Citation Codes

Equivalent Citations

citation codes

Case Number

Nos. 1305-9, 693-4, 1363-64, 1053-65, 1059-60 and 431 all of 1976

Attorney(S)

Noni Coomar Chakraborti
R.N. Das and P.K. Ghosh
for Petitioners in all Rules; Bikash Chandra Sen and B. Dutta (in C. R. No.1305-6 of 1976); Mrs. Jyotirmoyee Nag (in C. R. Nos.1307 and 693 of 1976)
Paresh Nath Bhattacharya (in C. R. No.1308 of 1976)
Amal Chandra Roy and Dipankar Das Gupta (in C. R. No.694 of 1976)
S.P. Sahay (in C. R. Nos. 1363-64 of 1976)
H. D. Ghosh (in C. R. No. 1053 of 1976)
Mrs. Jyotirmoyee Nag and Mrs. Juthika Bose (in C. R. Nos.1054-56 of 1976)
Miss Nandita Ghose and Dibakar Dutta Sharma (for No. 3) in C. R. No.1059 of 1976 and R.P. Bagchi
S.S. Roy and Miss Nandita Ghose (for No. 3) in C. R. No.421 of 1976

Judges

Salil Kumar Datta
Ganendra Narayan Ray, JJ.

Acts

Ss. 82A to 82J of the Indian Railways Act, 1890. Section 82-A provides in sub-s. (1)
S. 82A of the Railways Act and the Railway Accident (Compensation) Rules, 1950
Civil Rules No. 1307 of 1976, 693 of 1976, 694 of 1976, 1055
Rules called Railway Accidents (Compensation) Rules, 1950.
Railway Accidents (Compensation) Amendment Rules, 1974
Constitution (42 Amendment) Act, 1976 to Article 227
provisions of the Indian Railways Act, 1890
Workmen's Compensation Act, 1923
Rule 6(2) of the Rule. The Rule
Section S. 82-A.3. Section 82-C
sub-rules (3) and (4) of Rule 6
Workmen's Compensation Act
sub-Rules (3) and (4) of Rule
Rule 6(2) as the said Rule
Rule 6(3) and (4). The Rule
sub-rule (3) of Rule 6
sub-rule (e) of Rule 2
sub-rules of Rule 6
sub-rule (3) of Rule
Rule 6(3) and 6(4).
Rule 6(3) and (4).
Section 82-H
Section 82-D
sub-rule 2
sub-rule (4),
sub-rule (3).
Rule 6(2)
Rule 6(3)

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Smart Summary

Concise Analytical Summary of the Opinion (Salil Kumar Datta, J.)

Factual and Procedural Background

On 29 January 1975 a major collision between two passenger trains occurred at Ultadanga Road Station causing deaths, grievous injuries to passengers and loss of property. The Railway Administration appointed an Ad-hoc Claims Commissioner to determine compensation claims by passengers for personal injury and loss of goods arising from the accident. The Claims Commissioner conducted hearings and determined compensation in multiple individual matters. The Union of India challenged several of the Claims Commissioner's compensation orders in the High Court by applications under Article 227 of the Constitution on the ground that the determinations exceeded or were not authorised by the Indian Railways Act, 1890 and the Railway Accidents (Compensation) Rules, 1950 as amended. The matters raising common legal questions were heard together and are decided in this single opinion.

Legal Issues Presented

How is sub-rule (3) of Rule 6 of the Railway Accidents (Compensation) Rules, 1950 (as substituted by the 1974 Amendment Rules) to be interpreted — specifically, whether the monetary limit of Rs. 10,000 provided in sub-rule (3) applies to each non-schedule injury (per injury) or is a single aggregate cap for all non-schedule injuries suffered by a victim?
Whether sub-rule (2) of Rule 6 (providing Rs. 50,000 where an injury deprives a person of all capacity to do any work) is applicable to cases of permanent partial disablement, or only to cases of total incapacity for any occupational/vocational work.
Whether the omission of the earlier Rule 2(e) reference to definitions in the Workmen's Compensation Act, 1923 and the structural changes in the 1974 Amendment create a departure from established principles for calculating compensation (and whether this omission causes a lacuna requiring remedial interpretation).
Whether failure to order compulsory medical examination under Section 86 (where the Claims Commissioner did not direct such examinations) renders the Claims Commissioner's compensation determinations vitiated.
Whether proceedings under Article 227 of the Constitution are maintainable in face of the statutory right of appeal under Section 82-F(2) of the Railways Act when the impugned determinations are challenged as being without jurisdiction.

Arguments of the Parties

Union of India (represented by Mr. Das)

Sub-rule (3) of Rule 6 contemplates compensation for "pain and suffering" for all non-schedule injuries together — the maximum payable for the cumulative pain and suffering is Rs. 10,000 in respect of all such injuries sustained by a victim.
The deletion of the earlier Workmen's Compensation Act-based linkage and the new schedule indicates the amended rules intended a single, integrated evaluation of pain and suffering, not separate awards per injury.
The word "any" in sub-rule (3) should be read as "all" so that the Rs. 10,000 ceiling operates as a global cap for non-schedule injuries per victim.
Because sub-rule (3) speaks of "any injury" and sub-rule (3) contains the Rs. 10,000 proviso, sub-rule (4) cannot apply to create repeated Rs. 10,000 awards — sub-rules are independent and sub-rule (4) should not be read to expand sub-rule (3).
Several determinations relied only on medical reports without ordering compulsory medical examination (Section 86), making those determinations unlawful.

