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2016 DIGILAW 425 (GUJ)

General Manager v. Amubhai Memubhai Ahir

2016-02-22

R.P.DHOLARIA

body2016
JUDGMENT : R.P. Dholaria, J. 1. Since, all these appeals arise out of the common judgment and award dated 19.08.1992 rendered by the learned Motor Accident Claims Tribunal, Morvi at Rajkot ('the Tribunal' for short) in MACP Nos. 226 of 1989, 227 of 1989 and 228 of 1989, whereby the learned Tribunal has awarded compensation of Rs. 1,12,210, Rs. 55,560/- and Rs. 90,000/- respectively against the driver and owner and Insurance company of the vehicle involved in the accident as well as Railway Administration. 2. The brief facts of the case are that on the date of the alleged incident, i.e. on 21.05.1983 the mother of the original claimants had gone for darshan of Raveshi Mata in Kutch and on returning from Kutch with other relatives and she was traveling in Tanker NO.GTP-4991 along with goods. When the said Tanker reached near Malia (Miyana), the driver of this truck had tried to cross the level crossing No. 97 in rash and negligent manner, which was open level crossing and at that time a goods train was coming from Dhrangadhra and proceeding towards Gandhidham and dashed with the goods train. As a result of such terrible accident, the tanker had got fired on the spot and the mother of the applicant who was traveling in this tanker sustained serious injuries and died on the spot. Therefore, legal heirs and representatives of the deceased have filed the aforesaid claim petitions, wherein the Tribunal has passed the impugned judgment and award. Hence, the present appeals. 3. These appeals have been preferred by the Indian Railway Administration through General Manager, Western Railway, inter alia, contending that judgment and award are erroneous so far as fastening the liability upon the Railway Administration. It is further contended that the learned Tribunal has also erred in arriving at conclusion that the Railway Administration is also negligent in maintaining unmanned level crossing. It is further contended that the learned Tribunal failed to appreciate that unmanned level crossing was there, it was the duty casts upon the driver of the vehicle to be cautious while crossing the unmanned level crossing. It is further contended that the learned Tribunal ought to have exonerated the Railway Administration from payment of any liability so far. 4. It is further contended that the learned Tribunal failed to appreciate that unmanned level crossing was there, it was the duty casts upon the driver of the vehicle to be cautious while crossing the unmanned level crossing. It is further contended that the learned Tribunal ought to have exonerated the Railway Administration from payment of any liability so far. 4. Heard learned Advocate Shri K.M. Parikh for the appellant- Railway Administration and learned Advocate Shri Sunil B. Parikh on behalf of learned Advocate Shri Ajay Mehta for the Respondent No. 4- Insurance Company. 5. The only question raised by learned Advocate Shri Parikh for the Railway Administration that since the railway crossing NO.97 was unmanned open near Maliya (Miyana), the driver of the tanker could have taken due care while crossing such unmanned level crossing and the learned Tribunal ought to have held sole negligence on the part of the driver of the aforesaid Tanker No. GTP-4991. 6. Per contra, learned Advocate Shri Sunil B. Parikh argued that before the learned Tribunal relevant papers have been adduced documentary as well as oral evidence. On overall appreciation of the record, the learned Tribunal has passed its findings. He has also argued that neither the deceased nor injured have examined the driver of the tanker as well as railway. In this view of the matter, the case of the claimants are left on the part of composite negligent and in that view of the matter also the learned Tribunal has also rightly recorded the findings that the incident occurred because of composite negligent on the part of the railway administration as well as driver of the tanker. 7. On the overall appreciation of the evidence and overall appreciation of rival contentions raised by the learned Advocates for the parties and overall appreciation of the evidence on the record indisputably the deceased two persons as well as injured were travelling as owner of goods upon the aforesaid tanker while the aforesaid tanker was negotiating level crossing No. 97, which was open crossing and railway, at that time a goods train which was coming from the Dhrangadhra and was proceeding towards Gandhidham was also passing through the aforesaid railway crossing No. 97. At that time while passing thorough the aforesaid railway crossing the aforesaid tanker as well as the aforesaid goods train collided with each other. At that time while passing thorough the aforesaid railway crossing the aforesaid tanker as well as the aforesaid goods train collided with each other. In the result, two persons who were traveling in the aforesaid tanker caused serious injuries and succumbed to the injuries and one injured sustained serious injury, which resulted into permanent disability. 