 of the Railways Act,
1989 defines the expression 'independent'
as under:-

"123.
Definitions.--In
this
Chapter, unless the context otherwise
requires,--

(a)
"accident"
means
an
accident of the nature described in section
124;

(b) "dependant" means any of
the following relatives of a deceased
passenger, namely:--

(i) the wife, husband, son and
daughter, and in case the deceased
passenger is unmarried or is a minor, his
parent;

(ii) the parent, minor brother or
unmarried
sister,
widowed
sister,
widowed daughter-in-law and a minor
child of a pre-deceased son, if dependant
wholly or partly on the deceased
passenger;

(iii) a minor child of a predeceased daughter, if wholly dependant
on the deceased passenger;

(iv) the paternal grandparent
wholly
dependant
on
the
deceased
passenger.

(c) "untoward incident" means--

(1) (i) the commission of a
terrorist act within the meaning of subsection (1) of section 3 of the Terrorist
and Disruptive Activities (Prevention)
Act, 1987 (28 of 1987); or

(ii) the making of a violent
attack or the commission of robbery or
dacoity; or
972 INDIAN LAW REPORTS ALLAHABAD SERIES

(iii) the indulging in rioting,
shoot-out or arson,

by any person in or on any train
carrying passengers, or in a waiting hall,
cloak room or reservation or booking
office or on any platform or in any other
place within the precincts of a railway
station; or

(2) the accidental falling of any
passenger
from
a
train
carrying
passengers."

17. The expression 'dependant' is to
be understood as defined under Section
123(b) of the Railways Act 1989 "unless
the context otherwise requires" as can be
seen from Section 123 which starts with
the words "In this chapter unless the
context
otherwise
requires".
An
application under Section 125 (1)(a) can
be made by the person who has sustained
the injury or suffered any loss. Section
124 deals with injury suffered or loss of
property. There is no reason to assume
that the legal heirs/representatives of a
deceased passengers will not be entitled to
claim compensation. If Section 125 (1)(a)
is considered in any narrow sense, that
would mean that even if a deceased has
suffered loss of property, his legal heirs
cannot stake a claim under Section
125(1)(a). That would certainly be an
unjust
and
absurd
construction.
Negligence of the Railways is implicit in
Section 124 though proof is dispensed. If
two trains collide or one gets derailed or
other
similar
accident
take
place,
negligence is transparently there on the
part of the railways and the dispensation
of the obligation to proof negligence does
not alter the nature of liability. In such a
case to say that only the owner of the
goods and not his legal heirs/legal
representatives will be entitled to claim
compensation, would be patently unjust.
Hence, the expression "person who has
suffered a loss appearing" in clause (a) of
Section 125 (1) will certainly have to
include
the
legal
heirs/legal
representatives of such deceased person
who have suffered loss.

18. At this juncture, it is relevant to
consider the provisions of Section 306 of
the Indian Succession Act, 1925 and
Order XXII Rules 1 and 3 of the Code of
Civil Procedure (hereinafter referred to as
"C.P.C."). Section 306 of the Indian
Succession
Act,
1925
provides
for
continuation of the proceedings by or
against an individual even after the death,
subject to certain conditions. Order XXII
Rules 1 and 3 of C.P.C. provides for the
consequences of the death of a party to
proceedings and the steps to be taken, in
that context. Section 306 of the Indian
Succession Act, 1925 reads as under:-

"306. Demands and rights of
action of or against deceased survive to and
against
executor
or
administrator.--All
demands whatsoever and all rights to
prosecute or defend any action or special
proceeding existing in favour of or against a
person at the time of his decease, survive to
and against his executors or administrators;
except causes of action for defamation,
assault, as defined in the Indian Penal Code,
1860 (45 of 1860) or other personal injuries
not causing the death of the party; and except
also cases where, after the death of the party,
the relief sought could not be enjoyed or
granting it would be nugatory."

19. Order XXII Rules 1 and 3 of
C.P.C. read as under:-

"1. No abatement by party's
death if right to sue survives.--The death
of a plaintiff or defendant shall not cause
4 All. Suneel Kumar Vs. Union of India
973
the suit to abate if the right to sue
survives.