Claims Commissioner (as reflected by the determinations)

The Claims Commissioner interpreted Rule 6(3) as allowing him to assess "reasonable" compensation for pain and suffering in each case and to award amounts up to Rs. 10,000 for each injury, subject to the statutory aggregate ceiling (Rs. 50,000 under Section 82A(2)).
The Commissioner applied Rule 6(2) (Rs. 50,000) in some cases where he found the victim deprived of all capacity to do any work, and in other cases proceeded on the alternative basis under sub-rules (3) and (4) awarding sums per injury.
The Commissioner treated multiple injuries as potentially giving rise to separate awards for pain and suffering, ensuring no single injury award exceeded Rs. 10,000 and overall awards did not exceed Rs. 50,000.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State of West Bengal v. Sm. Jyotsna Bhowmik & Ors., C.R. No. 954 of 1972 (decision dated 8 Feb 1977)	That amendments made by the Constitution (Forty-second Amendment) Act, 1976 to Article 227 did not affect pending proceedings.	The Court relied on its prior holding to conclude that Article 227 proceedings brought in relation to the Claims Commissioner’s determinations (challenging jurisdiction) were maintainable despite amendments to Article 227.

Court's Reasoning and Analysis

The Court examined the statutory provisions (Ss. 82A–82J of the Indian Railways Act, 1890), the Railway Accidents (Compensation) Rules, 1950 and the 1974 Amendment Rules which substituted Rules 6 and 7 and the schedule. The core interpretive task was to construe Rule 6 as amended, particularly sub-rules (2), (3) and (4) and the new Schedule structure.

On Rule 6(2) the Court held that this sub-rule applies only where an injury deprives a person of all capacity to do any work. The Court stressed that "work" in this context means vocational or occupational work. Consequently Rule 6(2) is not applicable to cases of permanent partial disablement which do not result in complete inability to work.

Concerning Rule 6(3), the Court rejected the Union's submission that the Rs. 10,000 ceiling in sub-rule (3) should be treated as an aggregate cap for all non-schedule injuries suffered by a victim. The Court's reasons included:

The plain language: sub-rule (3) refers to "any injury ... resulting in pain and suffering", and that phrase is qualified in the clause as "other than an injury specified in the schedule or referred to in sub-rule (2)". This textual framing indicates reference to each injury not a collective aggregation.
Sub-rule (4), placed immediately after sub-rule (3), expressly provides that where more than one injury is caused by the same accident compensation shall be payable in respect of each injury. There is no textual indication that sub-rule (4) does not apply to sub-rule (3).
Pain and suffering are not necessarily indivisible; different injuries may cause separate and distinct pain and suffering and therefore can be separately compensated.
The compensatory scheme, as amended, retains the substantive approach of assessing loss of earning capacity (now fixed at Rs. 50,000 for total disablement) and awarding proportional compensation for partial loss of earning capacity. Thus the 1974 amendments did not abolish principles analogous to the Workmen's Compensation Act; they restructured them (e.g., fixed sum for total disability and itemised amounts in the Schedule), but did not eliminate the analytic basis for determining awards.

The Court therefore interpreted Rule 6(3) to permit the Claims Commissioner to award compensation for each non-schedule injury resulting in pain and suffering, up to Rs. 10,000 per injury, while ensuring that the aggregate compensation for a person does not exceed the statutory cap of Rs. 50,000 under Section 82A(2).

The Court observed a lacuna in the amended rules: the omission of an express equivalence between loss of a limb and complete and permanent loss of use of that limb (a linkage that existed under the old schedule and in the Workmen's Compensation Act). The Court noted this omission could cause hardship and inequity (for example, lower awards under sub-rule (3) compared with amounts specified in Part III of the new Schedule), and said such omission should be remedied — but the Court limited itself to interpreting the rules as they stand.

Regarding Section 86 (power to order medical examination), the Court held that Section 86 is directory and not mandatory. Thus absence of a compulsory medical examination ordered under Section 86 does not render a Claims Commissioner's determination void; the Claims Commissioner is not required as a matter of law to order such an examination before making a determination, and the absence of a timely application for such an appointment was also noted in the record.

On the procedural objection to maintainability of Article 227 applications because of the statutory appeal under Section 82-F(2), the Court reasoned that where an order is attacked on the ground that it is without jurisdiction (i.e., the Claims Commissioner determined compensation in a manner not authorised by the relevant statute or rules), an Article 227 petition is maintainable. The Court further relied on its prior holding in State of West Bengal v. Jyotsna Bhowmik to note that amendments to Article 227 did not affect pending proceedings.