8. The learned Tribunal while dealing with the point of negligent has elaborately dealt with the evidence on the record and ultimately it has recorded in its findings at Para No. 15, which reads as under: "15. Now, from the oral evidence as well as panchnama Exh. 83, map Exh. 125, it is crystal clear that goods train was coming as non-stop train and train drvier was blowing whistle, but level crossing remained open and tanker driver tried to cross the railway track hurridly. So on both way, driver of tanker was remained negligent in his activity. No doubt, driver of goods train himself was not negligent, but railway administration was vicariously remained negligent by not keeping level crossing gates closed when goods train was passing." 9. The learned counsel for the respective parties has also taken this Tribunal to the aforesaid judgment and order as well as material made available to this Court. On overall appreciation of evidence indisputably the aforesaid railway crossing No. 97 was open and it was unmanned level crossing. When the aforesaid tanker was passing through the aforesaid open crossing No. 97 at that time the goods train was also passing and both the tanker and the train collided as clearly suggestive of the fact that the incident occurred due to composite negligence on the part of the driver of tanker as well as railway administration. 10. The learned Tribunal has taken into consideration various decisions as well as evidence on the record and elaborately dealt with the aforesaid contentions. On the point No. 1, the Supreme Court has also laid down guidelines so far as such cases are concerned, more particularly in the case of Union of India v. United India Insurance Co. Ltd., reported in (1997) 8 SCC 683 , wherein it has been observed thus, "45. In our view, the Tribunal is clearly an alternative forum in substitution for the Civil Court for adjudicating upon claims for compensation arising out of the "use of motor vehicles". Ltd., reported in (1997) 8 SCC 683 , wherein it has been observed thus, "45. In our view, the Tribunal is clearly an alternative forum in substitution for the Civil Court for adjudicating upon claims for compensation arising out of the "use of motor vehicles". This is further made clear from Section 110-F of the Act which states that no Civil Court shall entertain any question "relating to any claims for compensation which may be adjudicated upon by the Claims Tribunal". In our view, when we are concerned only with Section 110 (1) and when Section 110 B does not and cannot control Section 110 (1), a claim is entertain-able by the Tribunal, if it arises out of the use of the use of a motor vehicle and if it is claimed against persons or agencies other than the driver, owner or insurer of the vehicle provided in tort, such other persons or agencies are also claimed to be liable as point tort-feasors. It is obvious that prior to the constitution of the Tribunal, such compensation could be decreed by the Civil Court not only against the owner\driver and insurer of the motor vehicle but also against others who are found to be joint tort feasors. The words "use of the motor vehicle" are also be construed in a wide manner. The above words were interpreted by this Court in Shivaji Davanu Patil v. Vatschala Uttam More: 1991 (3) SCC 530, in the context of Section 92A. This Court in that connection referred to the Australian case in Government Insurance Office of N.S.W v. R.J. Green & Lloyds Pvt. Ltd. (1965) 114 C.L.R 437 and to the observations of Barwick CJ that those words have to be widely construed. We may also refer to the observations of Windeyer J. in same case to the following effect:-- "........ no sound reason was given for restricting the phrase, "the use of a motor vehicle" in this way. The only limitation upon its........... that I can see is that the injury must be one in sany way a consequence of a use of the vehicle as a motor vehicle". no sound reason was given for restricting the phrase, "the use of a motor vehicle" in this way. The only limitation upon its........... that I can see is that the injury must be one in sany way a consequence of a use of the vehicle as a motor vehicle". Further, Section 110-E of the Act provides of recovery of the compensation "from any person" as arrears of land revenue and recovery under that Section is not restricted to the owner/driver or insurer specified in the second part of Section 110-B. Obviously the words from any person are referable to persons other than the driver/owner or insurer of the motor vehicle. 46. For all the above reasons, we hold that the claim for compensation is maintainable before the Tribunal against other persons or agencies which are held to be guilty of composites, negligence or are joint tort-feasors, and if arising out of use of the motor vehicle. We hold that an award could be passed against the Railways if its negligence in relation to the same accident was also proved. We find that there has been a conflict of judicial opinion among the High Courts on the above aspect. The Andhra Pradesh High Court in Oriental Fire & General Insurance Co. Ltd. v. Union of India, 1975 ACC 33 (AP) : AIR 1975 AP 222 took the view that the claims before the Tribunal are restricted to those against the driver, owner and insurer of the motor vehicles and not against the railways. But on facts the decision is correct inasmuch as through it was an accident between a lorry and a train at a railway crossing, it was a case where the driver, cleaner etc, travelling in the lorry were injured and there was no claim against the lorry owner. The suit was filed in 1967 in the Civil Court and was decreed against the railway. A plea raised in the High Court that the Civil Court had no jurisdiction and only the