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Rajasthan High Court · body

2003 DIGILAW 585 (RAJ)

Union of India v. Hira Ram

2003-04-21

H.R.PANWAR, N.N.MATHUR

body2003
JUDGMENT 1. - Challenging the judgment of the learned Single Judge affirming the award passed by the Motor Accident Claims Tribunal, Merta, it is contended by the learned counsel that as per the definition of 'Motor Vehicle' under Section 2(28) of the Motor Vehicle Act, 1988. Motor Vehicle means any 3 mechanically propelled vehicle, adopted for use upon road.... but it does not include vehicles running upon fixed rails. It is submitted that as per the said definition, locomotive with which the truck collided, does not fall within the definition of Motor Vehicle in question and, therefore, no liability can be foisted upon the Union of India or the Railway Administration. The issue has 10 been answered by the decision of the Apex Court in Union of India v. United India Insurance Company Limited, reported in (1997) 8 SCC 683 , reaffirmed in General Manager, N.F. Railway, Malegaon, Guwahati v. Jitendra Shah and Others, reported in (2000) 9 SCC 58 : 2000 WLC (SC) Civil 134 and Union of India v. Bhagwati Prasad, reported in AIR 2002 SC 1301 : 2002 WLC (SC) Civil 374 . In view of the settled position of law, the subject appeal is not considered worth admission. However, it is considered appropriate to restate the legal position and its application to the facts of the instant case. 2. The factual scenario giving rise to the instant appeal are that an accident occurred on 6.11.1995 at an unmanned railway level crossing at Gate No. C-31 of Railway Station, Kuchaman City when a jeep bearing No. RJS 8647 was hit by 2467 (UP) Jaipur Intercity train wherein 18 passengers in the jeep and the driver Motiram thereof were killed. 18 claim petitions under Section 166 of the Motor Vehicles Act, 1988 for award of compensation before the Motor Accident Claims Tribunal, Mena were filed. The claims have been filed in addition to Union of India and the Railway Administration against Badriprasad, the driver of locomotive and Kesarlal, the owner of the jeep. It is alleged that railway crossing at no gate or stiles, there were shrubs near the railway crossing as such it was riot possible for the driver to ensure that no train was passing through the railway crossing. It is, further, alleged that neither there was any caution board nor red light signal at the entrance of the level crossing. It is alleged that railway crossing at no gate or stiles, there were shrubs near the railway crossing as such it was riot possible for the driver to ensure that no train was passing through the railway crossing. It is, further, alleged that neither there was any caution board nor red light signal at the entrance of the level crossing. The locomotive had also not given any whistle. It was also alleged that driver of the jeep namely Motiram was driving the vehicle rashly and negligently. According to the claimants, the cause of accident was composite negligence by the driver of jeep Motiram and the Railway Administration and its officers including the driver of locomotive. In the reply, the Railway Administration took the stand that the cause of accident was rash and negligent driving of the driver of jeep. It was further averred that the driver and the conductor of the vehicle did not take precaution as provided under Rule 161 of the Central Motor Vehicles Rules. It was further averred that passenger train was moving at the sanctioned speed. Considering the oral and documentary evidence adduced by the parties, the Tribunal allowed all the claim petitions. 3. Dealing with the case of offence under Section 304-A IPC in the identical circumstances, the Apex Court considered the question of rash and negligent act with reference to the duty caste on the driver of the Motor Vehicle and the locomotive. The Apex Court in S.N. Hussain v. State of Andhra Pradesh, reported in AIR 1972 SC 685 observed that a driver of the jeep before approaching to unmanned crossing must stop the vehicle, look at both ways to ensure that there was no danger in crossing the railway track. The observations are extracted as follows:- "Where a level crossing is unmanned, it may be right to insist that the driver of the vehicle should stop the vehicle, look both ways to see if a train is approaching and, thereafter, only drive his vehicle after satisfying himself that there was no danger in crossing the railway track." 4. This case was considered by the Apex Court in Union of India v. United India Insurance Company (supra). This case was considered by the Apex Court in Union of India v. United India Insurance Company (supra). Considering the well known principal in the law of tort called the "doctrine of identification" or "imputation", the court held that even if the driver of the passenger vehicle was negligent, the Railways, if its negligence was otherwise proved, could not plead contributory negligence on the part of passengers of vehicle. The court further, held that qua the passengers of the bus who were innocent, the driver and the owner of the bus and, if proved, the Railways can all be joint tort feasors. The court also took into consideration under Section 13 of the Railway Act, 1890 which confers a power of the Central Government to issue a requisition to the Railway Administration i.e., the General Managers or the Railway Companies to take steps as per Section 13. It will be relevant to read sub-clause (c) of Section 13 which is extracted as follows:- "13. Fences, screens, gates and bars. - The Central Government may require that, within a time to be specified in the requisition or within such further time as it may appoint in this behalf. - (a)................ (b)................ (c) suitable gates, chains, bars, stiles or handrails be erected or renewed by a railway administration at places where a railway crosses a public road on the level." 5. The Supreme Court approved the following observations of the Judicial Commissioner in Union of India v. Lalman, reported in AIR 1954 Vind Pradesh 17 as follows:- "A level-crossing is on the one hand a danger spot in view of the possible movement of trains, and on the other is an invitation to the passers-by. This is a public crossing and not merely one by private accommodation. Therefore it is the legal duty of the Railway to assure reasonable safety. The most obvious way of doing it is to provide gates or chain barriers and to post a watchman who should close them shortly before the trains pass. But failure to do so is not by itself an act of negligence provided that the Railway had taken other steps sufficient in those circumstances to caution effectively a passer-by of average alertness and prudence. At a reasonable distance on either side, prominently written boards can be affixed, asking the road-users to beware of trains. But failure to do so is not by itself an act of negligence provided that the Railway had taken other steps sufficient in those circumstances to caution effectively a passer-by of average alertness and prudence. At a reasonable distance on either side, prominently written boards can be affixed, asking the road-users to beware of trains. If the track on either side is visible from near the caution board or within a short distance from the crossing, this would be sufficient because diligent; road-user could look around and see the train. On the other hand, if there is a bend on the track or these are trees or bush in between, or the road on either side of the crossing is very far below the level of the railway track, or for any other similar reasons the track is not visible beyond a short distance, then even the caution boards are useless. In that case gates are indicated. Similarly boards may be affixed along the railway, say half to three-fourth of a mile in either direction calling upon the engine driver to whistle. A whistle by the driver can supplement, but cannot replace gates or caution boards as a device to protect the users of a crossing." 6. Considering the powers of Tribunal under Section 110 of the Motor Vehicles Act as it existed under the old Act, the court held that the claim for compensation is maintainable before the Tribunal against other persons or agencies which are held to be guilty of composite negligence or are joint tortfeasors and if arising out of the use of Motor Vehicle. This view has been reaffirmed by the Apex Court in General Manager, N.F. Railway, Malegaon, Guwahati v. Jitendra Shah and Others, reported in (2000) 9 SCC 58 . In Union of India v. Bhagwati Prasad, reported in AIR 2002 SC 1301 : 2002 WLC (SC) Civil 374 the Apex Court considered the crucial expression under Section 110, 110-A of the Motor Vehicles Act, 1939 conferring the jurisdiction i.e. "accident arising out of the use of Motor Vehicle" collusion between the motor vehicle (jeep) and the railway train. The court held that if there has been collusion between the Motor Vehicle and the railway train, then all those persons, injured or died, could make application for compensation before the Claims Tribunal not only against the owner. The court held that if there has been collusion between the Motor Vehicle and the railway train, then all those persons, injured or died, could make application for compensation before the Claims Tribunal not only against the owner. Driver or Insurer of the Motor Vehicle but also against the Railway Administration. The court observed:- "In other words, in such a case also the Motor Vehicle Claims Tribunal would be entitled to award compensation against the other joint tortfeasor, and in the case in hand, it would be fully justified to award compensation against the Railway Administration if ultimately it is held that it was the sole negligence on the part of the Railway Administration. To denude the Tribunal of its jurisdiction on a finding that the driver of the motor vehicle was not negligent, to would cause undue hardship to every claimant and we see no justification to interpret the provisions of the Act in that manner." 7. Thus, the driver of the motor vehicle before approaching the unmanned crossing must ensure that there was no danger in crossing the railway track. In case of collusion of motor vehicle with a locomotive, at liability under the Motor Vehicles Act can be fastened upon the Union of India or the Railway Administration in case the negligence of driver of the locomotive is otherwise proved irrespective of the fact that the driver of passenger vehicle is found negligent. Qua innocent passengers of a vehicle, the driver and the owner of the vehicle and the Railway Administration being the joint tort feasors, are liable to pay the compensation. Thus, we hold that in case of an accident on account of collusion between motor vehicle and locomotive, a claim petition shall be maintainable under Section 166 of the Motor Vehicles Act, 1988. 8. In view of the settled position of law, we find no merit in this special appeal as such the same is dismissed.Special Appeal Dismissed. *******