# Union of India v. Om Prakash & Anr

- **Citation:** (2019) 2 ILRA 956
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-05-30
- **Case number:** First Appeal from Order No. 414 of 2018
- **Bench:** Rakesh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/union-of-india-v-om-prakash-anr-44817
- **Pages:** 7

## Headnote

A. Railway Claims Tribunal Act, 1987 -
Section 16 r/w Section 123(c)(2) of the
Railways Act, 1989 - Railway Accidents
and Untoward Incidents (Compensation)
Rules, 1990 - Claim Petition - Computation
of compensation - Whether the quantum
of compensation should be as per the
prescribed rate of compensation as on the
date of application/incident or on the date
of order awarding compensation ?
Held: -Tribunal should first calculate the
compensation as per the schedule operating
on the date of the accident, along with a
reasonable rate of interest applicable till the
date of award. If the amount, so calculated is
less than the amount prescribed under the
schedule on the date of award, the Tribunal
should award the higher of the said two
amounts towards compensation. (Para 15)
2 All. Union of India Vs Om Prakash & Anr.
957
On the date of accident the compensation
payable for death was Rs.4 Lakhs whereas on
the date of award it was enhanced to Rs.8
Lakhs - After taking Rs.4 Lakhs as basic
figure, if the interest is calculated on the said
amount @ 6% w.e.f. 21.9.2009 i.e. the date of
accident till the date of award i.e. 12.3.2009,
the amount comes to less than Rs.8 Lakhs. On
the date of award, the compensation payable
in case of death was Rs.8 Lakhs - Tribunal
ought to have awarded the compensation of
Rs.8 Lakhs - Claimants-respondents are held
entitled to a sum of Rs.8 Lakhs. (Para 16, 17 &
20)
Appeal disposed of (E-5)
List of cases cited: -
1.Union of India Vs Radha Yadav (2019) 3 SCC 410
2.Union of India Vs Rina Devi (2019) 3 SCC 572
3.Rathi Menon Vs Union of India (2001) 3 SCC
714
4.A.V. Padma Vs R. Venugopal (2012) 3 SCC 378
5.Kalandi Charan Sahoo Vs South-East Central
Railways (2019) 12 SCC 387
6.Union of India Vs Radha Yadav (2019) 3 SCC
410

## Text

956 INDIAN LAW REPORTS ALLAHABAD SERIES
support of the application for withdrawal
are legitimate grounds in furtherance of
public justice. The discretion has not to be
exercised by the Court mechanically and
the consent applied for has not to be
granted as a matter of formality or for the
mere asking.

17. From the principles of Law as
enunciated in the authorities mentioned
herein
above,
the
application
for
withdrawal from prosecution moved by
prosecutor in the present case is not
commensurate with the guidelines laid
down by the Supreme Court in Sheo
Nandan Paswan and Rajendra Kumar Jain
(supra), more so when no decision has
been taken to withdraw from prosecution
of the cross case , therefore their appears
no illegality or impropriety in the
judgment of the Court below whereby the
application of the Prosecutor to withdraw
from prosecution has been rejected. In
these circumstances, this Court is of the
considered
view
that
the
findings
recorded by the trial Court, while
rejecting the application 40-A of the
prosecutor under Section 321 of Cr.P.C.,
could not be faulted in any manner and
there
is
no
requirement
of
any
interference in the impugned order.

18. Moreover, during the pendency
of this Revision Petition, the Session Trial
case wherein application 40-A was moved
has been decided on merits by the
Additional District and Session Judge
Court No.3, Raibareilly vide judgment
and order dated 26.04.2017 and accused
persons have been convicted under
section 427 IPC and sentenced with fine
of Rs. 2000/- each. The adjudication of
criminal case on merits also renders this
criminal revision infructuous. So on this
score also the revision lacks merits. The
net result of the above mentioned
discussion is that the revision preferred by
the State is devoid of merit and liable to
be dismissed at the admission stage.

19. The revision is dismissed.
----------

(2019)10ILR A 956

APPEALLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.05.2019

BEFORE

THE HON'BLE RAKESH SRIVASTAVA, J.

