Karnataka High Court
A M Chandrashekaraiah vs The Union Of India on 29 November, 2021
Author: B. Veerappa
Bench: B. Veerappa
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF NOVEMBER, 2021
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE Mrs. JUSTICE K.S. HEMALEKHA
MISCELLANEOUS FIRST APPEAL No.5562/2012 (MV)
C/W.
MISCELLANEOUS FIRST APPEAL No.5563/2012 (MV)
IN M.F.A. No.5562/2012 (MV)
BETWEEN:
1. A.M CHANDRASHEKARAIAH
AGED ABOUT 60 YEARS
S/O LATE MARULAIAH
R/AT ARALAGUPPE AND AT POST
TIPTUR TALUK
TUMKUR DISTRICT - 572201.
2. SAROJAMMA
W/O A.M CHANDRASEKHARAIAH
R/AT ARALAGUPPE AND AT POST
TIPTUR TALUK
TUMKUR DISTRICT - 572201.
3. RAGHU KUMAR
AGED ABOUT 28 YEARS
S/O A.M CHANDRASEKHARAIAH
R/AT ARALAGUPPE AND AT POST
TIPTUR TALUK
-2-
TUMKUR DISTRICT - 572201.
...APPELLANTS
(BY SRI PATEL D KAREGOWDA, ADVOCATE)
AND:
1. THE UNION OF INDIA
BY ITS GENERAL MANAGER
SOUTH WESTERN RAILWWAY
PARK TOWN, HUBLI.
2. OFFICER-IN-CHARGE OF
OFFICER ON SPECIAL DUTY
SOUTH WESTERN RAILWAY
MYSORE.
3. DIVISIONAL RAILWAY MANAGER
SOUTH WESTERN RAILWAY
MYSORE.
4. THE ORIENTAL INSURANCE
COMPANY LIMITED
DIVISIONAL OFFICE - 10
II FLOOR, NO.79 (OLD NO.36)
UTTAMAR GANDHI SALAI
CHENNAI - 600034
BY ITS MANAGER.
...RESPONDENTS
(BY SRI V.K NARAYANA SWAMY, ADVOCATE FOR R2 AND R3
BY SRI K SURESH, ADVOCATE FOR R4
R1 IS SERVED UNREPRESENTED)
****
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND
AWARD DATED 07.02.2012 PASSED IN MVC NO.575/2007 ON
THE FILE OF THE SENIOR CIVIL JUDGE, ADDITIONAL MACT,
TIPTUR, DISMISSING THE CLAIM PETITION FOR
COMPENSATION.
-3-
IN M.F.A. No.5563/2012 (MV)
BETWEEN:
SHIVABASAVAIAH
S/O LATE CHANDREGOWDA
AGED ABOUT 68 YEARS
R/AT ARALAGUPPE AND POST
TIPTUR TALUK
TUMKUR DISTRICT - 572201.
...APPELLANT
(BY SRI PATEL D KAREGOWDA, ADVOCATE)
AND:
1. THE UNION OF INDIA
REPRESENTED BY ITS
GENERAL MANAGER
SOUTH WESTERN RAILWWAY
PARK TOWN, HUBLI.
2. OFFICER-IN-CHARGE OF
OFFICER ON SPECIAL DUTY
SOUTH WESTERN RAILWAY
MYSORE.
3. DIVISIONAL RAILWAY MANAGER
SOUTH WESTERN RAILWAY
MYSORE.
4. THE ORIENTAL INSURANCE
COMPANY LIMITED
DIVISIONAL OFFICE - 10 DWARAKA
II FLOOR, NO.79 (OLD NO.36)
UTTAMAR GANDHI SALAI
CHENNAI - 600034.
5. PRATHIBA B.S
W/O LATE ANAND KUMAR
AGED ABOUT 28 YEARS
R/AT ARALAGUPPE AND POST
-4-
TIPTUR TALUK
TUMKUR DISTRICT - 572201.
6. PREM SAGER
S/O LATE ANAND KUMAR
AGED ABOUT 7 YEARS
CLAIMANT 2 IS MINOR
REPRESENTED BY HIS N/G
MOTHER THE 1ST CLAIMANT
R/AT ARALAGUPPE AND POST
TIPTUR TALUK
TUMKUR DISTRICT - 572201.
7. MAHADEVAMMA
W/O SHIVABASAVAIAH
AGED ABOUT 52 YEARS
R/AT ARALAGUPPE AND POST
TIPTUR TALUK
TUMKUR DISTRICT - 572201.
