Bombay High Court
The Union Of India vs Bharat S/O Raghoji Kedare on 24 April, 2009
Author: K.U.Chandiwal
Bench: K.U.Chandiwal
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
F.A. NOS. 4058/2008, 4059/2008,
4060/2008, 4061/2008,
4062/2008, 4063/2008.
Date of decision: 24/4/2009
For approval and signature
HON'BLE MR. JUSTICE K.U.CHANDIWAL
1. Whether the Reporters of Local Papers ] Yes/No
may be allowed to see the Judgment ]
2.
3.
To be referred to the Reporter or not ? ]
Whether Their Lordships wish to see ]
Yes/No
Yes/No
the fair copy of the Judgment ? ]
4. Whether this case involves a substantial] Yes/No
question of law as to the interpretation]
of the Constitution of India, 1950, or]
any order made thereunder ? ]
5. Whether it is to be circulated to the ] Yes/No
Civil Judges ? ]
6. Whether the case involves an important ] Yes/No
question of law and whether a copy of ]
the Order should be sent to Bombay, ]
Goa and Nagpur Office ? ]
(A.G.PARALIKAR)
Private Secretary
uniplex/fa4058-08gr
uniplex/
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(2)
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
F.A. NOS. 4058/2008, 4059/2008,
4060/2008, 4061/2008,
4062/2008, 4063/2008.
...
FIRST APPEAL NO. 4058 of 2008
The Union of India
Through the General Manager,
South Central Railway,
Secunderabad ( A.P.)
...APPELLANT
(Orig.Resp.No.2)
VERSUS
1.
Bharat s/o Raghoji Kedare, @ Mhaske,
Age 37 years, Occu: Labour,
r/o Avalgaon, Tq. Gangakhed,
Dist. Parbhani.
2. Sk.Elias s/o Sk. Burhan,
Age: Major, Occu. Business,
and owner of auto rickshaw
No.MH-26/6877 r/o Near Degloor
Naka, Nanded, Dist. Nanded.
...RESPONDENTS
(Resp.No.1 is orig.claimants
and Resp. No.2 is orig.
resp. No.1)
...
Mr. M.N.Nawandar, Advocate, for the appellant.
Mr. H.I.Pathan, Advocate, for respondent no.2.
...
FIRST APPEAL NO. 4059 of 2008
The Union of India
Through the General Manager,
South Central Railway,
Secunderabad ( A.P.)
...APPELLANT
(Orig.Resp.No.2)
VERSUS
1. Girjabai w/o Munjaji Lokhande,
Age: 57 years, Occu: Household & Labour,
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(3)
r/o Dharvati Tanda, Tq. Parli,
Dist. Beed.
2. Sk.Elias s/o Sk. Burhan,
Age: Major, Occu. Business,
and owner of auto rickshaw
No.MH-26/6877 r/o Near Degloor
Naka, Nanded, Dist. Nanded.
...RESPONDENTS
(Resp.No.1 is orig.claimants
and Resp. No.2 is orig.
resp. No.1)
...
Mr. M.N.Nawandar, Advocate, for the appellant.
Mr. K.M.Nagarkar, Advocate, for respondent no.1.
Mr. H.I.Pathan, Advocate, for respondent no.2.
...
FIRST APPEAL NO. 4060 of 2008
The Union of India
Through the General Manager,
South Central Railway,
Secunderabad ( A.P.)
...APPELLANT
(Orig.Resp.No.2)
VERSUS
1. Bharat s/o Shriram Pawar,
Age: Major, Occu: Labour.
2. Ranjit s/o Shriram Pawar,
Age 23 years, occu: Nil.
3. Avinash s/o Shriram Pawar,
Age 17 years, minor u/g of
real brother Bharat Shivram Pawar,
R/o Dhravati Tanda, Tq. Parli,
Dist. Beed.
4. Sk.Elias s/o Sk. Burhan,
Age: Major, Occu. Business,
and owner of auto rickshaw
No.MH-26/6877 r/o Near Degloor
Naka, Nanded, Dist. Nanded.
...RESPONDENTS
(Resp.No.1 to 3 are
orig.claimants
and Resp. No.4 is orig.
resp. No.1)
...
Mr. M.N.Nawandar, Advocate, for the appellant.
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(4)
Mr. H.I.Pathan, Advocate, for respondent no.4.
Respondent nos. 1 to 3 served.