First Appeal from Order No. 414 of 2018

Union of India ...Appellant
Versus
Om Prakash & Anr. ...Respondents

Counsel for the Appellant:
Sri Anuj Dayal.

Counsel for the Respondents:
Sri Anil Srivastava, Sri Divyam Krishna, Sri
Indu Lal.

A. Railway Claims Tribunal Act, 1987 -
Section 16 r/w Section 123(c)(2) of the
Railways Act, 1989 - Railway Accidents
and Untoward Incidents (Compensation)
Rules, 1990 - Claim Petition - Computation
of compensation - Whether the quantum
of compensation should be as per the
prescribed rate of compensation as on the
date of application/incident or on the date
of order awarding compensation ?
Held: -Tribunal should first calculate the
compensation as per the schedule operating
on the date of the accident, along with a
reasonable rate of interest applicable till the
date of award. If the amount, so calculated is
less than the amount prescribed under the
schedule on the date of award, the Tribunal
should award the higher of the said two
amounts towards compensation. (Para 15)
2 All. Union of India Vs Om Prakash & Anr.
957
On the date of accident the compensation
payable for death was Rs.4 Lakhs whereas on
the date of award it was enhanced to Rs.8
Lakhs - After taking Rs.4 Lakhs as basic
figure, if the interest is calculated on the said
amount @ 6% w.e.f. 21.9.2009 i.e. the date of
accident till the date of award i.e. 12.3.2009,
the amount comes to less than Rs.8 Lakhs. On
the date of award, the compensation payable
in case of death was Rs.8 Lakhs - Tribunal
ought to have awarded the compensation of
Rs.8 Lakhs - Claimants-respondents are held
entitled to a sum of Rs.8 Lakhs. (Para 16, 17 &
20)
Appeal disposed of (E-5)
List of cases cited: -
1.Union of India Vs Radha Yadav (2019) 3 SCC 410
2.Union of India Vs Rina Devi (2019) 3 SCC 572
3.Rathi Menon Vs Union of India (2001) 3 SCC
714
4.A.V. Padma Vs R. Venugopal (2012) 3 SCC 378
5.Kalandi Charan Sahoo Vs South-East Central
Railways (2019) 12 SCC 387
6.Union of India Vs Radha Yadav (2019) 3 SCC
410

(Delivered by Hon'ble Rakesh Srivastava, J.)

1. This first appeal from order has
been filed challenging the judgment and
award dated 12.3.2018 passed by the
Railway
Claims
Tribunal,
Lucknow
Bench,
Lucknow
in
Case
No.OA/II/U/870/09, Om Prakash and
another vs. Union of India and others.

2. The claimants-respondents filed a
claim petition under Section 16 of The
Railway Claims Tribunal Act, 1987 for
compensation for the death of their son
Umesh Kumar as a result of an untoward
incident. It was alleged that on 21.9.2009,
Umesh Kumar while travelling from
Faizabad Railway Station to Rudauli
Railway Station by train no.3 FBL
Passenger (Faizabad Lucknow Passenger)
accidentally fell down from the train at
Deorakot Railway Station and sustained
serious injuries. He was admitted in
District Hospital, Faizabad, where he died
during his treatment. The deceased, it was
alleged, was travelling as a bona fide
passenger holding valid journey ticket,
which was lost during the incident.

3. A written statement was filed on
behalf of the appellant denying the
averments made in the claim application.
Inter alia it was stated therein that the
alleged incident was not an untoward
incident and as such it did not fall within
the ambit of Section 123(c)(2) of the
Railways Act, 1989 (for short 'Act'). It
was further alleged that the deceased was
not a passenger of the train in question.

4. After taking into account the oral
and documentary evidence led by the
parties, the Tribunal, by the judgment and
order dated 1.1.2017, held that the
deceased was a bona fide railway
passenger and he died as a result of an
untoward incident in terms of the
provisions of Section 123 of the Act. The
tribunal held the claimants-respondents to
be entitled to compensation of Rs.8 Lakhs
along with interest. The relevant portion
of the award is extracted below: -

"The application is allowed. The
respondent railway shall pay the applicants a
sum of Rs.8,00,000/- Rs.Eight lakhs) as per
apportionment shown above.