...RESPONDENTS
(BY SRI V.K NARAYANA SWAMY, ADVOCATE FOR R3
BY SRI K SURESH, ADVOCATE FOR R4
R1 , R5 AND R7 ARE SERVED UNREPRESENTED)
****
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND
AWARD DATED 07.02.2012 PASSED IN MVC NO.576/2007 ON
THE FILE OF THE SENIOR CIVIL JUDGE, ADDITIONAL MACT.
TIPTUR,DISMISSING THE CLAIM PETITION FOR
COMPENSATION.
THESE MISCELLANEOUS FIRST APPEALS COMING ON FOR
ADMISSION THIS DAY, B.VEERAPPA J., DELIVERED THE
FOLLOWING:
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JUDGMENT
These appellants are the legal representatives i.e., parents and brother of deceased Madan Kumar and Shivabasavaiah is the son of deceased Chandregowda, filed these two appeals against the common impugned judgment and award dated 07/02/2012, passed in MVC.Nos.575/2007 and 576/2007, on the file of Senior Civil Judge & JMFC, Tiptur, "Tribunal") dismissing the claim petitions.
2. The parties herein are referred to as per their status before the trial Court.
3. It is the case of the claimants before the claims Tribunal that on 31/10/2006, the deceased persons, who were travelling in a goods auto-rickshaw driven by its driver. The accident took place on an unmanned railway crossing at Aralaguppe. The deceased died due to the negligence on the part of the loco pilot of train, thereby they have filed claim petitions seeking compensation. -6-
4. Respondent Nos.1 and 4 remained absent and hence, they have been placed ex parte. Respondent No.3/Divisional Railway Manager, Southern Railways appeared and filed objections denying the allegations made in the claim petitions in toto and further contended that the accident was purely on account of negligence on the part of the auto driver, who was expected to stop the vehicle and see on either side before crossing, which is open and unmanned level crossing. As per Section 131 of the Motor Vehicle Act, 1988 (hereinafter referred to as "the Act" for short), the duty of the driver was to take certain precautions at unguarded railway level crossing. Every driver of a motor vehicle at the approach of any unguarded railway level crossing shall cause the vehicle to stop and river of the vehicle shall cause the conductor or cleaner or attendant or any other person in the vehicle to walk upto the level crossing and ensure that no train or trolley is approaching from either side and then pilot the motor vehicle across such level crossing and where no conductor or cleaner or attendant or any other person is available in -7- the vehicle. It is further contended that the driver of the vehicle shall get down from the vehicle himself to ensure that no train or trolley is approaching from either side before the railway track is crossed. Section 161 of the Indian Railways Act, 1989 states that if any person driving or leading a vehicle is negligent in crossing an unmanned railway level crossing, he shall be punishable with imprisonment which may extend to one year. Thus, requested to dismiss the claim petitions.
5. Based on the aforesaid common pleadings, the Tribunal framed the following issues:
ISSUES IN MVC.NO.575/2007
(i) Whether the petitioner proves that they are the legal heirs of the deceased Madhankumar?
(ii) Whether the petitioner proves that the deceased were succumbed to the injuries sustained in the accident took place on 31.10.2006 was due to rash and negligent driving of Railway Chalukya Express No.1018 by its driver?
(iii) Whether the claimants are entitled to compensation, if so, to what extent and from whom?
(iv) What order or decree? -8- ISSUES IN MVC.NO.576/2007 (i) Whether the petitioner proves that they are the
legal heirs of the deceased Anandkumar?
(ii) Whether the petitioner proves that the deceased were succumbed to the injuries sustained in the accident took place on 31.10.2006 was due to rash and negligent driving of Railway Chalukya Express No.1018 by its driver?
(iii) Whether the claimants are entitled to compensation, if so, to what extent and from whom?
(iv) What order or decree?
6. In order to prove the case, claimant No.1 in MVC.No.575/2007 has been examined as PW.1 and got marked 11 documents Exs.P-1 to P-11 and claimant No.1 in MVC.No.576/2007 has been examined as PW.1 and two other witnesses as PWs.2 and 3 and got marked 9 documents Exs.P-1 to P-9. Respondents have not let-in any evidence.
