N.

Indira vs Union Of India on 30 September, 2011

Madras High Court

N.Indira vs Union Of India on 30 September, 2011

In the High Court of Judicature at Madras

Dated 30.09.2011
Coram
The Honourable Mr.Justice R.SUBBIAH
Civil Miscellaneous Appeal No.1420 of 2009

N.Indira

..Appellant
..vs..

Union of India,
owning Southern Railway,
rep.by General Manager,
Chennai-600 003.

..Respondent

Civil Miscellaneous Appeal filed under section 23 of the Railway Claims Tribunal Act 54
For Appellant

For Respondent :

Mr.T.Rajamohan
Mr.T.S.Rajamohan

JUDGMENT

Aggrieved over the order of dismissal passed by the Railway Claims Tribunal, Chennai Bench, in
O.P.No.6 of 2008 claiming compensation for the death of one Sivakumar in a train accident, his wife
Indira has filed the present appeal.
2. The only question that arises for consideration in this appeal is that whether the claimant, wife of
the deceased Sivakumar is entitled to get compensation, after her remarriage. Since the accident and
the death of the husband of the appellant were not denied by the respondent Railways, there is no
need for this Court to go into that aspects.
3. Learned counsel for the appellant/claimant submitted that the Tribunal has dismissed the claim
petition holding that the claimant is not a dependant of the deceased in view of her remarriage
pending the claim petition and, as such, she is not entitled for compensation. The learned counsel
further submitted that the accident took place on 21.05.2000. Since the mother-in-law of the
appellant was not willing to file a claim petition along with the appellant, the wife of the deceased
alone has filed the claim petition as against the Railways seeking compensation for the death of her
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N.Indira vs Union Of India on 30 September, 2011

husband, who had died in an untoward incident on 21.05.2000 while he was travelling in the
general compartment of Mumbai-Chennai Express coming from Mumbai.
4. Learned counsel for the appellant further submitted that the claim petition was filed by the
appellant on 05.04.2003 along with an application to condone the delay in filing the claim petition.
Though the delay was condoned by the Tribunal and the claim petition was numbered, ultimately,
the claim petition was dismissed on a finding that the appellant got re-married one Karthikeyan on
01.11.2007. In this regard, the learned counsel for the appellant further submitted that once the
delay is condoned, the status of the appellant is reverted back to the date of filing of the claim
petition with regard to the entitlement of getting compensation from the respondent Railways.
Moreover, the cause of action for making a claim has arisen on the date of the accident. Under such
circumstances, the re-marriage pending proceedings, cannot be a bar for the appellant to get
compensation. In support of the contentions, the learned counsel has relied on the decisions
reported in PRAMILA AND OTHERS .vs. SARVAR KHAN AND OTHERS (2003 ACJ 542) and
MAHARASHTRA STATE ROAD TRANSPORT CORPORATION .vs. DARABKHAN AND OTHERS
(2006 ACJ 1410).
5. Per contra, the learned counsel for the respondent submitted that under section 123 of the
Railways Act, the wife is only a dependant. Since the appellant got remarried during the pendency of
the claim petition, she had lost the status of the wife of the deceased. Therefore, she cannot be
construed to be the wife of the deceased on the date of passing the order by the Tribunal and as
such, no infirmity could be found in the impugned order.
6. Heard the learned counsel for the parties and perused the materials available on record.
7. On a perusal of the records, I find that there is no dispute that the appellant's husband died on
21.05.2000 in an untoward incident inside the general compartment of train No.6011 while he was
travelling in Mumbai-Chennai Express. Hence, the appellant, wife of the deceased made a claim on
05.04.2003 with a petition to condone the delay. The claim petition was registered on 28.01.2008;
but before that, the appellant has entered into second marriage with one Karthikeyan on 01.11.2007.
Now it is the submission of the appellant that the cause of action claiming compensation arose on
the date of accident. Therefore, the status of the wife has to be construed on the date of filing claim
petition and not on the date of passing the order.
8. Per contra, it is the submission of the learned counsel for the respondent that the Railways came
to know about the re-marriage only on the date of which the evidence of P.W.1 was recorded. When
the Tribunal came to know that the appellant got re-married during the pendency of claim petition,
it is correctly dismissed the claim petition. Further, the learned counsel for the respondent
submitted that the judgment relied on by the appellant cannot be made applicable to the facts of the
case on hand because in the case cited supra, the widow married after awarding compensation.
9. Considering the facts and circumstances of the case, in my considered opinion, once when the
delay is condoned, the status of the appellant reverts back to the date of filing the claim petition. The
claim petition was filed on 05.04.2003 on which date the second marriage of the appellant did not
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N.Indira vs Union Of India on 30 September, 2011

