2022:BHC-AS:12290 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 671 OF 2015 IN MISC. APPLICATION NO. 09 OF 2014 IN ORIGINAL APPLICATION NO. 1222 OF 2006

1. Shri. Kiran Damodar Paygode

2. Shri. Santosh Damodar Paygode } APPELLANTS V/S.

2. The Union of India, represented by the General Manager. } RESPONDENT * * * *

Mr. Mohan Rao, Advocate for the appellant.

Mr. T.J. Pandian a/w. Mr. Dheer Sampat, Advocate for the respondent.

Coram : Sandeep K. Shinde, J.

Date of Reserved On : 7^th April, 2022.

Date of Pronounced On: 10^th June, 2022.

JUDGMENT :

1. This Appeal under Section 23 of the Railway Claims Tribunal Act, 1987 (R.C.T. Act” for short) questions the legality and correctness of order dated 18^th July, 2014 passed by the Railway Claims Tribunal at Mumbai.

2. Brief reference to facts may be necessary to assess the precise case of the appellant.

. Damodar Ganpat Paygode died due to accidental falling from the train carrying passengers. His mother- Lakshmibai, wife- Indubai and two sons-Kiran Paygode and Santosh Paygode (appellants herein), all “dependents” within the meaning of Section 123(b) of the Railways Act, 1989 were granted compensation in the sum of Rs.4,00,000/-under Section 124A of the Railways Act, 1989 by the Railway Claims Tribunal, at Mumbai, vide order dated 16^th March, 2009. It appears, compensation in the sum of Rs.1,54,994/- was awarded to, Indubai Damodar Paygode and Rs.1,00,000/- to Lakshmi Ganpat Paygode. However, before receiving the compensation, Lakshmibai and Indubai, both passed away on 2^nd July, 2009 and 10^th July, 2009. Record reveals, compensation amount, sent to Indubai and Lakshmibai by post was returned “unclaimed”, reporting recipients were dead. It is appellant’s case that, due to inadvertence, they did not lay their claim over the unclaimed compensation. In the circumstances, the appellants moved Misc. Application No. 9/2014 purportedly filed under Order 21 Rule 16 of the Code of Civil Procedure read with Rule 26(1) of the Railway Claims Tribunal (Procedure) Rules, 1989 (“R.C.T. Rules” for short). Purport of the application was that, after the death of Lakshmibai and Indubai, unclaimed compensation of Rs.1,54,994/- and Rs.1,00,000/- stood transferred, to them, by ‘operation of law’, being legal heirs and representatives of Indubai and Lakshmibai. On this premise, appellants requested the Tribunal to direct Railway Administration, to pay Rs.2,54,994/- to them. The learned Member of the Tribunal, vide order dated 18^th July, 2014 rejected the application on two grounds; namely, (I) that application purportedly filed under Rule 26(1) of the R.C.T. Rules was beyond the period of 90 days and (ii) since appellants have received their share in compensation, they were no more “dependents”. Feeling aggrieved by that order, this Appeal is preferred.

3. Heard learned Counsel for the parties.

4. Herein, Tribunal had granted compensation to the appellants and Lakshmibai (grandmother of appellants) and Indubai (mother of the appellants). Unfortunately, Lakshmibai and Indubai died before receiving their share in the compensation. In the circumstances, appellants sought their impleadment as legal representatives of Lakshmibai and Indubai and accordingly moved an application under Rule 26 of the R.C.T. Rules, which 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 representatives 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.”

That, since the application moved by the appellants was beyond the period of 90 days, and although the Tribunal is/was empo