3. Procedure in case of death of
one of several plaintiff or of sole
plaintiff.--(1) Where one of two or more
plaintiffs dies and the right to sue does
not survive to the surviving plaintiff or
plaintiffs alone, or a sole plaintiff or sole
surviving plaintiff dies and the right to the
sue survives, the Court, on an application
made in that behalf, shall cause the legal
representative of the deceased plaintiff to
be made a party and shall proceed with
the suit.

(2) Where within the time
limited by law no application is made
under sub-rule (1), the suit shall abate so
far as the deceased plaintiff is concerned,
and, on the application of the defendant,
the Court may award to him the costs
which he may have incurred in defending
the suit, to be recovered from the estate of
the deceased plaintiff."

20. It is settled law that Section 306
of the Indian Succession Act, 1925 is
substantive in nature and Order XXII of
C.P.C. is procedural. The object of
application for substitution of legal
heirs/legal representative is to continue
the proceedings.

21. It is pertinent to mention here
that in Chapter XIII of the Railways Act,
1989, there is no specific provision as to
what will happen when the dependant of a
victim of an accident expires during
pendency of the claim application. There
is no provision of abatement or extinction
of the claim of a dependant on his/her
death. The rights of a dependent cannot
vanish into thin air or disappear merely
because death of the dependent takes
place, during pendency of the claim
application. There is no provision in
Chapter XIII of the Railways Act, 1989
that a dependent where the context so
requires cannot include the legal heirs of a
deceased
dependent.
The
general
provisions of law relating to inheritance
and succession are not touched by the
provisions of Chapter XIII of the
Railways Act, 1989.

22. Under the general law, a legal
heir claiming under a dependent is
entitled to continue the claim as a legal
representative. Similarly, a claim which
the dependent can be continued by the
legal
heir/legal
representative
of
a
deceased i.e., one claiming under the
deceased dependent.

23. The Hon'ble Supreme Court in
the case of 'M. Veerappa vs. Evelyn
Sequeira and others', (1988) 1 SCC 556
after considering the provisions of Order
XXII Rules 1 and 3 of the C.P.C. and
Section 306 of the Indian Succession Act,
1925 and various judgments held as
follows:-

"If the entire suit claim was
founded
on
torts,
the
suit
would
undoubtedly abate. If the action was
founded partly on torts and partly on
contract, then, such part of the claim as
related to torts would stand abated and
the other part would survive. If the suit
claim was founded entirely on contract,
then, the suit had to proceed to trial in its
entirety and be adjudicated upon."

24. In Rameshwar Manjhi's case
(supra), the Hon'ble Supreme Court
considered
various
judgments
and
approved
the
views
expressed
in
'Gwalior Rayons Mayoor vs. Labour
Court', (1978) 2 LLJ 118 (Ker) and
'Management of Bank of Baroda,
974 INDIAN LAW REPORTS ALLAHABAD SERIES
Ahmedabad vs. The Workmen of Bank
of Baroda', (1979) 2 LLJ 57 (Guj). In the
said case, the issue was, as to whether the
claim of an employee, which was pending
before the authorities, under the relevant
statutes would abate on his death. The
Hon'ble Supreme Court held:-

"13. It is thus obvious that the
applicability
of
the
maxim
'actio
personalis moritur cum persona' depends
upon the 'relief claimed' and the facts of
each case. By and large the industrial
disputes under Section 2-A of the Act
relate to the termination of services of the
concerned workman. In the event of the
death of the workman during pendency of
the
proceedings,
the
relief
of
reinstatement,
obviously,
cannot
be
granted. But the final determination of the
issues involved in the reference may be
relevant for regulating the conditions of
service of the other workmen in the
industry. Primary object of the Act is to
bring industrial peace. The Tribunals and
Labour Courts under the Act are the
instruments for achieving the same
objective. It is, therefore, in conformity
with the scheme of the Act that the
proceedings
in
such
cases
should
continue at the instance of the legal
heirs/representatives of the deceased
workman. Even otherwise there may be a
claim for back wages or for monetary
relief in any other form. The death of the
workman
during
pendency
of
the
proceedings cannot deprive the heirs or
the legal representatives of their right to
continue the proceedings and claim the
benefits as successors to the deceased
workman."