The awarded sum will carry
simple interest @ 6% per annum as under
958 INDIAN LAW REPORTS ALLAHABAD SERIES
keeping in view the Gazette Notification
dated
22.12.2016
effective
from
01.01.2017:

a)
from
the
date
of
the
application
till
31.12.2016
on
the
compensation amount of Rs. 4,00,000/-
existing for the period,

b) from 01.01.2017 till date of
the award on the amount of Rs. 8,00,000/-
existing at present,

The Respondent shall pay the
aforesaid amount together with the
interest to the applicant within a period of
90 days from the date of certified copy of
the order, failing which, the applicant is
entitled to get interest @ 9% per annum
from the date of default till actual
payment.

i) Out of the compensation
amount payable to the applicants No. 1 &
2, namely Om Prakash and Savitri Devi
(parents of the deceased), a sum of
Rs.4,00,000/- lakhs each with entire
proportionate
interest
on
the
compensation awarded shall be paid to
them, out of which, Rs. 2,00,000/- each
shall be paid to them with entire
proportionate interest by means of ECS
while
remaining
amount
i.e.
Rs.
2,00,000/- each shall be invested by way
of fix deposit in a nationalized bank for a
period of three years.

ii) No order as to costs.

iii) Applicants are directed to
furnish their bank account particulars
together with copy of pass book in the
office of Presenting Officer of this
Tribunal for making payment through
ECS, failing which the applicants shall
not be entitled for interest from the date of
this order till submission of Bank
particular.

(emphasis supplied)

5. Sri Anuj Dayal, learned counsel
for the appellant, after arguing at some
length, confined his arguments to the
interest awarded by the Tribunal and
submitted that in view of the law laid
down by the Apex Court in the case of
Union of India v. Rina Devi, (2019) 3
SCC 572 the maximum compensation to
which the respondent is entitled is Rs.8
Lakhs without interest.

6. Per contra, Sri Anil Kumar
Srivastava,
learned
counsel
for
the
respondents has supported the impugned
judgment and award.

7. Chapter XIII of the Act deals with
the liability of Railway Administration for
death and injury to passengers due to
accidents. The first section of the Chapter,
defines "untoward incident". Section 123,
as far as, relevant for the present case, is
as under: -

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

(c)
"untoward
incident"
means--

(1) (i) to (iii) omitted being not
relevant;

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

8. Section 124-A of the Act provides
as follows: -
2 All. Union of India Vs Om Prakash & Anr.
959

"124-A.
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.

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)

9. In exercise of the powers
conferred by Section 129 of the Act, the
Central Government has framed rules
known
as
Railway
Accidents
and
Untoward
Incidents
(Compensation)
Rules, 1990 (for short 'Rules'). The Rules
provide for a schedule prescribing the
amount of compensation payable in
respect of death and injuries. As per the
schedule in force at the time of the
incident the compensation for death was
Rs.4 Lakhs. During the pendency of the
claim petition, by a notification dated
22.12.2016, the schedule to the Rules was
amended w.e.f. 1.1.2017. The amount of
compensation, which was earlier fixed at
Rs.4 Lakhs in case of death was raised to
Rs.8 Lakhs.

10. In Rathi Menon v. Union of
India, (2001) 3 SCC 714 the Apex Court,
with reference to a claim under the Act,
held that the compensation payable would
be as per the rate of compensation
applicable as per the rules at the time of
making of the order for the payment of
compensation, but in Kalandi Charan
Sahoo v. South-East Central Railways,
(2019) 12 SCC 387 after referring to
Rathi Menon (supra) it was held that the
right to compensation arises on the date of
the accident, and the applicable rate of
compensation
would
be
the
one
applicable at the time of filing of the
claim petition. The apparent conflict
between the decisions mentioned above
was resolved by the Apex Court in the
960 INDIAN LAW REPORTS ALLAHABAD SERIES
case of Rina Devi (supra). In the said case
the Apex Court inter alia considered the
following questions: -

"15.1. i) Whether the quantum
of compensation should be as per the
prescribed rate of compensation as on the
date of application/incident or on the date
of order awarding compensation;

ii) Whether principle of strict
liability applies;

iii) Whether presence of a body
near the railway track is enough to
maintain a claim;

iv) Rate of interest.