Holding and Implications

Holding:

The Rs. 10,000 limit in Rule 6(3) relates to each non-schedule injury resulting in pain and suffering and is not to be construed as an aggregate cap for all non-schedule injuries suffered by a victim; however, the total compensation for a person remains subject to the statutory maximum of Rs. 50,000 under Section 82A(2).
Rule 6(2) (Rs. 50,000) applies only where the injury deprives a person of all capacity to do any (vocational/occupational) work and therefore does not apply to cases of permanent partial disablement that do not amount to total incapacity.
Section 86 (compulsory medical examination) is directory; absence of such an ordered examination does not automatically invalidate a compensation determination based on medical reports.
Article 227 proceedings are maintainable where the impugned Claims Commissioner determinations are challenged as being without jurisdiction.

Immediate consequences for the cases before the Court:

The Court rejected the Union's interpretation and upheld, in the main, the Claims Commissioner's determinations made under Rule 6(3) and (4) in multiple individual revision petitions, finding no jurisdictional infirmity in those determinations where they conformed to the correct interpretation.
Where the Claims Commissioner had applied Rule 6(2) improperly (i.e., to cases not involving total incapacity), the Court set aside the determinations under Rule 6(2) insofar as those applications of that sub-rule were inappropriate (the Court left intact alternative awards made under sub-rules (3) and (4) where applicable).
The Court discharged the writ/rules in multiple named Civil Revision matters, often without costs, and in several instances set aside solely the part of awards made under Rule 6(2) where it had no application.
The Court refused to grant stays for cases involving total disablement (specifically Civil Revision Nos. 1307 of 1976, 693 of 1976, 694 of 1976, and 1055 of 1976). For the other cases, the Court granted a stay of operation of the impugned orders for four weeks.
All Rules in the batch were ultimately discharged (as reflected in the concluding notation).

Note: This summary is strictly confined to the contents and language of the provided opinion. No information beyond that opinion has been added or inferred.

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Union Of India v. Ad-Hoc Claims Commissioner & Ors.

Salil Kumar Datta, J.:— A major train accident occurred on January 29, 1975 at Ultadanga Road Station by collision between two passenger trains. The accident was attended with loss of human life and grievous injury to passengers as also loss of property. The Railway Administration appointed an Ad-hoc Claims Commissioner (hereinafter refferred as Claims Commissioner) for determination of claims for compensation made by the passengers for personal injury as also for loss of property on account of the accident. The Claims Commissioner held sittings when evidence was adduced by the victims in support of their respective cases in respect of the compensation payable by the Railway for injury to person and loss of property caused by the accident. The Claims Commissioner determined the compensation payable by the Railway Administration to the passengers before him on account of personal injury suffered by them as also for loss of goods. The Railway Administration was dissatisfied with the determination of such compensation which according to the Railway was not authorised by the provisions of the Indian Railways Act, 1890 and the rules made thereunder. Accordingly the Union of India moved this Court by applications under Article 227 of the Constitution against the several orders for compensation and the Rules before, us were issused on those applications for appropriate orders and directions. The Rules involving common question of law and similar questions of facts have been heard before us together and will be governed by this judgment.

2. The liability of railway administration in respect of accidents to trains carrying passengers is provided in Ss. 82A to 82J of the Indian Railways Act, 1890. Section 82-A provides in sub-s. (1) that the Railway Administration shall be liable to pay compensation for death and for personal injury and loss of accompanying goods owned by the passenger sustained as a result of such accident. Sub-section (2) provides that the liability of the railway administration shall in no case exceed rupees fifty thousand in respect of any one person. 82-B provides for appointment of a Claims Commissioner for local area. The applications for compensation has been provided in S. 82-C including claims for interim relief. Section 82-D provides for procedure and powers of the Claims Commissioner who shall have the powers of the Civil Court for enforcing attendance of witnesses and production of documents and material objects and also power to appoint persons possessing special knowledge to assist him in holding the inquiry. 82-E provides for interim compensation as may be deemed reasonable by the Claims Commissioner. The Claims Commissioner under sub-s. (1) to S. 82-F is to determine the liability of the railways to pay compensation under S. 82A and the amount and person to whom such compensation would be payable. Sub-section (2) provides for appeal to the High Court by the person aggrieved against the decision of the Claims Commissioner but High Court shall not be authorised to grant compensation in excess of limit specified in Section S. 82-A.

3. Section 82-C lays down the procedure for recovering and payment of compensation. 82-H provides that the right of any person to claim compensation under S. 82-A shall not affect his right to compensation under any other law for the time being in force but no person shall be entitled to claim compensation more than once in respect of the same accident. Section 82-H provides for interin relief by railway administration while S. 82-I is a bar to legal proceedings against any person for anything done in good faith under the foregoing sections. Section 82-J provides for power to make rules by the Central Government to carry out the objects of Ss. 82-A to 82H inclusive.

4. The Central Government in pursuance thereof framed Rules called Railway Accidents (Compensation) Rules, 1950. We are concerned in these cases with Part III thereof which provides for rates for compensation in Rules 6 and 7 and the Schedule thereof. The said Rules prior to subsequent amendment mentioned hereinafter were as follows:

“Rule 6. (1) The amount of compensation payable in respect of death or for injuries causing partial disablement or total disablement shall be at the rates set out in the schedule.