7. On considering both oral and documentary evidence on record, the Tribunal recorded a finding in both the petitions holding that in view of the provisions of Section 2(28)of the Motor Vehicle Act, the said definition -9- does not include train, thereby the Tribunal dismissed the claim petitions holding that, under the provisions of Section 1(A) of Section 13 of the Railway Claims Tribunal Act, 1987 specifically directs the Railway Tribunal to entertain claims under Sections 124(a) of the Railways Act, 1989 and Section 5 debars any other Courts or authorities to entertain the claim falls within the purview of Section 13(1) and 1(a)of the said Act. Therefore, the Tribunal opined that except the claims Tribunal specially constituted by the railways is the only authorities which can entertain the dispute relating to compensation where the negligence on the part of the railway is established, thereby dismissed the claim petitions. Hence, the present appeals are filed.
8. We have heard learned counsel for the parties.
9. Sri Patel D.Karegowda, learned counsel for the appellants contended that the claims Tribunal erred in dismissing the claim petitions holding that under the provisions of the Motor Vehicles Act, has no jurisdiction to try and dispose of the claim petition on merits and further
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erred in holding that the Claims Tribunal under the provisions of the Railways Act has got jurisdiction giving liberty to the appellants to file fresh petition before the appropriate authority. He would further contend that the Claims Tribunal has failed to notice and appreciate that the accident took place on account of collusion of train and auto and that too in an unmanned railway crossing at Aralaguppe, which is open and unmanned level crossing, which is situated on either side of the crossing as curve like structure on, thereby the accident occurred and in the accident, four persons have died on the spot and out of which, the present two appeals are filed by the legal representatives of two deceased persons.
10. It is further contended that in respect of other two legal representatives in MVC.Nos.346/2007 and 347/2007, the Tribunal allowed both the petitions in part vide judgments and awards dated 30/11/2010 and 14/01/2011 and awarded compensation of Rs.3,70,600/- and Rs.3,54,000/- respectively with interest at the rate of
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6% per annum from the date of petition till the date of deposit or payment and respondent Nos.1 to 4 i.e., the Union of India; Officer in-charge of Officer on Special Duty, South-Western Railway, Mysore; the Divisional Railway Manager, South Western Railway and the Oriental Insurance Company Limited were held jointly and severally liable to pay the compensation as awarded by the Tribunal within 30 days from the date of the said order.
11. Against the judgment and award dated 30/11/2010, passed by the Senior Civil Judge & JMFC, in MVC.No.346/2007, the Union of India; Officer in-charge of Officer on Special Duty, South-Western Railway, Mysore; the Divisional Railway Manager, South Western Railway and the Oriental Insurance Company Limited, preferred MFA.No.11802/2012. Learned single Judge of this Court on considering the case on merits including the contention raised by the learned counsel for the railways that the Claims Tribunal has no jurisdiction in view of the provisions of Section 2(28) of the M.V. Act, vide order dated
- 12 -
21/04/2016 dismissed the appeal filed by the Railways. The said order has reached finality. Therefore, he submits that that this Court held that the Claims Tribunal has jurisdiction to interfere with the said order passed by the learned single Judge. Admittedly, the Railways has not challenged the order passed by this Court in MFA.No.11802/2012 dated 21/04/2016.
12. Per contra, Sri V.K.NarayanaSwamy, learned counsel for respondent Nos.2 and 3 and Sri K.Suresh, learned counsel for respondent No.4 sought to justify the impugned judgment and award passed by the Tribunal dismissing the claim petition and contended that in view of the provisions of Section 2(28) of the MV Act, the said definition does not include the train. Therefore, the Tribunal is justified in dismissing the claim petition.
13. Both the learned counsel have not disputed the fact that in MVC.Nos.346/2007 and 347/2007, the very Senior Civil Judge at Turuvekere, arising out of the same accident, where four persons died, in respect of the
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claimant/Shankaramma and Kalpana, vide judgments and awards dated 30/11/2010 and 14/01/2011 awarded compensation to the legal representatives of the deceased to an extent of Rs.3,70,600/- and Rs.3,54,000/- respectively with interest at 6% per annum. Against the said order judgment and award passed by the Tribunal, an appeal came to be filed by the Union of India in MFA.No.11801/2012 and this Court dismissed the appeal by holding that the award passed by the Tribunal has reached finality.
14. In view of the rival contentions urged by the learned counsel for the parties, the only point that arises for our consideration is:
"Whether the Tribunal is justified in dismissing the claim petitions filed by the claimants in MVC.Nos.575/2007 and 576/2007 in view of the provisions of Section 2(28) of the Motor Vehicles Act in the facts and circumstances of the present case?
