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Madhya Pradesh High Court · body

2015 DIGILAW 1005 (MP)

Sushma Singh v. Ram Shiromani Tiwari

2015-09-22

N.K.GUPTA

body2015
ORDER : N.K. Gupta, J. The appellants/claimants have preferred the present appeal against the award dated 8.8.2002 passed by the Third Additional Motor Accident Claims Tribunal, Satna in C.T. No. 16 of 1999 whereby, the claim application under Section 166 of the Motor Vehicles Act was dismissed by the Tribunal. 2. The facts of the case in short are that the appellants have filed an application under Section 166 of the Motor Vehicles Act, 1988 before the Tribunal that on 29.11.1996 at about 8.00 to 9.00 p.m the deceased Brijnandan Singh was returning in his tractor from Mandi at Satna to his Village Ramsthan (Police Station Kolgawan, District Satna) after selling of the grains and purchasing some other articles. The deceased Brijnandan Singh was the owner of the Tractor No. MP19-A 0075 along with trolley No. MP19-A 0076 which was being driven by Ram Shiromani Tiwari, the respondent no. 1. When the vehicle reached at the railway gate Biruhali the gate was open. The respondent no.4 who was responsible to close the gate on arrival of the train did not close the gate and therefore, when the tractor and trolley was on the railway track a railway engine of a Goods train dashed the tractor and trolley causing death of the deceased Brijnandan Singh and 2-3 others. The applicants have moved an application for compensation of Rs. 5 lacs against all of the respondents. 3. The respondents no. 1 and 2 in their written statement have denied the negligence of the respondent no. 1 and it was pleaded that the accident took place due to sole negligence of the respondent no. 4 who did not close the railway crossing gate at the time when the Goods train was passing. In the alternate, it was pleaded that the tractor and trolley was insured with the respondent no.3 and therefore, it is the liability of the respondent no. 3 to pay the compensation, if required. 4. The respondent no. 3 in its written statement denied the allegations of the compensation application. It was pleaded that the concerned tractor and trolley was not insured by the respondent no.3. However, when photo copy of the cover note was produced before the Tribunal, learned counsel for the respondent no. 3, has accepted it and it was marked as the document Ex.D/1. No other plea was taken by the Insurance Company. 5. The respondent no. It was pleaded that the concerned tractor and trolley was not insured by the respondent no.3. However, when photo copy of the cover note was produced before the Tribunal, learned counsel for the respondent no. 3, has accepted it and it was marked as the document Ex.D/1. No other plea was taken by the Insurance Company. 5. The respondent no. 4 has denied all the averments of the application filed by the claimants and a specific plea was taken that according to the provisions of Sections 122, 147, 149 of the Railways Act the deceased was himself responsible for the accident. The deceased opened the railway gate by taking a key from the respondent no.4 and tried to cross the tractor and trolley on the railway crossing that resulted in an accident due to his own overt act. The respondent no. 4 had closed the gate soon before the arrival of the Goods train but it was forcefully opened by the deceased and his companions. In the alternate, it was pleaded that the Motor Accident Claims Tribunal has no jurisdiction to try the claim application. 6. The respondent no. 5 has also submitted the written statement of the similar nature as submitted by the respondent no. 4 and prayed that the Tribunal has no jurisdiction to decide the case. 7. The Presiding Officer of the Motor Accident Claims Tribunal has framed seven issues relating to negligence, computation of compensation, liability of the respondents, violation of policy conditions, jurisdiction of the Tribunal and for relief and costs. After, recording the evidence of the parties, the application was dismissed on the ground that the Tribunal has no jurisdiction to try that application and the application under Section 166 of the Motor Vehicles Act was not maintainable. 8. I have heard the learned counsel for the parties at length. The learned counsel for the respondents no. 4 and 5 did not appear before the Court though they were represented. 9. 8. I have heard the learned counsel for the parties at length. The learned counsel for the respondents no. 4 and 5 did not appear before the Court though they were represented. 9. In the present case, the Tribunal has dismissed the application on the basis of jurisdiction only whereas, it is the principle of the Civil Procedure Code that if a Court decided a preliminary issue to dispose off the case then the matter shall be considered on the basis of that preliminary issue first and if cause of action continues then at the time of final judgment all of the issues are to be decided. In the present case, the Tribunal did not consider the issue of jurisdiction to be a preliminary issue and it was decided at the time of passing the final award but other issues are not decided on merits. The application was filed before the Tribunal in the year 1999 and therefore, after 16 years it would be inappropriate to remand the case to the Tribunal for decision on the remaining issues. Hence, it would be appropriate to consider all the issues in the present appeal. 