take place. Therefore, the entitlement of widow in getting the compensation cannot be curtailed or
taken away because she got re-married during the pendency of the claim petition. In this regard, an
useful reference could be placed in the decisions relied on by the learned counsel for the appellant.
In 2006 ACJ 1410 (supra), it has been held as follows:
"7. The respondent No.4 was remarried. Therefore, the objection of the appellant appear to be that
after remarriage, such person is not entitled for the compensation and, therefore, such application
was not maintainable. Learned counsel appearing for the appellant relied on the judgment in
Veerappan v. Muthamma, 1995 ACJ 313 (Kerala). Even though that judgment is based on
Workmen's Compensation Act, 1923, according to me, the principles can be extended in the
compensation case arising out of the Motor Vehicles Act. At the relevant time, admittedly, the
respondent No.4 was entitled for compensation being a widow of the deceased. Her entitlement
cannot be curtailed or taken away only because she remarried later on. A widow cannot wait for the
compensation to come and then decide for another marriage. The realities of life cannot be
overlooked. A widow may or may not be in a position to marry again. There is no bar or anything
pointed out under any provisions of law that such widow, after marriage, is disentitled for claim of
the deceased husband. In view of this, I am of the view that this objection about the maintainability
of the respondent No.4's application cannot be accepted. The present application by the wife,
respondent No.4, therefore, is also maintainable and within the framework of law".
10. A Division Bench of the Madhya Pradesh High Court in PRAMILA AND OTHERS .vs. SARVAR
KHAN AND OTHERS (2003 ACJ 542) has deeply analysed the question as to whether a widow can
be denied compensation for the death of her husband on her contracting second marriage and
answered to the said question that the widow has absolute right to get compensation, which should
not be influenced by the fact of remarriage. The relevant paragraphs read as follows:
"12. 'Legal representative' ordinarily means a person who in law represents the estate of a deceased
person or a person on whom the estate devolves on the death of an individual. Legal representative
in a given case need not necessarily be a wife, husband, parents and child. However, it cannot be
said that wife is not a legal representative of her deceased husband. She is qualified to represent his
estate on his death, therefore, qualified to file application for compensation for the loss of her
husband. Succession to the estate opens on the occurrence of death of husband. 'Estate' would
include all kinds of properties, movable and immovable, left by the deceased husband. It would
include claim for compensation which arises on the death of husband. Her entitlement to the
estate/compensation is settled on the taking place of the accident resulting in the death of the
husband. She cannot be divested of this right, being absolute and inalienable, even if she remarries.
This conclusion flows by operation of Article 15(3) of the Constitution of India and section 14(1) of
the Hindu Succession Act 1956. Provisions of Hindu Adoptions and Maintenance Act, 1956, have no
application since their application is confirmed to limited field.
......
14. Proceeding further, husband is entitled to claim compensation in the event of death of wife even
if he is earning himself and dependency is calculated on the income of the deceased wife or
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N.Indira vs Union Of India on 30 September, 2011

contribution for the family. After the death of such a wife, the husband marries. Is his right to
compensation forfeited? The answer to this question is in the negative. When this is so in case of
husband, why different principle be made applicable in case of wife who marries after the death of
husband? Compensation awarded by Motor Accidents Claims Tribunal under the Motor Vehicles
Act, 1988, is not maintenance. It is a compensation for the loss sustained by the legal
representative(s) for the death of their relation. The legal representatives become entitled to
compensation on the occurrence of the accident and death of the relation. Widow has absolute right
to compensation allowed by the Claims Tribunal which should not be influenced by the fact that the
wife has married after the accident".
11. A reading of the above judgments would show that re-marriage of the appellant cannot be a bar
to get compensation for the death of her husband. But the Tribunal has erroneously dismissed the
claim petition on a finding that since the appellant got re-married, she ceases to be the wife of the
deceased during the trial and she cannot be termed as the wife of the deceased as per section
123(b)(i) of the Railways Act, is not correct because the status of the wife has to be seen on the date
of filing the claim petition only. It is to be noted that though there was a delay in filing the present
claim petition, when the delay was condoned, the position of the appellant reverted back to the date
of filing the claim petition. Under such circumstances, I am of the opinion that the dismissal order
passed by the Tribunal is not correct and hence, the same is liable to be set aside and accordingly,
set aside.
12. With regard to the submission made by the learned counsel for the respondent that the appellant
is not entitled to get interest, I am of the opinion that since the appellant is entitled to get
compensation, under the Statute the interest cannot be denied in the case. Hence, the respondent is
directed to deposit the compensation of Rs.4,00,000/- with interest at 9% per annum from the date
of claim petition till the date of deposit within a period of six weeks before the Tribunal. On such
deposit, the appellant is permitted to withdraw the same.
Civil Miscellaneous Appeal is disposed of accordingly, No costs.
Index: Yes.
Internet: Yes.
gl
To

30.09.2011

The General Manager,

Union of India,
Southern Railway,
Chennai-600 003.

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N.Indira vs Union Of India on 30 September, 2011

R.SUBBIAH, J.,
gl

Pre-delivery judgment in C.M.A.No.1420 of 2009

30.09.2011

Indian Kanoon - http://indiankanoon.org/doc/33449579/