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15. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record carefully.
16. It is an undisputed fact that on 31/10/2006, the deceased, claimants' father and four others were travelling in a goods auto rickshaw driven by its driver. The accident took place on an unmanned railway crossing at Aralaguppe and the four persons died on the spot and the legal representatives of two persons filed MVC.Nos.575/2007 and 576/2007 wherein the Tribunal dismissed the claim petitions. The other legal representatives filed MVC.Nos.346/2007 and 347/2007 before the learned Senior Civil Judge, Turuvekere, wherein the learned trial Judge allowed the claim petitions and awarded a sum of Rs.3,70,600/- and Rs.3,54,000/- respectively with interest at 6% per annum and said orders were confirmed by this Court in MFA.No.11802/2012 and the same reached finality. Learned Civil Judge, while relying upon the provisions of
- 15 -
Section 2(28) of the MV Act and the provisions of Section 124A of the of the Railways Act, learned trial Judge proceeded to hold that except the claims Tribunal specially constituted by the railways is the only authority which can entertain the dispute relating to compensation where the negligence on the part of the railway is established and proceeded to dismiss the claim petitions. Both oral and documentary evidence as well as the material on record clearly depicts that PW.1 was one of the claimants was examined.
17. The evidence of PWs.1 to 3 and material documents clearly depicts that respondent No.3-Railway Administration alleged that due to the negligence on the part of the driver of the auto rickshaw, the accident has occurred. The appeal records such as, copies of FIR, spot mahazar Exs.P-1 and P-3 and Exs.2, 4 and 5 are the statement before police, railway report and IMV report which clearly depict that the loco pilot of the locomotive has attributed negligence on the part of the auto driver.
- 16 -
The Tribunal proceeded to ignore the provisions under Chapter XIII of the Railway Act provides liability of railway administration for death and injury to passengers due to accidents. The 'passenger' is defined in Section 2(29) of to mean 'a person traveling with a valid pass or ticket', while Section 124 deals with 'extent of liability' entitling a passenger who is injured or has suffered a loss to maintain an action and recover damages in respect thereof, from the railway administration. The provisions of Section 124A provides for compensation on account of untoward incident whence, the injured or the dependant of a passenger who is killed, to maintain an action and recover damages from the railway administration and for that purpose, 'passenger' includes, a railway servant on duty and a person who has purchased a valid ticket for traveling by a train carrying passengers on any date or a valid platform ticket and becomes a victim of an untoward incident. A conjoint reading of Sections 123 and 124A depicts that claims for damages could be made by a passenger traveling in the locomotive or on the platform holding a
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platform ticket, being a victim of an untoward accident, before the Railway Claims Tribunal as contemplated under Section 125 of the said Act circumscribing its jurisdiction.
18. In the light of the aforesaid provisions, it is clear that the adjudication of a dispute by the Railway Claims Tribunal is in respect of the railway administration for death or injury of the passengers due to an accident, in other words, the passengers who were on the train who held valid tickets or those who were on a platform holding valid platform tickets and not third parties.
19. The facts of this case is that the insurer of the auto rickshaw though alleged negligence of its driver and that the said motor vehicle was a goods auto not permitted to carry passengers, nevertheless, in the absence of any material that constituted evidence, the Motor Accident Claims Tribunal has jurisdiction to entertain the claim petitions. Even otherwise, there cannot be fiction of the deceased passenger sharing control of the operation of the auto-rickshaw, nor the driver is an agent of the passenger,
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or can be passenger be treated as a backseat driver. When the loco pilot of the locomotive held guilty of actionable negligence, cannot be permitted to plead contributory negligence on the part of the deceased, the passenger of the auto-rickshaw and that the driver of the auto-rickshaw and that of the railway locomotive being joint tortfeasors, the MACT was justified in fastening the liability, jointly and severally on both the appellant and the insurer of the auto-rickshaw to pay the compensation
20. The fact remains that the spot of the accident is an unmanned level crossing of the railways. Hence, the railway's duty of care of common law based on the principle of 'neighbourhood' as stated by the privy council in the case of Commissioner for Railways vs. Mc.Dermott [(1966)2 All ER. 162 PC] and laid down in Donoghue vs. Stevenson [1932 AC 562] as extracted in case of Union of India supra is squarely applicable to the facts of this case. The Hon'ble Supreme Court on considering the provisions of Section 168 of the Motor
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Vehicles Act has held as under in paragraph Nos.13 and 21 in the case of Union of India vs. United India Insurance company and others [1998 SC 640]:
"13. In Donoghue v. Stevenson (1932) AC 562 a manufacturer was held liable to the ultimate consumer at common law on the principle of duty to care. Lord Atkin said "you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. He asked: "who, then, in law is my neighbour? The answer seems to be, persons who are closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question".