10. The Tribunal has dismissed the claim application on the basis that such application should have been filed before the Railway Tribunal and application under Section 166 of the Motor Vehicles Act was not maintainable before the Claims Tribunal. The Claims Tribunal has relied upon the judgments of Supreme Court including the judgments passed in the case of "G.M.N.A Railway v. Jitendra Shah" [2000 (Part II) MPWN Note 6]. However, the learned counsel for the appellants has invited the attention of this Court to the judgment passed by the Full Bench of the Apex Court in the case of "Union of India v. Bhagwati Prasad and others" (2002 ACJ 721) in which it is held that in the light of the provisions under Section 110 of the Motor Vehicles Act when the Claim Tribunal has initially entertained the claim application then it cannot deny for grant of the application on the ground that accident took place due to sole negligence of the railway staff and therefore, the Tribunal has no jurisdiction. In such a case the M.A.C. Tribunal cannot be denuded of its jurisdiction in which it had initially entertained the claim application and can award the compensation against the Railway also. In such a case the M.A.C. Tribunal cannot be denuded of its jurisdiction in which it had initially entertained the claim application and can award the compensation against the Railway also. The Apex Court has given various reasons and decided that the Motor Accident Claims Tribunal has jurisdiction. In the light of the aforesaid judgment if facts of the present case are considered then the Claims Tribunal has entertained the claim application because a motor vehicle was involved in the accident then claim application could not be dismissed on the ground that the Tribunal did not have any jurisdiction to entertain the application. The judgment passed by the Apex Court in the case of Bhagwati Prasad (supra) is given by the Full Bench and therefore, it has overriding effect over the other judgments of the Apex Court passed in the past. Hence, the Tribunal has committed an error in finding that it has no jurisdiction to award the claim application against the railway administration through Union of India. 11. The question relating to negligence is to be decided in the case. Only one witness Shekhar Datt Soni (AW2) was examined as an eye witness. He has stated that when the tractor reached near Birhuli Gate, the gate was found open and therefore,6 the driver took the tractor and trolley on the railway line to cross it. An engine was coming from the side of Satna and there was no headlight illuminated in that Engine which dashed the tractor and trolley. The respondent no.4 and 5 took a plea in their written statement that the deceased Brijnandan Singh along with his companions forcefully took the keys of the railway gate and opened the gate but no witness was examined to prove such pleading and it was not established that the gate was closed and it was opened forcefully. Under these circumstances, evidence of Shekhar Datt Soni appears to be acceptable that the railway gate has been open and therefore, the respondent no.1 tried to cross the railway line by the tractor and trolley. 12. In the cross examination Shekhar Datt Soni has accepted that if a train arrives near the spot then its vibrations and sound may be felt and heard by the people around the railway line. It was not acceptable that the headlight of the engine of the Goods train was not working. 12. In the cross examination Shekhar Datt Soni has accepted that if a train arrives near the spot then its vibrations and sound may be felt and heard by the people around the railway line. It was not acceptable that the headlight of the engine of the Goods train was not working. Hence, if the gate was not closed still the driver of the tractor could feel that the train was coming from one side on the basis of its sound and vibrations. Also he could see the headlight of the Goods train which was coming from the side of Satna. Hence, if gate was not closed by the respondent no.4 then it cannot be said that it was the sole negligence of the respondent no.4. Looking to the facts and circumstances of the case, I am of the view that negligence of the respondents no. 4 and respondent no. 1 should be considered as 75% is to 25% of contributory negligence. 13. Learned counsel for the appellant has placed his reliance upon the judgment passed by the Division Bench of this Court in the case of "Madhya Pradesh State Road Transport Corporation, through Divisional Manager v. Kumar Singh @ Kamal Singh and another" [2005 (2) T.A.C. 159 (M.P.)] in which, it is held that bus being a heavier and larger vehicle and it was the responsibility of the driver of the bus to see the motorcyclist, therefore, the responsibility should be apportioned of 75:25 on bus driver and motorcyclist respectively. In the light of the aforesaid judgment, the responsibility of accident is fixed in para 12 of the order. 