11. In relation to the first question,
in paragraphs 18 and 19 of Rina Devi
(supra), the Apex Court opined as under:
-

18. ... We are of the view that
law in the present context should be taken
to be that the liability will accrue on the
date of the accident and the amount
applicable as on that date will be the
amount recoverable but the claimant will
get interest from the date of accident till
the payment at such rate as may be
considered just and fair from time to time.
In this context, rate of interest applicable
in motor accident claim cases can be held
to be reasonable and fair. Once concept
of interest has been introduced, principles
of the Workmen Compensation Act can
certainly be applied and judgment of the
four-Judge Bench in Pratap Narain Singh
Deo will fully apply. Wherever it is found
that the revised amount of applicable
compensation as on the date of award of
the Tribunal is less than the prescribed
amount of compensation as on the date of
accident with interest, higher of the two
amounts ought to be awarded on the
principle of beneficial legislation. Present
legislation is certainly a piece of
beneficent legislation.

19. Accordingly, we conclude
that compensation will be payable as
applicable on the date of the accident
with interest as may be considered
reasonable from time to time on the same
pattern as in accident claim cases. If the
amount so calculated is less than the
amount prescribed as on the date of the
award of the Tribunal, the claimant will
be entitled to higher of the two amounts.
This order will not affect the awards
which have already become final and
where limitation for challenging such
awards has expired, this order will not by
itself be a ground for condonation of
delay. Seeming conflict in Rathi Menon
and
Kalandi Charan
Sahoo
stands
explained accordingly. The four-Judge
Bench judgment in Pratap Narain Singh
Deo holds the field on the subject and
squarely applies to the present situation.
Compensation as applicable on the date
of the accident has to be given with
reasonable interest and to give effect to
the mandate of beneficial legislation, if
compensation as provided on the date of
award of the Tribunal is higher than
unrevised amount with interest, the higher
of the two amounts has to be given."

(emphasis supplied)

12. Even though the entire principle
of law was lucidly explained by the Apex
Court in the case of Rina Devi (supra),
Apex Court further clarified the law as
laid down in Rina Devi case (supra) in
Union of India v. Radha Yadav, (2019) 3
SCC 410 in the following manner: -
2 All. Union of India Vs Om Prakash & Anr.
961

"11. The issue raised in the matter
does not really require any elaboration as in
our view, the judgment of this Court in Rina
Devi [Union of India v. Rina Devi, (2019) 3
SCC 572] is very clear. What this Court has
laid
down
is
that
the
amount
of
compensation payable on the date of
accident with reasonable rate of interest
shall first be calculated. If the amount so
calculated is less than the amount prescribed
as on the date of the award, the claimant
would be entitled to higher of these two
amounts. Therefore, if the liability had
arisen before the amendment was brought
in, the basic figure would be as per the
Schedule as was in existence before the
amendment and on such basic figure
reasonable rate of interest would be
calculated. If there be any difference
between the amount so calculated and the
amount prescribed in the Schedule as on the
date of the award, the higher of two figures
would be the measure of compensation. For
instance, in case of a death in an accident
which occurred before amendment, the
basic figure would be Rs 4,00,000. If, after
applying reasonable rate of interest, the final
figure were to be less than Rs 8,00,000,
which was brought in by way of
amendment, the claimant would be entitled
to Rs 8,00,000. If, however, the amount of
original compensation with rate of interest
were to exceed the sum of Rs 8,00,000 the
compensation would be in terms of figure in
excess of Rs 8,00,000. The idea is to afford
the benefit of the amendment, to the extent
possible. Thus, according to us, the matter is
crystal clear. The issue does not need any
further clarification or elaboration.