...
FIRST APPEAL NO. 4061 of 2008
The Union of India
Through the General Manager,
South Central Railway,
Secunderabad ( A.P.)
...APPELLANT
(Orig.Resp.No.2)
VERSUS
1. Girjabai w/o Munjaji Lokhande,
Age: 57 years, Occu: Household & Labour,
r/o Dharvati Tanda, Tq. Parli,
Dist. Beed.
2.
Sk.Elias s/o Sk. Burhan,
Age: Major, Occu. Business,
and owner of auto rickshaw
No.MH-26/6877 r/o Near Degloor
Naka, Nanded, Dist. Nanded.
...RESPONDENTS
(Resp.No.1 is orig.claimants
and Resp. No.2 is orig.
resp. No.1)
...
Mr. M.N.Nawandar, Advocate, for the appellant.
Mr.K.M.Nagarkar, Advocate, for respondent no.1.
Mr. H.I.Pathan, Advocate, for respondent no.2.
...
FIRST APPEAL NO. 4062 of 2008
The Union of India
Through the General Manager,
South Central Railway,
Secunderabad ( A.P.)
...APPELLANT
(Orig.Resp.No.2)
VERSUS
1. Bharat s/o Raghoji Kedare, @ Mhaske,
Age 37 years, Occu: Labour,
r/o Avalgaon, Tq. Gangakhed,
Dist. Parbhani.
2. Sk.Elias s/o Sk. Burhan,
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(5)
Age: Major, Occu. Business,
and owner of auto rickshaw
No.MH-26/6877 r/o Near Degloor
Naka, Nanded, Dist. Nanded.
...RESPONDENTS
(Resp.No.1 is orig.claimants
and Resp. No.2 is orig.
resp. No.1)
...
Mr. M.N.Nawandar, Advocate, for the appellant.
Mr.K.M.Nagarkar, Advocate, for respondent no.1.
Mr. H.I.Pathan, Advocate, for respondent no.2.
...
FIRST APPEAL NO. 4063 of 2008
The Union of India
Through the General Manager,
South Central Railway,
Secunderabad ( A.P.)
VERSUS
ig ...APPELLANT
(Orig.Resp.No.2)
1. Tulsabai w/o Vishwanath Mogle,
Age: 47 years, Occu: Household & Labour,
r/o Vaijwadi, Tq. Parli,
Dist. Beed.
2. Sk.Elias s/o Sk. Burhan,
Age: Major, Occu. Business,
and owner of auto rickshaw
No.MH-26/6877 r/o Near Degloor
Naka, Nanded, Dist. Nanded.
...RESPONDENTS
(Resp.No.1 is orig.claimants
and Resp. No.2 is orig.
resp. No.1)
...
Mr. M.N.Nawandar, Advocate, for the appellant.
Mr. K.M.Nagarkar, Advocate, for respondent no.1.
Mr. H.I.Pathan, Advocate, for respondent no.2.
...
CORAM : K.U.CHANDIWAL, J.
Date: 24/4/2009
...
JUDGMENT:
1. The appellant, aggrieved by the ::: Downloaded on - 09/06/2013 14:32:54 ::: (6) judgment and award dt.7.4.2006 passed by the Additional District Judge and Ex Officio Member, Motor Accident Claims Tribunal, Nanded who, by common judgment, decided M.A.C.P. Nos. 385, 421, 422, 485, 486 and 549 all of 2000, awarding part compensation to the respective claimants, holding the appellant -
Union of India jointly and severally liable, with the Rickshaw Driver/owner.
2. On 18.11.2008, after hearing the Counsel for the appellant, this Court directed notices before admission returnable on 16.12.2008, indicating that admission the stage.
appeals are likely to be disposed
Record and proceedings was
of
called
at
for. Print was dispensed with. There was interim
stay to the judgment under challenge.
. It is in this situation, after relentless efforts, presence of respondent no.2, Sk.Elias, the owner of the vehicle was procured. As the claimants are served, respective Counsels accept that the matter is to be decided at admission stage itself.
. Civil Applications were made on behalf of respondent no.2, the Rickshaw owner for producing additional evidence, it was allowed. These documents are R.T.O. particulars issued on 2.7.2008 and the judgment in criminal prosecution being Summary Criminal Case No.799/1997, decided on 20th Jan.,2004, against Hamid Jalalkhan Pathan, Rickshaw Driver, under ::: Downloaded on - 09/06/2013 14:32:54 ::: (7) Sections 279, 304-A of IPC.