14. Learned counsel for the appellant has also placed his reliance upon the judgment passed by the Full Bench of this Court in the case of "Sushila Bhadoriya and others v. M.P. State Road Transport Corporation and another" [ 2005 (1) M.P.L.J. 372 ] in which, it is held that the accident caused due to composite negligence of two joint tort-feasors then, the claimant would be free to choose any of the joint tort-feasors and claim the compensation from him. In the present case, the law laid by the Full Bench of this Court cannot be applied because in the present case, the appellant did not choose to prosecute the respondent nos.4 and 5. In the present case, the law laid by the Full Bench of this Court cannot be applied because in the present case, the appellant did not choose to prosecute the respondent nos.4 and 5. On the contrary, all two tort-feasors along with their Insurance Company are pleaded responsible and therefore, he would be entitled to get the compensation on the basis of apportionment of the liability between two joint tort-feasors as done by the Division bench of this Court in the case of Kumar Singh (supra). 15. So far as the computation of compensation is concerned, it is stated by Sushma (AW1) and Siddarth Datt Soni (AW2) that the deceased had 11 acres of land with him and the tractor and trolley on which he travelled was of his own property. Sushma has accepted that the deceased was giving a monthly income of Rs. 10,000/- for expenditure but, when the income of the deceased was dependent upon the agricultural land and the land is still available to the legal representatives of the deceased then his income should not be computed on the basis of profits and crops grown on the land. If the legal representatives of the deceased engages one person to look after the land and to do as a job of labour then such income can be obtained. Hence, the appellants have a loss of supervision on the lands which was done by the deceased. Thus, the income of the deceased can be presumed to be more than the income of an unskilled labour. 16. The case was of the year 1999 and at that time the Collector rate for unskilled labour was Rs. 50/- per day. Hence, the notional income of the deceased Brijnandan Singh may be assessed to be Rs. 80/- per day because except doing his physical activities he was also supervising his labours and therefore, his monthly income falls within the limit of Rs. 2400/- per month. Since his income was spent on his wife, three minor children and himself therefore, his expenditure should be deducted by 25% from his income and therefore, dependency of the claimants comes to be Rs. 1800/- per month i.e. Rs. 21,600/- per annum. For computation of multiplier age of the deceased is to be considered. Sushma (PW1) has shown that she was 45 years old at the time of accident and her husband was also 45 years old. 1800/- per month i.e. Rs. 21,600/- per annum. For computation of multiplier age of the deceased is to be considered. Sushma (PW1) has shown that she was 45 years old at the time of accident and her husband was also 45 years old. In the post mortem report Ex.P/3, age of the deceased Brijnandan Singh was mentioned as 48 years but according to the pleadings of the appellants, the respondent no.2 Jaisingh was made a party of the case as owner of the vehicle being son of the deceased Brijnandan Singh. Jai Singh is shown to be 32 years old at the time of filing of the claim application and therefore, there must be a difference of 18 years of age of the deceased Brijnandan Singh and his elder son Jai Singh. Hence, age of the deceased Brijnandan Singh appears to be above 50 years at the time of accident. Hence, according to the guide lines of Hon'ble the Apex Court in Sarla Verma's case ( 2009 ACJ 1298 ) the multiplier of 13 can be given on the yearly dependency as computed above. Hence the total compensation comes to be Rs. 2,80,800/- The appellant no.1 is also entitled to get some compensation in the head of consortium and loss of estate. It would be appropriate to award a sum of Rs. 10,000/- on such each counts, funeral expenses may also be computed at the rate of Rs. 6000/-. Hence the compensation comes to a sum of Rs. 3,06,800/- in all. 17. The respondent no. 3 the Insurance Company did not take any plea before the Tribunal about the violation of policy conditions. The only plea taken by the Insurance Company was that the tractor was not insured. When cover note was filed it was admitted by the learned counsel for the Insurance Company and therefore, the Insurance Company is responsible for payment of compensation to the appellants for negligence done by the respondent no.1 who, was authorised driver of the tractor trolley appointed by the deceased/employer. Hence, there is nothing on record to opine that the respondent no.3/Insurance Company has been absolved from is liability. 18. On the basis of the aforesaid discussion the appeal filed by the appellants is hereby partly allowed. The appellants are entitled to get a compensation of Rs. 3,07,000/- (in round figure) in all. 75% of compensation shall be paid by the respondents no. 18. On the basis of the aforesaid discussion the appeal filed by the appellants is hereby partly allowed. The appellants are entitled to get a compensation of Rs. 3,07,000/- (in round figure) in all. 75% of compensation shall be paid by the respondents no. 4 and 5. They are jointly and severally liable for payment of that compensation whereas, 25% of compensation shall be paid by the respondent no. 3 being insurer of the vehicle driven by the respondent no. 1. The respondents no. 3, 4 and 5 are also directed to pay an interest of 7% per annum on the amount of compensation payable by them from the date of award i.e. 8.8.2002. The appellants are also entitled to get the costs of this appeal and the claim application. Advocate's fee be added for the appellants as a sum of Rs. 5000/- if certified. 19. Copy of the order be sent to the Tribunal along with its record for information and compliance.