Das, J. -
(1.) These are two appeals under Section 82F(2) of the Indian Railways Act from an order of the Claims Commissioner dated the 18th of August 1951, and the principal point for consideration is the amount of compensation to which the appellants are entitled by reason of the provisions of Section 82A and the rules made under Section 32J of the Indian Railways Act. In Miscellaneous Appeal No. 329 of 1950, the appellant, who was the claimant before the Claims Commissioner, is Sri Sreenath Singh, an advocate of this Court. The appellant in Miscellaneous Appeal No. 330 of 1951, who was the claimant before the learned. Claims Commissioner, is Sri T.R. Bhatia. Both these gentlemen were travelling by the 7 Up Toofan Express on the 13th of August 1950, This train met with an accident near Karamnasa, and as a result of the accident, the appellants sustained severe personal injuries and lost their personal effects. Both of them were first removed to Mogalsarai by a relief train, then to the hospital at Benares & ultimately to the Patna General Hospital. At the Patna General Hospital, they were indoor patients for some months; and their case before the Claims Commissioner was that they were still suffering from the effects of the personal injuries sustained by them in the accident.
(2.) The questions raised in the two appeals are principally questions of law bearing on the amount of compensation payable to the appellants. Therefore, it is unnecessary to give details of the injuries sustained by the appellants. It is, however, necessary to indicate how the Claims Commissioner proceeded to consider and decide the claims preferred by the two appellants. Section 82A (I am reading only the relevant portion) lays down that, when in the course of working a railway an accident occurs, whether or not there has been any wrongful act, neglect or default on the part of the Railway Administration such as would entitle a person who has been injured or has suffered loss to maintain an action and recover damages in respect thereof, the Railway Administration shall, notwithstanding any other provision of law to the contrary, be liable to pay compensation to the extent set out in Sub-section (2) and to that extent only for loss occasioned by the death of a passenger dying as a result of such accident, and for personal injury and loss, destruction or deterioration of goods owned by the passenger and accompanying the passenger in his compartment or on the train, sustained as a result of such accident. Sub-section (2) states that the liability of a railway administration shall in no case exceed ten thousand rupees in respect of any one person. Section 82A was inserted by Section 2 of the Indian Railways (Amendment) Act, III of 1942. In 1949, further amendments were made by the Indian Railways (Amendment) Act, LVI of 1949. Sections 82B to 82J were added. These sections related to the appointment of Claims Commissioners, application for compensation, procedure and powers of Claims Commissioners, interim orders for compensation, liability to pay compensation etc. to be decided by the Claims Commissioners, and appeals from their orders etc. Section 82H saved the right of any person to recover compensation payable under the Workmen's Compensation Act, 1923 or any other law for the time being in force or under any contract or scheme providing for payment of compensation etc. Section 82J is important, and I propose to read it in full:
"(1) The Central Government may, by notification in the official Gazette, make rules to carry out the objects of Sections 82A to 82H inclusive. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for- (i) the qualifications and conditions of service of Claims Commissioners: (ii) the nature of the injury for which and the rates at which compensation shall be payable; (iii) the rates at which compensation shall be payable for death or total disablement; (iv) the manner in which claims for compensation may be inquired into and determined by the Claims Commissioner; (v) the matters in respect of which any person may be chosen to assist the Claims Commissioner under Section 82D, and the functions exercisable by such person; (vi) generally for the effective exercise of any powers conferred on the Claims Commissioner. (3) All rules made under this section shall be laid before the Dominion Legislature as soon as may be after they are made." The Rules made in exercise of the powers conferred by Section 82J are known as the Railway Accidents (Compensation) Rules, 1950. These were published in the Gazette of India, Part II-Section 3, dated the 1st July, 1950. It is necessary to read Rule 6 of the said Rules and I am reading it so far as it is relevant for our purpose:
"(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. (2) In case of a partial disablement arising out of an injury not specified in Part II of the Schedule, such percentage of the 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: 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." The learned Claims Commissioner applied Sub-Rule 2 of Rule 6 to the claims of these two appellants, inasmuch as the injuries which the appellants sustained were not injuries specified in Part II of the Schedule appended to the Rules. On the basis of medical certificates submitted by the Surgeon, Dr. V. N. Singh, F.R.C.S. of the Patna General Hospital who treated the two appellants, the learned Claims Commissioner found that both the appellants had suffered partial disablement as a result of the injuries sustained and such disablement had caused a permanent loss of earning capacity fifty per cent in the case of Sri Sreenath Singh and thirty per cent in the case of Sri T. R. Bhatia. On the basis of their monthly income at the time of the accident as per Part I of the Schedule, he allowed compensation of Rs. 4,250/- to Sri Sreenath Singh on account of personal injury, and Rs. 3,000/- to Sri T. R. Bhatia. With regard to the loss of personal effects, he allowed further sums to both the appellants, the details whereof are unnecessary for our purposes except in the case of Sri Sreenath Singh where, it has been contended, there has been an error of calculation to the extent of Rs. 72 only. To that aspect of the case I shall return later.
(3.) The contention of learned Counsel for the appellants is that his clients are entitled to the maximum compensation laid down in Sub-section (2) of Section 82A of the Indian Railways Act. In support of this contention, he has urged the following points. Firstly, he has argued that the rules made under Section 82J (particularly Rule 6), so far as they are inconsistent with the meaning, and go beyond the scope, of Section 82A, must give way to the provisions of that section. Secondly, he has contended that the rules are incomplete and do not cover the cases of the, two appellants; therefore, the general rules relating to damages in an action in tort should be applied, subject to the maximum fixed by Sub-section (2) of Section 82A. These have been the two principal arguments of learned Counsel for the appellants. He has also submitted that the certificate of Dr. V.N. Singh, on which the learned Claims Commissioner relied, should not have been preferred to another certificate which the same Surgeon had given in respect of the injuries of Sri Srinath Singh in support of the claim of the appellant. I propose now to consider the arguments in the order in which I have stated them.;