Allahabad High Court
Amrita Devi vs S.K. Srivastava And Ors. on 28 November, 1995
Author: Brijesh Kumar
Bench: Brijesh Kumar, A.S. Gill
JUDGMENT Brijesh Kumar, J.
1. This first appeal from order has been preferred against the order dated 30.3.1982 passed by the Motor Accidents Claims Tribunal (V Additional District Judge), Lucknow, dismissing the claim petition preferred by the appellant holding that it was legally not maintainable.
2. The facts giving rise to the claim petition are that one Mohan Singh Yadav, the deceased husband of appellant No. 1, was travelling by a motor cycle as pillion rider and was going from the Mall to Malihabad on 11.3.1979. At about 5.30 p.m., he met with an accident at Malihabad Railway Crossing receiving injury by the railway collapsible gate as a result of which he died. The motor cycle bearing registration No. JKB 6426 was being driven by S.K. Srivastava. S.K. Srivastava disputed the claim on the ground that he was not responsible for the accident and also for the reason that as a pillion rider, the deceased had not taken the required protection by putting on protective head-gear. His case was that due to sudden fall of the crossbar at the time he was negotiating the railway line, the accident occurred and the injuries were sustained by the deceased as well as by S.K. Srivastava. A plea of non-joinder of parties was also raised. So far railway administration is concerned, it contested the claim on the ground that the accident had occurred due to negligence of the motor cycle driver and on the ground that no claim could be preferred against the railway administration before the Tribunal under the Motor Vehicles Act. The insurance company also resisted the claim and it was pleaded that the risk of the pillion rider was not covered under Section 95 of the Motor Vehicles Act, 1939. In all 14 issues were framed by the Tribunal on the basis of the different pleas raised by the parties. The Tribunal, however, decided the case on the basis of the findings recorded on issue Nos. 8, 11 and 14 as 'preliminary causes' which read as follows:
(8) Whether the claim is against the law?
(11) Whether the claim is maintainable under the Motor Vehicles Act against the railway administration?
(14) Whether the claim petition is bad for non-joinder of necessary parties as pleaded in paras 16 and 17 of the written statement of the defendant No. 3?
3. After quoting the above-noted three issues in the order, the learned presiding officer of the Tribunal observed that no oral evidence was adduced on the three issues indicated above by the parties. A reference in this connection has also been made to paper No. C-47. It may be noted that in the claim petition S.K. Srivastava was the opposite party No. 1, the General Manager, Northern Railway, was opposite party No. 2 and the opposite party No. 3 was United India Fire and Genl. Ins. Co. Ltd. In paras 16 and 17 of the written statement filed by opposite party No. 3, it is pleaded that the minor children detailed in para 7 of the petition have not been impleaded as claimants or respondents; as such the claimant was not entitled to claim any compensation on their behalf under the law. The Tribunal decided the issue against the claimant and in favour of respondents holding that the claim was not legally maintainable. The Tribunal while deciding issue No. 11 held that in case the accident occurred due to negligence of the railway administration, the claim petition shall not lie before the Motor Accidents Claims Tribunal constituted under the Motor Vehicles Act. It was also found that the General Manager, Northern Railway, Baroda House, New Delhi, not being a juristic person, the claim was not maintainable since Union of India was not impleaded as party. First of all, it may be seen as to whether a claim petition would lie before the Tribunal where an accident occurs out of the use of the motor vehicle on account of some negligence of outside agency, as the Railways in the present case. In this connection, it may be observed that in cases where it is found by the Tribunal that the accident was caused only due to negligence of the outside agency and not by the driver of the motor vehicle, in that case alone the Tribunal shall cease to have any jurisdiction to grant any relief to the claimant. Where the claim is preferred only against an outside agency then too, the claim petition would not be maintainable. But in the present case, the Tribunal proceeded to decide the matter on the basis that the accident occurred due to fall of crossbar of the Railways at the railway crossing but without going into the question about the negligence of the motor cycle driver. It was necessary for the Tribunal to have tried all the issues together including the issue relating to negligence of the parties. After the trial, if it was found that there was negligence on the part of the outside agency alone, then the prayer for the award of compensation could be turned down. But where it is found to be a case of contributory negligence or composite negligence or even a slight negligence on the part of the motor cycle driver, the claim petition would be maintainable before the Claims Tribunal. We are supported by a Full Bench decision of our own court on the above proposition in Union of India v. Sushila Devi 1990 ACJ 1 (Allahabad).
4. Learned counsel for the appellant has also rightly pointed out Rule 20 of the U.P. Motor Accidents Claims Tribunal Rules 1967. Rule 20 provides that finding on each issue has to be given by the Tribunal. Rule 20 (1) reads as under:
20. (1) The Claims Tribunal, in passing orders, shall record concisely in a judgment the finding on each of the issues framed and the reasons for such finding and make an award, specifying the amount of compensation to be paid by the insurer or, in the case of a vehicle exempted under Sub-section (2) or (3) of Section 94 of the Motor Vehicles Act, 1939 (now Section 146 of the Act 59 of 1988), by the owner thereof and shall also specify the person or persons to whom compensation shall be payable.