Tribunal had jurisdiction was negatived. In our view, on facts the decision is correct because the plea was one of the exclusive negligence of the railway. In Union of India v. Bhimeswara Reddy [1988 ACT 660 (AP)], though the driver and owner were parties, the ultimate finding was that the driver of the motor vehicle was not negligent and the sale negligence was that of the railway. In Union of India v. Bhimeswara Reddy [1988 ACT 660 (AP)], though the driver and owner were parties, the ultimate finding was that the driver of the motor vehicle was not negligent and the sale negligence was that of the railway. The case then at that stage comes out of Section 110 (1). Here also the concluded on facts, in our view, is correct. But certain general broad observations made in these two cases that in no circumstances a claim can be tried by the Tribunal against the persons/agencies not referred to in the second part of Section 110 B, are not correct. Similarly the Gauhati High Court in Swarnalata Dutta v. National Transport India (Pvt.) Ltd.s [AIR 1974 Gav.31], by the Orissa High Court in Orissa RTC Ltd. v. Umakanta Singh (AIR 1987 Orissa 110) and the Madras High Court in Union of India v. Kailasan, 1974 AC] 488 (Mad.) have held that no award can be passed against others except the owner\driver or insurer of the motor vehicle. On the other hand the Allahabad High Court in Union of India v. Bhagwati Prasad, AIR 1982 (All) 310 , the majority in the Full Bench of the Punjab & Haryana High Court in Rajpal Singh v. Union of India 1986 ACT 344 (P&H), the Gujarat High Court in Gujarat SRTC v. Union of India (AIR 1988 Guj.13), the Kerala High Court in the Judgment under appeal and in United India Insurance Co. v. Premakumarar [1988 ACT 597 (Ker)] and the Rajasthan High Court in Union of India v. Dr. Sewak Ram 1993 ACT 366 (Raj.) have taken the view that a claim lies before the Tribunal even against another joint tort-feasor connected with the same accident or against whom composite negligence is alleged. 47. We are of the opinion that the view taken by the Andhra Pradesh, by way of obiter and the views of the Gauhati Orissa and Madras High Court is not correct and that the view taken by the Allahabad. Punjab and Haryana, Gujarat, Kerala and Rajasthan High Courts is the correct view. 47. We are of the opinion that the view taken by the Andhra Pradesh, by way of obiter and the views of the Gauhati Orissa and Madras High Court is not correct and that the view taken by the Allahabad. Punjab and Haryana, Gujarat, Kerala and Rajasthan High Courts is the correct view. Further, as pointed by the Gujarat High Court, claims where it is alleged that the driver\owner of the motor vehicle is solely responsible for the accident, claims on the basis of the composite negligence of the driver of the motor vehicle as well as driver or owner of any other vehicle or of any other outside agency would be maintainable before the Tribunal but in the latter type of case, if it is ultimately found that there is no negligence on the part of the driver of the vehicle or there is no defect in the vehicle but the accident is only due to the sole negligence of the other parties/agencies, then on that finding, the claim would them become one of exclusive negligence of railways. Again if the accident had arisen only on account of the negligence of persons other than the driver/owner of the motor vehicle, the claim would not be maintainable before the Tribunal. 48. We may however add that if, as of today, any claims against persons other than the driver\owner\insurer are pending in Civil Courts, but which as per the law hereinabove stated ought to have been lodger before the Tribunal, then the Civil Courts concerned shall return the plaints and the claimants could present the same as a petition before the Tribunals. In that event, they shall be dealt with as if they are claim petitions presented before the Tribunals on the date on which the plaints were filed in the Civil Courts and shall be disposed of under the provisions of the Motor Vehicles Act and in accordance with law." 11. In view of the above scenario and considering the above decision of the Supreme Court as well as the evidence on the record, the learned Tribunal has jurisdiction to deal with ever the composite negligent on the part of the driver of vehicle and railway administration is in question. In view of the above scenario and considering the above decision of the Supreme Court as well as the evidence on the record, the learned Tribunal has jurisdiction to deal with ever the composite negligent on the part of the driver of vehicle and railway administration is in question. Since, the composite negligence on the part of the railway administration is also recorded by the learned Tribunal the Tribunal is having jurisdiction to entertain the claim petition and has rightly decided the claim petition and awarded compensation. 12. In the result, these First Appeals devoid of any merits stand dismissed. The learned Tribunal has rightly awarded the amount of compensation to the original claimants as aforesaid. The impugned judgment and award of the Tribunal dated 19.08.1992 does not call for any interference and is hereby confirmed. However, the original claimants have not filed any cross-objections, the appeal preferred by the insurance company on the point of quantum and the negligence is hereby dismissed. R &P be sent back to the concerned Tribunal forthwith. No order as to costs.