Provided that where more than one injury is caused by the same accident compensation shall be payable in respect of each injury but so that the aggregate amount of compensation does not exceed the amount which would have been payable if a total disablement had resulted from such injuries.

Provided further that where compensation has been paid for any injury which is less than the amount which would have been payable as compensation if the injured person had died and that person subsequently dies as a result of injury, a further compensation equal to the difference between the amount payable and that already paid shall become payable.

(2) In case of partial disablement arising out of an injury not specified in the Part II of the schedule such percentage of compensation payable in the case of a total disablement as is proportionate to the loss of earning capacity permanently caused by the injury shall be payable.

(3) The amount of compensation payable in respect of injuries causing temporary disablement total or partial, or of injuries resulting in pain and suffering without causing any disablement, shall be such as the Claims Commissioner may, in all the circumstances of the case, determine to be reasonable.

Provided that such compensation shall in no case exceed 3/5 of the amount prescribed for total disablement in Part I of the Schedule.

Rule 7. COMPENSATION FOR LOSS OF GOODS AND ANIMALS:

Compensation for loss, destruction or deterioration of goods or animals shall be paid to such extent as the Commissioner in the circumstances deems reasonable, provided that such compensation together with any compensation payable for personal injury shall not, in respect of any one person, exceed the limit specified in sub-sec. (2) of Section 82A.”

5. In the schedule there are two parts. Part I provided for compensation for death or total disablement and such compensation was linked with monthly income of the injured person. Part II provided for partial disablement and loss of limb or member or complete loss of use thereof at specified percentage of the amount of compensation payable for total disablement ranging from 70% for loss of right arm above at the elbow to 5% for loss of a finger other than index finger.

6. By the Railway Accidents (Compensation) Amendment Rules, 1974 which is to be deemed to have come into force on the 14th day of December, 1973, amongst others old Rules 6 and 7 and the Schedule thereunder were substituted by new Rules 6 and 7 and new Schedule. They are:—

“6. Amount of compensation — (1) The amount of compensation payable in respect of death or injuries shall be as specified in the Schedule.

(2) The amount of compensation payable for an injury not specified in Part II of the Schedule but which, in the opinion of the Claims Commissioner, is such as to deprive a person of all capacity to do any work, shall be rupees fifty thousand.

(3) The amount of compensation payable in respect of any injury other than an injury specified in the schedule or referred to in sub-rule 2 resulting in pain and suffering shall be such as the Claims Commissioner may, in all the circumstances of the case, determine to be reasonable. Provided that such compensation shall in no case exceed rupees ten thousand.

(4) Where more than one injury is caused by the same accident, compensation shall be payable in respect of each injury;

Provided that where compensation has been paid for injury which is less than the amount which would have been payable as compensation if the injured person had died and the person subsequently dies as a result of the injury, a further compensation equal to the difference between the amount payable for death and that already paid shall become payable.

(5) Compensation for loss, destruction or deterioration of goods or animals shall be paid to such extent as the Commissioner may, in all the circumstances of the case, determine to be reasonable.”

7. The new Schedule consists of three parts. Part I is for death, the amount of compensation being Rs. 50,000/-. Part II is practically for loss of vital limbs, members or organ or severe facial disfigurement the amount of compensation being Rs. 50,000/-. Part III is for loss of limbs or members, or organs as specified in seriatum thereof with compensation for specific amount against loss of such limb or member, instead of a specific percentage of the amount of compensation payable for total disablement as in the schedule of the previous rules.

8. It may further be mentioned that sub-clause (e) of Clause (2) was omitted under the new rules. The sub-clause (e) was as follows:—

*2…………(e) ‘Partial disablement’ and ‘total disablement’ have the meaning respectively assigned to them in the Workmen's Compensation Act, 1923 (VII of 1923).”

9. The explanatory memorandum to the Amendment Rules, 1974 states that the amendments are intended to bring the original Rules in line with the provisions of new S. 82A of the principal Act. This new section increases the liability of the railway administration in respect of accidents to trains carrying passengers for the benefit of victims.

10. The Claims Commissioner in determining the compensation in the cases before us has proceeded on his finding that the claimants were bona fide passengers in one of the passenger trains involved in the accident. In considering the cases of the victims the Claims Commissioner found in individual cases that permanent partial disability in respect of the injuries sustained by the victim was a percentage of his capacity to do his work which is interpreted vocational or occupational work. Accordingly under Rule 6(2) such percentage of Rs. 50,000/- is the amount which is the compensation thus determined the said opposite party is entitled to get from the Railways.

11. We may at once say that the learned Claims Commissioner was entirely wrong in determining compensation as being payable under and on basis of Rule 6(2) in case other than death and complete incapacity to do any work. This sub-clause applies when the injury is not specified in Part II of the schedule but at the same time the injury deprives a person of all capacity to do any work and work obviously means vocational or occupational work. This sub-rule has in our opinion, no application where there is permanent partial disablement caused by the injury of the accident, as such injury does not deprive a person of all capacity to do any work.