The test of breach of common law duty is again the test of a reasonable or prudent person in the particular fact situation. Of course the amount of care, skill, diligence or the like, varying according to the circumstances of the particular case. The standard of foresight is again that of a reasonable person. Such a person is also expected to take into account common negligence in human behaviour. Of course, he need not anticipate folly in all its forms (London Passenger Transport Board Vs. Upson, (1949) A.C. 155 (HL). That if there is omission to exercise such a common law duty of
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care, an action at common law can be filed for non- feasance is also clear from a judgment of this Court in Jay Laxmi Salt Works (P) Ltd. vs. State of Gujarat, (1994) 4 SCC 1. In our view, therefore, because the Railways are involved in what is recognised as dangerous or perilous operations, they are at common law, to take reasonable and necessary care on the 'neighbourhood' principle - even if the provisions in Section 13(c) and (d) of the Railways Act, 1890 are not attracted for want of requisition by the Central Government.
x x x
21. For the aforesaid reasons, no case is made but by the appellant for disturbing the finding of the High Court that applying common law principles, the Railway must also be deemed to be negligent is not converting the unmanned level crossing into a manner one with gate,-having regard to the volume of rail and road traffic at this point.
Point 4: Point is whether omission to perform public law statutory duties can or cannot give rise to actions at private law and if they cannot, ordinarily, - whether there are any exceptions?"
21. The Hon'ble Supreme Court, while considering the provisions of Sections 110 and 110A of the Motor Vehicles Act in a Full Bench judgment (consisting of
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three Judges), in the case of Union of India vs.Bhagwati Prasad (Dead) & Ors. [AIR 2002 SC 1301], in paragraph No.3 held as under:
"3. On account of the rapid development of road transport and increase in number of Motor Vehicles on the road the incidence of road accidents by Motor Vehicles having increased enormously the Motor Vehicles Act enacted by the Parliament was amended and the provisions were inserted for payment of compensation in certain cases of accidents without proof or fault or negligence on the part of the driver of the vehicle. The claim for compensation in respect of the accidents involving death or bodily injury to persons arising out of the use of Motor Vehicles as well as the insurance of the Motor Vehicles against the third party risk and the liability of the insurer are contained in Chapter VIII of the Motor Vehicles Act. The State Government has been empowered under Section 110(1) of the Act to constitute one or more Motor Vehicles Accidents Claim Tribunals by notification in the Official Gazette. Section 110-A provides for filing an application for compensation and Section 110-B is the power of the Claims Tribunal to pass an award on receiving an application for compensation made under sub-section (A) of Section 110. The procedure and powers of the
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Claims Tribunal are enumerated in Section 110-C of the Act. It is not necessary for adjudicating the point in issue to examine and notice any other provision of the Act. In the case of Union of India vs. United India Insurance Company (supra) applications for compensation had been filed either by the injured passengers or the dependant of the deceased passengers travelling in the ill-fated Motor Vehicle both against the insurer of the Motor Vehicle as well as against the Railway Administration and one of the contention which had been raised before this Court by the Railway Administration was whether a claim for compensation would at all be maintainable before the Tribunal against other persons or agencies which are held to be guilty of composite negligence or are joint tortfeasors, and if the same arose out of the use of the Motor Vehicle. On consideration of different provisions of the Motor Vehicles Act this Court ultimately came to hold that, "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 tortfeasors, 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." The Court also came to hold that the
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views expressed by Gauhati, Orissa, and Madras High Courts to the effect that no award can be passed against others except the owner/driver or insurer of the motor vehicle are not correct, and on the other hand the view taken by the Allahabad, Punjab and Haryana, Gujarat, Kerala and Rajasthan High Courts to the effect that the claim lies before the Tribunal even against another joint tortfeasor connected with the same accident or against whom composite negligence is alleged. We are in respectful agreement with the aforesaid conclusion of the Court in the aforesaid case. Having said so it was further held that 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 other parties/agencies then on that finding the claim would go out of Section 110 of the Act because the case would become exclusive negligence of Railways and 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. It is this observation of the Court in the aforesaid case which is strongly relied upon by Mrs. Indira Sawhne, the learned counsel appearing for the Railway Administration and it is this observation with which the two learned Judges hearing the appeal did not prima facie agree with