3. In a tragic accident dt.12.5.1997, where the Rickshaw Driver of MH-26-6877 ferried six passengers, attempting to cross Railway Gate No.119, situated at KM 264/11-12 on Ghatnandur-Parlivaijnath, collided with Hyderabad Parali bound Railway. Six occupants in the said Auto Rickshaw expired. FIR, vide Crime No.66/1997, was registered against the Auto Rickshaw Driver at Parali.
4. The owner of the rickshaw, was original respondent no.1, while through General Manager, Railways, was respondent no.2 Union of India, in all the proceedings.
5. A common ground was raised by the claimants that the accident was a result of rash and negligent driving of auto rickshaw and the Railway Driver. Before the learned Member of Motor Accident Claims Tribunal, respondent no.1 owner Sk.Elias remained absent.
6. There is no doubt about death of Munjaji s/o Gyanba Lokhande, Baban s/o Munjaji Lokhande, Dropadabai w/o Bharat Maske, Balu @ Rahul s/o Bharat Maske (Kedare), Kalubai Shriram Pawar and Vishwanath Vaijnath Mogale, passegers in Auto rickshaw.
::: Downloaded on - 09/06/2013 14:32:54 ::: (8)7. The main plank of submission from the Counsel for the appellant was to the jurisdiction of learned Member to entertain the claim petitions against Railways as, according to him, in view of definition of Motor Vehicle provided in Section 2(28) of the Motor Vehicles Act, the Railway is excluded.
The second aspect urged was, the unmanned level crossing gate is located on a high bank, which is equipped with all necessary precautions, with warning board, speed breakers, whistle boards, of which care should have been taken by the Rickshaw Driver. In support of such contention, the affidavit of Railway Officer not was properly tendered and that the learned Judge consider the affidavit relating to did the situation at the site.
8. The position of law is enumerated in the matter of Union of India V. United India Insurance Co. Ltd. and others ( AIR 1998 SUPREME COURT 640) and more specifically, in the matter of Union of India Vs. Bhagwatiprasad ( AIR 2002 SUPREME COURT 1301).
1301) In the matter of Union of India ( AIR 1998 SUPREME COURT 640), in paragraph nos. 41 and 42, the Hon'ble Lordships have observed as under:
"41. Further, Section 110-E of the Act provides for recovery of the compensation "
from any persons" 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 S.110-B. Obviously, the words from any person are referable to persons other than the driver/owner or insurer of the motor vehicle.
::: Downloaded on - 09/06/2013 14:32:54 ::: (9)42. 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 composite negligence or are joint tort feasors, and if arising out of use of the motor vehicle. We hold that the Tribunal and the High Court were right in holding 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.CJ 33: AIR 1975 Andh Pra 222 took the view that the claims before the Tribunal are restricted to those against the driver, owner and insurer of the motor vehicle and not against the railways. But on facts the decision is correct inasmuch as though 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 the 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 Acc CJ 660: (AIR 1989 Andh Pra 49), though the driver and owner were parties, the ultimate finding was that the driver of the motor vehicle was not negligent and the sole negligence was that of the railway. The case then at that stage comes out of Section 110(1). Here also the conclusion 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., AIR 1974 Gauhati 31, by the Orissa High Court in Orissa RTC Ltd. v. Umakanta Singh, IR 1987 Orissa 110 and the Madras High Court in Union of India v. Kailasan, 1974 Acc CJ 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 and Haryana High ::: Downloaded on - 09/06/2013 14:32:54 ::: (10) Court in Rajpal Singh V. Union of India, 1986 ACC CJ 344: ( AIR 1986 Punj & Har. 239), the Gujrat High Court in Gujrat SRTC v. Union of India, AIR 1988 Gujrat 13, the Kerala High Court in the judgment under appeal and in United India Insurance Co. v. Premkumaran 1988 Acc CJ 597 and the Rajasthan High Court in Union of India v. Dr. Sewak Ram, 1993 Acc. 366 have taken the view that the claim lies before the Tribunal even against another joint tort-feasor connected with the same accident or against whom composite negligence is alleged."