12. The Claims Commissioner however has determined the compensation on an alternative basis under sub-rules (3) and (4) of Rule 6. The contention of the Railways that Rs. 10,000/- is payable for the sum total of the pain and suffering of all injuries under that sub-rule was not accepted by the Claims Commissioner. He referred to sub-rule (4), which according to him would be not there nor necessary if the sum total of injuries was to be Rs. 10,000/- and there was no reason to confine the said sub-clause (4) to injuries mentioned in the schedule. The Claims Commissioner accordingly determined the compensation taking into consideration the pain and suffering caused by each injury ensuring at the same time that compensation of each injury does not exceed Rs. 10,000/- as provided in Rule 6(3) subject to the maximum of Rs. 50,000/-.

13. The conclusion on the interpretation of sub-rule (3) of Rule 6 has been really the only substantial challenge before us. It has been contended by Mr. Das appearing for the Union of India that sub-rule (3) contemplates pain and suffering for all injuries together not mentioned in Part III of the schedule the maximum compensation being Rs. 10,000/- as provided therein. The basis of calculation of compensation on basis of partial or total disablement as contained in Part II of the original schedule had been removed from the schedule of the amended rules and the words are no longer there by omission of original sub-rule (e) of Rule 2 of the original Rules. Instead by the amendment rules in Part III of the schedule specific amount of compensation has been provided for loss of a limb or member. When injury does not relate to loss of limb or member as mentioned in the schedule, the only basis of calculation is sub-rule (3) of Rule 6. This rule states, it is submitted, that for the pain and suffering resulting from all injuries of the accident the compensation is Rs. 10,000/-. This compensation is for the sum total for the pain and suffering and the cumulative effect thereof undergone by the victim for all injuries to which he may be subject on account of the accident and it is not possible to divide or demarcate the pain and suffering for separate injuries so, sustained as pain and suffering is one integrated feeling. Further the sub-rule expressly mentions that compensation shall be such as the Claims Commissioner may, in all circumstances of the case, determine to be reasonable provided that such compensation shall never exceed Rs. 10,000/-. These provisions, it is further submitted, clearly indicate that the compensation will never be in excess of Rs. 10,000/- in respect the pain and suffering from all injuries not included in Parts II and III of the schedule. It was further submitted that sub-rule (4) has no application to injuries under sub-rule (3) and in fact all the sub-rules of Rule 6 are independent. The word ‘any injury’ in sub-rule (3) should be construed to mean all injuries not included in the schedule suffered by the victim for which a total sum of Rs. 10,000/- will be available for compensation. Accordingly Mr. Das submitted that the determination of compensation separately for each non-schedule injury as also the pain and suffering therefrom is an erroneous decision not warranted by law and as such beyond the jurisdiction of the Claims Commissioner to order. Accordingly such orders should be set aside.

14. The contention that the deletion of the basis of determination of compensation in lines similar to that of the Workmen's Compensation Act as in the original rules does not stand scrutiny. What the amended rules have introduced is a scale of compensation for the loss of a limb or member, assuming the total deprivation of all capacity for work at Rs. 50,000/- for a victim instead of linking it with the income which the victim might be earning at the material time. The scale again provides for fixed amount for loss of limb, member or organ according to the importance of such limb, member or organ with reference to human activity in connection with a man's vocational work. There is really no departure from the basis of calculation as in the Workmen's Compensation Act except that instead of the total permanent disability being linked with the victim's income, it is now assumed at Rs. 50,000/- and specified amounts have been prescribed practically calculated on the same percentage basis though in greater details in respect of loss of such limb or member.

15. For a non-schedule injury, which results in pain and suffering, under the said sub-rule (3) of Rule 6 the compensation will be such as the Claims Commissioner may, in all circumstances of the case determine reasonable subject to the condition that such compensation in no case shall exceed Rs. 10,000/. The discretion undoubtedly will be judicial one but has to be exercised with reference to all circumstances including temporary or permanent disability with reference to the vocational work of the victim resulting in loss of income or earning capacity either temporarily or permanently as also the pain and suffering thereby caused to such victim. While the temporary disablement caused by an injury may have reference to loss of actual income, the permanent disablement of any limb or member or loss of its use from injury will be the percentage of loss of earning capacity calculated on the basis of Rs. 50,000/- being the amount of loss for 100% disability. It cannot therefore be said that the principles of payment as provided in the Workmen's Compensation Act has been given up, as otherwise, there will be no guide line for determining reasonable compensation for injury not included in the schedule which results in pain and suffering. We may at this stage point out a lacuna in the amendment rules. In the original schedule, the complete and permanent loss of use of a limb or member was equated with the loss of that limb or member, as in the Workmen's Compensation Act in force which is omitted in the amended rules. This is an unfortunate omission which undoubtedly will cause serious hardship in many cases. For instance the compensation provided say for complete and permanent use of by both hands accordingly to sub-rule (3) of Rule 6 will be a maximum of Rs. 10,000/- for each hand in all Rs. 20,000/- assuming till now that in the said sub-clause the maximum provided is Rs. 10,000/- for each injury, while according to Part III of the schedule of the original rules it would be Rs. 30,000/- for loss of each hand subject however to the maximum of Rs. 50,000/-. This inequitable omission should be remedied and loss of a limb or member should be equated to loss of use of that limb or member.