5. In view of the above provision, the Tribunal erred in picking up a few issues which according to the Tribunal were legal issues. As a matter of fact, maintainability of the claim petition depended upon the findings on other issues framed by the Tribunal. For example, issue No. 2 which was directly on the question as to whether defendant No. 1 was driving the motor cycle in a high speed in a drunken state as well as issue No. 5 which was also to the effect as to whether defendant No. 1 was not responsible for the accident. In this context, the counsel had made a statement as contained in paper No. C-47, dated 19.3.1982 that no evidence was to be adduced on issue Nos. 8, 11 and 14. It does not mean that they had given up their right to adduce evidence on other issues indicated above. As observed earlier, it was only after the evidence was adduced that the Tribunal should have recorded its findings on all the issues and then alone should have come to the conclusion as to whether any relief could be given to the claimant or not. So far the finding under issue No. 11 that the General Manager, Northern Railway, was not a legal entity and, therefore, the claim petition was not maintainable is concerned, at the very outset, it may be noticed that no such question was sought to be decided under issue No. 11 since it only related to the maintainability of the claim application under the Motor Vehicles Act, against the railway administration. The said finding, therefore, was uncalled for and could not be recorded once this question was not involved in the issue decided. Learned counsel for the appellant has, however, placed reliance upon a decision in Bessar-lal Laxmi Chand Chirawala v. Motor Accidents Claims Tribunal, Greater Bombay 1970 ACJ 334 (Bombay). It has been held that the form prescribed for claiming compensation does not require the claimant to implead any party as defendant. The claimant has only to give relevant fact. It is further held that the Tribunal has been entrusted with the duty of finding out all the parties who may be liable to pay compensation. It is also observed that formal defect of failure to mention appropriate names of the parties who are liable to pay compensation to the claimant was never intended to defeat the claims filed under the Act.
6. It is also contended that no claim of compensation can be allowed unless negligence on the part of the motor cycle driver and owner is proved and on this point, learned Counsel for the respondent has placed reliance upon a decision in Gujarat State Road Transport Corporation v. Union of India 1987 ACJ 734 (Gujarat), as well as Minu B. Mehta v. Balkrishna Ramchandra Nayan 1977 ACJ 118 (SC). It is submitted that the appellant did not choose to adduce evidence about the negligence of the motor cycle driver nor any negligence has been attributed in the application on the part of the motor cycle driver and owner nor against the railway administration. In connection with the objection that no evidence about negligence was adduced by the appellant, we we have already found that since only three out of 14 issues were being tried, the parties did not adduce evidence at that stage but the issue of negligence was separately framed and, as observed earlier, the fate of issue No. 11 depended upon trial of issue No. 2. In this view of the matter, the appellant could not be and is not barred from adducing evidence on the question of negligence on the part of the motor cycle owner and the driver or of contributory or composite negligence on the part of the railway administration.
So far the allegation of negligence having not been made in the application is concerned, learned Counsel for the appellant has placed reliance upon a decision in Nacharamma v. Motor Accidents Claims Tribunal, Bangalore 1972 ACJ 360 (Mysore). In that case also the form prescribed under the Mysore Motor Accidents Claims Tribunal Rules did not require to state that the accident had occurred due to negligent driving of the motor cycle driver. If the application is made in the form prescribed, the Tribunal is bound to inquire into the matter. In the present case too, a perusal of the prescribed form in which the claim petition has been preferred indicates that there is no such column requiring the claimant to disclose about the negligence on the part of the motor vehicle driver/owner or any other agency. In column 23 only such information which may be necessary or helpful in disposal of the claim was to be given. Against this column, the occurrence of the accident was given. The claim petition, thus, was in the form, as prescribed. In another decision Seethamma v. Benedict D'Sa 1966 ACJ 178 (Mysore), also it was held that there was no requirement to state about the negligence on the part of the motor vehicle owner, in the prescribed form, though it was desirable to do so under the column 'any other information'. We also find an observation made in para 16 of the Full Bench decision of this Court in Union of India v. Sushila Devi 1990 ACJ 1 (Allahabad), while making reference to a decision of Full Bench of Punjab and Haryana High Court in Rajpal Singh v. Union of India 1986 ACJ 344 (P&H), that claim petition being directed against the owner of the motor vehicle as well as the Union of India, clearly implied that negligence was alleged against the driver of the motor vehicle as well as the railway authorities.
7. The question of proof of negligence comes later on the enquiry being made during trial by the Tribunal and there is no dispute about the proposition that compensation cannot be awarded unless negligence is proved. But, it is not the same thing as saying that the claim petition is liable to be thrown out merely for the reason that in the prescribed form allegations of negligence have not been made. The finding, thus, recorded on issue No. 8 is also erroneous.
8. In view of what has been discussed above, we hold that merely the fact that specific allegations of rash and negligent driving have not been attributed in the application would not make the claim petition liable to be thrown out on that ground. The Tribunal will have to inquire into the matter and find out the question of negligence which would be implied in making a claim petition mentioning the parties involved in the accident.
9. It has next been submitted on behalf of the respondents that the claim was bad since the minors were not impleaded as party to the claim petition. This argument also has no force. The claim in such matters is to be taken to have been filed in representative capacity by the natural guardian of the minors. A purely legalistic approach does not fit in such cases to defeat the claim.
10. On issue No. 14, the Tribunal has found that in view of the findings recorded on issue Nos. 8 and 11 the petition is bound to fall. Thus, issue No. 14 becomes redundant. In a way, issue No. 14 has also been decided against the claimant on the basis of the finding recorded on issue No. 11 that Union of India was not impleaded as a party. We have already dealt with this matter in the earlier part of the judgment. Since, in our view, the findings as recorded on issue Nos. 8 and 11 are erroneous, the finding on issue No. 14 also falls.
11. In the result, we allow the appeal and set aside the order passed by the Claims Tribunal deciding issue Nos. 8, 11 and 14, against the claimant, with costs. The record of the case may be remitted to the Tribunal for adjudication in accordance with law.
Since it is an old matter, it is expected that the Tribunal will give priority to the case and dispose of the same, as early as possible, say, if possible, within a period of six months.