9. In the matter of Union of India ( AIR 2002 SUPREME COURT 1301), 1301) the Hon'ble Lordships of the e Apex Court have held that the crucial expression conferring jurisdiction upon the Claims Tribunal constituted under the Motor Vehicles Act is, "the accident arising ig out of use of motor vehicle" and, therefore, if there has been a collission between the motor vehicle and the Railway train then the persons 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. Once such an application is held to be maintainable and Tribunal entertains such an application, being in course of inquiry, the Tribunal comes to a finding that it is the other joint tort feasor connected with the accident, who was responsible and not the owner or driver of the motor vehicle, then the Tribunal cannot be held to be denuded of its jurisdiction which it had initially.
In other words, in such a case also, the Motor Accidents Claims Tribunal would be entitled to award compensation against other joint tort feasor.
::: Downloaded on - 09/06/2013 14:32:54 ::: (11)10. Learned Counsel for the appellant took me to the judgment of this Court in First Appeal No.953/1989 decided on June 28th, 2004, wherein this Court, applying the definition under Section 2(18) of the Motor Vehicles Act, 1939, observed that the definition excludes vehicles mechanically propelled vehidle adapted for use upon roads coupled with Section 110 of the said Act which indicates nature of the claims which can be adjudicated by the Tribunal established under Motor Vehicles Act, 1939. This view is contrary to what has been discussed by the Apex Court in AIR 2002 S.C. ig 1301 decided on March 7, 2002.
11. Thus, the argument of Counsel for the appellant about lack of jurisdiction to the Tribunal is dispelled.
12. Now comes the question of liability as to the rashness and negligence either on the part of the Railways or on the part of the Rickshaw driver.
This is a matter of evidence which needs to be scanned in proper perspective.
13. The FIR lodged immediately after the accident by Kashinath Sukhdeo Rathod is, indeed, an eye opener. On the fateful day, he was going to Dharvati Tanda from Parali on his motor cycle with pillion rider Ramkishan Bhivaji, when they reached near the Railway crossing, they saw that the Railway ::: Downloaded on - 09/06/2013 14:32:54 ::: (12) was coming from other side, proceeding towards Parali.
At that moment, as per the FIR, he stopped the motor cycle. However, the Rickshaw driver, recklessly, knowing Railway moving on track, took a risk and proceeded ahead, dashed against the running railway.
This part of the FIR, was permissible to be read in evidence in view of the matter, deciding the claims under Section 166 of Motor Vehicles Act. However, the learned Judge did not consider this aspect of the FIR.
However, the learned Judge, has skipped the discussion of the FIR except referring that the Police registered criminal case against the driver of the auto rickshaw only.
which
He
is
proceeds to the situation of
near Parali Railway Station,
Gat No.119,
which is
available for use by general public, it is an unmanned gate, without any guard being provided. The auto rickshaw driver was expected to confirm that the Railway is not coming and thereafter to cross the road. However, according to learned Judge, the railway driver was expected to decrease the speed of the railway at the gate of the road crossing. The learned Judge further observes, "when Railway Department claims that the accident has taken place on account of negligence of auto rickshaw driver, the Railway Department is expected to prove said fact".
In order to prove negligence of auto rickshaw driver, respondent no.2 examined K.Nageshwarrao, Senior Sectional Engineer at Parali Vaijnath and also placed on record copy of the inquiry report. According to the learned Judge, evidence of P.K.Nageshwarrao being ::: Downloaded on - 09/06/2013 14:32:54 ::: (13) not of an eye witness, being stated, based on the information collected by him, cannot be looked into.
14. The learned Judge gave much emphasis to the Railway Driver not stopping the train at the spot of the accident and reaching straight at Parali Railway Station. The disdain by Railway Driver in not communicating the accident to the higher authorities weighed adversely to the learned Judge. However, the learned Judge did not whisper as to how to deal evidence when he pleads as to whether Assistant Driver gave any information to the driver of the train about the arrival giving whistle.
of auto rickshaw on Railway Track and
15. Paragraph 14 of judgment deals to the inquiry report which shows that the driver or the Assistant Driver of the Railway failed to stop the train immediately after the accident despite the knowledge that the auto was hit by the train. The report indicated about the rickshaw dashing against the moving train at unmanned level crossing Gate No.119. It was the accident due to sheer negligence and over confidence on the part of the auto rickshaw driver. The learned Judge did not consider this evidence by brushing it aside on the ground that the Senior Sectional Engineer has not witnessed the accident and the report of Inquiry Committee is short to prove that the driver of the railway was not negligent at the time of accident.
