The principle of res judicata does not apply when an earlier application was dismissed for lack of jurisdiction, and the court emphasized the statutory provisions under S.124-A of the Railways Act.

K.S. Radhakrishnan, J.

Petitioner's son was travelling from Kochi to Calicut in the Trivandrum Mangalore Malabar Express. As the train passed Kadalundi station some bogies of the train jerked and the petitioner's son was thrown out of the train and unfortunately he was run over, and he succumbed to the injuries. He died on 13.9.1991. Petitioner then filed a petition, O.A. No. 137 of 1992 claiming a compensation of Rs. 3 lakhs from the Railways before the Railways Claims Tribunal. Application was under S.124 of the Railways Act, 1989. Tribunal however vide its order dated 10.12.1992 did not entertain the application stating that the claim petition is not maintainable and the Tribunal lacked jurisdiction since the case set up by the petitioner is not covered by S.123(1)(a)(ii) of the Railway Claims Tribunal, Act, 1987. According to the Tribunal, only if the person has suffered injuries on the basis of an accident as defined under S.123 (a) of the Railways Act. 1989, which should have occurred either due to a collision between trains of which'one is a train carrying passengers, or derailment or other accident to a train or any part of the train carrying passengers.

According to Tribunal only in those cases, petitioner is entitled to get compensation under S.124 of the Railways Act read with provisions of Railways Accident (Compensation) Rules, 1990. Tribunal, therefore, dismissed the application vide their order dated 10.12.1992.

2. Petitioners did not challenge the said order either before this Court or before the Civil Court. If the petitioners wanted to file a suit before the civil court, they should have filed the same on or before 12.9.1994. However, according to the petitioners, before the expiry of the limitation period, jurisdiction of the civil court in respect of claims fall under S.124-A of the Railways Act was taken away by the Railways Amendment Act (Act 28 of 1994) and the jurisdiction was vested with the Railway s Claims Tribunal by the amended Ss.13 and 15 of the Act. The amended provisions came into force on 1.8.1994. Amending Act introduced a new S.124-A which makes the Railway administration liable to pay compensation for injury or death due to an'untoward incident'. An'untoward incident' is defined in S.123(c) of the Railways Act as amended in 1994.

3. After coming into force of S.124-A of the Railways Act, according to petitioners, they have got a new right to approach the Tribunal and to claim compensation under S.124-A of the Railways Act. According to petitioners, as per S.17 of the Railways Claims Tribunals Act, a Railway Claims Tribunal can entertain an application under S.124-A of the Railways Act within one year of the date of the accident-untoward incident as per sub-section (2) of S.17, and it can entertain applications filed beyond this time on satisfaction that the applicants have sufficient cause for not making the application within such period. Petitioners therefore, filed an application before the Claims Tribunal under S.124-A of the Railways Act. Petitioners also filed an application under S.17 of the Railways Claims Tribunals Act along with an affidavit explaining the delay of one month and 17 days. That application was numbered as LA. No. 2 of 1996 in unnumbered O.A.No.195D No. 327/95. LA.No. 2 of 1996 was rejected by the Tribunal vide Ext. P4 order dated 18.7.1996. According to Tribunal, the earlier order passed by the Tribunal has become final, since petitioners did not file appeal before this Court or other forums. Since the said order has become final, there is no question of condonation of delay by the Tribunal. Hence, the Tribunal held that on the principles of res judicata, the petitioners have no locus standi to move the Tribunal. Tribunal however, dismissed the application, without prejudice to the right of the petitioners to claim compensation in the appropriate forum. Since LA. was dismissed, the original application was also dismissed. Petitioners are aggrieved by the sai