25. It is pertinent to mention here
that
the
Railway
Claims
Tribunal
(Procedure) Rules, 1989 gives a clear
indication justifying that the right to claim
compensation by a dependent does not get
abated or extinguished on the death of the
dependent. The Railway Claims Tribunal
(Procedure) Rules, 1989 clearly indicates
that there can be substitution of a
deceased party to the proceedings by his
legal representatives. The same reads as
under:-

"26.
Substitution
of
legal
representatives.--(1) In the case of death
of a party during the pendency of the
proceedings before Tribunal, the legal
representatives of the deceased party may
apply within ninety days of the date of
such death for being brought on record.

(2) Where no application is
received from the legal representaves
within the period specified in sub-rule(1),
the proceedings shall abate:

Provided that for good and
sufficient reasons shown, the Tribunal
may allow substitution of the legal
representatives of the deceased."

26. From perusal of Rule 26, it is
clear that it applies to all claims made by
the
applicants
under
Section
125
including dependents who stake the claim
under Section 125(1)(d) of the Railways
Act, 1989. That being so, Rule 26 is,
therefore, a clinching indication that the
law did not expect the claim of
dependent/claimant to come to an end
when
the
death
of
such
dependent/claimant. If the legal heirs
under Rule 26 can get impleaded and
substituted to continue the claim, there
can be no justification for the theory that
the claim
ends
or dies
with the
dependent/claimant.

27. In the instant case, the claim
application was filed by Smt. Saroj Yadav
4 All. Kanthuram Vs. Jagdev Prasad & Anr.
975
(now deceased), during pendency of the
said application she died, the appellant
moved an application for substitution as
her legal representative/legal heir. The
Tribunal while considering the application
for substitution took into consideration
whether Smt. Saroj Yadav (original
claimant) died due to injuries sustained by
her in the alleged untoward incident or
her death was a natural death. In my view,
the same was not warranted at that stage.
In my considered view, the appellantSuneel Kumar is entitled to be substituted
as legal heir of the deceased claimant.

28. In the result, the appeal is
allowed and the impugned order dated
19th January, 2016 passed by the
Railways Claims Tribunal, Lucknow
Bench, Lucknow is set aside and the
application for substitution of legal heir of
the deceased applicant, Smt. Saroj Yadav
is allowed. The Railway Claims Tribunal
is directed to decide the claim application
expeditiously, in accordance with law.

29. Lower court record along with a
copy of this judgment be sent back to the
Tribunal forthwith.
----------
(2019)12 ILR A975

APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.12.2019

BEFORE
THE HON'BLE VED PRAKASH VAISH, J.

FAFO No. 931 of 2014

Kanthuram ...Appellant
Versus
Jagdev Prasad & Anr. ...Respondents

Counsel for the Appellant:
Vaibhav Srivastava
Counsel for the Respondents:
Subhash Chandra Pandey

Civil Law - Code of Civil Procedure -
Section 107 read with Order 41 Rule 24 -
Remand - First appellate court has power
to remand if the trial court has disposed
of a suit on a preliminary issue without
recording evidence but where evidence
on record is sufficient, the appellate
Court may itself determine the case
finally.

Held - In the present case, the appellant filed
a suit for permanent injunction restraining the
respondents/ defendants from interfering in
his peaceful possession - respondents filed
written statement, issues were framed and
both the parties adduced their respective
evidence - Not a case where the trial court has
disposed of the suit on the preliminary issues
without recording evidence and giving its
decision on the rest of the issues - The
Appellate Court could have decided the appeal
on the basis of the material on record. (Para
22 & 23)

First Appeal from Order allowed. (E-5)

List of cases cited: -

1. Santosh Hazari Vs Purushottam Tiwari
(Deceased) by LRs (2001) 3 SCC 179

2. Madhukar & Others Vs Sangram & Others
(2001) 4 SCC 756

3.
B.V.
Nagesh
and
another Vs
H.V.
Sreenivasa Murthy (2010) 13 SCC 530

4. State Bank of India & Anr Vs Emmsons
International Ltd.& Anr (2011) 12 SCC 174

5. P. Purushottam Reddy And Anr Vs Pratap
Steels Ltd (2002) 2 SCC 686

(Delivered by Hon'ble Ved Prakash
Vaish,J.)

1. Heard Sri Ashish Kumar, learned
counsel for the appellant and Sri Subhash