16. According to Mr. Das the maximum compensation of Rs. 10,000/- for pain and suffering resulting from all non-schedule injuries is bassed on sound reason as the pain and suffering for each injury are not divisible and must obviously be one integrated whole, whether the injuries are more than one or not as their cumulative effect. The contention overlooks that the compensation is not payable for merely for pain or suffering but for personal injury-only which results in pain and suffering. It may be that in determining compensation, the Claims Commissioner will have to take into consideration all circumstances including pain and suffering from respective injury, but unless there is a personal injury no compensation is payable under S. 82A of the Railways Act and the Railway Accident (Compensation) Rules, 1950 as amended. We are not concerned for mere pain and suffering undergone by the victim on account of the accident without any personal injury though such compensation for such-pain and suffering may be available under the general law. Further different injuries may cause different type of pain and suffering and such pain and suffering may separately and individually felt and suffered even apart from the cumulative effect of pain and suffering from all injuries together. We are accordingly unable to accept the contention so strongly urged by Mr. Das as parctically the foundation of his contention.

17. Mr. Das's next contention is that the word ‘any’ before injury in sub-rule (3) of Rule 6 should be read as ‘all’ so that for all injuries suffered by the victim the compensation will be as may be determined by the Claims Commissioner as reasonable not exceeding Rs. 10,000/-. This contention is supported according to him, by the further provision that the Commissioner may determine the amount of compensation in all the circumstances of the case as reasonable. There is no dispute that in appropriate case, the courts have interpreted the word ‘any’ as ‘all’ but where the provisions are clear and free from admiguity it is not permissible to read in statute what is not there. In this clause ‘any injury’ is being referred in the same clause as “other than an injury specified in the schedule or referred to in sub-rule (2)”. This clear provision militates against the contention that ‘any’ should be read as ‘all’. Further the condition is that in determining the reasonable compensation the Claims Commissioner is to have regard to all circumstances of the case. This means that all circumstances in respect of each injury are to be taken into account and not that all circumstances on all injuries together are to be taken into account. Such interpretation as suggested will be in violation of the plain reading of the section. Further if there is a loss of use of a limb or member or more by the injuries of the accident, this interpretation of maximum compensation of Rs. 10,000/- will lead to further inequity and hardship. That the interpretation suggested by Mr. Das is also borne out by sub-rule (4) which provides that compensation shall be payable for each injury. Mr. Das's contention that all sub-rules are independent and this sub-rule has no application to sub-rule (3) is not acceptable. This sub-rule (4) is placed immediately after sub-rule (3) and there is no prohibition providing for its non-application to sub-rule (3) nor does the working of the sub-rule indicate its non-application to sub-rule (3). It also cannot be urged that in sub-rule (4) the injuries therein mentioned are confined to schedule injuries in absence of any such provision.

18. For all these reasons we are unable to accept the contentions made on behalf of the Union of India limiting compensation under sub-rule (3) of Rule 6 to all injuries together as may be suffered by the victims of the accident. We hold on an interpretation of the compensations rules that the compensation not exceeding Rs. 10,000/- under sub-rule (3) of Rule 6 relates to each injury resulting in pain and suffering which a victim of the accident sustains on account thereof, subject to the maximum over-all statutory limit of Rs. 50,000/- for all injuries so suffered. Further in determining the compensation, the Claims Commissioner will take into account all circumstances including the loss of income or earning capacity of the victim as also the pain and suffering endured by him on account thereof as may be deemed reasonable.

19. Mr. Das has also contended that in all cases there was no direction by the Claims Commissioner for compulsory medical examination of the persons injured by an accident as provided in S. 86. Thereby the several determinations of compensation which were based only on medical reports were contrary to law. On a perusal of S. 86 it appears to us that the section is not mandatory and is merely directory. The provision that the authority may order that a victim may be examined by qualified medical practitioner is not essential condition for determining compensation and absence of such examination will not render the decision nugatory. We also do not find from the records of the cases that any application was made for any appointment in due time and at least no such appointment was prayed for till after the trial commenced. The prayer for such appointment was accordingly rightly rejected.

20. A preliminary objection has also to be considered. It is said that an appeal has been provided against the determination of the Claims Commissioner under S. 82-F(2) of the Act and accordingly the application under S. 227 (Art. ?) is not maintainable. Without entering into the controversy that the right of appeal conferred on a ‘person’ is available to the Union of India, the orders of the Claims Commissioner were impugned on the ground that the compecsation was determined in a manner not authorised or warranted by the relevant law and accordingly the such determination was without jurisdiction. In view of the challenge to determination of compensation as being without jurisdiction we think that the application under Article 227 is maintainable in law. We have further held in C.R No. 954 of 1972, State Of West Bengal v. Sm. Jyotsna Bhowmik & Ors. dated February 8, 1977 (since reported in 1977 CHN 231 that the amendments made by the Constitution (42 Amendment) Act, 1976 to Article 227 does not affect pending proceedings.