(emphasis supplied)

 13. Thus, while dealing with a railway
claim arising out of the death of a
passenger where the claim was instituted
before the amendment and the award is
given post the amendment and the basic
compensation of Rs.4 Lakhs, along with
interest does not exceed Rs.8 Lakhs, the
claimant
shall
be
entitled
to
the
compensation of Rs.8 Lakhs, keeping in
view the beneficent nature of the
legislation and the law laid down by the
Apex Court in the case of Rina Devi
(supra). On the other hand, where the
claim was instituted before amendment,
but the award was given post the
amendment and the basic compensation
of Rs.4 Lakhs along with interest exceeds
Rs.8 Lakhs, the said amount shall be
payable as it is.

14. It is now to be seen as to
whether the computation of compensation
by the Tribunal in the present matter is in
accordance with law or not.

15. In view of the settled legal
position, the Tribunal ought to have first
calculated the compensation as per the
schedule operating on the date of the
accident, along with a reasonable rate of
interest applicable till the date of award. If
the amount, so calculated, was less than
the amount prescribed under the schedule
on the date of award, the Tribunal should
have awarded the higher of the said two
amounts towards compensation.

16. In the case at hand, the accident
and death occurred on 21.9.2009. The
award was made by the Tribunal on
12.3.2018. On the date of accident the
compensation payable for death was Rs.4
Lakhs whereas on the date of award it was
enhanced to Rs.8 Lakhs. The Tribunal
should have taken Rs.4 Lakhs as the basic
figure and should have calculated the
compensation by applying simple interest
@ 6% per annum, as awarded by the
962 INDIAN LAW REPORTS ALLAHABAD SERIES
Tribunal in this case, from the date of
filing of claim petition till the date of
award.

17. After taking Rs.4 Lakhs as basic
figure, if the interest is calculated on the
said amount @ 6% w.e.f. 21.9.2009 i.e.
the date of accident till the date of award
i.e. 12.3.2009, the amount comes to less
than Rs.8 Lakhs. On the date of award the
compensation payable in case of death
was Rs.8 Lakhs and in view of Rina Devi
(supra), the Tribunal ought to have
awarded the compensation of Rs.8 Lakhs.
The Tribunal has erred in awarding
interest over and above Rs.8 Lakhs.

18. The Tribunal has apportioned
the compensation between the claimantsrespondents. Both of them have been
awarded Rs.4 Lakhs each. The Tribunal
has issued directions for the payment of
half the amount of compensation to the
claimants and for the balance amount to
be invested in a fixed deposit account in
some nationalized bank for a period of
three years.

19. The claimants-respondent nos.1
and 2 are 54 and 51 years of age
respectively. More than 10 years have
passed since the unfortunate incident
occurred. There is evidence on record that
respondent no.1 is suffering from severe
lung disorder and his kidney is also
affected and the respondents are in dire
need of money to take care of medical
expenses of respondent no.1.

20. In view of the above, the
judgment and award dated 12.3.2018 is
modified and the claimants-respondents
are held entitled to a sum of Rs.8 Lakhs as
per the apportionment mentioned in the
award and in view of the law laid down
by the Apex Court in the case of A.V.
Padma v. R. Venugopal, (2012) 3 SCC
378 the appellant is directed to release the
entire decretal amount of Rs.8 Lakhs in
favour
of
the
claimants-respondents
forthwith.

21. No order as to costs.

22. The appeal stands disposed of
accordingly.
----------

(2019)10ILR A 962

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 16.07.2019

BEFORE

THE HON'BLE IRSHAD ALI, J.

Service Single No. 36266 of 2018

Ramesh Chandra Chaubey & Ors.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Laltaprasad Misra, Sri Om Prakash
Misra.

Counsel for the Respondents:
C.S.C., Sri Ashok Shukla.

A. Latches/ Delay - number of posts
advertised for the post of Sub - Registrar
and Auditor Panchayat were reduced by
the respondents - petitioner joined the
post of Auditor Panchayat on bonafide
belief of reduction of vacancies on
genuine grounds - reduction in vacancies
were challenged by one named Anoop
Singh before the Court - petitioner
claims parity with Anoop Singh after a
lapse of 15 years - law leans in favour of
those
who
are
alert
and
vigilant