16. It is a matter of record that the ::: Downloaded on - 09/06/2013 14:32:54 ::: (14) railway track at the particular place of the accident is at a high pedestal of around 3.5 meters, referred in Panchnama to be above 50 ft. ground level. At 4 fts. away from the Railway track, protective poles were provided. There is no habitation nearby the railway track, as it is agricultural field. At least for 30 to 35 meters to either side of the railway track is visible for any vehicle coming across the unmanned railway crossing. There was no curve to railway track. It could not be in excessive speed, as Parali was nearby. The unmanned crossing by itself would not be a factor for Railways to be responsible to the accident.
17. The complainant (Kashinath Rathod) driving his motor bike could see the Railway coming from opposite direction, and stopped his vehicle, it was also reasonably and rationally expected of the Rickshaw driver to have stopped his rickshaw, not to have purchased risk in crossing the railway track.
Since Parali Railway Station is at a nearby distance, the railway driver was whistling which was also enough indication for the rickshaw driver to have got himself alert. That apart, the situation at site indicated that there were precautionary boards, speed breakers to check high speed but, inspite of these aspects, the accident has taken place.
18. Thus, the finding recorded by the learned Judge, by applying principles as enunciated in the matter of National Insurance Company Vs. ::: Downloaded on - 09/06/2013 14:32:54 ::: (15) Kamalaprasad and others reported in 2004 ACJ 2154 M.P. High Court, paragraph 13, could not have have been applied to the facts of the present case. There was no material before the learned Judge to establish that the accident has taken place on account of negligence on the part of the driver of the Railway. It is unmistakably established that the accident taking toll of 6 precious lives was the overzealousness of the driver of the auto rickshaw who was rash and negligent and was solely responsible for the accident. It is not a case of composite negligence to be attributed to the Railways or its driver.
19. The contention of Mr.Pathan, Counsel representing the Rickshaw owner that he was not owner at the material time is difficult to digest. He did not adduce any evidence. No eye witness examined by claimants. The rickshaw driver or the rickshaw owner did not feel it essential to appear in the proceedings and allowed the same to complete ex parte.
20. The Counsel for the appellant though argued about the excessive compensation to each of the claimant, I do not wish to advert to the same as the matter, so far as the appellant is concerned, is decided in the above background and there is no challenge to the award from the rickshaw owner.
21. The reference of ownership recorded in SCC No.799/1997 by the learned Judge in his order ::: Downloaded on - 09/06/2013 14:32:54 ::: (16) dt.20th Jan.,2004, in paragraph 13 thereof, will not mean and lead to draw an inference that the vehicle was owned by Sayyad Chand s/o Sayyad Waliuddin as on the date of accident. Said Sayyad Chand making an application to the Court concerned on 3.7.1997 requesting to hand over the seized auto rickshaw on Supurdnama ( undertaking) claiming himself to be owner of the auto rickshaw, annexing therewith xerox copies of the sale letter dt.7.4.1997, xerox copy of tax book dt.4.3.1992 or copy of R.C. Book by itself will not exonerate the respondent Sk. Elias. No such plea was raised before the learned Judge. That apart, the accident sale is ig taken on 12.5.1997 while the letter is dt.7.4.1997 but there is no such entry so called in the R.T.O. records showing such transfer of the vehicle from Sk.Elias Sk.Burhan to said Sayyad Chand Sayyad Waliuddin. The R.T.O. particulars are also short of acceptance of such theory as they are in the name of respondent Sk.Elias.
22. The net result is, though the claimants have established their entitlement for compensation on account of loss of their family members, however, the evidence is short to attribute any responsibility/liability against the Railways. I hold, the accident was due to sheer negligence of the Rickshaw driver. The Railway driver or, for that purpose, the appellant Union of India, cannot be held responsible. Hence order.
::: Downloaded on - 09/06/2013 14:32:54 ::: (17)ORDER . The appeals allowed to the extent of appellant
- Union of India. The order of the learned Additional District Judge and Ex Officio Member of Motor Accident Claims Tribunal, Nanded, under challenge is not disturbed, so far as respondent no.2, the owner of the vehicle Sk.Elias s/o Sk.Burhan. No costs. Stay petitions disposed of.
( K.U.CHANDIWAL, J.) J ) ...
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