21. On the basis of the conclusion we have arrived at in regard to the interpretation of the relevant sections and the rules, we shall consider the individual cases.

22. In Civil Revision No. 1305 of 1976 the Claims Commissioner has determined Rs. 10,000/- each for the pain and suffering caused by two major injuries—fracture in right wrist and injury on the left knee joint under sub-rules (3) and (4) of Rule 6 and Rs. 200/- for loss of goods in all Rs. 20,200/-. The Claims Commissioner found the said compensation reasonable and acting under Article 227 we do not find any scope or reason for interference as the decision suffers from no legal infirmity in exercise of jurisdiction. The Rule is accordingly discharged. There will be no order as to costs. We however set aside the compensation determined under Rule 6(2) as the said sub-Rule is not applicable to the case.

23. In Civil Revision No. 1306 of 1976, the Claims Commissioner has determined for pain and suffering for each injuries suffered for the total sum of Rs. 20,000/-, Rs. 8000/- on account of two fractures of the bridge of the nose and left ankle and Rs. 4000/- in respect of multiple injuries on the face and Rs. 200/- was awarded for loss of goods in all Rs. 20,200/. For the reasons already indicated, we decline to interfere with the impugned order. The Rule is accordingly discharged. There will be no order as to costs. We however set aside the determination made by the Claims Commissioner under Rule 6(2) as the said Rule is not applicable.

24. In Civil Revision No. 1307 of 1976 the Claims Commissioner has found that the petitioner has been deprived of all capacity for work (word ‘work’ being rightly interpreted as occupational work) and the compensation was determined as Rs. 50,000/- under Rule 6(2). In view of the above finding we decline to interfere with the above impugned order. The Rule is accordingly discharged. There will be no order for costs. We may add here that the determination of the compensation was also made on the alternative basis under sub-rules (3) and (4) and we also do not feel necessary to interfere with such determination as well.

25. In C.R 1308 of 1976 the Claims Commissioner has determined compensation for pain and suffering caused by the fractures of six ribs at the rate of Rs. 4166/- for each fracture, in all for Rs. 25,000/- under sub-rules (3) and (4) of Rule 6 and Rs. 200/- for goods lost. For the reasons stated earlier we decline to interfere with the determination of the Claims Commissioner and the Rule is discharged. There will be no order as to costs. We however set aside the determination made by the Commissioner under Rule 6(2) on the alternative basis which we have already indicated has no application.

26. In C.R 1309 of 1976 the Claims Commissioner has determined as reasonable compensation for the pain and suffering endured by the petitioner on account of three major injuries at the rate of Rs. 10,000/- for each injury. Two major injuries are one fracture of right forearm and another of both bones of the left leg and also severe injury on chest causing severe pain which was continuing even on the date of trial. For reasons already indicated, we decline to interfere with the order and discharge the Rule. There will be no order as to costs. We however set aside determination made by the Commissioner on the alternative basis under Rule 6(2) which has no application.

27. In C.R 693 of 1976 the Claims Commissioner found that the petitioner was incapable to do any work by reason of the compound fracture of the left leg on the knee joint and also ankle and the union has resulted in a mal-union with consequent loss of normal capacity to stand up or walk whereby the petitioner has become completely crippled. It was further found that due to his physical and mental condition the petitioner was incapable to do any work and accordingly compensation was determined at Rs. 50,000/-. We find no jurisdictional error or infirmity in the decision in determining the compensation under Rule 6(2) of the Rule. The Rule is accordingly discharged. We also sustain the determination made on the alternative basis under Rule 6(3) and (4) in respect of the several injuries as indicated therein in the circumstances of the case. There will be no order as to costs.

28. In C.R 694 of 1976 there was amputation of the left leg below knee with stump exceeding 3.1/2″ but below 5″ and by reason of the internal injury of spine, chest and right leg as also the leg injury, the petitioner, according to the Commissioner has been deprived of all her capacity to do any work. The compensation was accordingly determined at Rs. 50,000/- under Rule 6(2). We do not find any jurisdictional error or infirmity in the aforesaid order. The Rule is accordingly discharged. There will be no order as to costs.

29. In C.R 1363 of 1976 the Commissioner found that under Rule 6(2), the petitioner was entitled to 40% of his earning capacity on Rs. 50,000/- and on that basis he has awarded Rs. 20,000/-. We do not find that this Rule is applicable and we do not sustain the compensation found on the above Rule. The Commissioner however has found alternatively that the petitioner is entitled to compensation under Rules 6(3) and (4) for three major injuries, viz., 1) fracture of right pelvis, 2) Osteo arthrites of the lumber spine and 3) Osteo arthrites of left knee with pain and suffering caused on account of the above injuries. The Commissioner has awarded Rs. 10,000/- for injury No. 1 and Rs. 5000/- each for injury nos. 2 and 3 in all Rs. 20,000/-. Further a sum of Rs. 31/- has been awarded for loss of articles. We do not find any jurisdictional infirmity in the above order of determination under Rule 6(3) and (4). The Rule is accordingly discharged. There will be no order as to costs.

