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2011 DIGILAW 808 (MP)

UNION OF INDIA v. OMPRAKASH

2011-07-22

N.K.MODY

body2011
JUDGMENT : N.K. Mody, J. This order shall also govern the disposal of M.A. No. 2479 of 2008, which is an appeal filed by the respondent Nos. 1 and 2 against the award dated 28.4.2008, passed by the Second M.A.C.T., Dewas, in Claim Case No. 113 of 2007, whereby claim petition filed by the respondent Nos. 1 and 2 was allowed and compensation of Rs. 1,52,000 was awarded holding that the appellants are liable, against which the present appeal has been filed. M.A. No. 2682 of 2008 has been filed by the appellant, Union of India, wherein liability is challenged by them. M.A. No. 2479 of 2008 is an appeal filed by respondent Nos. 1 and 2, wherein the grievance is that quantum awarded is on lower side. Short facts of the case are that respondent Nos. 1 and 2 have filed a claim petition alleging that on 10.4.2005 deceased Ritesh, son of respondent Nos. 1 and 2, was going on a motorbike bearing registration No. MP 13-JA 5257 from Bawadiya Dewas to Trilok Nagar. It was alleged that at that relevant time motorbike was driven by deceased Ritesh and his relative Rakesh was a pillion rider. It was alleged that when the motorbike reached Mendki Road crossing, at that time, a railway engine from Dewas side suddenly came on the railway track without whistling, with the result, the said railway engine met with accident with the bike which was driven by Ritesh. It was alleged that due to the accident Ritesh (deceased) and Rakesh, who was a pillion rider, sustained grievous injuries. Both of them were taken to the M.G.H. Hospital, Dewas where during treatment, Ritesh was declared dead while treatment was given to Rakesh. It was alleged that since accident had occurred because of negligence on the part of driver, therefore, the claim petition be allowed and compensation be awarded accordingly. The claim was contested by appellants on various grounds claiming that the accident occurred due to negligence on the part of the deceased, therefore, appellants shall not be liable for compensation. Thus, the claim petition filed by claimants is liable to be dismissed. After framing of the issues and recording of the evidence, the learned Tribunal allowed the claim petition filed by the respondent Nos. 1 and 2 and awarded compensation of Rs. 1,52,000, against which the present appeal has been filed. 2. Mr. Thus, the claim petition filed by claimants is liable to be dismissed. After framing of the issues and recording of the evidence, the learned Tribunal allowed the claim petition filed by the respondent Nos. 1 and 2 and awarded compensation of Rs. 1,52,000, against which the present appeal has been filed. 2. Mr. Anand Pathak, learned counsel for the appellants, argued at length and submits that the impugned award passed against the appellants is illegal and is liable to be set aside. It is submitted that, in the instant appeal, the accident occurred due to negligently crossing unmanned level crossing, therefore, it was the duty of the deceased to travel cautiously. From the evidence which has come on record, it is proved that the accident occurred because of sudden mechanical fault in the bike which was driven by the deceased. It is submitted that due to failure of brake of the bike, the accident occurred and this fact is relevant from the statement of DW 1. It is submitted that since the deceased was negligent, therefore, he committed an offence punishable u/s 161 of the Railways Act, 1989, which reads as under : 161. Negligently crossing unmanned level crossing.--If any person driving or leading a vehicle is negligent in crossing an unmanned level crossing, he shall be punishable with imprisonment which may extend to one year. 3. In the facts and circumstances of the case, it is submitted by learned counsel for the appellants that the learned court below committed an error in holding the appellants liable for compensation. So far as amount of compensation is concerned, the amount awarded by the learned Tribunal is just and proper. It is, therefore, submitted that the appeal be allowed and the findings regarding negligence on the part of the appellants be set aside. 4. Mr. Sanjay Patwa, learned counsel for the respondent Nos. 1 and 2, submits that the deceased was a young man aged 20 years. He was having meritorious educational career as he secured 1st Division in Higher Secondary. It is submitted that learned Tribunal assessed the income of the deceased on notional basis, which is on lower side, which ought to have been assessed at Rs. 3,000 per month. 1 and 2, submits that the deceased was a young man aged 20 years. He was having meritorious educational career as he secured 1st Division in Higher Secondary. It is submitted that learned Tribunal assessed the income of the deceased on notional basis, which is on lower side, which ought to have been assessed at Rs. 3,000 per month. So far as liability is concerned, learned counsel submits that after due appreciation of evidence, the learned Tribunal found that it was negligence on the part of the engine driver due to which the accident took place. It is further submitted that the appeal filed by the appellants be dismissed and the claim petition filed by the respondent Nos. 1 and 2 be allowed and the amount be enhanced accordingly. 5. The law laid down u/s 161 of Railways Act, 1989 is that if any person driving or leading a vehicle is negligent in crossing an unmanned level crossing, he shall be punishable u/s 161 of the Railways Act. The word 'negligent' has been defined u/s 161 of the Railways Act by giving an explanation which reads as under : Explanation.--For the purposes of this section, 'negligence' in relation to any person driving or leading a vehicle in crossing an unmanned level crossing means the crossing of such level crossing by such person-- (a) without stopping or caring to stop the vehicle near such level crossing to observe whether any approaching rolling stock is in sight, or (b) even while an approaching rolling stock is in sight. 6. For proving the case, respondent Nos. 1 and 2 have filed documents, Exhs. P1 to P9. Exh. P7 is the mark-sheet of the deceased. Appellants have also filed the documents which are marked as Exhs. D1 to D11. Apart from this, respondent Nos. 1 and 2 had examined Omprakash as AW 1, Rakesh as AW 2 and Anil, AW 3. The appellants had examined Sukhram, NAW 1, Narendra Kumar, NAW 2 and Swatantra Kumar Pathak, Senior Section Engineer as NAW 3. 7. After going through the evidence on record, it appears that Rakesh was the best witness, who was pillion rider and who had been examined by the respondent Nos. 1 and 2. Therefore, his statement throws light to prove that under what circumstances the accident occurred. 7. After going through the evidence on record, it appears that Rakesh was the best witness, who was pillion rider and who had been examined by the respondent Nos. 1 and 2. Therefore, his statement throws light to prove that under what circumstances the accident occurred. In the facts and circumstances of the case, this court is of the view that the learned Tribunal after due appreciation of the evidence has rightly concluded that the accident occurred because of negligence on the part of driver of the engine. Moreover, driver of the engine was in employment of the appellants, he was not examined by the appellants for best reasons known to them. So far as amount of compensation is concerned, it appears that the deceased was a brilliant student and was a young man aged 20 years. In the year 2005, his income has wrongly been assessed on notional basis at Rs. 2,000 per month. Since he was a bachelor, the deduction ought to be instead of 1/3rd on account of personal expenses. Thus, the respondent Nos. 1 and 2 are entitled for the following amount: 8. In view of this, the appeal filed by the appellants stands dismissed. On the other hand, the appeal filed by the respondent Nos. 1 and 2 is allowed in part. After taking into consideration all the evidence on record, in my opinion, it will be proper to enhance the compensation by Rs.63,000 (Rs.2,15,000 - Rs.1,52,000), which shall carry interest at the rate of 8 per cent per annum from the date of application till its realization. It is directed that 80 per cent of the enhanced amount shall be deposited in the name of respondent No.2. With the aforesaid modification, the appeal stands disposed of. Copy of the order be placed in the connected appeal. No order as to costs.