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for which the reference has been made to this larger Bench. The question that arises for consideration, therefore, is whether an application filed before a Claims Tribunal for compensation in respect of accidents involving the death or bodily injury to persons arising out of the use of Motor Vehicle and the claim is made both against the insurer, owner and driver of the motor vehicle as well as the other joint tortfeasors, if a finding on hearing is reached that it is solely the negligence of the joint tortfeasor and not the driver of the Motor Vehicle then would the Tribunal loose the jurisdiction to award compensation against the joint tortfeasor. It is not disputed, and as has been already held by this court in the case of Union of India vs. United India Insurance Co. Ltd.(supra) that a claim for compensation on account of the accident arising out of the use of Motor Vehicle could be filed before a Tribunal constituted under the Motor Vehicles Act not only against the owner or insurer of the Motor Vehicle but also against another joint tortfeasor connected with the accident or against whom composite negligence is alleged. A combined reading of Sections 110, 110- A, which deal with the Constitution of one or more Motor Accidents Claims Tribunal and application for compensation arising out of an accident, as specified in sub-section (1) of Section 110 unequivocally indicates that Claims Tribunal would
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have the jurisdiction to entertain application for compensation both by the persons injured or legal representatives of the deceased when the accident arose out of the use of Motor Vehicle. The crucial expression conferring jurisdiction upon the Claims Tribunal constituted under the Motor Vehicles Act is the accident arising out of use of Motor Vehicle, and therefore, if there has been a collision between the Motor Vehicle and Railway train then all those persons injured or died 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 the Tribunal entertains such an application, if in course of enquiry the Tribunal comes to a finding that it is the other joint tortfeasor 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 Vehicle Claims Tribunal would be entitled to award compensation against the other joint tortfeasor, and in the case in hand, it would be fully justified to award compensation against the Railway Administration if ultimately it is held that it was the sole negligence on the part of the Railway Administration. To denude the Tribunal of its jurisdiction on a finding that the driver of the
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Motor Vehicle was not negligent, would cause undue hardship to every claimant and we see no justification to interpret the provisions of the Act in that manner. The jurisdiction of the Tribunal to entertain application for compensation flows from the provisions contained in Section 110-A read with sub-section (1) of Section 110. Once the jurisdiction is invoked and is exercised the said jurisdiction cannot be divested of on any subsequent finding about the negligence of the tortfeasor concerned. It would be immaterial if the finding is arrived at that it is only other joint tortfeasor who was negligent in causing accident and not the driver of the Motor Vehicle. In our considered opinion the jurisdiction of the Tribunal to entertain application for claim of compensation in respect of an accident arising out of the use of Motor Vehicle depends essentially on the fact whether there had been any use of Motor Vehicle and once that is established the Tribunal's jurisdiction cannot be held to be ousted on a finding being arrived at a later point of time that it is the negligence of the other joint tortfeasor and not the negligence of the Motor Vehicle in question. We are therefore, of the considered opinion that the conclusion of the Court in the case of Union of India vs. United India Insurance Co. Ltd. (supra) to the effect "It is ultimately found that there is no negligence on the part of the driver of the vehicle
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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 go out of Section 110(1) of the Act because the case would then become one of the 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" is not correct in law and to that extent the aforesaid decision must be held to have not been correctly decided."
22. For the reasons stated above, the question raised in the present appeal is answered in the negative holding that the Tribunal is not justified in dismissing the claim petitions in view of the provisions of Section 2(28) of the Motor Vehicles Act.
23. Hence, we pass the following:
ORDER The appeals are hereby allowed and the impugned judgment and award dated 07/02/2012, passed by the Tribunal in MVC.Nos.575/2007 and 576/2007 are hereby
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set aside holding that the claim petitions filed by the legal representatives of the deceased under the provisions of Section 166 of the Motor Vehicles Act are maintainable. Hence, the matters require reconsideration.
The appeals are remanded for reconsideration afresh by the Motor Accident Claims Tribunal and pass appropriate orders on merits of the case after giving proper opportunity to both the parties and in accordance with law.
Sd/-
JUDGE Sd/-
JUDGE S*