30. In C.R 1364 of 1976 the Commissioner has determined compensation under Rule 6(2) which we have already indicated has no application. The Commissioner has determined compensation on the alternative basis under Rule 6(3) and (4) for fracture of 1) right clavicle and 2) of right ankle besides hurt and multiple injuries. He has awarded Rs. 10,000/- each for the pain and suffering caused thereby. We do not find any jurisdictional infirmity in respect of the said determination. The Rule is accordingly discharged. There will be no order as to costs.

31. In respect of C.R 1053 of 1976 the Commissioner has awarded Rs. 25,000/- less paid Rs. 1000/- under section 82 HH. The Commissioner found that there were two double fractures in the left leg for which he awarded Rs. 10000/- each and for the lumbo-sacral spinal injury he awarded Rs. 5000/- in all taking into account Rs. 1000/- paid already Rs. 24,000/-. We do not find any jurisdictional infirmity in respect of this determination made under Rule 6(3) and (4). We however set aside the determination made under Rule 6(2) as the said Rule has no application. The Rule is discharged. There will be no order as to costs.

32. In C.R 1054 of 1976 the Commissioner has awarded Rs. 10,000/- for the pain and sufferings caused by the major injuries. For (1) contusion of lower 1/3rd of right thigh and knee joint he has determined compensation at Rs. 10,000/- and together for (2) abrasion over right elbow and (3) tenderness of left upper part of tibia with abrasion he has awarded Rs. 10,000/-. We do not find any jurisdictional infirmity in the determination made under Rule 6(3) and (4). We however set aside the determination made under Rule 6(2) in the alternative which has no application. The Rule is discharged. There will be no order as to costs.

33. In C.R 1055 of 1976 the Commissioner has found that the petitioner on account of injuries has been completely disabled from doing any work and he has awarded Rs. 50,000/- under Rule 6(2). He has also awarded on the alternative basis under Rule 6(3) and (4) in all a sum of Rs. 50,000 for each of several injuries. The petitioner was paid Rs. 1000/-. Accordingly, the amount payable has been determined at Rs. 49,000/-. We find no jurisdictional infirmity in the order and accordingly discharge the Rule. There will be no order as to costs.

34. In C.R 1056 of 1976 the Commissioner has found six injuries which are fracture of six ribs and he has determined the compensation for the injuries at the rate of Rs. 2857/- and the pain and suffering therefrom also Rs. 2859/-, in all Rs. 20,000/- under Rule 6(3) and 6(4). We do not find any jurisdictional infirmity in such determination. The Rule is accordingly discharged. There will be no order as to costs. We however set aside the determination made under Rule 6(2) which according to us has no application.

35. In C.R 1059 of 1976 there were fracture of cervical 4th vertebra in respect of which under Rule 6(3) compensation of Rs. 10,000/- was determined. There are other multiple injuries abrasion on upper surface of right foot, tenderness of both sides of neck and contusion of neck, multiple pain and suffering and for all these multiple injuries and the pain and suffering therefrom the Commissioner has awarded Rs. 10,000/-. A sum of Rs. 20000/- has also been determined in respect thereof with Rs. 200/- for loss of goods, in all Rs. 20,200/-. We do not find any jurisdictional infirmity in the above determination. The Rule is accordingly discharged. There will be no order as to costs.

36. In C.R 1060 of 1976 the Commissioner has determined the pain and suffering caused by the injury on right finger (which has been deformed) at Rs. 10,000/- and he has also determined the compensation for the injury to chest and ribs at Rs. 8,000/- in all Rs. 18,000/- under Rule 6(3) and (4). We do not find any jurisdictional infirmity in the above order and accordingly discharge the Rule. There will be no order as to costs.

37. In C.R 421 of 1976 the Commissioner has determined the compensation at the rate of Rs. 10,000/- each for 1) multiple abrasions over the left thigh, 2) abrasions on the sinbone and 3) for abrasion on the forehead and eyebrow leading to deterioration of eye sight, in all Rs. 30,000/- together with Rs. 100/- for loss of goods. The compensation in respect of injuries have been determined under Rule 6(3) and (4). We do not find any jurisdiction infirmity in respect of the said order. The Rule is accordingly discharged. There will be no order as to costs.

38. Mr. Das has prayed for stay of operation of the order. We are not inclined to grant any stay in respect of persons involving total disablement. There will be no stay in respect of the Civil Rules No. 1307 of 1976, 693 of 1976, 694 of 1976, 1055 of 1976. We however grant stay of operation of the order in respect of the other cases for a period of four weeks.

G.N Ray, J.:— I agree.

All Rules discharged.

Union Of India v. Ad-Hoc Claims Commissioner & Ors.

Concise Analytical Summary of the Opinion (Salil Kumar Datta, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Union of India (represented by Mr. Das)

Claims Commissioner (as reflected by the determinations)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Union Of India v. Ad-Hoc Claims Commissioner & Ors.

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